03 Aug July 10 Round Up
Starting off with a case that is to be published, this week is full of noteworthy reminders for both parents and practitioners alike.
J.D., A.D., and E.D. vs. Commonwealth of Kentucky, CHFS, B.T., C.D., E.W.D., and J.T., 2025-CA-1609 and associated cases
In a banger of a decision, the Kentucky Court of Appeals addressed the “unknown perpetrator” scenario in child abuse cases. In essence, the Court held that it’s not just about “gunsmoke”; it’s about who was holding the gun. In doing so, the Court is redrawing the lines in DNA cases where there is no known person responsible. One of the most noteworthy cases in recent memory.
The facts in the case are heartbreaking, but the legal principles are even more important. Due process still matters, even in the toughest cases.
A five-month-old, non-mobile infant suffered multiple posterior rib fractures over separate time periods. Dr. Melissa Currie, a frequently used “expert”, testified that the injuries were unquestionably the result of non-accidental trauma requiring significant force. No one disputed that the child had been abused.
The problem? No one could determine who did it. The child moved between two households on a 2-2-3 parenting schedule. The Cabinet investigated. The medical experts investigated. Everyone agreed that abuse occurred. But whodunnit?
Rather than proceed only against the parents, the Cabinet filed DNA petitions against six adults—the mother, father, mother’s boyfriend, paternal grandmother, paternal grandfather, and the father’s 18-year-old sister. Their common denominator was simple: they all had access to the child at some point.
The Henderson County Family Court was candid. Judge David Curlin openly acknowledged, “I don’t know who did it.”
Despite that admission, the court adjudicated all six adults as having abused or neglected the child because each supposedly “failed to protect” or “failed to provide a credible explanation” for the injuries. That may have seemed like the safest answer. The Court of Appeals held it was not the lawful one.
Judge Cetrulo, writing for a unanimous panel with Judges Eckerle and Moynahan concurring, carefully distinguished two very different propositions in the reversal. First, Kentucky law does not always require identifying the actual perpetrator before finding that a child has been abused. Second—and this is the critical point—you still must prove why each individual respondent is legally responsible. Those are not the same. Simply proving abuse occurred does not automatically establish that every adult who happened to be nearby committed abuse or allowed abuse to occur.
Perhaps the most important language in the Opinion comes when the Court rejected what it called “improper burden shifting.” The Cabinet’s own investigator could not determine who injured the child. In typical fashion, Dr. Currie could not identify the perpetrator. The Family Court nevertheless faulted the grandparents and aunt for failing to explain injuries they denied ever seeing.
The Court of Appeals said that this was converting their inability to explain unknown injuries into evidence of responsibility. [Round Up Editorial Board comment: BINGO!]
The opinion also provides much-needed guidance on Persons Exercising Custodial Control or Supervision (PECCS). The grandparents occasionally babysat. The aunt had watched the infant once—for less than half an hour—before calling for help because the baby would not stop crying. That did not transform them into substitute parents. The Court relied on Cabinet for Health & Family Services v. Baker to emphasize that occasional babysitting is not automatically equivalent to assuming “the role and responsibility of a parent or guardian.” (In the babysitter cases, the most appropriate forum is criminal cases, assuming that there is proof of a crime.) Kentucky appellate courts have offered surprisingly little guidance on who qualifies as a PECCS under KRS 600.020(47). This opinion begins to draw meaningful boundaries.
One exchange during the CR 59.05 hearing is striking. The grandparents asked what this adjudication would mean for their futures. Could they coach youth sports? Become foster parents? Work with children?
No one in the courtroom—including the court and Cabinet representatives—could answer. The Court of Appeals noted the uncertainty and even referenced the potential consequences involving the Central Child Abuse Registry. A DNA adjudication is not merely about temporary custody arrangements. It can carry significant collateral consequences affecting employment, volunteer activities, licensing, and reputation. Those consequences make individualized findings even more important.
Excellent work by Jason Bowman of Louisville for the prevailing party.
