Attorney Sanctioned for Not Following RAP

Mother and Father were undergoing a divorce when the underlying DNA petition was initiated. They shared custody of their children by an agreed order and were prohibited from committing abuse, stalking, or sexual harassment, as well as being within five hundred feet of each other. Mother filed a DNA petition on November 29, 2022, after noticing bruises on Child’s arms following a visit with Father, and the family court granted her emergency custody on December 1.

During a January 26, 2023 adjudication hearing, both parents testified, and the court found Father had abused Child, a three-year-old mostly non-verbal child, who had returned from Father’s care with bruises resembling finger marks. The court noted a history of domestic violence, including incidents where Father tackled, choked, and threatened Mother. Mother testified to her fear of Father, who had previously damaged security cameras and threatened her.

On January 11, 2022, Child sustained significant injuries in Father’s care. Father claimed the bruises resulted from playfully throwing Child on a mattress. The court found abuse and risk of harm, ordering continued custody with Mother and supervised visitation for Father, pending further hearings. Despite a Cabinet investigation finding allegations unsubstantiated, the court denied Father’s motion to reconsider and imposed requirements for Father, including supervised visits, assessments, and classes. Father appealed the decision.

Prior to analyzing the matter, the Court reminded the Bar to follow the Rules of Appellate Procedure. Father’s appeal suffered from multiple briefing violations, making it difficult for the Court to review. His statement of the case did not comply with RAP 32(A)(3) due to its brevity and lack of citations to the certified record, referencing only his own appendix, which is unacceptable. Additionally, the argument section failed to include specific references to the record as required by RAP 32(A)(4). His brief also violated RAP 32(E)(1)(a) and (c) by improperly including materials not in the certified record and not placing the judgment under review immediately after the appendix list.

These violations, the Court stated, point to either ignorance of or refusal to follow procedural rules, warranting sanctions. The court noted that such incompetence burdens the justice system and undermines public confidence. Mr. Cox, Father’s counsel, the Court stated, has a history of similar violations in previous cases, suggesting a persistent disregard for procedural rules. The Court, therefore, decided to sanction Mr. Cox and warned of further sanctions for future violations. Despite the deficiencies, the court acknowledged the importance of the constitutional right to parent and aimed to address the merits of Father’s appeal.

First, Father argued that there was no evidence of abuse as defined by the statute. The Court of Appeals held that it cannot reverse the family court’s decision if the evidence presented by Mother is substantial, even if Father’s evidence could also support a ruling in his favor. According to Sesmer v. Barton’s Adm’x, the family court, which directly observes the witnesses and their demeanor, has the authority to choose which evidence to believe.

The family court found substantial evidence from Mother, including photographs of Child’s bruising taken immediately after a visit with Father, Mother’s testimony on Child’s fear of Father, and evidence of Father’s violent tendencies. This evidence, the Court held, supports the family court’s decision.

Conversely, Father did not refute Mother’s proof but speculated that he might have caused the bruising while playing with Child, which he termed a “child rearing preference.” This admission actually supports the finding that the bruising was caused by Father.

Next, Father argued that because he did not intend to injure Child, Mother’s proof does not support the legal conclusion that he abused Child. However, the Court held that under KRS 600.020(1)(a)1.-2., Father’s intent is irrelevant in determining whether Child was injured by his actions. The key issue is whether Father, as the person supervising the child, contributed to the injury.

Although Father claims the injury was accidental, the statute defines an “abused or neglected child” as one harmed or at risk of harm due to a parent’s actions, excluding accidental injuries. Intent focuses on a desired outcome, while “accidental” means an event not resulting from a purposeful act. Black’s Law Dictionary distinguishes between “intentional” and “purposeful,” emphasizing that an act is not accidental if it results from deliberate actions, even if unintended consequences occur.

The Kentucky Supreme Court has stated that a parent need not intend harm for a child to be adjudged abused or neglected. Thus, Child’s injury, resulting from Father’s purposeful act of playing, is not considered accidental. Father’s actions, which could have been prevented by reasonable foresight, met the statutory definition of non-accidental injury.

Digested by Nathan R. Hardymon