23 Feb Taking Notes: This Week’s Court of Appeals Round Up

This week, we’re sitting up and taking notes on the KY Court of Appeals decisions. After last week’s snooze fest, this Round Up is full of attention-grabbing cases that have interesting implications for our own Family Court cases – and maybe yours, too.

J.P. and C.P. v. S.C., Commonwealth of Kentucky, CHFS, and A.J.C., a minor child, 2023-CA-0046

Are temporary custodians parties to an abuse/neglect action? In this case, the Court of Appeals found that the non-parents were not parties. Judge Acree also found that the relatives were not aggrieved by the decision of the Family Court and, therefore, dismissed their appeal. An interesting argument raised by the temporary custodians was that they were “persons exercising custodial care” and thus afforded the same rights to litigate as parents. While novel, this argument was rightly rejected by the Court of Appeals. It would be wise for future litigants to file a Motion to Intervene and/or a separate Custody Action – especially if the facts support a theory based on de facto custody or unfitness of the parents. Unreported. http://opinions.kycourts.net/COA/2023-CA-000046.PDF

Rebecca Switzer-Pemble v. Lawrence Pemble, 2023-CA-0712

The fact pattern from the next case will seem familiar to fans of creepy stalker movies. Larry and Rebecca were married and going through a divorce. After the divorce was filed, Rebecca found 11 hidden cameras in her home that had been installed by Larry, who admitted to installing the cameras to eavesdrop on her conversations. Following the entry of the divorce decree and some three months later, Rebecca found an additional 2 cameras – one in her grandchildren’s playroom and one in her dressing room. There was evidence that Larry also attempted to access her home. Larry did not present proof or testify on his own behalf. Despite the proof, the Family Court denied Rebecca’s request for an EPO. Judge Ward held that the legal definition of ‘stalking’ had not been met. The Court of Appeals agreed with Judge Ward on this one in an unpublished decision. Judge Taylor dissented but decided not to file a separate opinion. We are looking for this one to be appealed to the Supreme Court. http://opinions.kycourts.net/COA/2023-CA-000712.PDF

L.R. v. Commonwealth of Kentucky, CHFS, and E.R., a child, 2023-CA-0856

In the next case, the Court of Appeals affirmed the termination of parental rights. Judge Lambert has written a lengthy opinion that details the facts of the case and praises the Family Court (Judge Santry) for its extensive findings and analysis. Counsel for the father argued that the Cabinet was at least partly to blame for lack of reunification, citing the lack of expanded visitation or family visitation. The father also pointed out his lack of English language comprehension was a barrier. The appellate court rejected this argument. (Note: it appears that the Family Court relied on its prior finding of abuse/neglect in this case to justify the termination. This reporter believes that the practice is problematic and, at some point, the Court of Appeals will begin reversing cases where this happens due to the higher evidentiary standard required in TPR actions. The H+A Law Librarian may expound upon this legal sleight of hand in future Round Up posts, so stay tuned. For now, this judgment stands.) Unreported. http://opinions.kycourts.net/COA/2023-CA-000856.PDF

K.O. v. Commonwealth of Kentucky, CHFS, R.O., a minor child, and S.O., 2023-CA-0897

In this appeal from a Calloway County judge, the Court of Appeals vacated a finding of neglect of a child. The report of neglect was initiated by a school resource officer (SRO) who smelled marijuana around a father’s car. The SRO also complained of the child’s “behavior issues.” After the report, the local CPS jumped into action, obtaining orders for the mother and father to undergo drug testing. (Interestingly, the social worker failed to interview the child’s teachers or school counselors.)  The father’s drug screen was positive for weed and for amphetamines (but he did have a valid prescription for Oxycodone).  After a trial involving expert witnesses on drug testing, the Court made a finding of neglect based on the father’s drug tests. Judge Goodwine reversed the finding of the Family Court, noting that the Cabinet bears the burden of proof, not the parent. While Judge Goodwine was concerned that the child was exposed to marijuana, there was no proof that the child was at risk of physical injury. Additionally, the failure of the social worker to conduct a thorough investigation was fatal to the case. Regular practitioners on the abuse/neglect docket will want to save this opinion for its analysis of  “substance abuse disorders,” as discussed in the DSM-V.  Unreported. http://opinions.kycourts.net/COA/2023-CA-000897.PDF

Read last week’s Round Up here.