Barren Circuit Court

Questions Presented: Appellate Procedure. Children as Indispensable Parties in an Appeal from a Termination of Parental Rights. Notice to the Guardian Ad Litem. The issue is whether children are indispensable parties on appeal in a termination of parental rights case or whether notice to the guardian ad litem is sufficient to protect the children’s interest on appeal.

The issue in this case is whether there is substantial compliance with CR 73.03, which requires that a notice of appeal specify by name all appellants and appellees, where, although the children of the termination of parental rights case were not named as parties, the guardian ad litem received adequate notice of the appeal. The Supreme Court of Kentucky held that service of the notice of appeal upon a child’s guardian ad litem is sufficient to provide adequate notice to the child and to confer jurisdiction over that child to an appellate court. 73.02 only requires dismissal of an appeal if a party fails to timely file a notice of appeal, cross-appeal, or motion for discretionary review. Failure to comply with other rules relating to appeals or motions for discretionary review permit other sanctions up to and including dismissal of the appeal. The sanction imposed should bear some resemblance to the seriousness of the defect. Dismissal is not a proper remedy when no substantial harm or prejudice has resulted from the defect. The statutorily mandated appointment of a guardian ad litem for children at issue in a termination proceeding sufficiently protects their interests, as long as the guardian ad litem is served with the notice of appeal.

Digested by Nathan R. Hardymon

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Boyd Circuit Court

As part of a dissolution of marriage action, Family Court ordered that the parties’ marital residence be sold and after reduction for the costs associated with the sale of the house, the net proceeds be applied to the parties’ credit card debt or other marital debt and then that the remainder be divided equally between the parties. The parties were subsequently unable to agree on listing and selling the marital residence. Husband moved Family Court to set the conditions for the listing and sale of the marital residence. Family Court ordered Wife to cooperate in the preparation and listing of the marital residence. Subsequently, Family Court ordered the parties to agree on an appraiser to value the marital residence and then for Wife to pay Husband half the appraised value. Husband disputed the appraised value. Family Court eventually set the value of the property, allowed Wife to purchase the property, ordered Wife to place funds in escrow for her to present evidence on payments on marital debt, and ordered Husband to sign a quitclaim deed. Husband appealed, and the Court of Appeals vacated Family Court’s order, concluding that Family Court had no jurisdiction to modify the decree in absence of a CR 60.02 motion, remanding the matter to Family Court with instructions to enforce the decree as entered.

While the appeal was pending, Wife recorded the quitclaim deed and obtained a mortgage from Kentucky Farmers Bank (“KFB”). She used some of the proceeds to pay off the marital credit cards and deposited the remainder into escrow. Following the remand, Husband moved Family Court for the marital residence to be sold by master commissioner, and Wife moved Family Court for a credit for monies paid toward the marital debt and credit representing the remaining proceeds from the mortgage.

KFB was subsequently permitted to intervene in the action to protect its interest in the mortgage. It requested that Family Court conclude that it had a valid mortgage and that its mortgage had priority over all over liens or debts. Family Court concluded that KFB properly relied on the quitclaim deed, concluded that the mortgage was free and clear of any interest by Husband, and directed that any order of sale be subject to the mortgage. Family Court designated this order as final and appealable. Husband objected to the finality language but conceded that KFB’s interest was valid and should have priority. Family Court overruled the finality language objection and ordered that the property be sold by master commissioner.

The property was sold. Husband objected to payment of KFB’s attorney fees from his portion of the sale proceeds and took the position that the mortgage debt and associated attorney fees claimed by KFB were Wife’s nonmarital debt. Family Court directed the pay out of the proceeds, which Husband moved Family Court to reconsider, noting that the prior Court of Appeals opinion directed that only the debts of the parties set out in the decree could be deducted from the sale proceeds. He also argued that the property should be sold subject to KFB’s mortgage indebtedness, objected to payment of KFB’s attorney fees from the sale proceeds, and argued that Family Court improperly credited Wife for payment of a credit card debt which was still outstanding. Family Court denied Husband’s motion and stated that the issues raised were addressed on appeal and upon subsequent order of the court following the Court of Appeal’s direction was not appealed and is now the law of the case. Husband appealed.

