Clark Circuit Court

In 2016, a child was born to mother K.S. Prior to the child’s birth, K.S. had an intimate relationship with B.N.T., a married man and, at the time, Clark County Attorney. Based on the timing of their relationship, B.N.T. wished to establish paternity of the child. Utilizing the Montgomery County Attorney to avoid any conflict, the Cabinet for Health and Family Services, ex rel. Child Support Enforcement (the “Cabinet”) filed a paternity complaint concerning B.N.T. and the child. During the investigation, K.S. stated that B.N.T. was not the father of her child, insisting her fiancé was the biological father. The fiancé was never named, nor was genetic testing done to corroborate the claim. Nevertheless, the Clark County Family Court entered an agreed judgment stating that B.N.T. was not the natural father of the child. Four years later, K.S., who was receiving public benefits for the child at that time, filed an application for child support services. Receiving the application, the Cabinet initiated child support and paternity actions against B.N.T. After discovering the oddity of the “non-paternity” agreed judgment, however, the Cabinet filed a motion to set the judgment aside via CR 60.02, alleging fraud. The Clark County Family Court, however, found the motion was untimely under CR 60.02. The Cabinet appealed, and the Court of Appeals affirmed the family court’s findings.

On review, the Court found through the general rules of statutory interpretation, KRS 406.021 grants the family court the jurisdiction to determine paternity – here, the family court only attempted to determine non-paternity­ of B.N.T. The Court stated that such an order lacks “any support from the statute that empowers courts to hearing paternity actions[.]” Likewise, the statute demands that establishing paternity requires information such as the father’s name, social security number, an admission of paternity, and genetic testing. The family court failed to acquire such information in its proceedings. Accordingly, the Court determined the entire judgment lacked subject matter jurisdiction, and rendered it void. Because a voided judgment is a “legal nullity, and a court has no discretion in determining whether it should be set aside”, the analysis of timeliness under CR 60.02 was irrelevant. After stressing the public policy concerns in allowing this “impermissible use of the court system and the services that the Cabinet provides”, the Court reversed and remanded the matter with instruction to resume the proceedings with the underlying judgment rendered void and to conduct genetic testing.

K. Spencer Pierson

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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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Jefferson Circuit Court

Robert Waggoner filed a petition for a Domestic Violence Order (“DVO”) against his ex-wife, Christina, after a dispute at their former marital home occurred. An Emergency Protective Order (“EPO”) was entered and a DVO hearing was set. Preceding the hearing, counsel for both parties discussed a potential settlement agreement that would allow all parties to access the marital home, dismiss the DVO petition, and set the matter for mediation. At the hearing, counsel made the court aware of these settlement discussions, and requested the matter be continued. The family court obliged, and recorded the following on the docket sheet:

“[P]ass 1 wk to 6-29-2021 @ 8:30 a.m. Mutual NUC [no unlawful contact] A.O. [agreed order] to be circulated b/w parties’ counsel/parties on divorce case to get [Christina] back in her house + to allow [Robert] to get tools . . . mediation to occur w/ Vish or Bowles.”

At the next appearance of the parties, Robert’s attorney informed the family court that Robert had changed his mind about proceeding with the agreement, based around Christina’s recent emptying of the parties’ joint bank accounts. Again, the matter was passed, and at the next hearing, Robert explained that he had additional concerns about entering a settlement agreement and dismissing the DVO petition, as Christina had “threatened to kill [him] and burn down the house multiple times[.]” As a result, Robert refused to dismiss the petition. Christina filed a motion to dismiss the DVO and enforce the settlement agreement. The family ultimately denied her motion, explaining that the agreement was not expressly adopted by both attorneys and the record, and thereafter entered a DVO. Christina appealed.

The Court found no exchange on the record that would enforce a contractual agreement. The presentation to the family court by the parties was that the agreement was only ever “a work in progress” with exact terms never being read into the record and “conditional and contingent terms” being used when discussing the agreement. Likewise, while the family court wrote an aforementioned summary of the potential settlement, such writing was insufficient to create a binding agreement. Thus, the family court’s orders denying the motion to dismiss and granting the DVO were affirmed.

