No. 2021-CA-0580-ME

Boyd County Circuit Court

The Cabinet for Health and Family Services (“CHFS”) appealed an order granting custody of a minor child to Grandmother and Uncle of the minor child due to the family members lacking standing to pursue such custody order.  The Kentucky Court of Appeals reversed and remanded the matter with instructions that the custody order issued by the circuit court is voidable, suggesting the family members’ petition for custody be dismissed.

Mother gave birth to twins born addicted to drugs.  Father only visited the twins once in the hospital, where he had an individual take a photo of him with the twins.  Notably, Father did not share this photo with his own mother for more than half a year later.  His mother (Grandmother of twins) shared the photo with Father’s half-brother (Uncle of twins).  CHFS inevitably became involved in the case very early due to the twins’ addiction to drugs and their subsequent month-long stay in the neonatal intensive care unit.  After CHFS quickly transferred the case from Lawrence County to Boyd County, Kentucky, CHFS petitioned the Boyd County District Court for a dependency, neglect, and abuse (“DNA”) action and was awarded emergency custody of the twins.  Both twins were placed with a foster family. 

At the adjudication hearing, the district court found neglect against the parents due to abandonment.  CHFS prepared a dispositional report that the permanency goal was reunification with the biological parents, if feasible.  However, the district court disposition order recommended termination of parental rights and adoption for the twins due to the parents’ abandonment. Importantly, neither Mother nor Father made recommendations to CHFS for suitable family members that may be willing to take temporary custody of the twins during the pendency of these proceedings. 

CHFS was notified by an Ohio child protective services worker that their organization was working with Mother and Father to place another one of their children with Grandmother and Uncle in Michigan.  CHFS was not provided with any contact information for Grandmother and Uncle.  At that time, CHFS conducted a search for relatives of the twins, which was supposed to have been completed at the outset of the case.  This search did not identify Grandmother and Uncle, so they were not contacted regarding the twins.

Shortly thereafter, CHFS initiated a termination of parental rights action against Mother and Father due to their arrests for trafficking fentanyl in Ohio.  Following the parents’ arrests, Grandmother and Uncle began contacting CHFS to pursue custody of the twins. The DNA matter continued as usual with the permanency goal of termination of parental rights, ultimately leading to adoption for the twins by, presumably, the foster family. 

Grandmother and Uncle retained counsel and petitioned the Boyd County Circuit Court for custody of the twins.  The guardian ad litem (“GAL”) for the twins and the parents recommended placement of the twins with Grandmother and Uncle; however, CHFS challenged standing for the custody petition.  The circuit court recommended Grandmother and Uncle’s petition for custody of the twins be granted.  CHFS filed exceptions following this decision.  The circuit court issued written findings imposing its decision that Grandmother and Uncle had standing due to CHFS’ failure to follow protocol, citing sua sponte that there was an equitable estoppel argument that defeats CHFS’ lack-of-standing defense.  Following, the district court, by the circuit court issuing a custody order, struck the DNA cases from the docket.

CHFS appealed the circuit court’s order that Grandmother and Uncle have standing to petition for custody of the twins.

The circuit court primarily utilized a Kentucky Supreme Court case, Baker v. Webb, to support its decision.  The Court of Appeals determined the circuit court incorrectly applied the case to the present facts, noting that “because standing and intervention are two distinct concepts, Baker is distinguishable on its face.”  The Court explained the facts presented in Baker differ from the facts presented in this case due to the timing of the family members’ involvement (i.e., whether there was a present or a past interest).  The Court clarified that Grandmother and Uncle’s “interest under KRS 620.090(2), if it ever existed, lapsed before they filed their petition in circuit court,” and that the parties “were not known to the Cabinet until long after the order of temporary custody was replaced by the order of commitment entered at the dispositional hearing.”  As a result, the Court held that there was not a present interest at hand when Grandmother and Uncle filed their petition for custody of the twins as the twins were not subject to an order of temporary custody under KRS 620.090(1).

As a side, the Court found the circuit court’s sua sponte use of equitable estoppel as a defense to CHFS’ lack-of-standing argument had no basis.  The parties never asserted an equitable estoppel defense, and even if they would have, the Court predicted the parties would not have been successful in their defense.  In support, the Court noted there was not conduct that lends to “misrepresentation or concealment of material facts upon which [Grandmother and Uncle] relied.”  

