11 Sep August 30 Round Up: School is in Session

The Round Up of August 30 is…extensive, to say the least. With seven cases from the Court of Appeals, there was a lot for your favorite law librarian to review and unpack. The result is a Round Up full of interesting fact patterns and noteworthy rulings and a not-small helping of our opinions of the Opinions. Enjoy!

Ronnie Jolly v. Amy Jolly, 2023-CA-1189

In Jolly v. Jolly, the Kentucky Court of Appeals served up a plateful of legal drama, combining elements of criminal law and domestic relations practice. At the heart of this tale is Ronnie Jolly, who was “creative” with his financial dealings, a pattern that resulted in a federal indictment for fraud and money laundering. His unraveling marriage with Amy only further complicated things. And this wasn’t just any divorce; it was a high-stakes battle over property that had already caught Uncle Sam’s eye.

Ronnie, cooling his heels in prison, tried to undo a 2022 divorce decree, claiming that his incarceration, mental state post-suicide attempt, and lack of a Guardian ad Litem (GAL) meant he wasn’t in a position to defend his interests properly. He also argued that the separation agreement was unconscionable. But the Kentucky Court of Appeals was having none of it.

The Court affirmed the lower court’s decision, with Judge Cetrulo writing the opinion. Ronnie’s arguments were picked apart with the precision of a seasoned surgeon. The Court pointed out that Ronnie, without a lawyer by choice, had ample opportunity to review and understand the separation agreement. His complaints about not having a GAL fell flat, as the court noted that CR 17.04 didn’t apply here—Ronnie didn’t “fail to defend” himself; instead, he voluntarily signed the agreement.

The Court also dismissed Ronnie’s claim that the agreement was unconscionable. While Ronnie tried to paint himself as a victim, the Court highlighted that the agreement was actually quite equitable—especially considering the federal government’s interest in seizing everything. The marital residence went to Amy, a logical outcome given the circumstances and prior agreements made during Ronnie’s criminal case.

In a move that would make most family law judges nod in agreement, the Court emphasized that the best practice would be to appoint a GAL for any incarcerated party in a divorce. But here, the lack of one didn’t warrant the extraordinary relief Ronnie sought under CR 60.02.

Reported. http://opinions.kycourts.net/COA/2023-CA-001189.PDF

C.M.I. v. Commonwealth of Kentucky, CHFS, et al., 2023-CA-0755

In an appeal of an adoption case, the Kentucky Court of Appeals affirmed an adoption case over a parent’s objection. In this case, the facts involved drug abuse and abuse/neglect of a child. By the time of the trial on the adoption, the Mother claimed 14 months of sobriety. Despite that accomplishment, the Livingston County Circuit Court judge terminated the parental rights and permitted the grandparents to adopt the children.

The Opinion by Judge Taylor is noteworthy for its careful analysis. Judge Taylor acknowledges that parental rights have constitutional protections under federal and state law. He also notes that the protections afforded in private adoptions are weaker than in cases initiated by the state. The Supreme Court of Kentucky has set this standard, which does not have a logical basis – a point that Taylor acknowledges, albeit in a style deferential to the state’s high court. While he may not like the holding in the landmark case, the Court of Appeals said that it is their duty to follow the case law set by the Supremes. In the opinion of the Round Up, this would be an excellent case to appeal, even if the Supreme Court does not change its mind.

Unreported. http://opinions.kycourts.net/COA/2023-CA-000755.PDF

John Kutter v. Tara Kutter and minor children, 2023-CA-1285

In this appeal from a Domestic Violence Order, the Kentucky Court of Appeals affirmed the protections granted by the Fayette County Family Court. The facts of the case are unremarkable by family court standards. There were allegations of violence and sexual abuse. The Appellant made legal arguments regarding the sufficiency of proof and whether the trial court’s findings were sufficiently specific. 

