Kentucky

ABUSE

REGISTRIES

W.B. v. Cabinet for Health & Fam. Servs., 2011 WL 832101 (Ky. Ct. App.). Father whose name was listed in state central child abuse registry was not entitled to jury trial even though he established a protectable liberty interest under the circumstances of the case; father’s due process rights would be amply protected at the administrative level and adding a jury would unnecessarily delay efforts to protect children.

UNSAFE HOME

Commonwealth v. O’Conner, 372 S.W.3d 855 (Ky. 2012). Evidence was sufficient for jury to find that father intentionally abused children by exposing them to unsafe conditions in the home. Home exposed children to animal feces, moldy food, and unventilated, locked rooms that lacked no air conditioning on hot days. Father declined agency’s offer of free day care so that he could work and provide for his children.

CUSTODY

DE FACTO PARENTS

Truman v. Lillard, 404 S.W.3d 863 (Ky. Ct. App. 2012). Where same-sex couple, who could not jointly adopt child under state statute, later separated, trial court properly concluded nonadoptive partner was not a de facto parent in denying her petition for custody and visitation. Despite trial court’s statements that visitation would be in the child’s best interest, given the several years the partner had been an integral part of the child’s life, court acted within its discretion. A high bar prevents intruding on a legal parent’s rights.

GUARDIAN AD LITEM

Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). Mother’s right to due process in domestic custody proceeding, in which father sought modification of custody arrangement, included right to cross-examine child’s guardian ad litem regarding his evidentiary report to the court. Report recommended that child live with her father. By disallowing cross-examination, mother’s protected fundamental interests in care and custody of her child could be compromised.

DELINQUENCY

CONFESSIONS

Commonwealth v. Bell, 365 S.W.3d 216 (Ky. Ct. App. 2012). Juvenile’s confession to child sexual abuse was not voluntary under the circumstances and supported the district court’s suppression of the evidence in delinquency trial. Juvenile was 13 years old, had limited intelligence, and lacked a parental presence at school. Officers also told juvenile they had to have answers before they would leave. These facts supported finding that confession was coerced.

N.C. v. Commonwealth, 396 S.W.3d 852 (Ky. 2013). District court erred in denying juvenile’s motion to suppress statements in delinquency case because Miranda warnings were not given in violation of the Fifth Amendment. Juvenile was in custody for Miranda purposes, where he was escorted from class by the vice principal and school resource officer, an armed uniformed sheriff’s deputy questioned him in a closed room without a parent, and he was not told he was free to leave.

 

DEPENDENCY

DISCOVERY

C.C. v. Cabinet for Health & Family Servs., 330 S.W.3d 83 (Ky. 2011).
In case where defense counsel sought copies of photos before adjudicatory hearing, lower courts incorrectly concluded that civil discovery rules did not apply in dependency proceeding; because the trial court may shorten timeframes in civil discovery rules to correspond with the shorter hearing timeframes in dependency statute, there is no actual conflict which would make the dependency rules supersede the general civil discovery rules.

DISPOSITION

N.L. v. W.F., 368 S.W.3d 136 (Ky. Ct. App. 2012). Family court erred in granting permanent custody to fathers after removal from mother without making detailed findings according to the statutory criteria under the modification statute. Though order noted the problems that brought the children into care, including mother’s substance abuse, order did not contain information that placements with the fathers were in the children’s best interests.

EQUITABLE ESTOPPEL

Givens v. Commonwealth for Health & Family Servs., 359 S.W.3d 454 (Ky. Ct. App. 2011). In foster parent’s appeal of child welfare agency’s order determining it was highly probable that she had failed to adequately supervise and therefore neglected foster child in her care, foster parent’s pro se statement to commissioner of Department for Community Based Services failed to qualify as an exception to preserve her defense of equitable estoppel.

IN-HOME SERVICES

E.Y. v. Cabinet Health & Fam. Servs., 2016 WL 929359 (Ky. Ct. App.). Trial court’s finding that child was dependent, after conducting hearing and determining child was not neglected, was not error. Nothing in state statute prohibited court from finding dependency as long as statutory requirements were met. Trial court’s refusal to order services for mother and child as less restrictive alternative to removal from home did not constitute error. Mother participated inconsistently in case plan, and caseworkers testified about mother’s parenting difficulties.

