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KENTUCKY COURT OF APPEALS CASES –

LawReader Synopsis for: September 16, 2016

17 Cases –  4 to be Published

Search LawReader Library of Past Decisions:

 

Edited by Judge Stan Billingsley (Ret.)

DECISIONS W/SYNOPSIS – Click on blue case number to read full text.

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Opinions shall not be cited until all steps in the appellate process have been exhausted and they become final.

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CIVIL CASES & CRIMINAL CASES

1

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2012-CA-001801-MR

2012-CA-001801

 

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

NICHOLS (ADRIANNE), ADMINISTRATRIX OF THE ESTATE OF CHARLIE NICHOLS

OPINION AFFIRMING

COMBS (PRESIDING JUDGE)

NICKELL (CONCURS)

AND THOMPSON (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, NICKELL, AND THOMPSON, JUDGES.

COMBS, JUDGE:: Kindred Healthcare, Inc.; Kindred Nursing Centers Ltd. Partnership d/b/a Harrodsburg Health Care Center; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; and Kindred Rehab Services, Inc. d/b/a Peoplefirst Rehabilitation n/k/a Rehabcare (collectively referred to herein as “the nursing home”), appeal from the September 27, 2012, order of the Mercer Circuit Court denying a motion to compel arbitration of the action commenced by Charlie Nichols, a resident of the nursing home, now deceased.

 The nursing home contends that the trial court erred by concluding that Anetha Nichols, the daughter of Charlie Nichols, lacked the necessary authority to bind her father to the terms of an alternative dispute resolution agreement that contained a provision requiring arbitration of the parties’ disputes. After our review, we affirm.

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2

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2013-CA-000245

TO BE PUBLISHED

 

GGNSC FRANKFORT, LLC, ET AL

. VS. RICHARDSON (JAMES), ET AL.

OPINION AFFIRMING THOMPSON (PRESIDING JUDGE) ACREE (CONCURS) AND COMBS (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE:

 GGNSC, Frankfort, LLC, d/b/a Golden Living CenterFrankfort and its affiliated entities (GGNSC) appeal from an order of the Franklin Circuit Court denying a motion to compel arbitration and dismiss or to stay the action pending arbitration.

The question presented is whether a power-of-attorney document executed by Fannie H. Lyon authorized her attorney-in-fact to enter into an agreement to arbitrate any claims arising from GGNSC’s alleged negligence while Fannie was a GGNSC resident.

 Based on our Supreme Court’s decision in Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2016), we conclude the power-of-attorney document did not confer such authority and, therefore, the arbitration agreement is not enforceable.

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3

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2013-CA-001795-MR

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

VS. HORTON (CYNTHIA), AS EXECUTRIX OF THE ESTATE OF JAMES E. RICHARDSON,

DECEASED

OPINION AFFIRMING DIXON (PRESIDING JUDGE) MAZE (CONCURS) AND TAYLOR (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES. DIXON, JUDGE:

 Kindred Healthcare, Inc.; Kindred Nursing Centers Limited Partnership D/B/A Kindred Transitional Care and Rehabilitation-Hillcrest; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; Kindred Rehab Services, Inc., D/B/A Peoplefirst Rehabilitation N/K/A RehabCare (hereinafter collectively “Kindred”) appeal from an order of the Daviess Circuit Court denying its motion to compel arbitration of the personal injury and wrongful death claims initiated by Cynthia Horton, as Executrix of the Estate of James E. Richardson, deceased (“Estate”).

For the reasons set forth herein, we affirm.

After James was appointed administrator of Fannie’s estate, he filed this action in the Franklin Circuit Court alleging negligence, medical negligence, corporate negligence, violation of Kentucky’s long-term care resident’s rights statute, Kentucky Revised Statues (KRS) 216.515, and wrongful death.

 GGNSC filed a motion to compel arbitration and dismiss the pending lawsuit or stay the lawsuit pending arbitration.

The circuit court denied GGNSC’s motion ruling that the power-of-attorney document does not encompass the power to execute an arbitration agreement. GGNSC appealed

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4

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2014-CA-000480-MR

NOT TO BE PUBLISHED

APPLE VALLEY SUBDIVISION PROPERTY OWNERS ASSOCIATION, INC.,

ET AL.

VS. OVERLOOK DEVELOPMENT, LLC., ET AL.