The Court ultimately held that the Boyd Circuit Court’s order awarding custody of the twins to Grandmother and Uncle be reversed and remanded with instructions to the lower court to dismiss their petition for custody.

Caitlin P. Kidd

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Bullitt Circuit Court

On June 9, 2020, the Cabinet for Health and Family Services (the “Cabinet”) filed petitions for three siblings in the Bullitt County Family Court and opened a Dependency, Neglect, or Abuse (“DNA”) case. The same day, an order was entered, removing the children from the mother’s custody and placing them in emergency custody of the Cabinet. On June 11, an agreement was made between the mother and the Cabinet to place the children with their paternal aunt during this temporary custody period. An adjudication was scheduled for July 16.

On July 1, a Cabinet Social Service Clinician learned that the children’s father, a resident of Florida and, until that point, uninvolved in the DNA case, had taken the children from the aunt and brought them to his new residence in Florida. This was done without approval from the Bullitt County Department of Community Based Services. Five days later, the Cabinet informed the family court of this incident. Police officers in Florida were contacted by the Cabinet, and confirmed via a walkthrough of the father’s residence, that the family was “acting appropriately and responding to the children’s needs.” The children’s guardian ad litem (GAL) filed an emergency motion for the production of the children to the court. An order requiring such was entered, and the children were returned to Kentucky on July 8. Two days later, the GAL filed petitions for each child, alleging the Cabinet neglected or abused the children by not acting quickly enough on the knowledge of their removal from the Commonwealth. The petitions, however, did not seek removal of custody from the Cabinet. In response, the Cabinet filed a motion to dismiss, claiming governmental immunity. The family court denied the Cabinet’s motion. Likewise, the Court of Appeals allowed the petitions to be filed, though noting the “unusual” procedure of having new petitions against the Cabinet when the court still had jurisdiction over the matter via the initial petitions.

The Court granted the Cabinet discretionary review, but bypassed discussion of governmental immunity. Noting that the Court of Appeals acknowledged the oddity of the multiple DNA petitions, the Court went “a step further”, finding that the new DNA petitions against the Cabinet were “procedurally improper in the first instance.”  First, the new petitions did not seek to remove custody from the Cabinet, meaning the GAL requested no relief which the courts could provide. Additionally, the Court found the filing two days after the children were returned to Kentucky rendered the petitions moot. The Court felt that the unnecessary petitions “diverted attention and resources from the central issue of the children’s care and safety”, and any concerns of the GAL should have been addressed in the existing DNA cases. Accordingly, the Court vacated the lower courts’ decisions and remanded for dismissal of the GAL’s DNA petitions.

K. Spencer Pierson

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Campbell Circuit Court

The issue in this case was whether court-appointed guardians ad litem (“G.A.L.”) enjoy absolute quasi-judicial immunity from malpractice claims arising from their role in child custody proceedings. Absolute immunity against suits for money damages has been extended to non-judicial officers performing quasi-judicial duties. Kentucky extends quasi-judicial immunity to those persons performing tasks so integral or intertwined with the judicial process that the persons are considered an arm of the judicial officer who is immune. Where the G.A.L. acts within the scope of duties imposed by law, quasi-judicial immunity is available. G.A.L.s’ functions are to protect the best interests of children, not to advocate for the children’s wishes—the same duty as the trial court. Furthermore, public policy compels the availability of immunity because G.A.L.s should be free from harassment by unfounded litigation which could shade a G.A.L.’s decisions. G.A.L.s are entitled to absolute quasi-judicial immunity.

Digested by Nathan R. Hardymon

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The Kentucky Court of Appeals addressed three appeals stemming from the same Boone Family Court post-dissolution case:

2013-CA-002072-ME

The first appeal filed by Father challenges the court’s subject-matter jurisdiction, custody modification, and child support modification. Father first argues the Kentucky court lacked subject-matter jurisdiction because the Petition was filed in Kentucky before the Montana court determined Kentucky was the more convenient forum. Prior to the current appeal, Father filed a writ of prohibition and the Court of Appeals held Kentucky had subject-matter jurisdiction. As the “law of the case” doctrine provides that a decision of an appellate court applies to any subsequent trial or appeal, even if erroneous, Father’s argument is without merit. The Court of Appeals holds the trial court had subject-matter jurisdiction.

Father goes on to argue the trial court abused its discretion in modifying custody. He first cites Mother’s failure to file two affidavits pursuant to the requirements set forth in KRS 403.350. The Court of Appeals applies the Supreme Court’s ruling in Masters v. Masters holding, “a trial court had authority to rule on a motion for custody modification despite the party’s noncompliance with an affidavit.”  Masters v. Masters, 415 S.W.3d 621, 624 (Ky. 2013).