K. Spencer Pierson

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Madison Circuit Court

On July 22, 2020, Grandparents of the Child in this matter initiated filed a “Verified Petition for Termination of Parental Rights and Adoption.” After conducting an evidentiary hearing, the family court entered a finding of facts and conclusion of law alongside a “Judgement of Termination of Parental Rights.” The Biological Mother appealed the ruling.

Before addressing the Mother’s arguments, however, the Court felt it necessary to address a “subject of ongoing confusion in this critical area of legal practice.” The Court explained that filing a dual petition for adoption and termination, together, was procedurally improper. While the family court allowed this mistake to move forward, the Court emphasized that it is an “either/or” choice in petitioning for an adoption versus parental termination. Nevertheless, because KRS 199 encompasses KRS 625, the Court determined that the adoption analysis supersedes the termination analysis; thus, the Court would need to ensure that the erroneously allowed “Judgement of Termination of Parental Rights” met all the requirements of an adoption proceeding. Ultimately, the Court found the judgement erroneously named the birth parents, contrary to the instructions in KRS 199, but otherwise met all the other statutory requirements of an adoption.

When looking at the Mother’s substantive arguments, the Court found that the Mother failed to preserve her arguments properly under CR 76.12. Despite the noncompliance, the Court allowed review due to the sensitive nature of the case. The Mother’s arguments, however, were still barred. Generally, the Mother contested that the judgment failed to meet the requirements of KRS 199. The Court, however, after conducting a factor-by-factor analysis, found the family court’s findings adequately supported an adoption without consent. The Mother’s additional arguments, stating the family court’s findings were not supported by clear and convincing evidence and that the adoption was not in the child’s best interests, were nothing more than an attempt to re-argue her initial case. The Court, being satisfied in its review of the record, found the entry of a judgment of adoption substantively satisfied. Accordingly, the Court vacated the judgment, remanding the matter to the family court with two instructions: (1) that it correct its error with respect to erroneously naming the birth parents in its judgment and (2) that it enter a judgment of adoption, and not termination, in accordance with the requirements of KRS 199.520.

K. Spencer Pierson

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Oldham Circuit Court

Wade B. Lewis and Laura R. Fulkerson, after a tumultuous relationship, filed a petition for dissolution of marriage on April 3, 2013. During the process, a key dispute was the gift status of a trust established in 2009, titled the Laura Renee Fulkerson (“LRF”) Trust. While Wade stated the trust was established for estate planning purposes only, Laura argued it was a gift from Wade and that he gave her exclusive control of its contents. The family court barred the trust’s drafting attorney, Ed Lowry, from testifying on the dispute. After hearing testimony from only Wade and Laura, the family court ruled that the LRF Trust was a gift. The final decision was appealed, and the Court determined that the testimony from Lowry would have been crucial for the gift status analysis. Accordingly, the Court vacated that portion of the final ruling and remanded it further proceedings.

On remand, an evidentiary hearing was held for Lowry’s testimony, this time in front of a different judge due to the prior judge’s retirement. Nevertheless, the family court continued to hold the LRF Trust as Laura’s non-marital asset, finding Lowry’s testimony “could not shed light on the actual intent of the parties” at the trust’s creation. Instead, the Court found that Wade’s habit of making financial gifts as a means of reducing difficulties in his marriage, alongside other factors, was substantial evidence that the trust was a gift. Again, Wade appealed, arguing that the family court failed to apply the clear and convincing evidence standard to Laura’s gift claim.

Ultimately, the Court found no error in the family court’s conclusion. While admitting that the matter was a “close call”, the Court heavily emphasized that the there was “no deficit of nuance and complexity” in the family court’s analysis, having gone through two bouts of fact-finding and having two different judges rule in Laura’s favor. Therefore, Wade’s claim of clear error was unfounded, and the family court’s order was affirmed.

