20 Oct Sept 27 Round Up: Flip It and Reverse It
In a productive week, the Kentucky Court of Appeals ruled on nine Family Court cases on September 27, 2024. Notably, two of them were second-time appeals that resulted in a new ruling. Read on to find out more about those cases as well as some other routine and not-routine appeals.
Evangeline Newton v. Byron Newton, 2023-CA-0940
The Court of Appeals affirmed Judge Christine Ward’s finding of Contempt of Court. Evangeline, who has a history of making domestic violence claims, also claimed that a mediator misled her in the making of the Parties’ parenting time arrangement and that the judge showed bias towards her in court. She also presented a litany of excuses for not following the parenting time order, ranging from hospital visits to car troubles and concerns about their child’s safety. Judge Ward wasn’t buying that, and neither did the Court of Appeals, who firmly backed the trial court. Evangeline was ordered to stick to the schedule and had to pay the fees incurred by her former husband, Byron. Unreported. http://opinions.kycourts.net/COA/2023-CA-000940.PDF
L.W. v. Commonwealth of Kentucky, CHFS, J.E., K.C., M.C., and T.M., and cross-appeal, 2023-CA-1007
In this McCracken County case, the Court of Appeals dismissed a great-grandmother’s appeal from her attempt to intervene in an abuse/neglect case. In the companion case, the trial court terminated the parents’ rights and thus extinguished claims for custody or grandparent visitation. Judge Caldwell ruled that no meaningful relief could be granted and that the Court of Appeals was deprived of jurisdiction. The timeline of events is strangely unclear in the summary of the cases, so it is unclear whether the relative slept on her rights or the trial court delayed ruling on her motion to intervene. Unreported. http://opinions.kycourts.net/COA/2023-CA-001007.PDF
D.B. v. Commonwealth of Kentucky, CHFS, Jefferson County Attorney, A.C., and N.B., 2023-CA-1167
In the second appeal of a child abuse case, the Kentucky Court of Appeals now affirms the decision of a Jefferson County Family Court judge. Judge Johnson’s initial decision was reversed in a prior appeal that remanded the case back to the trial court. Given a second bite at the apple, the Family Court’s decision contained sufficient findings of fact to be affirmed. However, in the second appeal, counsel for the Mother again argued that the findings were insufficient. The Mother argued that there was no proof that the child was even present when the mother was allegedly drinking and that there the Court made no mention of witnesses or evidence from the hearing. The Court of Appeals stated that the trial court might have been more specific, but, in essence, that the Court’s second order was good enough, especially for a finding of “risk of abuse or neglect.” All in all, this case is worth a read for lawyers regularly on the DNA docket. Unreported. http://opinions.kycourts.net/COA/2023-CA-001167.PDF
T.S. v. Commonwealth for Kentucky, CHFS, B.P., R.M., R.S., T.R.R.S. and associated case, 2023-CA-1441
In an embarrassing decision, a Pike County Circuit Court judge terminated the rights of a father without articulating the standard to be used. Unfortunately, this is not the first time that the Court of Appeals has had to address this same issue. Judge Caldwell reversed the decision of the trial court in an easy decision. In the opinion of Round Up, the Court of Appeals was not as harsh as it could have been regarding the shoddy orders. Still, the ruling states that there was “a total absence of any indication as to what standard of proof the family court based its findings upon.” In the reversal, the Court of Appeals admonished the Pike County Circuit Court to act with “urgency” and mandated specific statutory factors in its new judgment. http://opinions.kycourts.net/COA/2023-CA-001441.PDF
C.M. and B.M. v. Commonwealth of Kentucky, CHFS, and S.M., and associated cases, 2023-CA-1459
In this appeal from Calloway County Circuit Court, the Court of Appeals affirmed a decision that children were abused or neglected by the parents. The social worker alleged that the parents violated a Prevention Plan suggested by the Cabinet and accepted by the parents.
In previous cases, the Court of Appeals had warned the Cabinet about overreaching their jurisdiction through the abuse of these plans. In one federal case, the Cabinet was held liable for “removal by Prevention Plan.” However, in this case, Judge Goodwin went in the opposite direction, finding no overreach.
It is noteworthy that the Prevention Plan was in place from August 2021, and the case did not come before the Court until late November. Also, pursuant to the “Plan,” the father, who was accused of sexual abuse, was vacated from the home during this time. The case does not reveal why CHFS took more than three months to investigate the claims, a violation of the Cabinet’s protocol.