Husband argued that KFB should be responsible for the mortgage and charges associated with the litigation. The Kentucky Court of Appeals held that KFB’s intervening complaint invoked Family Court’s jurisdiction for the matters relating to the master commissioner sale, and it acted within its jurisdiction when it addressed KFB’s claims relating to the mortgage. Furthermore, Husband did not appeal from the order concluding that KFB’s mortgage and litigation costs have priority from the sale proceeds. And KFB was entitled to rely on the recorded quitclaim deed, because it had no notice of the pending appeal. The Court of Appeals affirmed Family Court’s orders with respect to the KFB’s claims to the sale proceeds.

Husband argued that Family Court failed to properly allocate the sale proceeds between him and Wife. The Court of Appeals held that Family Court did err in its allocation of the sale proceeds after satisfaction of KFB’s claims. The mortgage was a nonmarital debt since the mortgage was granted after the entry of the decree of dissolution. Wife acted in reasonable reliance upon Family Court’s orders, but Husband had no part in incurring the new debt and he promptly appealed the order permitting Wife to purchase and encumber the property. Family Court was required to strictly construe the adjudications in the decree absent a CR 60.02 motion. Any claims arising between Husband and Wife after the entry of the decree were outside the scope of the remand. Family Court properly credited Wife for payment of marital debts from the mortgage proceeds, as ordered in the decree, but it erred in treating KFB’s mortgage debt as marital debt. Those amounts should be deducted from Wife’s share of the remaining sales proceeds.

Digested by Nathan R. Hardymon

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Livingston Circuit Court

Questions Presented: Child Custody. Issues involve attempted adoptions of two children to terminate their biological father’s rights (without terminating their mother’s parental rights) as well as the applicability and viability of the parental “waiver” decision of Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010).

The issues decided by the Supreme Court of Kentucky in this opinion were: (1) whether a non-stepparent adoption that does not terminate the parental rights of both biological parents is violative of Kentucky’s adoption statutes, and (2) whether the doctrine of “partial waiver” of a biological parent’s superior custodial rights as established in Mullins v. Picklesimer is still viable in light of the federal legalization of same-sex marriage in Obergefell v. Hodges.

In this matter, Family Court terminated unknown fathers’ parental rights, did not terminate Mother’s parental rights, and permitted a non-stepparent to adopt Children. The Supreme Court held that because the adoptions orders did not terminate parental rights of both of the biological parents of Children, they are invalid. KRS 199.520(2) provides that “[u]pon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent.” It is clear that both biological parents’ rights must be terminated, except in the case of a stepparent.

The Supreme Court then held that Mullins v. Picklesimer is still good law post-Obergefell v. Hodges. The Court made it clear that holding in Picklesimer permitting the doctrine of partial waiver of custodial rights was in no way predicated upon the fact that the case involved a same-sex couple. It disagreed with the Court of Appeals that the legalization of same-sex marriage in any way affected the holding in Picklesimer.

Digested by Nathan R. Hardymon

The post Both Parents’ Rights Must Be Terminated Prior to Adoption; Doctrine of Partial Waiver of Custodial Rights Still Good Law Post-Obergefell – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Carter Circuit Court

During a dissolution of marriage action, Husband had a medical malpractice claim pending. Family Court reserved the issue of classification of any award. After the claim was settled, although the settlement did not classify the awards by type, the money from several medical malpractice actions were pooled and divided among the claimants in two phases. Phase 1 compensated the claimants for unnecessary procedures. To determine the amount of compensation, each claimant received various points based on the type(s) of unnecessary procedures that were performed on him. There was no accounting for any medical bills or lost wages, etc. A certain portion of the settlement was set aside to provide additional, Phase 2 compensation to claimants who suffered extraordinary damages not captured in the award for having had the unnecessary procedures. Phase 2 damages included things such as allergic reactions, disability, lost wages, aneurysms, and death. The excess funds not dispersed from the extraordinary injury fund were reallocated proportionally to all claimants. Husband made no claim for the Phase 2 compensation. At a hearing to classify and divide the settlement, Husband’s attorney testified that Husband did not make a claim for Phase 2 compensation, and that all the funds received by Husband were awarded to compensate him for unnecessary procedures he underwent. Family Court concluded that the entirety of the award was Husband’s nonmarital property, as pain and suffering damages are nonmarital property.

The Court of Appeals held that Husband provided sufficient evidence to prove that the funds were nonmarital. Funds received for pain and suffering are nonmarital property. A settlement silent on the type of award is not to be automatically classified as marital property. The burden is on the spouse receiving the settlement to prove it is nonmarital, which Husband did. Family Court did not err in classifying the funds as nonmarital property.