K. Spencer Pierson

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Trigg Circuit Court

This matter involves the heavily litigated case of Mark and Jessica Carr. Married in October of 2010, the couple had a son in 2012. In May of 2017, the couple separated. Since then, a the parties have been in a heavily contested custody battle. Jessica believed that it was in the child’s best interest for her to have sole custody, citing Mark’s laissez faire parenting style and alleged inappropriate contact with the child being harmful. Contrarily, Mark requested the parties be awarded joint custody, with him receiving the primary amount of parenting time due to Jessica’s “alienating behavior” during the divorce having detrimental effects on the child. Ultimately, the court determine that joint custody was in the child’s best interest, but the presumption of equal parenting had been rebutted by Jessica, and she was to be made the primary residential parent. Jessica moved for the court to vacate its judgement and for a new trial, or alternatively, for additional testimony to be considered; Mark filed a motion to alter, amend, or vacate the final custody order as well, arguing that the court’s findings did not support the conclusion that the presumption of equal parenting was rebutted. The court upheld its decision in regards to both parties’ protests. Subsequently, Mark appealed the decision, and Jessica cross-appealed.

The Court of Appeals, addressing Jessica’s complaints, affirmed the trial court’s ruling. Jessica’s arguments were numerous, with the Court rejecting many of them based on her improperly preserving them or the arguments being attempts to rescind regrettable trial decisions. Other arguments, such as Jessica’s contention that parental cooperation was a necessary condition for an award of joint custody, were also denied, as the Court found no abuse of discretion in the circuit court’s finding of joint custody despite the parties strained co-parenting relationship. Accordingly, the portion of the final custody order awarding joint custody was affirmed.

Regarding Mark’s appeal, however, the Court found merit. Mark’s claim dealt with the application of the KRS 403.270, recently amended to include a rebuttable presumption that joint custody and equal parenting time is in the child’s best interest. Reviewing the written findings, the Court agreed with Mark that there were no specific findings of fact to explain why the circuit court chose to deviate from the presumption. Instead, the circuit court reversed the proper order of statutory application, performing a best interest analysis before concluding that the presumption for equal parenting time had been rebutted. Viewing the written findings of fact insufficient in providing specifics for the Court of Appeals to review, the portion of the final custody order relating to parenting time was vacated and remanded to the circuit court for further proceedings.

K. Spencer Pierson

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Butler Circuit Court

Child was born in June 2014.  The Mother of the Child, E.B., faced criminal drug charges in 2016. With the Child’s father incarcerated and instability caused by the pending charges, the Mother turned to the Child’s Aunt, F.E., asking if the Child could live with the Aunt for an undefined period of time. The Aunt agreed, and filed a dependency, neglect, and abuse petition on the Child’s behalf, pursuant to KRS 620.070. After a hearing on the matter, where the Mother testified she was unable to provide adequate care for the Child, the Aunt was granted temporary custody of the Child. As the Mother’s situation became more stable, she was granted visitation with the Child, and in 2018, the Child was returned to the Mother’s custody. The order granting the Mother custody, however, also provided the Aunt visitation with the Child every other weekend, which the Mother did not object to at that time. This visitation schedule was adhered to until February 2020, when the Mother filed a motion requesting the family court terminate the Aunt’s visitation rights. The family court granted the Mother’s motion, not considering the merits of the case, but on the basis that the Aunt did not have standing to seek visitation with the Child. The Aunt appealed.

The Court reviewed the matter de novo and determined that the order granting the Aunt visitation rights in 2018 provided her the standing necessary to participate in this matter. By virtue of the order, the Aunt had a substantial interest in the outcome of the Mother’s motion. Additionally, because the Mother did not object to the visitation order at the time it was entered, she effectively waived her rights to contest the Aunt’s statutory standing. Having never been fully adjudicated on the merits, the matter was therefore reversed and remanded to the family court, for it to make specific finding with respect to the best interest factors under KRS 403.320(3).

