16 Jul July 2 Round Up

What better way to kick off Independence Day weekend than with a Round Up! Read on for several reminders about the Rules of Appellate Procedure and some interesting – though unpublished – family law appellate cases.

D.M.S. v. Commonwealth of Kentucky, CHFS, M.R.R., and R.J.R., 2024-CA-1477

The Kentucky Court of Appeals quietly slipped an important practice reminder into this week’s unpublished opinions. D.M.S. v. Cabinet for Health and Family Services isn’t likely to rewrite termination-of-parental-rights law, but it is worth reading for two reasons: (1) an appellate warning about compliance with the Kentucky Rules of Appellate Procedure, and (2) a good discussion of how appellate courts evaluate the evidence in a termination of parental rights (TPR) case.

The facts are heartbreaking. A one-year-old child was found with multiple fractures to both legs. Mother eventually stipulated to neglect after admitting she delayed seeking treatment for several days while under the influence of marijuana. Although she later made remarkable progress with sobriety, the Cabinet ultimately sought termination after the child had spent more than two years in care.

On appeal, Mother argued that the family court relied too heavily on an older psychological evaluation rather than the significant progress she had made in the year leading up to trial. The Court of Appeals was not persuaded.

The Opinion by Judge Lisa P. Jones makes two practical points.

First, preservation still matters—even in Family Court. Mother argued that an evaluation by Dr. Feinberg had become “stale.” [Editor’s Note: Does Feinberg do every single evaluation in Lexington? It sure seems that way.] The problem? She never objected when the report was introduced and never argued in the court below that its age made it unreliable. Instead, her post-judgment motion challenged only portions of the psychologist’s testimony as speculative. The Court treated the “outdated report” argument as a new theory raised for the first time on appeal and refused to consider it. That’s a reminder that evidentiary objections should be made when the evidence comes in—not after the judgment arrives. 

Second, the Court emphasized that the trial court did not terminate parental rights solely because Mother failed to comply with every Feinberg recommendation. The trial judge considered the entire picture: Mother’s lengthy substance-abuse history, the lack of stable independent housing, concerns surrounding her new relationship, the uncertainty surrounding the child’s original injuries, and, importantly, the child’s dramatic improvement in a pre-adoptive foster home. At the same time, the trial court expressly acknowledged Mother’s impressive sobriety and progress. The Court of Appeals concluded that the Family Court had weighed both the positive and negative evidence before determining that termination remained in the child’s best interests.

Don’t skip the first two pages of the Opinion. Before reaching the merits, the Court of Appeals addressed a motion to strike the Guardian ad Litem’s brief for violating the Rules of Appellate Procedure. The Court denied the motion but issued a pointed reminder that all counsel must comply with the RAPs—particularly in cases involving children. The specific violation? Both Mother’s brief and the GAL’s brief used the parties’ full names rather than the initials or descriptive identifiers required by RAP 31(B). No sanctions this time, but the panel reminded practitioners that RAP 31(H) provides enforcement mechanisms when briefs fail to comply. It’s a gentle warning today that could become something more serious tomorrow.

Unpublished. http://opinions.kycourts.net/COA/2024-CA-001477.PDF

Joshua Cooley v. Ashley Cooley, 2025-CA-0406

In Cooley v. Cooley, the Court of Appeals affirmed a Boyle Family Court order modifying custody and rejecting a father’s attempt to erase evidence of prior domestic violence simply because the related criminal charges had been expunged. Along the way, the Court also delivered another reminder that appellate briefs still have to comply with the Rules of Appellate Procedure—even when you’re representing yourself. The Opinion was penned by Judge Karem of Louisville.

The underlying litigation has been going on for nearly a decade. Josh had a long history in Family Court, including a DVO after assaulting the mother in front of one of the children, a violation of that DVO, a stipulation to neglect in a DNA case, child-support contempt, additional allegations of domestic violence involving another partner, and years of disputes over custody and parenting time. Meanwhile, Ashley later relocated to Florida without giving the notice required by the Family Court Rules, was sanctioned with attorney’s fees, but ultimately retained custody after the Family Court concluded the parties simply could not co-parent.

On appeal, Josh raised several arguments, but one stood above the rest. He argued that because criminal charges arising from an alleged domestic violence incident had been expunged, the Family Court was prohibited from considering any evidence relating to those events when deciding custody.