Digested by Nathan R. Hardymon

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Marion Circuit Court

After a hearing and order in a dissolution of marriage action, Husband appealed arguing that Family Court erred in its valuation of the marital items of personal property divided between the parties. The only party who presented testimony regarding the value of the personal property was Wife, which was what Family Court accepted. The Kentucky Court of Appeals held that Family Court did not abuse its discretion in the valuation.

Husband argued that Family Court erred in its division of cash located in the parties’ safe-deposit box. There was conflicting evidence regarding the amount of cash in the safe-deposit box. The Court of Appeals held that it could not find that Family Court erred by finding Wife’s testimony more credible.

Husband argued that Family Court erred in its division of the parties’ joint income tax refund because an equal division was not proper as it was generated from income he solely earned. The Court of Appeals held this was not error. All income earned during the marriage is marital property. A relevant factor in dividing marital property is the contribution of each spouse, including contribution of a spouse as a homemaker. Family Court clearly considered the contribution of Wife as a homemaker and Husband as a wage earner. Husband made the same argument regarding equal division of his retirement accounts without success for the same reasons.

Husband argued that Family Court erred in awarding Wife one-half the equity in the marital residence because he was the sole wage earner. There was conflicting evidence regarding the value of the marital residence, but Family Court ordered that Husband could either pay Wife her interest or sell the marital residence and divide the proceeds equally. The Court of Appeals held that this was not in error.

Digested by Nathan R. Hardymon

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Jefferson Circuit Court

Questions Presented: Interpersonal Protection Orders. KRS 456.030(6). Minors. Capacity. Consideration of whether the jurisdiction of a petition for an interpersonal protection order involving a minor should be in the juvenile division of the district court; also, whether minors have the capacity to represent themselves in the proceeding or whether they may be represented by a parent or legal guardian.

The two issues decided by the Supreme Court of Kentucky in this case were (1) whether the juvenile division of District Court has exclusive jurisdiction over IPO cases involving a minor petitioner and/or respondent; and (2) whether an unrepresented minor that is a petitioner or respondent to an IPO action must be appointed counsel.

The Supreme Court held that the juvenile division of District Court does not have exclusive jurisdiction over IPO cases involving a minor party and that any IPO hearing involving a minor party must be made confidential. KRS 456.030 gives concurrent jurisdiction for IPO cases to the District and Circuit Courts, without exception for cases involving minors. The omission is significant when considering that KRS 456.050 shows that the General Assembly took into consideration that there would be IPO cases involving minors when it made a factor the consideration of whether the parties attend the same school. If the General Assembly wanted to give the juvenile division exclusive jurisdiction, it would have done so. Furthermore, KRS 610.010 giving exclusive jurisdiction to the juvenile division is unconvincing, because IPO cases are not public offenses, which is what is covered by KRS 610.010. However, all IPO hearings involving minors must be made confidential, regardless of whether the case proceeds in District Court or Circuit Court and regardless of whether a confidential hearing is requested by one of the parties.

The Supreme Court held that unrepresented minors to an IPO action must have a GAL appointed to represent them. CR 17.03 requires actions against minors to be defended by the minor’s guardian or committee, and if none are willing to act, the court shall appoint a guardian ad litem. “Guardian” does not mean “parent.” The Court has previously used KRS 387.010’s definition of guardian, which distinguishes between a parent and a guardian. Furthermore, in Rice v. Floyd, 768 S.W.2d 57 (Ky. 1989), the Court stated that “guardian” means a legally appointed guardian. It also notes that an incompetent person cannot be sued and an attorney-in-fact cannot defend an action on behalf of an incompetent. Defense must be completed by a legally appointed guardian or committee. CR 17.03 mandates the appointment of a GAL for an unrepresented minor party to an IPO case.

Digested by Nathan R. Hardymon

The post General Division of District Court Has Jurisdiction to Hear IPO Cases Involving Minors; GAL Must Be Appointed to Represent Minors in IPO Cases – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Franklin Circuit Court

Questions Presented: Family Law. Abuse or Neglect. Admissibility of Hearsay. Consideration of the admissibility of statements of a child victim to a therapist or physician while in treatment, and whether competency of the child victim is a prerequisite to the admissibility of the hearsay statements.

At issue in this case was (1) whether statements of a child to a treating therapist regarding alleged abuse constitute inadmissible hearsay; (2) whether statements of a child to a treating therapist regarding the alleged perpetrator of abuse constitute admissible hearsay; and (3) whether the trial court erred by failing to give more consideration to “no true bills” rendered by grand juries against Father.