OPINION AFFIRMING ACREE (PRESIDING JUDGE) NICKELL (CONCURS) AND TAYLOR (DISSENTS AND DOES NOT FILE SEPARATE OPINION)

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, NICKELL AND TAYLOR, JUDGES. ACREE, JUDGE:

Appellee Louisville/Jefferson County Metro Planning Commission approved a development plan to construct an apartment complex on land abutting Outer Loop Road in Louisville, Kentucky.

Appellant Apple Valley Subdivision Property Owners Association, Inc., is a homeowners’ association of residents across Outer Loop from the subject property.

The remaining Appellants are residents and office-holders of various cities and subdivisions adjacent to or nearby the subject property.

Appellants collectively oppose the project, and appeal a Jefferson Circuit Court opinion and order finding the Commission did not act arbitrarily in approving the proposed development plan. We affirm.

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5

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2014-CA-001957-MR

TO BE PUBLISHED

 

GRANT THORNTON, LLP

VS. YUNG (WILLIAM J.), ET AL.

 OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING MAZE (PRESIDING JUDGE) CLAYTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. MAZE, JUDGE:

 Grant Thornton, LLP (Grant Thornton) appeals from a judgment of the Kenton Circuit Court in favor of William J. and Martha A. Yung (collectively, the Yungs), and the 1994 William J. Yung Family Trust (the Trust).

 Following a bench trial, the circuit court found that Grant Thornton engaged in extensive fraud and negligence in the course of providing tax and accounting services to the Yungs and the Trust.

 Based on these findings, the trial court awarded the Yungs and the Trust compensatory damages totaling nearly $20 million and punitive damages of $80 million

The trial court’s findings of fraud, gross negligence, and the amount of compensatory damages were supported by substantial evidence and were not clearly erroneous.

 We further find that punitive damages were appropriate under the facts of this case.

 However, we must conclude that the amount of punitive damages was unconstitutionally excessive in light of all relevant factors.

We further find that the trial court properly directed that the judgment shall bear interest at the statutory rate.

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6

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2015-CA-000480-MR

TO BE PUBLISHED

 

BOWEN (JOSHUA) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING D. LAMBERT (PRESIDING JUDGE) DIXON (CONCURS) AND MAZE (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE:

This matter is before the Court on appeal from a ruling by the Franklin Circuit Court which denied a suppression motion filed by the Appellant, Joshua Bowen. Having reviewed the record and finding no reversible error, we affirm.

Schneble mistakenly believed the warrant noted for the similarly named individual was actually a warrant for Bowen’s arrest.

While walking from his cruiser back to Bowen’s car to return Bowen’s license and send him on his way, Schneble noticed a small baggie on the center hump of the rear floorboard in Bowen’s vehicle. The baggie contained a white substance later revealed as cocaine. Schneble asked Bowen to step out of the vehicle, at which point Bowen shifted the car into gear and sped away. Bowen later abandoned the vehicle and attempted to flee on foot. He was apprehended shortly thereafter.

The vehicle was impounded and searched, revealing a large quantity of cocaine which had been concealed in the gas cap door

, the trial court relied primarily on Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), to stand for the proposition that negligent mistakes of fact by law enforcement officers do not require suppression of the evidence yielded by a search unless the search rises to the level of a deliberate, reckless, or grossly negligent violation of the Fourth Amendment, or the violation reflects recurring or systemic negligence.

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7

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2015-CA-000655-MR

 

NOT TO BE PUBLISHED

MULLINS (CHARLES V.), ET AL.

 VS. CARVER (OFFICER RUSSELL W.), ET AL.

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) ACREE (CONCURS) AND D. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

The above-captioned appellants are or were involved in the business of effectuating automobile repossessions in and around Louisville, Kentucky.

 Charles Mullins was a sole proprietor of a business he named “United States Repossession Task Force.” He was the managing member of “Louisville Repossession Task Force Limited Liability Company.

” Derek Denney and Jonathon C. Payne were two of Mullins’ employees (or, as Mullins refers to them, his “field agents”).

In each incident, discussed in depth below, Mullins and his company attempted to effectuate repossessions in the greater Louisville area. Following each incident, Mullins was arrested by officers from the Louisville Metropolitan Police Department (LMPD) for impersonating a peace officer. Denney and Payne, who assisted Mullins during one of these three incidents, were also charged with that offense.

… these appellants were either acquitted or their charges were dismissed; and they—along with Mullin’s limited liability entity—filed a variety of civil claims in Jefferson Circuit Court against the arresting officers in their individual capacities.