To be published. http://opinions.kycourts.net/COA/2025-CA-001609.PDF
Alyssa Reyes-Dudley v. Marie Dudley and Daniel Burton, 2025-CA-1279
If you’ve handled one de facto custodian case, you’ve probably argued this one before.
The Court of Appeals affirmed a Taylor County Circuit Court decision finding that a grandmother qualified as the child’s de facto custodian after years of serving as the child’s primary caregiver and financial supporter. The evidence showed the child spent most nights with the grandmother, who handled virtually every aspect of daily life—school, transportation, meals, clothing, sports, church, tuition, and nearly all financial support.
The mother argued this was simply a co-parenting arrangement, relying heavily on Burgess v. Chase and other cases holding that grandparents who merely assist a parent do not become de facto custodians.
The Court wasn’t persuaded.
Instead, it concluded the trial court had substantial evidence that, for several years, the grandmother wasn’t simply helping—she had effectively assumed the parental role. Although the mother became more involved shortly before litigation began, the trial court found the grandmother had already satisfied the statutory requirements of KRS 403.270 by clear and convincing evidence.
Perhaps the most interesting part of the opinion isn’t the outcome but the Court’s candid acknowledgment that Kentucky’s de facto custodian cases can appear inconsistent. The panel observed that some cases finding “co-parenting” look remarkably similar to others finding de facto custodianship, with many of the differences in outcome explained by the deference appellate courts accord to trial judges’ factual findings.
No new law here, but another reminder that de facto custodian cases are often won or lost in the trial court, not on appeal.
Unreported. http://opinions.kycourts.net/COA/2025-CA-001279.PDF
Teresa Jewel Whitten v. Kristopher Brian Everitt, 2026-CA-0034
Not every Opinion changes Kentucky law. This one doesn’t.
But it does contain something we’ve been expecting to see.
The Court of Appeals affirmed a DVO out of Daviess County after concluding the trial court had ample evidence to find that domestic violence occurred and could occur again. The respondent threatened to slit the petitioner’s throat, punched, kicked, and spat on him, and much of the incident was captured on video. Unsurprisingly, the DVO survived appellate review.
The memorable part of the Opinion comes before the Court ever reaches the merits.
Judge Karem noted that the appellant’s pro se brief appeared to have been generated with AI. The giveaway? It cited two Kentucky cases that simply do not exist. The Court identified them as AI “hallucinations” and also pointed out that several real cases were cited for propositions they never actually held. Rather than strike the brief, the Court elected to decide the appeal but warned that future non-compliant filings could result in more serious consequences.
Unreported. http://opinions.kycourts.net/COA/2026-CA-000034.PDF
E.T.H. v. Commonwealth of Kentucky, CHFS, E.L.H., and K.P.H., 2024-CA-1250 and associated cases
Here’s a reminder that comes up more often than many parents expect.
A Warren County Family Court father made significant progress after his children were removed following a DUI arrest with the children in the vehicle. He completed his case plan, maintained sobriety (aside from an earlier relapse), secured stable housing, consistently participated in services, and even presented expert testimony that he was capable of parenting. But that wasn’t enough.
The children—then teenagers—told the court they were still afraid of their father because of his past addiction and abuse. They did not trust him, did not want to return home, and were resistant to continuing family counseling. Their therapist and the Cabinet agreed that the fractured relationship remained the central obstacle.
On appeal, the father that once he became a fit parent, Troxel and the Hoskins decisions required the State to return his children. The Court of Appeals disagreed.
The panel distinguished custody disputes between parents and third parties from dependency, neglect, and abuse proceedings. In a DNA case, the Court emphasized, the child’s best interests remain paramount. Even when a parent has made remarkable progress, the court is not required to order reunification if substantial evidence shows the children’s emotional wellbeing would be harmed by returning home before the relationship has been repaired.
The Round Up team doesn’t love this Opinion but finds it is unlikely to be changed by the Supremes.
Unreported. http://opinions.kycourts.net/COA/2024-CA-001250.PDF
Criminal Case Tally
Over on the criminal side, it was a tough week for defendants. They dropped on all the case. The final tally was Cops 4, Robbers 0.
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