Father further argues that the trial court abused its discretion by disregarding the custodial evaluation. The Court of Appeals affirms the trial court holding it did not abuse its discretion citing its consideration of all the evidence and finding the custodial evaluation less credible than other evidence presented.

Father also argues the trial court abused its discretion in modifying child support. The Court of Appeals disagrees holding the trial court’s decision was not clearly erroneous in that the trial court’s decision was supported by substantial evidence.

2014-CA-001512-ME

The second appeal filed by the children’s GAL questions the trial court’s authority to overrule the GAL’s objection to testimony from the children’s psychotherapist. KRE 507 governs patient-psychotherapist privilege and grants exceptions to the privilege only when the  mental condition of the patient is at issue. In this case, the testimony was not directly related to the mental health of the children. Traditionally, no exception would apply. However, Kentucky has never held children have an independent right to assert patient-psychotherapist privilege in custody proceedings.

The Court of Appeals holds that a GAL when appointed may either invoke or waive the patient-psychotherapist privilege on behalf of the child stating:

“To allow a parent to waive a privilege held by the child in a custody dispute, over the objections of that child, is not only bad policy, but defeats the purpose of the existence of the privilege. The impropriety of a rule allowing such waiver would be further complicated here by the fact that the parent waiving the privilege was furthering interests which are neutral, if not actually adverse, to those of the children.”

The Court of Appeals reverses the trial court to the extent the testimony from the children’s psychotherapist was admitted.

Notably, the court states this case is distinguishable from Bond v. Bond where the mental health of the children was at issue, but does not clarify when the children’s mental health is of enough significance to rise to the level of one of the exceptions to the privilege found in KRE 507(c). Bond v. Bond, 887 S.W.2d 558 (Ky. App. 1994). The court simply states, “the psychotherapist-patient privilege protects confidential communications from disclosure no matter how relevant they may be to a disputed issue.”

2015-CA-000043-ME

The final appeal addresses issues of contempt. Father argues that the trial court abused its discretion by denying his request for make-up parenting time as a sanction for Mother’s contempt. The Court of Appeals holds the trial court did not abuse its discretion because Father’s motion did not include any language to indicate his request was sought as a sanction, contained multiple motions, and was moot.

Next Father argues the court abused its discretion by denying his motion to modify child support when one of his children turned eighteen. Father’s motion did not include a child support worksheet, income information, or insurance documentation as required by KRS 403.212(6)(a) and FCRPP 9(4). While Father is entitled to a review of child support, the Court of Appeals holds the trial court correctly determined the motion at issue was defective.

Finally, Father argues the trial court abused its discretion by staying Mother’s payment of his attorney fees as a sanction during the appeal. The Court of Appeals holds the prevention of inconsistent rulings is a legitimate reason to stay the enforcement of the sanction and such order was within the trial court’s discretion.

Digested by Elizabeth M. Howell

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Mother lived with her parents (hereinafter “grandparents”), and passed away after treatment for cancer, which mother underwent during dissolution proceedings. Father exercised visitation regularly during the proceedings and mother’s cancer treatment. At the time of the Mother’s death, the Trial Court awarded Grandparents a “status quo ex parte” order to keep Father’s visitation in place. Subsequently, the Trial Court awarded de facto custodian status to Grandparents, gave Grandparents sole custody, and granted Father supervised visitation with his children. The Trial Court did not make findings supporting its Judgement. The Appellate Court vacated and remanded the Trial Court’s Judgement.

First, the Appellate Court holds there is no authority for a “status quo ex parte” order, The Trial Court should have followed the KRS 620.060(3) procedure which provides for an emergency custody order. Second, they hold there were no findings to support the Trial Court’s award of de facto custodianship to Grandparents and reiterate the superior rights of natural parents. The Appellate Court also holds that the dissolution proceedings between Father and Mother tolled the time period required for the grandparents to establish their de facto custodian claim, as custody issues were contested in the divorce proceeding. Finally, the Appellate Court holds the Trial Court did not make the requite findings to award grandparent visitation which must overcome the presumption that a parent acts in the child’s best interest when denying grandparent visitation.