While the Orders of the Court were not ideal, the appellate court found they were good enough. Interestingly, the judge appears to use a stamp on her Order that says that “all writing and oral findings included in court record are hereby incorporated” – a somewhat lazy way of outlining the factual findings. The most exciting portion of the Opinion addresses the circumstances when a child witness can testify remotely. The statute, specifically KRS 421.350, creates a narrow exception to the constitutional right to face to face cross-examination. The statute mandates that a party make a motion and that the Court find a compelling need for remote testimony. Numerous criminal cases have been reversed based on noncompliance with the statute. In Kutter v. Kutter, no party made the required Motion; instead, the Court took this action on its own. Further, the Court made no findings – even when there was a contemporaneous objection by counsel. 

Notwithstanding these apparent problems, the Court of Appeals analyzed the Family Court’s violations based on the harmless error standard. Finding that the error was harmless, the Court affirmed the DVO. Strangely, the Court of Appeals warned future courts against violating the statutory provisions and stated that its application of “the harmless error standard of review should not serve as a backstop which saves defective trial court proceedings from reversal.” Very odd language, especially since that is precisely what happened on this appeal.

Unreported. http://opinions.kycourts.net/COA/2023-CA-001285.PDF

Shelley Stacy v. Blake Wilson, 2023-CA-1411

In this appeal of a decision from the Ohio County Circuit Court, the Kentucky Court of Appeals affirmed a finding of contempt against the mother, Shelley. Judge Acree authored the Opinion for the Court. The facts indicated that Shelley did not care for the “week on/week off” parenting order. As a result, she did not comply with the Order. Shelley also did not comply with the Court’s Order requiring her to immediately turn over the child. Her parade of lawyers who sought to withdraw at various levels of the case did not help matters. Finally, while Stacy was being remanded into custody following the final contempt finding, she exclaimed, “I disrespect this Court even more.” Not a smart move. 

The Court of Appeals addressed Shelley’s various claims, including those that were not preserved and those without legal merit. Judge Acree wrote that the trial court had found her in criminal contempt and affirmed the sentence in its entirety. There is some decent legal writing explaining the distinction of criminal/civil contempt and direct/indirect for those who like that stuff. 

Unreported. http://opinions.kycourts.net/COA/2023-CA-001411.PDF

L.W. v. Commonwealth of Kentucky, CHFS, K.M.C. and M.C., 2023-CA-1439

In a 24-page unreported Opinion, the Court of Appeals affirmed a judgment that terminated a mother’s parental rights. Judge Jones, a skilled legal writer, authored the decision. In this case, the Round Up disagrees with her conclusions but appreciates her analysis. More on that later.  

The first issue addresses whether the Family Court should have granted a continuance in the TPR trial. The parents faced the TPR case and a criminal indictment regarding the same facts. If convicted, the parents faced lengthy prison sentences. The parents’ counsel wisely filed a motion to continue the TPR case for three months. They noted that the criminal case itself had been continued or delayed, by no fault of the parents. The Cabinet for Health and Family Services objected, citing the dangers of “foster care drift.” (Note: this argument seems to be based on a generalized danger as the child in this specific case was “thriving” and “supportive adoptive, foster home” – at least according to the testimony of the Cabinet social worker). The trial court summarily denied the request for a postponement. The Family Court terminated the parental rights while a local criminal jury acquitted the parents of all charges.

The Court of Appeals affirmed the denial of the continuance motion. In the Opinion, the Court of Appeals stated that the Constitution does not automatically require a stay in civil proceedings when a criminal case is pending. Such cases can be held either “sequentially or simultaneously.” The Court explained that such continuance can be granted when the interests of justice seem to require the action. While there was some discussion on the 5th Amendment rights vs. 14th Amendment rights, the Court did not address the critical issue in the case  – at least in the Round Up’s opinion. That issue would be whether a citizen has to choose between waiving a right to a fair jury trial with due process protections or whether to waive a right to participate in Family Court proceedings that necessarily implicate fundamental parenting rights. 

The Court of Appeals also addressed issues related to hearsay. The Court wrote that evidentiary rulings of the trial court are binding on appellate courts, unless there was abuse. In this case, the parents’ counsel objected to hearsay in the form of a worker reading an investigative report and reading a portion of the DNA petition. In both instances, the Court permitted the hearsay. The Opinion explains the difference between public records and business records exceptions and wrote that the CHFS had met the higher standard in the business records under the Prater standard. (In all honesty, we find this a little fishy.) The Opinion did say that the business records did not mean that the CHFS records would be admitted carte blanche, and only factual observations would be permitted. Again, somewhat sketchy as factual observations would not be subject to meaningful cross-examination.

