U.S. Court of Appeals for the Sixth Circuit

Family Court ordered Mother to pay monthly child support and 32% of childcare expenses to Father. Shortly thereafter, Father filed for contempt due to Mother’s refusal to pay certain child related expenses. Child then incurred certain medical related expenses, for which Father requested reimbursement. Mother filed for bankruptcy. Mother argued that her bankruptcy petition stayed the contempt proceedings against her, but the Family Court found that the stay did not apply because the hearing was related to her domestic support obligations. The Family Court entered a judgment setting Mother’s arrearage, increased Mother’s wage withholdings, and intercepted Mother’s tax refund. The Family Court also found Mother in contempt.

Father filed another contempt motion with the family court for Mother’s failure to pay the child related medical expense. In response,  Mother filed a Motion in Bankruptcy Court, arguing Father violated the automatic stay. The Bankruptcy court found that Father violated the automatic stay and awarded Mother $4,313.75 in attorney’s fees and $1,000 in punitive damages, on the basis that the Contempt finding violated the automatic stay. The Bankruptcy Court also found the wage garnishment order and the tax interception did not violate the stay. The Bankruptcy Appellate Panel found the medical expense was subject to the stay.

Mother appealed. The Court of Appeals held that, except for the contempt finding, the Family Court’s order did not violate the automatic stay because an exception applied. The Bankruptcy code’s automatic stay of other actions against the debtor does not apply to a civil action that is “for the establishment or modification of an order for domestic support obligations.” Domestic support obligations include debts established by a court that are “in the nature of” maintenance or support, “without regard to whether such debt is expressly so designated.” Because the Family Court established a domestic support obligation by entering a judgment for the arrearage, altered Mother’s wage withholding, and clarified the amount of outstanding expenses, the Family Court’s acts were tailored to the stay exceptions. The contempt portion of the Family Court’s hearing was a violation of the automatic stay, however, this was not contested. Finally, the Court of Appeals did not make a finding on whether Father’s request for reimbursement of medical expenses violated the automatic stay because it did not change the Court’s calculation of Mother’s actual damages.

Emily T. Cecconi

The post Bankruptcy Automatic Stay Does Not Apply to Civil Actions for the Establishment or Modification of Domestic Support Obligations, Including Establishment or Modification Which Collects Outstanding Child Support Obligations-Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.

U.S. Court of Appeals for the Sixth Circuit

A group of foster caregivers brought a class action lawsuit on behalf of themselves and foster care children against the Cabinet for Health and Family Services and Department for Community Based Services for denying foster care maintenance payments to children in the caregivers’ care. The issue was whether children ordered removed to the custody of an adult relative or fictive kin were eligible for foster care maintenance payments under Title IV-E of the Social Security Act. The United States Court of Appeals for the Sixth Circuit held that these children were not eligible for foster care maintenance payments under the Act because the Cabinet does not have placement and care responsibility over children placed into the custody of a relative.

Pursuant to a Title IV-E program of the Social Security Act, states provide Foster Care Maintenance Payments (“FCMPs”) to children removed from their homes and placed in the temporary care of a foster family home. To be eligible for FCMPs, the removed child’s “placement and care” must be the responsibility of… the State agency administering the State plan approved [by the HHS Secretary].” In a dependency, neglect, or abuse proceeding in Kentucky a Court order may remove a child “to the custody of an adult relative, fictive kin,” or other person or facility, or a Court can commit the child to the custody of the Cabinet.

The Cabinet argued that only when a court commits a child to the custody of the cabinet is a “real foster care relationship with a child and the Cabinet” created, and therefore the Cabinet does not provide FCMPs to children placed by the courts into the care of a relative or fictive kin. The plaintiffs argued that placing a child in the care of a relative or fictive kin is the preferred outcome for this child, and that by denying those children FCMPs the Cabinet discriminated against relative caregivers and denied FCMPs to eligible children without notice or a fair hearing. The Plaintiff’s further argued that “placement responsibility” was not simply the discretion to control a removed child’s temporary placement, but instead involves the Cabinet’s duty and ongoing responsibility to ensure the child is placed in a safe living situation.

The district court held that under Kentucky law, the Cabinet did not have placement and care responsibility over children not in their custody because the Cabinet had no ability to change a child’s placement without a court order. Therefore, only children placed in the Cabinet’s custody were eligible to FCMPs. Representatives for the losing classes appealed.