Additionally, the Court of Appeals affirmed the trial court’s exclusion of evidence, specifically Snapchat records. Counsel for the parents attempted to introduce screenshots of Snapchat messages. The trial court held that they were not properly authenticated and, therefore, were inadmissible. Evidence junkies will want to read this portion of the Opinion and compare it with the Kays opinion in which the court admitted Facebook posts and the like. Unreported. http://opinions.kycourts.net/COA/2023-CA-001459.PDF
W.H.J. v. J.N.W., CHFS, Commonwealth of Kentucky, J.A.W, and N.H.J., 2023-CA-1474
In another instance of a second appeal, the Court of Appeals affirmed a Warren County Family Court adoption. Judge Caldwell, in the first appeal Opinion, reversed the decision on the grounds that the Family Court failed to use the correct standard and the litigants should have been given a chance to have Court-appointed counsel. The earlier decision was entered on May 23, 2023, and was reported at 699 S.W.3d(52).
This time, Judge Eckerle affirmed the step-parent adoption.
The facts were similar in both cases. In 2018, after a turbulent marriage, W.H.J. (“Father”) and J.A.W. (“Mother”) divorced, with the Court granting sole custody of their child, N.H.J. (“Child”) to Mother due to Father’s substance abuse issues and criminal activities. Fast forward to 2020, Mother remarried, and her new husband, J.N.W. (“Stepfather”), filed for adoption of Child in December 2021. Father, who had a record of neglecting parental duties and accumulating a hefty child support debt, opposed the adoption.
The Family Court initially granted the adoption; however, the Court fumbled its duty to properly inform the Father of his right to court-appointed counsel if indigent, leading to a reversal by the appellate court.
On remand, the Family Court found Father non-indigent based on his income, denied him appointed counsel, and proceeded with the adoption trial. The Court reaffirmed the adoption, citing Father’s prolonged abandonment and failure to provide parental care.
In the subsequent appeal, Judge Eckerle affirmed the adoption, emphasizing the Father’s five-year absence and lack of involvement in the Child’s life. Despite Father’s attempts to argue for appointed counsel and insufficient evidence for adoption, the appellate court found no merit in his claims.
This case illustrates the dangers of winning an appeal and facing the same Family Court judge on remand. While some judges have the backbone to look at the case anew, others find a reversal of the decision insulting. In those instances, a different outcome is unlikely. Criminal and civil litigants have the luxury of a new jury who will hear the case without bringing the bias from the first trial. It is worth considering whether family court parties have the same option available. Just our 2 cents. Reported. http://opinions.kycourts.net/COA/2023-CA-001474.PDF
P.L. v. CHFS, A.R.J.K.B, and M,A,B, 2023-CA-0085 and associated cases
B.W. v. CHFS, Commonwealth of Kentucky, A.N.S.S., and H.S.W., 2024-CA-0179 and associated cases
A pair of Anders cases. Not worth your time. Unreported.
http://opinions.kycourts.net/COA/2024-CA-000085.PDF
http://opinions.kycourts.net/COA/2024-CA-000179.PDF
Jesse Garrido v. Robin Cook, 2024-CA-0217
The Kentucky Court of Appeals upheld a domestic violence order (DVO) issued by Judge Jessica Stone of Jefferson County Family Court. The DVO keeps Jesse Garrido 500 feet away from Robin Cook, except during child custody exchanges and medical equipment deliveries. This heated case unfolded after Robin, seeking protection for herself and her kids, claimed Jesse threatened to kill her at their son’s doctor’s appointment. Robin also claimed that Jesse had been harassing and stalking her for over a year.
The Family Court had quite the show, with Jesse getting aggressive and emotional in court. At one point, Jesse was arguing with the judge and insisting that he never threatened Robin. Judge Jones, writing for the appellate court, summarized the proceedings as follows:
Garrido persisted in arguing with the family court. After the family court asked Garrido if it had to put him in jail to get him to calm down, he responded, “If that’s what I have to do to protect my kids, then alright.” At that point, a courtroom security officer went and stood behind Garrido.
Round Up Pro Tip: Don’t make the judge want to throw you in jail during a DV case.
Ultimately, the Family Court found Robin’s story more credible, noting Jesse’s tendency to react aggressively, especially when discussing Robin’s new partner. Despite Jesse’s appeals and attempts to downplay his behavior, both the trial and appellate courts decided that the DVO was necessary to prevent future violence. Unreported. http://opinions.kycourts.net/COA/2024-CA-000217.PDF
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