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20 Jun Long-awaited and Lengthy: June 7 Court of Appeals Round Up

The June 7 Court of Appeals Round Up only has three Family Court cases, but we did a deep dive into our opinions of the Opinions to make up for our tardiness. There’s a lot to learn from these few cases, so let’s jump right in.

Elizabeth Shelton v. Kayla Starnes and Timothy Keith, 2023-CA-0786

In a case that originated in McCracken County, the Kentucky Court of Appeals reversed a finding that a litigant was not a de facto custodian. In the case, Elizabeth sought custody of Kayla’s minor child. Liz and Kayla had been best friends since high school. When Kayla got pregnant, Liz was at the hospital for the birth. (Apparently, the father had never shown much interest in parenting. But he was named and served in the custody action! And even filed an entry and waiver of appearance!) 

Later, Liz started babysitting every other week. This increased over time until the child stayed most of the time with Liz. Liz and Kayla seemed to work together on things like medical appointments (including stitches and later surgery on the toddler’s foot from stepping on a samurai sword at Kayla’s house), parent/teacher conferences, and the like.

Ultimately, there was a breakdown in the friendly relationship. This started over Kayla’s desire to homeschool the child and the obvious fallout once the child started calling Liz “Mom.” After that spat, Kayla said that Liz could not see the child anymore. At trial, Kayla said she had first started leaving the child with Liz because she wanted to spend time with her then-boyfriend, who was abusive and she didn’t want the child around for that. 

The Family Court found the two were certainly co-parenting, but that Liz did not meet the definition of de facto custody on either the aggregate time or primary provider and supporter prongs. The biological mother remained “substantially and consistently involved with Child’s life and did not cede or abdicate her unique parental decision-making authority” to her friend, Liz.

Judge Karem analyzed the case in light of the statutory changes in the de facto law, which permits aggregating time periods to add up to the minimum number of days to achieve statutory de facto status. Our office is split on this one. One of us sees the Court of Appeals creating the legal means to justify the end result of favoring a “good parent.” The other sees an (admittedly lazy) analysis of waiver of a superior parenting role with regard to education and medical responsibilities and decision-making. Regardless, families, practitioners, and judges should be incredibly cautious of the cultural implications of treating a parent’s reliance on community-based childcare (lovingly referred to as “it takes a village”) as evidence of abdication of the superior parenting role (prejudicially referred to as “deadbeat” parenthood). If not corrected by the Family Court on remand or by the Supreme Court, this case will be an outlier in KY law and create a mess for Family Court judges facing similar situations. Unreported. http://opinions.kycourts.net/COA/2023-CA-000786.PDF

CM v. DDG, KIG, and SBG, 2023-CA-1048, and associated cases

In this case, the Kentucky Court of Appeals vacated an adoption from Clay County Circuit Court. The initial stages appeared to be unremarkable. By initial, we mean the first two (2) months. In March 2022, a child was born to parents who have a history of substance abuse disorders and quickly placed with the “Adoptive Parents” in this appeal. Mom and Dad weren’t engaged in court-ordered services at first. Trial was scheduled for April, but the parents stipulated. Disposition was scheduled for May 26, 2022. The Court ordered the parents to comply with orders and scheduled a review for November 17, 2022. Then the case turned into a success story and a lesson in what makes a bad foster parent: the parents actively worked their case plan, pursued visitation with their child, and began the difficult road to recovery and stability. Yet, the Adoptive Parents repeatedly presented obstacles, filing a petition for adoption just over a month after disposition and one week after Mom filed a motion for visitation with her baby. The Family Court granted the motion for visitation, and five days later the Adoptive Parents filed a motion to suspend her time.

Then the case became an absolute train wreck. The Court of Appeals summarized as follows:

“A bump in the road occurred in November 2022, after Adoptive Parents requested that the presiding judge recuse due to his relationship with D.G., Adoptive Father, who worked as a bailiff in the judge’s courtroom. A new judge was assigned, but he too recused for the same reason.  Ultimately, the case was reassigned to Special Judge Hon. Stephen Jones. Sometime during the reassignment process, the DNA action stalled. Although the parties filed motions and reports with the family court, the motions were not immediately ruled upon, and no review hearings were conducted.”