LIABILITY

HOSPITALS

Norton Hospitals Inc. v. Peyton, 381 S.W.3d 286 (Ky. 2012). Hospital made a decimal place error in converting the blood alcohol level in testing a mother who had just given birth. Hospital made a child abuse referral based on the erroneous information, but had immunity under statute that protects reporters of child abuse who act in good faith. Mother did not show that hospital acted in bad faith, but merely made a mistake.

TEACHERS

Turner v. Nelson, 381 S.W.3d 286 (Ky. 2011). Kindergarten teacher was entitled to qualified official immunity from mother’s lawsuit claiming she failed to supervise children and report alleged sexual abuse to law enforcement since her actions in case were discretionary. Mandatory reporting statute applies when a parent, guardian, or person in custodial authority abuses or neglects a child, not when a child is the perpetrator, and teachers are only required to report if requested.

STATUS OFFENDERS

LEAST RESTRICTIVE ALTERNATIVE

C.R. v. Commonwealth, 2011 WL 5105487 (Ky. Ct. App.). Juvenile court’s order placing a juvenile in the custody of the child welfare agency did not violate statute requiring that a less restrictive alternative be tried before removing the juvenile from the home. Juvenile had already been subject to three motions for contempt during previous one-year-period and less restrictive alternatives had been tried during this period.

TERMINATION OF PARENTAL RIGHTS

APPEALS

A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361 (Ky. Ct. App. 2012). In case where mother engaged in a variety of improper discipline techniques including using a taser on her children and forcing them to squat until their legs gave out, and then did not participate in services, appointed attorney’s estimation that appeal was frivolous was appropriate. While an indigent parent has a statutory right to counsel in termination proceedings, including on appeal, an attorney may file an Anders brief in appropriate circumstances.

DISMISSAL

K.M.J. v. Cabinet for Health & Fam. Servs., 2016 WL 6543572 (Ky. Ct. App.). Mother appealed termination of parental rights to her daughter. Statutory provision requiring trial court to enter decision either terminating parental rights or dismissing petition within 30 days of conclusion of proof did not allow trial court to defer matter beyond statutory period following conclusion of termination hearing. After trial court found essential element for termination was not met, it was compelled to dismiss petition.

 

DUE PROCESS

Commonwealth v. S.H., 2015 WL 9243874 (Ky.). Mother appealed termination of her parental rights to four children based on improper supervision and failure to protect them from sexual harm. Rule requiring each party to give 14-day advance notice of names and addresses of witnesses expected to testify applied to termination of parental rights hearing. Trial court abused its discretion when it permitted testimony of primary caseworker when mother had no notice of testimony. 

EFFECTIVE ASSISTANCE OF COUNSEL

T.W. v. Cabinet for Health & Fam. Servs., 2016 WL 304042 (Ky. Ct. App.). Mother and father were entitled to new termination of parental rights hearing after they were denied effective assistance of counsel. Child was abused while under care of mother and father. Child welfare agency believed termination was only option due to lack of identity of perpetrator of child’s abuse. Counsel had conflict of interest from which prejudice was presumed based on his representation of both mother and father.

 

 

LEGAL REPRESENTATION

In re J.S., 434 S.W.3d 61 (Ky. Ct. App. 2014). Lower court properly terminated father’s parental rights and found father was not entitled to legal representation during critical stages of his child’s dependency case proceedings since he was not accused of neglecting or abusing his child. Furthermore, father had been incarcerated for most of the child’s life and unable to exercise any custody, care, and nurture of  his child. 

 

VOLUNTARY

In re D.L.B., 418 S.W.3d 426 (Ky. Ct. App. 2014). Circuit court abused its discretion in granting father’s request for voluntary termination where the agency objected because it wished to proceed involuntarily to establish grounds regarding the children and any future children. Father also did not complete the proper verified petition.

VISITATION

GRANDPARENTS

Nein v. Columbia, 2017 WL 836828 (Ky. Ct. App.). In grandparents’ action seeking visitation rights, grandparents overcame presumption that mother was acting in child’s best interests by reducing time child spent with grandparents and requesting ending all visits with them. Grandparents served as child’s main day care providers and had nearly daily contact with child. They paid for grandchild’s medical care, school tuition, and activities. Mother admitted that child’s bond with grandfather was particularly strong, and child’s teacher testified that ending visits would harm child.