Digested by Elizabeth Howell

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The Circuit Court used the report and investigation of a Guardian Ad Litem (GAL) to make findings a custody modification was appropriate. The Appellate Court applied Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) and held the Circuit Court “erroneously appointed the GAL to represent the child and to conduct an investigation and file a report…” The appellate court emphasized the Supreme Court’s reasoning in Morgan, particularly the ethical and constitutional problems with conflating a Friend of the Court with a GAL. The Appellate Court reversed and remanded the Circuit Court Order modifying parenting custody, as the error was not harmless because the only facts cited in the order were from the GAL’s report.

The post Another Ky custody case reversed where GAL filed a report… Published Opinion from Ky Court of Appeals January 16, 2015 appeared first on Goldberg Simpson - Family Law Group.

Issue

In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court?

Facts

Morgan V. Getter and A.G., A Child

Issue

In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court?

Facts

In 2011, Getter petitioned to modify custody for the parties’ only remaining minor child. The Family Court subsequently appointed a GAL for the minor child. The GAL filed a report based on interviews and a visit to the residence of the custodial parent, Morgan. In the report, the GAL ultimately recommended the minor child be allowed to relocate to Florida and live with Getter.

At the hearing, Morgan requested to cross-examine the GAL about the report favoring Getter. The Family Court denied this request and the hearing progressed. Morgan moved to strike the GAL’s report, and the Court deferred ruling on the motion. Ultimately, the Court gave Getter joint custody with primary physical custody. The minor child relocated to Florida with Getter. Morgan appealed the decision, but during the appellate process the minor child turned eighteen.   

Analysis

Mootness and Public Policy Exception

The Court first looks to the issue of mootness, as the minor child turned eighteen making moot any decision on the child’s custody. The Court formed a public interest exception to the mootness rule, differentiating it from the capable of repetition rule used in prior cases.

The Court sets out a three-prong test for the public interest exception to mootness. “(1) The question presented must be of a public nature; (2) there must be a need for an authoritative determination from the Court for the future guidance of public officers; and (3) there must be a likelihood of future recurrence of the question.”

The Court then holds that the elements of the public interest exception are present in the current case, as (1) the proper role of a GAL is a “substantial question of a public nature;” (2) Family Courts addressing custody would benefit from future guidance; and (3) issues regarding the proper role of GALs are certain to occur in many other cases and will likely evade review, especially when the dispute involves older children.

Proper Role of GALs in Custody Disputes

Due process, as set out in Mathews v. Eldridge, requires a “(1) private interest affected by official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of additional or substitute procedural safeguards; and (3) the Government’s interest additional or substitute procedure would entail.”

In this case, (1) there is a clear liberty interest in the care and custody of a minor child; (2) the Court’s actions significantly altered Morgan’s ability to care for and have custody of the minor child, and (3) the State has no interest in disallowing the testimony of the GAL. Based on this analysis, the Court concludes that Morgan’s due process rights include the right to cross-examine the GAL in the custody proceeding.

The Family Court erred by allowing the report and disallowing a cross-examination of the GAL authoring the report, violating Morgan’s due process rights. The Court held that due process is compromised when attorneys serve as both investigators for the court and attorneys for minors involved in custody disputes.  Because of this inherent conflict, the court holds that a GAL cannot serve as both an investigator for the Court and an attorney for the minor child.

Instead of using a GAL as an investigator, a Family Court may appoint a de facto Friend of the Court (“FOC”) to serve as an investigator under KRS 403.300(1) and FRCPP 6(2)(f). The investigator can file a report, but must be available for cross-examination.  Alternately, a Family Court may appoint a GAL to represent the child under FRCPP 6(2)(e). As a representative of the child, the attorney cannot put her own credibility at issues.

The Court also makes a distinction between an attorney representing the child’s best interest from an attorney representing the child’s express interest. The Court holds a GAL should represent the child’s best interest as children have diminished capacity. An attorney is authorized under SCR 3.130-1.14(b) to reasonably protect a client with diminished capacity. Thus, a GAL may balance the wishes of a child with the child’s best interest.  

Conclusion

Family Courts will need to alter current practices, appointing a de facto FOC to investigate on behalf of the Court and/or appointing a GAL to represent the child. The appointment of both a de facto FOC and GAL are available to the Court, but are not requirements for proceeding in a custody matter. 

 Digested by Elizabeth M. Howell

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Morgan v. Getter, et al. Digest to follow.

The post Groundbreaking Ky Guardian ad Litem Opinion from Ky Supreme Court Yesterday appeared first on Goldberg Simpson - Family Law Group.