They alleged the officers (the above-captioned appellees) were liable for malicious prosecution and had conspired to interfere with Mullins’ repossession business.

The circuit court summarily dismissed these claims, and this appeal followed. Upon review, we affirm.

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8

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2015-CA-000698-ME 2015-CA-001017-ME      2015-CA-001018-ME

 

NOT TO BE PUBLISHED

B. (H.)

 VS.

B. (A.), ET AL.

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE, ACREE AND MAZE, JUDGES. MAZE, JUDGE:
 These consolidated appeals arise from various orders in custody, dependency, and domestic violence proceedings before the Kenton Family Court. H.B., the custodian of two minors, appeals from orders in the custody and dependency actions finding that Indiana is the home state of the children, and dismissing those actions following entry of custody orders in Indiana. A.B. and S.B., the parents of the children, appeal from domestic violence orders (DVOs)  entered against them on behalf of H.B. and the children.

Finding no substantial error in any of these matters, we affirm

the petitions relating to P.M.B. and A.M.B., arguing that Kentucky did not have home-state jurisdiction over the children, and that removal of A.M.B. was improper because she came to Kentucky under a civil summons.

The trial court entered an order denying the motion. The court found that it had jurisdiction to enter an ECO order under KRS 1 610.010, KRS 620.060, and KRS 403.828. The court further found that KRS 421.260(1) does not apply as it addresses immunity for witnesses and not parties

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9

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2015-CA-000920-MR

NOT TO BE  PUBLISHED

COMMONWEALTH OF KENTUCKY

 VS. SMITH (JOHN E.), JR.

 OPINION AFFIRMING JONES (PRESIDING JUDGE) COMBS (CONCURS) AND NICKELL (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE:

 The Commonwealth of Kentucky appeals from a Franklin Circuit Court order granting John E. Smith, Jr.’s motion to suppress evidence recovered by the police during a traffic stop.

The following undisputed facts were elicited at the suppression hearing: Richard Qualls, a narcotics detective for the Franklin County Sheriff’s Office, was conducting surveillance of Smith after receiving information from multiple confidential sources that he was trafficking in cocaine. Smith was on parole after receiving a ten-year sentence for first-degree trafficking in a controlled substance.

According to Detective Qualls’s sources, Smith sold cocaine from a bar known as the “Brick” in downtown Frankfort, drove a Cadillac as well as a dark colored  SUV, and was employed at Sears.

Deputy Eaton further introduced himself as the K-9 handler for the Franklin County Sheriff’s Office. Deputy Eaton testified that he had the “standard conversation” with Smith that he has when making traffic stops. This conversation consisted of asking Smith whether he had any drugs or guns in the car and whether a search of the vehicle would reveal any contraband. Eaton stated that Smith appeared very nervous when he was asked about the presence of drugs, and that Smith told him that there were no drugs in the vehicle. Deputy Eaton returned to his cruiser, got the dog and began to conduct a K-9 “sniff.” The dog gave a strong indication of a positive alert at the driver’s side door of Smith’s car.

It is well-established that “the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole.” Bratcher v. Commonwealth, 424 S.W.3d 411, 415 (Ky. 2014).

Stopping an automobile and detaining its occupants constitute a seizure under the Fourth Amendment. Traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity. The level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence.” Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011)

Police officers are permitted to, and regularly do, rely on hearsay in the form of tips from informants, some of whom are anonymous, to justify traffic stops.

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10

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2015-CA-000962-MR

NOT TO BE PUBLISHED

JORDAN (JEFFERY) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) CLAYTON (CONCURS) AND J. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND J. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

Jeffery Jordan appeals the Clark Circuit Court’s judgment convicting him of Failure to Comply with Sex Offender Registration, First Offense, and Failure of Owner to Maintain Required Insurance/Security, First Offense.

After a careful review of the record, we affirm because Jordan failed to ensure that we had a complete record before us to conduct a meaningful appellate review

 Jordan now appeals, contending that his conviction for failing to register as a sex offender should be reversed because the record failed to establish  that he had to register in Kentucky based on a juvenile offense from Michigan.

1 The Commonwealth argues the appeal should be dismissed because Jordan never moved to dismiss the charge or challenge it through any other motion in the trial court on the basis that he did not have to register as a sex offender in Kentucky based on his offense in Michigan.