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(Author’s note: No reasonable person would call this a “bump.”)

Special Judge Jones allowed the adoption action to take precedence even though the DNA action was very much still active. He did not hold the scheduled case review, he did not hear motions, and instead proceeded with the termination and adoption. All the while, the Cabinet was still filing reports in the DNA action detailing the “exceptional progress of the parents” which were heard by no one. These parents had obtained steady employment, a three-bedroom home, and consistent sobriety. None of which was considered by this judge in the DNA action.

Even worse, the entire trial for termination and adoption was a sham.

The biological parents’ claims for reversal, as described by the Court of Appeals, are as follows:

  • First, the Family Court acted prematurely by conducting the hearing before the Guardian ad Litem had filed her report with the Court.
  • Second, the Family Court violated their due process rights by ordering Biological Parents to present their proof via deposition transcripts.
  • Lastly, the Family Court’s findings of fact and conclusions of law are deficient because the Family Court did not make its findings under the clear and convincing evidence standard.  

Judge Allison Jones, writing for the Court of Appeals, focused on the third claim, which she said was dispositive despite not being preserved in the record. The judgment of the special judge failed to identify a clear and convincing standard at any point in its eight-page order. Therefore, the Court of Appeals found this alone mandated a reversal of the adoption.

Adoptive Parents were allowed to present their proof live in front of the Family Court, while the parents were required to submit their proof in the form of transcripts of depositions. The second claim, which addresses the Family Court’s requirement for depositions, alleged the Family Court violated the parents’ due process by not affording them a trial in person. The Court of Appeals did not specifically base its decision on this issue, but did state it “cannot countenance the unusual procedure employed by the Family Court.” 

Finally, the appellate court has strong language regarding the way that the trial court abdicated its role in the abuse case. The Court of Appeals held that the Family Court should have conducted meaningful reviews regarding the family’s progress toward reunification. Specifically, the Court was required to address those in the “senior action,” the abuse case. On remand, an agitated Judge Jones ordered that the Family Court conduct a review before even addressing the adoption case. Unreported. http://opinions.kycourts.net/COA/2023-CA-001048.PDF

Robert Grumblatt v. Deborah Grumblatt, 2023-CA-1134

In the latest episode of the long-running Grumblatt series, the Court of Appeals affirmed a finding of contempt. Bob and Debby Grumblatt were making their fourth appearance before the Kentucky Court of Appeals. (The previous appeals were combined and remanded to Jefferson Family Court.) 

In this round, Debby was seeking contempt sanctions against Bob for failing to pay about $35,000 in reimbursements for his withdrawals from a retirement account. Judge Goodwin held him in contempt for failure to make restitution. Bob argued that the Family Court should have conducted a hearing on the contempt motion; however, the Kentucky Court of Appeals found that the right to a hearing, like other constitutional rights, could be waived and, in this instance, Bob had waived it. It appears that the case was spicy at times, with the Court of Appeals offering this summary in a footnote:

“The attorneys often cut each other off in mid-sentence, and Bob’s counsel made improper statements about Debby’s counsel being a liar. Other unnecessary and inappropriate things were said. What was scheduled as a fifteen-minute hearing took more than thirty minutes. If we remove the unnecessary sparring, the substance of the hearing could have been addressed in the fifteen minutes allotted.”

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Regular readers of the Round-Up will have opinions on whether truth is a defense to the “improper statements” and whether the attorney fees sought by Debby’s counsel were reasonable. Unreported. http://opinions.kycourts.net/COA/2023-CA-001134.PDF

Criminal Case Tally

It was a slow week for criminal cases. There was one win for the prosecutors and one win for the defendants in the weekly tally. By recent standards, this was a banner week for the criminal defense bar.

Thanks for reading!

Click here to read the previous Round Up.