The Court of Appeals disagreed. The panel drew an important distinction between expunging a criminal case and erasing the underlying facts. Kentucky’s expungement statute wipes away criminal records and the legal consequences that flow from the prosecution. It does not erase the conduct itself. If a witness has independent personal knowledge of the underlying events, that witness may still testify about those events in a custody case, provided the testimony is otherwise admissible under the Rules of Evidence. The Court even cited a Tennessee decision recognizing the same distinction: expungement removes the legal consequences of the criminal proceeding—not history itself. Expungement is not a time machine.

Importantly, the Court noted that the challenged evidence wasn’t driving the outcome anyway. The record already contained overwhelming evidence supporting the custody decision, including the earlier DVO, the father’s violation of that order, prior DNA proceedings, child support contempt, concerns regarding his conduct toward the children, and his failure to participate in court-recommended reunification therapy. Any possible error in considering the expunged incident was harmless in light of the remaining evidence.

The Opinion also touches on Kentucky’s Safe at Home Program, holding that a domestic violence victim who qualifies for the program may keep her residential address confidential, even from the other parent. The father attempted to challenge that arrangement on appeal, but the argument had never been presented to the Family Court, so preservation ended the discussion before it began. (Round Up Note: We expect that the issue will be raised by other litigants, but the Court of Appeals is likely to find that it passed any challenges.)

Unpublished. http://opinions.kycourts.net/COA/2025-CA-000406.PDF

R.L.A. vs. Commonwealth of Kentucky and J.D.F., 2025-CA-1263 and related appeals

This unpublished opinion probably won’t make anyone’s “Top 10 Family Law Cases of the Year” list. But don’t skip it. For lawyers handling child support contempt proceedings, R.L.A. v. Commonwealth contains a thoughtful discussion of procedural due process, appointed counsel, mootness, and civil contempt that could prove surprisingly useful.

The case arose from a fairly common scenario. A father had been ordered to pay approximately $1,300 per month in child support but stopped making payments after September 2024. At the initial contempt hearing, he claimed he had been injured, had undergone surgery, and could not work, but he produced no documentation. The Family Court warned him that he faced jail if he failed to appear at the next hearing with proof of his inability to work, appointed the Department of Public Advocacy to represent him, and continued the matter.

The problem? Father didn’t show up.

The Family Court proceeded in his absence, found him in contempt, but did not impose a sentence. Instead, it scheduled a later sentencing hearing. By then, Father had counsel, who attempted to set aside the contempt finding, argued Father had medical defenses, and ultimately persuaded the court to impose home incarceration with work and medical release rather than jail. The Court of Appeals affirmed.

The Opinion, by Judge Easton, addresses three issues worth noting.

First, the Court took up the appeal even though the father’s 180-day sentence had already expired. Rather than dismiss the case as moot, the panel concluded that civil contempt proceedings involving child support are capable of repetition yet often expire before appellate review can occur. That’s an important reminder that some short-lived Family Court orders may still receive appellate review when they present recurring procedural questions.

Second, the Court clarified the relationship between appointed counsel and civil contempt. Kentucky law guarantees appointed counsel to an indigent litigant before incarceration is executed, not necessarily before the initial finding of contempt. Here, although the father was not represented when the contempt finding was entered, he had notice of the hearing, chose not to appear, later appeared with counsel at multiple hearings, presented medical evidence, and was represented before any incarceration was imposed. Under those circumstances, the Court found no due process violation.

Third, the Opinion provides a helpful review of the burden-shifting framework in civil contempt. Once the moving party proves noncompliance with a valid support order, the burden shifts to the alleged contemnor to prove—clearly and convincingly—that compliance was impossible. Mere assertions of illness are not enough. The Court emphasized that litigants must present evidence showing they made all reasonable efforts to comply. Here, despite repeated opportunities, Father produced only limited medical proof, admitted he had returned to work earning approximately $30 per hour, and failed to document the extended inability to work that supposedly explained nearly a year of missed support payments. The Family Court was entitled to reject those explanations.

Unpublished. http://opinions.kycourts.net/COA/2025-CA-001263.PDF

Criminal Tally

It was another tough week on the criminal side of the aisle.

The weekly tally was Cops 7, Robbers 0 with one tie.

The “tie” was an interesting reported case in which the Court permitted evidence to be admitted at trial (the Court of Appeals affirmed on that part), but the judge ignored the jury’s recommended sentence and impermissibly INCREASED the sentence. Here’s the cite to that case: http://opinions.kycourts.net/COA/2024-CA-001348.PDF

As always, thanks for reading! Click here to read the previous Court of Appeals Round Up.
Photo by Daniel Lloyd Blunk-Fernández on Unsplash.