The Commonwealth further asserts that because there was no such motion, there was also no adverse determination by the circuit court finding that Jordan was required to register.

we hold that Dickerson has sufficiently preserved for our review the issues in this appeal. It would have been far better practice, of course, if the issues upon which Dickerson’s guilty plea were conditioned had been identified in the record, instead of Dickerson’s counsel’s vague statement that Dickerson’s plea was conditional merely because Dickerson wanted to have “something general” upon which to base an appeal.

Had the issues raised in Dickerson’s appeal not been expressly raised in the circuit court, we would not have considered them on appeal.

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11

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2015-CA-001160-ME

NOT TO BE PUBLISHED

TRENT (JAMES THOMAS)

VS.

TRENT (TEENA LEE)

OPINION VACATING IN PART AND REMANDING MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION VACATING IN PART AND REMANDING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. MAZE, JUDGE:

 James Trent appeals from a Domestic Violence Order (DVO) which the Fayette Family Court entered against him.

We agree with James that the trial court improperly relied, at least in part, upon allegations of domestic violence which were rejected in a previous DVO proceeding.

Therefore, we must set aside the DVO in part and remand for additional factual findings on whether the remaining evidence was sufficient to support entry of a DVO.

” The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim was “more likely than not to have been a victim of domestic violence.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). KRS 403.720(1) defines “domestic violence and abuse” as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]”

She also argues that KRS 403.741 permitted the trial court to consider that evidence in determining whether domestic violence and abuse had occurred. We agree with Teena that James clearly opened the door to admission of the evidence. Generally stated, “opening the door” is a form of waiver that occurs when one party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof. Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009), citing Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky. 2004). While James raised the matter to challenge Teena’s and Z.T.’s credibility, Teena was entitled to present evidence showing that the determination in the previous DVO proceeding did not impair their credibility in this action. However, whether the trial court was entitled to rely on this evidence to find that domestic violence and abuse had occurred is a separate question

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12

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2015-CA-001259-MR

TO BE PUBLISHED

 

MAUPIN (LATASHA) VS.

 TANKERSLEY (ROLAND)

 OPINION AFFIRMING MAZE (PRESIDING JUDGE) NICKELL (CONCURS) AND JONES (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING ** ** ** ** ** BEFORE: JONES, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE:

Latasha Maupin appeals from the Jackson Circuit Court’s order denying her Motion for Judgment Notwithstanding the Verdict and/or Motion for a New Trial on Damages.

Maupin argues the jury instructions improperly stated the law with respect to a dog owner’s liability for injuries caused by his dog.

Because we find no error, we affirm

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13

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2015-CA-001365-ME

NOT TO BE PUBLISHED

DELANEY (NANCY) VS.

CISSELL (JOSEPH ERIC)

OPINION AFFIRMING MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. MAZE, JUDGE:

Nancy Delaney (Delaney) appeals from a post-decree order of the Jefferson Family Court which denied her motion to enforce an agreement to modify child support and ordered her to pay a child-support arrearage to Joseph E. Cissell (Cissell).

Delaney argues that the parties had agreed to a suspension of child support for certain periods when she had primary residential custody of the child,1 and to offset a portion of the child’s mobile phone bill against her child support obligation.

 We conclude that the evidence did not compel a finding that such an agreement existed, and therefore the trial court did not abuse its discretion by declining to modify child support. Hence, we affirm.

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14

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2015-CA-001420-ME

NOT TO BE PUBLISHED

MCBRIDE (DEVIN) VS.

 MCBRIDE (AMANDA)

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) ACREE (CONCURS) AND D. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

 Devin McBride appeals the Jefferson Family Court’s order denying his motion for additional findings and denying his motion to alter, amend or vacate the court’s judgment concerning the amount of child support he is obligated to pay.

 After a careful review of the record, we affirm because the family court did not abuse its discretion in its allocation of child care expenses or in its application of the child support guidelines.

Devin now appeals, contending that: (a) the family court abused its discretion in setting child support absent findings regarding the reasonableness of the allocation of child care expenses in relation to the parties’ income; and (b) the family court abused its discretion when it failed to deviate from the guidelines when the application of the guidelines is unjust or inappropriate. Amanda did not file a brief on appeal.

II. ANALYSIS We first note that because Amanda failed to file an appellee brief, CR 4 76.12(8)(c) provides as follows: “If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

“the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support.” In the present case, the court stated that the base support obligation for the parties’ one child is $322, which is correct because that is the amount shown in the table at KRS 403.212(7) for one child based upon a combined monthly adjusted parental gross income of $1,800, which was the parties’ combined monthly adjusted parental gross income in this case.