The Supreme Court of Kentucky held that, under KRE 803(4), out-of-court statements detailing abuse, behavior, and feelings to a treating therapist that are essential for diagnosis and treatment are properly admissible. KRE 803(4) provides for the admissibility of “[s]tatements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.” Here, the child and mother described the abuse and behavioral problems which ultimately led to a diagnosis of PTSD for the child and the development of a treatment plan. Under the plain terms of KRE 803(4), the out-of-court statements of the child detailing her abuse, behavior, and feelings were properly admitted.

The Supreme Court held that the identification of an alleged perpetrator of abuse are not properly admissible under KRE 803(4). “[W]e no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical treatment being provided.” Colvard v. Commonwealth, 309 S.W.3d 239, 247 (Ky. 2010) (overruling Edwards v. Commonwealth, 833 S.W.2d 842 (Ky. 1992). Hearsay statements identifying an alleged abuser must meet a two-prong test: (1) the declarant’s motive in making the statement must be consistent with the purpose of promoting treatment; and (2) the content of the statement must be such as is reasonably relied upon by a physician in treatment or diagnosis.

The first prong of this test is premised on the notion that a declarant seeking treatment has a selfish motive to be truthful because the effectiveness of medical treatment depends upon the accuracy of the information provided. Here, the child was only 4 when giving the account of what happened. The record is devoid of any evidence that it was the child who identified the father as her abuser for the selfish motive of giving a truthful account for the purpose of promoting treatment.

Regarding the second prong, Colvard  stated that “[W]e failed to recognize that it is the patient’s desire for treatment, not the doctor’s duty to treat, that gives credibility to the patient’s out-of-court statement.” Identification of the perpetrator is not necessary for treatment.

Charges of rape and abuse were brought on three occasions against the father. Each time, the grand jury returned a no true bill. Although admitted, the trial court gave very little weight to the no true bills. The father contended that they should have been given more weight by the trial court. The Supreme Court held that the determination of the weight and credibility of the evidence is within the trial court’s discretion, reviewed for an abuse of discretion. The trial court gave the weight it saw fit because the trial court could not be made aware of what had transpired at the grand jury proceedings. The trial court did not abuse its discretion.

Digested by Nathan R. Hardymon

The post Hearsay Statements Detailing Abuse, Behavior, and Feelings to a Treating Therapist that Are Essential for Diagnosis and Treatment Are Properly Admissible; Hearsay Statements Regarding the Identity of the Perpetrator May Be Admissible – Published Opinion from Supreme Court of Ky. appeared first on Goldberg Simpson - Family Law Group.

Warren Circuit Court

Questions Presented: Domestic Violence. Protective Orders. Findings of Fact. Trial court made sufficient findings of fact in support of a domestic violence protective order where the judge made findings in writing on the order form and explicitly incorporated their clear oral factual findings.

After a hearing in a domestic violence proceeding, Family Court made oral factual findings and legal conclusions on the record. Concurrently, Family Court completed AOC Form 275.3, Order of Protection. It also completed a pre-typed Findings of Fact and Conclusions of Law form that it had made itself, which included blank spaces for the judge to write in the case number, parties’ names, and the date of the hearing. On the AOC form, under “Additional Findings,” Family Court checked a box indicating it also found “[f]or the Petitioner against the Respondent in that it was established, by a preponderance of the evidence, that an act(s) of sexual assault has occurred and may again occur.” The pre-typed form stated, in full:

“The matter came before the Court on May 19, 2020 for a hearing on Petitioner’s Petition for a Domestic Violence Order. At the conclusion of the hearing, the Court announced its findings of fact and conclusions of law, which form the factual and legal basis of the Court’s Order. Accordingly, IT IS HEREBY ORDERED that the findings of fact and conclusions of law announced on the record as set forth hereinabove are expressly and specifically incorporated by reference herein as if written in full. Boone v. Boone, 463 S.W.3d 767, 768 (Ky. App. 2015); Kindred Nursing Centers, Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. App. 2010). The Court shall set forth its decision in a separately entered Domestic Violence Order.”

