18 Dec Nov 21 Round Up

It’s been a while! The tireless staff behind the Round Up is working hard to provide you with more updates soon. For now, please enjoy this detailed breakdown of two Opinions, including one of our own appeal cases.

F.M. v. CHFS, F.I.M., Jr., and Jefferson County Attorney, 2024-CA-1351

In a reported Opinion from the Kentucky Court of Appeals, a decision related to a stipulation of child abuse was affirmed. The trial court had accepted an admission by a father to the risk of abuse; however, the father had not been informed by his court-appointed counsel that he would lose his job as a result of the admission in court. (Disclaimer: the Helmers+Associates team represented the father on appeal, but not during the stipulation.)

Father F.M., a long-time public school teacher, agreed in October 2023 to a DNA stipulation acknowledging that his conduct placed his child at risk. The stipulation was signed by every lawyer in the room and affirmed under oath.

What wasn’t discussed? That this stipulation would land Father on the Child Abuse & Neglect Central Registry — and that the registry listing would cost him his teaching career.

Months later, when the Cabinet placed him on the Registry and his employer fired him, Father tried to set aside the stipulation. The family court said no, and the Court of Appeals has now affirmed.

The Court of Appeals’ Take

The panel (Judge A. Jones writing) acknowledged that parents have a statutory and constitutional right to counsel in DNA and TPR cases — including the right to competent counsel. But here’s the kicker:

• Ineffective assistance claims in DNA cases must be raised in a direct appeal from the disposition order.
• Father didn’t do that.
• That procedural misstep alone is enough reason to affirm the trial court.

The Court of Appeals did not acknowledge the fact that the Father did not learn of the loss until well after the time for a direct appeal had passed. This, of course, begs the question: how does one know about a financial loss before the loss occurs? Or, stated another way, wasn’t the job of parent’s trial counsel to warn him of the loss before it happened?

But even on the merits, the Court wasn’t buying the argument.

Collateral Consequences? Not Counsel’s Problem

Father argues that any competent DNA lawyer should warn a client that a stipulation could crash a career — especially one subject to background checks. The Court disagreed:

• Loss of employment isn’t “automatic, permanent, and virtually certain” the way deportation was in Padilla v. Kentucky.
• Registry placement is a collateral consequence tied to Cabinet regulations and and third-party employment decisions.
• No Kentucky authority made it clearly predictable that this stipulation would end a 20-year teaching career.

The Court of Appeals also emphasized that, in DNA cases, due process doesn’t require a Boykin-style criminal plea colloquy. Father confirmed under oath that he understood and agreed to the stipulation; that was enough.

Notably, the Court of Appeals did not address the authority cited in the Father’s brief, including a decision on the same issue from the Supreme Court of Illinois. Additionally, the Court did not address which standards the trial court may have violated, as it disregarded the role of judges as articulated by the National Council of Juvenile and Family Court Judges.

For now, lawyers representing parents should remember that Registry placement is one of the most devastating collateral consequences a parent can face. The Court of Appeals drew a bright procedural line and declined to extend Padilla-styled duties to DNA lawyers.

Stay tuned: this one might not be over yet.

Published. http://opinions.kycourts.net/COA/2024-CA-001351.PDF

Vernon Wright v. Kellie Wright and The Commonwealth of Kentucky, 2024-CA-0782

In the Wright case, the Court of Appeals found that the decision was in fact wrong. A Pike County judge was reversed since you can’t put someone in jail for child support nonpayment unless you follow the law. Every judge in Family Court should be aware of this one.

The Wrights divorced in Ohio in 1999. Years and miles later, the unpaid support balance ballooned to just over $50,800. When Ohio asked Kentucky to register and enforce the arrearage, the Pike Circuit Court obliged. When Vernon missed a hearing, the Court set a $100 monthly arrearage payment, and — without more — held him in contempt.

Vernon later appeared, homeless, in sober living, barely back on his feet. He wasn’t represented by counsel. He told the Court he could try to pay. The Court found him in contempt anyway, issued a purge plan, and warned of arrest.

He didn’t make the payments. He missed the next hearing. A bench warrant was issued. When police later arrested him for something else, the warrant was served. Only then did he finally get appointed counsel — after he was already locked up.

Counsel filed a CR 60.02 motion, arguing what should have been evident from the start: You can’t jail a person for civil contempt without findings on indigency, ability to pay, and, if necessary, the appointment of counsel.

The trial court brushed it off.

The Court of Appeals did not. Judge Karem, writing for a unanimous panel, held that the trial court skipped mandatory steps under Lewis v. Lewis and KRS Chapter 31:

• Before incarcerating someone for civil contempt, the Court must make explicit findings on indigency.
• If the person is indigent, counsel must be appointed before any incarceration is issued.
• The Court must also make specific findings on the contemnor’s present ability to pay the purge amount.

None of that happened. In fact, the only finding the trial court did make was that Vernon was homeless, living at a veterans’ home, and had no income — the exact scenario where Lewis requires counsel and a careful ability-to-pay analysis.

The Court of Appeals vacated both contempt orders and remanded for a proper hearing.

Unpublished but worth the time. http://opinions.kycourts.net/COA/2024-CA-000782.PDF

Criminal Tally

No love for the defendants this week. The Court of Appeals shuts down with a score of 0-3.

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