K. Spencer Pierson

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Warren Circuit Court

This decision concerns the biological Mother of the Child, born in January 2011. The Mother, suffering from substance use disorder, had a criminal history starting in 2009, that had her intermittently imprisoned from then to 2017. First cousin of the Mother, J.E.B., and his wife, D.J.B (Appellees), eventually received permanent custody of Child after Mother’s voluntary granting of guardianship. Mother retained visitation rights at Appellees’ discretion. In April of 2018, Appellees filed a petition to terminate all biological parental rights of the Child and to adopt the Child without the consent of biological parents under KRS 199.502(1). Finding that the Mother had abandoned Child for a period of no less than 90 days during a period of her not being incarcerated, the family court granted the petition under KRS 199.502(1)(a). The Mother appealed the judgement, but the Court of Appeals affirmed, finding clear and convincing evidence of the family court’s finding of abandonment. The Mother subsequently requested review by the Supreme Court of Kentucky, arguing two positions: first, that the family court erred in granting the petition for adoption when the Cabinet of Health and Family Services (“the Cabinet”) did not initiate a proceeding to terminate her parental rights prior to the petition; and second, that the family court’s finding of abandonment was not supported by clear and convincing evidence. The Court granted discretionary review.

As to the first issue, the Court offered a detailed analysis of the intersectionality between KRS Chapter 625, which governs involuntary termination proceedings, and KRS 199, which governs adoptions. While KRS 199.500 demands prior parental termination before consensual adoptions (specifically citing KRS Chapter 625), the Court highlighted that non-consensual adoptions under KRS 199.502 hold no such prerequisite. Noting that the Cabinet is not inherently a required party in KRS 199 adoption matters, the Court found KRS 199.502 was a proper avenue for adoption proceedings initiated by a private party that result in the termination of parental rights. Moving on to the Mother’s second point, the Court found that the family court’s findings were supported by clear and convincing evidence. KRS 199.502(1) allows non-consensual adoption if one of nine conditions exists with respect to the child, with subsection (a) listing “[t]hat the parent has abandoned the child for a period of not less than ninety (90) days.” The family court found that between November 2014 to November 2015, the Mother w failed to have any contact with the Child, despite being out of prison and possessing visitation rights. The Court found the evidence on the record as a whole clearly and convincingly supported the family court’s abandonment finding. Accordingly, the Court affirmed the Court of Appeals decision.

In a thorough dissent, Justice Lambert objected to such a reading of KRS 199.502, deeming it a “constitutional end-run created by a statutory loophole.” Emphasizing the importance of parental rights, Justice Lambert found the majority holding allows a private party to strip a natural parents’ constitutional right away without due process. As a result, the dissent implored that because this case concerned a matter of constitutional construction or interpretation, it should have been reviewed de novo and taken as an opportunity to “recognize and call out statutory gaps and the constitutional deficits.” The majority, addressing these concerns, stated that the dissent failed to identify how those protections allotted to natural parents already are constitutionally deficient. Likewise, the majority recognized that the Mother did not raise any constitutional objections in her request for review, and that the “Court [would] not develop arguments on behalf of the parties.”

K. Spencer Pierson

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Kenton Family Court

This decision focused on D.H. (father) and G.P. (mother), the parents of three children. Dating back to 2008, the Cabinet for Health and Family Services (the “Cabinet”) had been involved in matters relating to both parties based on concerns of substance abuse and domestic violence. Similar incidents continued to arise, with both parents through the years stipulating to substance abuse and neglect of the children. During this time, the children were placed with various relatives, but ultimately entered foster placement in July 2019. In August 2020, the Cabinet filed a petition against both parents to involuntarily terminate their parental rights to each of the children. A bench trial was held on the matter on March 18, 2021, with the family court entering judgments to terminate both parties’ parental rights on June 11, 2021. D.H. appealed the judgements.

