26 Aug August 23 Round Up: Back to Business
This week at the Kentucky Court of Appeals, there are no earthshaking opinions, but there are cases that definitely merit discussion and a read. Let’s get down to business!
Nicole Eversole v. Commonwealth of Kentucky and CHFS, 2023-CA-1010
While not technically a “family law” case, Eversolve v. CHFS is worth a thorough read. The case involves a CHFS worker filing a civil case based on whistleblower claims.
Before us, we have a David vs. Goliath scenario, where the Cabinet for Health and Family Services (“CHFS” or “the Cabinet” ) played the role of Goliath with a particularly creative take on following the rules. In the role of David stands Nicole Eversole, a veteran social worker with CHFS, who found herself in the crosshairs of the state organization after she dared to blow the whistle on what she perceived as serious misconduct.
Here’s the skinny: Eversole, who lived with a man involved in a child custody case with CHFS, accessed confidential information about the case at his request. She claimed that the Cabinet was violating his constitutional rights by failing to inform him of critical proceedings—like, say, an emergency hearing the very next day to take his child away. Eversole testified about these alleged violations in court, which didn’t sit well with the Cabinet.
The Cabinet promptly suspended Eversole without pay for three days, ostensibly for improperly accessing the file. The timing was more than a little suspicious.
Eversole then sued the Cabinet under Kentucky’s Whistleblower Act, claiming that the suspension was retaliation for her testimony. The Boone County Circuit Court dismissed her case faster than you can say “administrative overreach,” ruling that she hadn’t made a valid claim. The Trial Court essentially found that all she did was disagree with the Cabinet’s interpretation of the Cabinet’s own procedures. The Judge was just short of actually writing, “Nothing to see here, folks! Move along.”
However, Judge Eckerle of the Kentucky Court of Appeals saw through the smoke and mirrors. The Court reversed the dismissal, finding that Eversole had, in fact, sufficiently alleged that the Cabinet had violated the law and retaliated against her for exposing it. The Court noted that the Cabinet might want to brush up on its understanding of “due process” and the Whistleblower Act before coming after employees just trying to do the right thing.
In sum, the Court sent the case back for more proceedings, informing CHFS that their cavalier approach to constitutional rights and employee protections might not hold up under closer scrutiny. It’s a reminder that even the mighty Cabinet for Health and Family Services isn’t above the law. Unreported.http://opinions.kycourts.net/COA/2023-CA-001010.PDF
Dawn McLeod v. Scott Williams, 2023-CA-1335
In the case of Dawn McLeod v. Scott Williams, the Court of Appeals reversed and remanded the Family Court’s decision due to insufficient findings of fact. Judge Gina Calvert denied Dawn’s motion to modify the parenting schedule without adequately addressing whether the proposed changes were in the child’s best interests, as required by Kentucky law.
This lapse is not uncommon in family court, where judges sometimes overlook the necessity of fact-finding, especially in cases involving the modification of parenting time. The Kentucky Court of Appeals emphasized the importance of thoroughly evaluating the best interest factors before making such decisions and sent the case back for a more detailed analysis. Judge Combs of the Court of Appeals confirmed that it is not enough for the Family Court to make conclusions, but facts must be included to support them. (Note: In this case, the facts included that the father didn’t know that the child’s lacrosse practices were for an hour rather than 90 minutes. Shocking testimony. Also, there was evidence of a missed dental visit.) Unreported, and rightfully so. http://opinions.kycourts.net/COA/2023-CA-001335.PDF
C.P.S. v. C.C.J., CHFS, J.S.J., and N.J., 2024-CA-0081, and associated case
In this adoption case without parental consent, the Court of Appeals rubberstamped the decision of the Pike County Circuit Court. The Opinion seems to indicate that there was conflicting testimony offered at trial but sided with the adoptive parent. The mother claimed that she made every effort to be a parent. According to the Opinion, she specifically claimed that:
“she participated in in-patient rehabilitation during the DNA action and would visit, in person or virtually, multiple times a week. Mother says she did complete parenting classes and bought her children gifts for holidays and birthdays. She also indicates she would participate in the care of her children, by bathing her children or helping them with schoolwork. She further states she did offer to buy things for children, such as clothing or school supplies.”
Notwithstanding that, the trial court said that it was not enough and that it was too late and the Court of Appeals affirmed. The Mother’s imprisonment didn’t help. There is some nice “black letter” law in the Court’s legal analysis in this one, but otherwise, it is routine. Unreported. http://opinions.kycourts.net/COA/2024-CA-000081.PDF
G.H. v. Commonwealth of Kentucky, CHFS, C.M.D., and K.M.H., 2024-CA-0144, and associated case
In an otherwise unremarkable termination of parental rights case, the Kentucky Court of Appeals was outspoken about the counsel’s duty to file an appropriate brief. In court-appointed cases, counsel has an option to file a brief to preserve the client’s right to appeal even if there are no legitimate legal or factual issues. These briefs are called Anders briefs, based on the name of a California criminal case that originated the theory. However, there are limits to what is expected in these briefs. In the case at hand, Judge Lambert stated that:
“Counsel for Father filed an Anders brief stating that the instant appeal is frivolous. The exceptionally terse Anders brief does not discuss any grounds to challenge the trial court’s judgment.”
The Round Up is confused by the Court’s statement. How is counsel supposed to “discuss grounds” where a lawyer certifies that the client’s position has no merit?
It gets worse. In a footnote that spans pages 5 and 6, the Court of Appeals added the following:
“Even Anders briefs must comply with the mandatory briefing requirements found in Kentucky Rules of Appellate Procedure (RAP). See, e.g., A.C., 362 S.W.3d at 371 (discussing a failure to follow the briefing rules found in the former Kentucky Rule of Civil Procedure (CR) 76.12, which are essentially identical to those found in RAP). RAP 32(A)(3) requires an Appellant’s opening brief to provide a statement of the case which contains “ample references to the specific location in the record supporting each of the statements contained in the summary.” Father’s Anders brief contains zero citations to the trial court record. Moreover, the brief fails to comply with the requirement in RAP 32(E)(1)(d) that the appendix to a brief must be preceded by an index which “shall set forth where each document may be found in the record.” We have leniently elected to not impose sanctions, but caution counsel not to expect such leniency again.”
The footnote warning is a bit of a mystery to this author. While it is understandable for the Court of Appeals to be frustrated by the lack of reference to citations from the record, counsel is again in an impossible position. If the lawyer identifies the weaknesses in his own client’s case, the client is thrown under the bus. If no documents support the client’s wrongheaded argument, how is the lawyer supposed to affix those documents? (Perhaps, the Court of Appeals wanted the lawyer to attach the Petition and Judgment. If so, this is what the Court should have stated in the footnote. But, if that was the point, why the threat of “sanctions?”)
The Round Up has long believed that Anders briefs should rarely be filed. It is part of a lawyer’s job to defend the client in TPR cases. Objections should be made. Arguments must be preserved. In many, but not all, instances, the filing of an Anders brief is proof that court-appointed counsel phoned it in. However, if there is truly no proof to support a client’s claims of error, how does counsel cite it in an Anders brief? Unreported. http://opinions.kycourts.net/COA/2024-CA-000144.PDF
Criminal Tally
In the criminal tally for the week, the Court of Appeals continues to be pro-prosecution. This week, there were 4 criminal cases, with the Court siding with the police/prosecution in every case. Are the (alleged) criminals due for a win? Stay tuned…
Thanks for reading! Click here for the previous Round Up.