On appeal, the Court relied upon the Health and Human Services Secretary’s briefing in which he stated that, under Kentucky law, “the Cabinet does not have placement and care responsibility for children removed from their homes and placed by court order into the custody of a relative or fictive kin” as the Cabinet “does not assume legal responsibility for the children’s day-to-day care, and it had no authority to change their placements.”

The Appeals Court also relied upon the plain language of Title IV-E, which states that States with an approved plan “shall make [FCMPs] on behalf of each child who has been removed from the home…into foster care if…the child’s placement and care are the responsibility of—the State agency administering the State plan.” The Court found that the Cabinet does not have “placement responsibility” of children not placed into Cabinet custody as indicated by Kentucky law, which provides that the Cabinet cannot change a child’s placement without custody. The Court did not address the Plaintiff’s constitutional due process and equal protection claims because the Plaintiff’s did not make these arguments in their initial briefs.

Digested by Emily T. Cecconi

The post Foster Care Children Ordered Removed to the Custody of an Adult Relative or Fictive Kin Are Not Eligible for Foster Care Maintenance Payments under Title IV-E of the Social Security Act – Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.

No. 20-5283

Mother removed the Children from Venezuela to the United States. Father petitioned to have the Children returned to Venezuela under the Hague Convention. Prior to the petition, Mother and the Children were granted asylum in the United States. In the District Court, the parties entered stipulations that Venezuela was the Children’s habitual residence and Mother wrongfully removed the Children from Venezuela. The issue in the District Court was whether Mother could establish an affirmative defense under Article 13(b) of the Hague Convention, such that returning the Children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The District Court concluded that mother failed to establish the affirmative defense, granted Father’s petition, and ordered that the Children be returned to Venezuela. Mother appealed.

Mother argued that returning the Children to Venezuela would expose them to a grave risk of harm due to Father’s history of domestic violence. The District Court found one credible instance of abuse upon Mother, and found that Father never abused the Children. It concluded that the incident of abuse fell into the “relatively minor” category of abuse, which would likely not pose a grave risk to the Children nor place them in an intolerable situation. In the “relatively minor” category, the Court has no discretion and must return the Children. The Court of Appeals found the District Court’s finding not clearly erroneous and affirmed that the District Court was required to return the Children under that analysis.

Mother argued that the District Court erred in finding that the Children do not face a grave risk of physical or psychological harm from a return to Venezuela and puts her in an intolerable situation because Venezuela is a zone of war and famine. Father presented evidence that protests are avoidable by not traveling on certain streets, the grocery near Father’s home has food and water, Father’s home has a generator, the family would have access to medical card and medication, and the Children would return to their school and soccer teams. The District Court found that Father could provide the Children with shelter, food, and water, which the Court of Appeals found not to be clearly erroneous. It noted that although the conditions in Venezuela are less stable than in the United States, that does not mean the Children would face an intolerable situation or grave risk of harm.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because she cannot travel to Venezuela to participate in custody proceedings. However, the Circuit Court noted that she never raised this argument in the District Court, and it refused to address the issue for that reason.

Mother argued that the District Court erred by concluding that the Venezuela court system can adjudicate the parties’ custody dispute because of corruption in the Venezuelan courts and the undue influence of Father. There was evidence that Mother’s attorney was able to file documents, review case files, and secured a new judge to hear the custody dispute after asking the former judge to recuse. The District Court found that the purported corruption was not so severe that the Venezuelan courts could not property adjudicate the custody dispute. The Circuit Court found the finding not clearly erroneous and found that any defects in the Venezuelan court system fall short of what is required for an intolerable situation.

Mother argued that the District Court failed to properly consider her grant of asylum, thereby threatening the sovereignty of the executive branch. Once a person is granted asylum, the Attorney General is not permitted to return the person to the person’s country of nationality. It does not forbid the judiciary from finding that the Children may be returned to their country of habitual residence under the Hague Convention, and it does not require the Attorney General to go against the finding of asylum. Thus, it does not threaten the sovereignty of the executive branch. The Circuit Court affirmed the District Court’s grant of Father’s petition.

Digested by Nathan R. Hardymon

The post There Was Not Sufficient Evidence that Returning Children to Venezuela Would Subject Them to a Grave Risk of Physical or Psychological Harm or Otherwise Place Them in an Intolerable Situation under the Hague Convention – Published Opinion from United States Court of Appeals for the Sixth Circuit appeared first on Goldberg Simpson - Family Law Group.