The Court of Appeals reviewed the family court’s findings under the lens of “clearly erroneous, “only disturbing said findings if there were “no substantial evidence in the record to support them.” The Court, evaluating KRS 625.090 and the requirements it set for involuntary termination of parental rights, found that the family court entered extensive findings of fact, followed by conclusions of law on each of the mandatory statutory elements. Furthermore, the Court found no error in the family court entering its judgment on the matter nearly two months after the hearing and outside the 30-day time period set out in KRS 625.090(6). The Court found that this time limit did not impose a “jurisdictional barrier for granting termination beyond the time limit” but was merely a means to “expedite permanency for children.” Though the Court did not approve of the delay, it concluded the error was harmless to the family court’s ultimate finding and did not violate D.H.’s substantial rights. Accordingly, the Court affirmed the family court’s decision to terminate the parents’ parental rights.

Digested by K. Spencer Pierson

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Mason Circuit Court

The Mother of two children, K.A.M.R. and K.N.R., filed petitions to involuntarily terminate the parental rights of each respective child’s father. Neither father had been involved in their child’s life for many years. Mother named the Cabinet for Health and Family Services (“the Cabinet”) as a party to the action. The relevant statute, KRS 625.090 specifically requires that the court find by clear and convincing evidence that the Cabinet “has filed a petition with the court pursuant to KRS 620.180” when assessing a petition for the involuntary termination of parental rights. The Cabinet stated no objections to Mother’s request and confirmed it had no prior history with any of the parents. Father of K.AM.R. filed a responsive pleading requesting the dismissal of Mother’s petition (father of K.N.R. never participated in the proceeding). The trial court focused whether the court had jurisdiction “where a parent petitions to terminate the parental rights of another parent when the child was never placed with the Cabinet and when a DNA action was never opened.” Ultimately, the trial court dismissed the action, finding that an essential element of the statute was not met, as the Cabinet had never filed any petition whatsoever for the parents involved. Mother filed a timely appeal.

Mother’s appeal was based on a claim that the disputed statute was unconstitutional, along with a claim that the trial court’s dismissal was based on an inaccurate interpretation of the statute. A failure on the part of the Mother to notify the Attorney General, therefore not complying with KRS 418.075, prevented the Court of Appeals from tackling the former issues; nonetheless, the Court was able to dissect the Mother’s latter claim, eventually concluding that the trial court made no error. Reviewing the trial court’s statutory application de novo, the Court found the statute’s text clear in stating the Cabinet’s petition was a necessary element for an involuntary termination of parental rights. While the Court noted the statute contained “admittedly confusing” portions, they found no legislative history to suggest that, as the Mother argued, the language in KRS 625.090 was adopted by mistake. Accordingly, the Court affirmed the trial court’s judgment.

Alongside the holding, concurring and dissenting opinions were filed. Judge Cetrulo concurred, but in result only. While the plain language of the statute bound the Court to its ultimate finding, the fact the statute created a “scenario where a parent who cared for their child without Cabinet involvement is more restricted in protecting his/her child than a parent who has been subject to Cabinet involvement and support” was illogical enough to raise skepticism as to whether that was truly the General Assembly’s intention. Nevertheless, Judge Cetrulo noted that this appeal was not the appropriate venue to remedy such a conflict.  Judge Jones’, agreeing the trial court’s interpretation of the statute allowed absurd scenarios, dissented. Highlighting the legislative history of KRS 625.090, Judge Jones concluded the intention of the Cabinet petition prong of the statute was supposed to be read in conjunction with KRS 620.180, and should only be required in those cases where “children [have been] committed to the cabinet as dependent, neglected, or abused and placed in foster family homes[.]” Seeing as the child at issue fell under neither of the aforementioned categories, Judge Jones stated that remanding the matter was the proper holding, as the petition was wrongfully dismissed by the trial court.

Digested by K. Spencer Pierson

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