09 Feb Daily Affirmations with the Court of Appeals: This Week’s Round Up
A mixed bag in this week’s Court of Appeals Round Up, but all opinions affirming in the end. No reported cases and, to be honest, the results are predictable. The Round Up authors are still eagerly awaiting our own pending case involving the custody and possession of the Parties’ dog. Perhaps next week. Stay tuned.
Bowers v. Bowers, 2023-CA-0102
A Campbell County Family Court’s decision in a divorce was affirmed this week. In an Opinion that might fairly be described as “run of the mill,” Judge Goodwin rejected the husband’s claims that he was paying too much money and got too much debt. Among his claims was an argument that the debt should not have been split 88% to him and 12% to the ex-wife. The Court of Appeals rubber-stamped the trial court’s order in this one. Nothing much to see. Unreported. http://opinions.kycourts.net/COA/2023-CA-000102.PDF
Nichani v. Nichani, 2023-CA-0334
In an appeal from a joint custody and 50/50 parenting time order from Family Court, the Court of Appeals affirmed. This case has a lot going on: a background of Domestic Violence, a Friend of the Court, an Issue-Focused Assessment. After a trial, the Family Court went with the statutory presumptions. In her argument on appeal, the mother argued that the Family Court should have gone with the opinions of Dr. Berla in the Issue-Focused Assessment. Judge Cetrulo noted in this Opinion that the Family Court was not required to follow the lead of a psychologist blindly, but rather to follow the statutory mandates. Unreported. http://opinions.kycourts.net/COA/2023-CA-000334.PDF
J.R. v. Commonwealth of Kentucky, CHFS, and K.J.R., a minor child, 2023-CA-0861
J.R. v. Commonwealth of Kentucky, CHFS, and J.G.S.R., a minor child, 2023-CA-0862
An interesting Fayette County TPR affirmed by the Court of Appeals. In an Opinion by Judge Karem, the Court addressed rather routine issues of how a period of incarceration can impact one’s parental rights. (Of note: the mother had her own childhood of horrors, including her father’s murder of her mother in her presence, her subsequent commitment to foster care. Further, as a young mother, she was herself the victim of violent crime. While mentioned in the Karem Opinion, these experiences were not enough to influence the Court’s decision). TPR lawyers will want to read this Opinion on whether ineffective assistance counsel claims can be brought. Spoiler alert: they can. The CoA also addresses the Anders brief and the fact that the mother wanted to represent herself on appeal. Unreported. http://opinions.kycourts.net/COA/2023-CA-000861.PDF
K.B. v. Commonwealth of Kentucky, CHFS, and K.B-W., a minor child, 2023-CA-0936
Judge Karem also affirmed an abuse/neglect case from Clark County Family Court. (Ed. note: Judge Karem seems to affirm all TPR and DNA cases that she writes.) In this case, there was definitely an out-of-control teen who had an “on-again/off-again” relationship with her mom. On the date in question, the teen wanted to maintain possession of her telephone and, when her mom demanded it back, tried to place it in her bra. The mother’s claim is that when she tried to retrieve the phone, the teen bit her. The mother appealed the Court’s finding of abuse, pointing out that there were no injuries claimed, and witnesses backed the mother’s story. Despite the compelling argument, the Court of Appeals affirmed the Family Court. Additionally, the appellate court found that the Court’s findings of fact were sufficient. It seems that there was only one written finding of fact (specifically, “Mom’s attempt to discipline child by taking phone went off the rails and result[ed] in physical abuse of child by Mom.”), but it was enough in this case. We are seeing more of these DNA cases against parents involving “beyond control” teens. It’s starting to look like parents and caregivers will have to turn to the police early and often to avoid seemingly indefensible allegations of abuse or neglect. Unreported. http://opinions.kycourts.net/COA/2023-CA-000936.PDF
And this week’s criminal tally: Cops 4.5, Robbers 0.5
(The Court of Appeals affirmed in part and reversed in part in the Cofield case.)