Similarly, the Court of Appeals permitted out-of-court statements of a deceased relative to be admitted into the record. The Cabinet claimed that they were not offered for the truth of the matter asserted, but rather to explain why the Cabinet filed a petition. There is little merit to this argument as to why the Cabinet filed a Petition was not a contested issue in the termination case. In reality, the Cabinet routinely seeks to admit inadmissible hearsay to provide “background.” Both trial courts and appellate courts reference these inadmissible facts in Orders and Opinions to support their conclusions. These issues may be rectified at some point, but not today and not in this Opinion.

Unreported. http://opinions.kycourts.net/COA/2023-CA-001439.PDF

C.M.D. v. Commonwealth of Kentucky, CHFS, G.H., et al.,2024-CA-0203

Another affirmation of a termination of parental rights here. The underlying issues related to a mother’s longstanding addiction. The trial court found that the mother’s pursuit of a life of illicit drug usage was incompatible with parenting. In short, the Family Court found that the mother’s sobriety at the trial date was “too little” and “too late.” 

The mother’s lawyer filed an Anders brief.  For the uninitiated, an Anders brief states to the Court of Appeals that there are no meritorious grounds for appeal. [In our opinion, filing an Anders brief is almost always bad for counsel. It certainly means that a lawyer throws a client under the bus, and, in many cases, it might be construed as counsel not fulfilling his/her duties to the client.] In this case, the Court of Appeals permitted the brief’s filing and agreed that termination was appropriate. However, the Court noted that even Anders briefs must comply with the Rules of Appellate Procedure. This one didn’t, but the Court of Appeals overlooked the deficiencies.

The most interesting part of the case is that there was a dissent by Judge Lambert, who would have reversed the termination of parental rights. Even though the mother’s lawyer failed to make any arguments, Judge Lambert stated that the mother “provided evidence and testimony that she was doing everything” needed to achieve reunification, including many months of sobriety. Judge Lambert faulted the Family Court for failing to properly account for the mother’s “remarkable progress and bright future.” One has to wonder if the client would have been able to get another vote for reversal if her lawyer had argued her case on appeal.

Unreported. http://opinions.kycourts.net/COA/2024-CA-000203.PDF

T.P. v. Commonwealth of Kentucky, CHFS, and A.C.P., a minor child, 2024-CA-0402

In the case of T.P. v. Commonwealth of Kentucky, we have yet another affirmation of a Family Court’s decision to terminate the mother’s parental rights, this time from Scott County. The facts of the case are tragic and are reminiscent of the story of the Netflix miniseries “The Act,” about a child who was not really sick. In this real-life case, the mother, T.P., had been found to engage in medical child abuse, leading to her daughter’s severe over-medicalization and deteriorating health.

After an initial custody return in 2019, the child’s condition worsened, prompting further interventions by the Cabinet for Health and Family Services. After removal from the mother’s care in 2021, the child’s health dramatically improved, ceasing the need for extensive medical interventions. The mother, however, failed to seek appropriate treatment for her diagnosed Factitious Disorder by Proxy (often called Munchausen by Proxy) and continued to deny any wrongdoing, prompting the court to find no reasonable expectation of improvement in her conduct.

The Court of Appeals reviewed whether the statutory requirements for termination under KRS 625.090 were met, including proof of neglect, the child’s best interest, and statutory grounds for termination. The Court found substantial evidence supporting the Family Court’s conclusions, including the mother’s lack of accountability and the child’s significant health improvements post-removal. The Opinion emphasizes that, despite efforts to reunite the family, the mother’s untreated mental illness and continued denial of abuse justified the termination. The decision underscores the critical need for parents to acknowledge issues if they seek to achieve reunification.  

We don’t know why this is a reported case, but it is worth the read if counsel faces Munchausen Syndrome allegations.

Reported. http://opinions.kycourts.net/COA/2024-CA-000402.PDF

As always, thanks for reading! Click here for the previous Round Up.