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15

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2015-CA-001504-ME 2015-CA-001505-ME 2015-CA-001506-ME 2015-CA-001507-ME

 

NOT TO BE PUBLISHED

B. (A.)

VS.

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

OPINION AFFIRMING ACREE (PRESIDING JUDGE) KRAMER (CONCURS) AND MAZE (CONCURS)

OPINION AFFIRMING ** ** ** ** ** -2- BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. ACREE, JUDGE:

A.B. (Father) appeals from the Grant Circuit Court’s September 2, 2015 order and judgment involuntarily terminating his parental rights to four of his children, L.M.B., A.L.B., G.E.B., and C.D.B. 1

Father argues on appeal that the family court’s termination decision cannot stand because (1) it is not supported by sufficient evidence to warrant termination, and (2) the court erred by failing to find that Father demonstrated by a preponderance of the evidence that the children will not be abused or neglected in the future. After careful review, we affirm

. 2 The Cabinet for Health and Family Services became involved  with this family in September 2012 after receiving a call from the children’s school that Mother appeared to be under the influence when picking up the children. Upon investigation, the family’s transiency was discovered

Grandfather stated that neither parent was ever a responsible spouse or a parent. They made contact with Grandfather only when they needed money. Grandfather testified that he did not really know what was going on until the Cabinet became involved.

Termination of parental rights is governed by Kentucky Revised Statutes (KRS) 625.090. The statute requires satisfaction by clear and convincing proof of a three-prong test. First, the child must have been found to be an “abused or neglected” child, as defined by KRS 600.020.

 KRS 625.090(1)(a). Second, termination must be in the child’s best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). Consideration of the second and third parts require the family court to analyze several enumerated factors. Even upon satisfaction of all three prongs, the family court may exercise its discretion not to terminate if the parents prove by a preponderance of the evidence that the children will not be abused or neglected in  the future.

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16

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2015-CA-001811-ME

 

NOT TO BE PUBLISHED

BOSTON (ANNETTE) VS.

TRUSTY (DEBRA)

OPINION AFFIRMING CLAYTON (PRESIDING JUDGE) STUMBO (CONCURS) AND VANMETER (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES. CLAYTON, JUDGE:

 Annette Boston, an intervening petitioner, in this custody matter, appeals from both the September 3, 2015 findings of fact, conclusions of law, and final custody order of the Caldwell Circuit Court and also its November 10, 2015 order denying her motion for additional findings of fact and an amended judgment.

 Having carefully considered the record and the legal arguments of the parties, we affirm.

This matter is a custody dispute between the maternal grandmother, Debra Trusty, and the maternal aunt, Annette Boston. Both parties are seeking custody of the five children of Karol Boston who died of cancer on August 16, 2014. The children are D.C. (D.O.B. 2/22/01), B.C. (D.O.B. 3/15/02), A.M. (D.O.B. 6/15/04), M.M. (D.O.B. 11/10/05), and S.F. (D.O.B. 3/15/08). 1 Reggie Cavanaugh is the biological father of D.C. and B.C.; Demetrius Steppe is the biological father of A.M.; Ronald Ivory 2 is the biological father of M.M.; and, James Fairrow is the biological father of S.F.

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17

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2016-CA-000049-WC

NOT TO BE PUBLISHED

MYERS (MARK ANTHONY)

VS.

COX INTERIOR, INC., ET AL.

OPINION AFFIRMING D. LAMBERT (PRESIDING JUDGE) CLAYTON (CONCURS) AND NICKELL (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, D. LAMBERT AND NICKELL, JUDGES. D. LAMBERT, JUDGE:

Mark Anthony Myers appeals from the December 18, 2015 opinion of the Workers’ Compensation Board (the “Board”) affirming the decision of Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), to dismiss Myers’ benefit claims.

 The Board concluded that the ALJ properly found Myers’ injuries were not related to his work. After review, we affirm. At the administrative hearing, the primary issue was whether Myers sustained a work-related injury

 The ALJ ultimately found Myers’ condition was not work-related after finding that Myers’ was not a credible witness. The ALJ observed that Myers had actually presented to Dr. Stephen Shaw, a chiropractor, on November 14, 2012, complaining of neck and right shoulder pain. This was three days before Myers first reported his injury to Moss.

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court Orders:

 

EACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

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