The Court of Appeals held this did not meet the mandates of CR 52.01 requiring a trial court to make written factual findings. The Supreme Court disagreed. CR 52.01 requires the trial court to finds the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Previously, the Court of Appeals has held that findings of fact and conclusions of law must be specifically incorporated into a written and properly entered order. Here, Family Court  made findings of fact and conclusions of law orally at the end of the hearing. It also fully and accurately completed AOC Form 275.3, finding, by a preponderance of the evidence, that acts of sexual abuse had occurred and may occur again. Finally, it entered a written order expressly and specifically incorporating its oral findings and conclusions into the written order. This was sufficient to engage in at least a good faith effort at fact-finding and that the found founds be included in a written order. The only “essential facts” the trial court is required to find are (1) whether an act of domestic violence and abuse, dating violence and abuse, stalking, or sexual assault has occurred, and (2) whether it may occur again. Family Court made both of these findings in writing on AOC Form 275.3. Any additional factual findings the trial court makes in issuing a protective order are merely supporting those ultimate factual findings and are not “essential.”

Digested by Nathan R. Hardymon

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Hardin Circuit Court

Grandmother moved to intervene in custody action between Mother and Father, requesting to be considered Child’s de facto custodian and be awarded custody of child. At the hearing on the matter, Grandmother introduced evidence that she provided the majority of care and support of Child with her in Kentucky. However, the evidence showed that Mother sought medical or dental care for Child when needed when Child stayed with her in West Virginia, although she admitted to not having been involved in Child’s medical or dental care in Kentucky. Furthermore, Mother testified that she provided support to Grandmother for the child, although she did not do so through the child support office. Family Court found Grandmother to be a de facto custodian and granted Grandmother and Mother joint custody of Child. Mother appealed.

The Court of appeals held that Grandmother was not Child’s de facto custodian. Parenting a child alongside a parent does not meet the definition of de facto custodian. Mother continued to exercise her parenting time, make decisions for Child during her parenting time, and provided for Child. Grandmother parented alongside Mother, and although Grandmother did generously provide care and financial support to Child, Mother did not allow Grandmother to stand in her place as Child’s mother nor did she abdicate her role as primary caregiver and financial supporter.

Digested by Nathan R. Hardymon

The post Grandmother Was Not a De Facto Custodian Where Mother Parented and Provided for Child in Conjunction with Grandmother – Published Opinion from Ky. Court of Appeals appeared first on Goldberg Simpson - Family Law Group.

Spencer Circuit Court

After the Cabinet for Health and Family Services (“the Cabinet”) petitioned to terminate Mother’s parental rights, Family Court held a hearing, ultimately terminating Mother’s parental rights. Mother appealed.

The Court of Appeals held that there was no clear and convincing evidence that the children were abused or neglected. The petition was based on a single incident of the children being exposed to drug use in a shed occupied by Maternal Grandmother in which Mother was allegedly involved. There was no evidence that Mother failed to attend to the children’s need or subjected them to abuse. Although she stipulated to neglect based on initial positive drug screens, she submitted to more than 50 drug screens throughout the matter, almost all of which were negative. Furthermore, an assessment from Centerstone stated that she did not meet the criteria for substance use diagnosis or treatment.

The Court of Appeals also held that the Cabinet failed to provide reasonable efforts to reunite the family. Her case plan requirements did not allow Mother to have any reasonable prospect of satisfactory completion given her circumstances. Mother was determined to be indigent, then was required to refrain from using illegal substances, call for drug screen protocol outside her home county at her expense, attend supervised visitation at $50 per visit, participate in substance misuse and mental health assessments, complete a parenting class, obtain stability by having appropriate employment, housing, and transportation, and pay child support based upon imputed income. Mother made significant efforts, including submitting to more than 50 drug screens at a total cost to her of $1,675.00; completing the required assessments at Centerstone; paying, as she was able due to indigency and unemployment, child support and providing clothes and gifts for the children at the supervised visitations; paying $50 per supervised visit to exercise her limited opportunity to visit her children at a facility located outside her home county; ensuring that Maternal Grandmother, whom the Cabinet identified as the source of Mother’s drug problem, no longer resided at the home and eliminating all contact with Maternal Grandmother; and attempting to obtain a driver’s license. The actions did not evince a settled purpose to forego all parental duties and relinquish all parental claims to the children. Mother made reasonable efforts to reunify her family, but the case plan put unreasonable obstacles in her way.

Finally, the Court of Appeals held that Mother was deprived of due process where Family Court could not hear or understand her in a Zoom hearing. The Court of Appeals reversed Family Court’s judgment terminating Mother’s parental rights with instructions to dismiss the Cabinet’s petition.

Digested by Nathan R. Hardymon

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