Commonwealth of Kentucky, Cabinet for Health and Family Services v. Latanya Batie

RENDERED: MAY 13, 2022; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2021-CA-0580-ME

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES
APPELLANT

APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 20-CI-00826

LATANYA BATIE; ARNOLD BATIE,
IV; MEAHGAN GAIL RUSSELL;
AND JAMES WILLIAMS APPELLEES

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: ACREE, GOODWINE, AND L. THOMPSON, JUDGES.

ACREE, JUDGE: The Cabinet for Health and Family Services appeals the Boyd

Circuit Court order granting custody of minor children, S.W. and P.W., to Latanya

Batie and Arnold Batie, IV (Grandmother and Uncle, respectively; jointly, the
Baties). Because the Baties lacked standing to pursue custody, the custody order

entered by the court is voidable. The circuit court’s sua sponte use of equitable

estoppel to disallow the Cabinet’s lack-of-standing defense was an abuse of

discretion and its application was erroneous as a matter of law. We reverse and

remand with instructions.

FACTS AND PROCEDURE

Late on a Monday night, November 11, 2019, 34-year-old Meahgan

Russell (Mother) gave birth to twins, a boy and a girl, in Ashland, Kentucky.1 The

twins were born addicted to drugs and would spend the next month in the

hospital’s neonatal intensive care unit (NICU) recovering from their addiction.

Unsurprisingly, the Cabinet became involved.

The day after the twins were born, a Cabinet investigating supervisor

interviewed Mother and archived a summary of her report in the twins’ medical

records. Notable in the initial report is Mother’s admission she is a drug addict,

that she has no interest in a program designed to promote infant and toddler health

(Help Me Grow), that she is homeless and relies on her mother and the Salvation

Army, and that she has two sons (ages 17 and 10) and a daughter (age 2) but has

custody of none of them. The report makes no mention of the twins’ father. The

1
The record indicates Mother and Father were both Ohio residents, but without a permanent
abode.

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Cabinet investigating supervisor made an initial referral of the twins’ cases to the

Lawrence County office of the Cabinet’s Department for Community Based

Services (DCBS).

In the afternoon of November 13, 2019, Mother visited her children in

the NICU, and visited them again, twice, the next day. Two days later, November

15, 2019, the Cabinet transferred the case to Boyd County DCBS and assigned it to

Cabinet worker Amber King. The hospital discharged Mother the same day.

On November 21, 2019, around 5:00 PM, the on-duty nurse noted in

medical records: “Mother and father visits[.]” The father is Appellee James

Williams (Father). This is the only time he saw the twins. While visiting, he had

someone photograph him with his youngest children. More than half a year later

he shared the picture with his own mother, Grandmother, who then shared it with

Uncle, Father’s half-brother.

On the same day, November 21, 2019, Cabinet representatives filed

petitions in Boyd District Court pursuant to the dependency, neglect, or abuse

(DNA) statutes, specifically KRS2 620.060, and the Cabinet was granted

2
Kentucky Revised Statutes.

-3-
emergency custody.3 The petitions named Mother and Father as biological and

custodial parents.

The next day, November 22, 2019, Amber King of Boyd County

DCBS met with Mother and discussed the hospital discharge plan for the twins.

King would manage the twins’ cases through their discharge. King and Mother

discussed Mother’s inability to care for the children and the possibility of

placement upon discharge with appropriate and qualified relatives. However,

Mother said she knew of no relative who would be satisfactory. Consequently, the

plan became placement in “foster care with Troy and Amanda Byrd . . . when

medically stable.”

By November 25, 2019, the Cabinet determined that, for some reason

not disclosed by the record, the twins could not be placed with the Byrds, and the

plan was changed to foster placement with Misty Burchett in Red Bush, Kentucky.

On November 26, 2019, the district court conducted a temporary

removal hearing in accordance with KRS 620.080(1)(a) and Mother attended.

Father did not attend. The district court entered an order granting the Cabinet’s

motion that it be awarded temporary custody pursuant to KRS 620.090(1). The

3
In re: P.W., No. 19-J-00196-001 (Boyd Dist. Ct., Nov. 21, 2019); In re: S.W., No. 19-J-00197-
001 (Boyd Dist. Ct., Nov. 21, 2019).

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order also required drug screening for Mother and Father and set a pre-trial

conference hearing for December 17, 2019.

On December 4, 2019, in accordance with KRS 620.180(2)(a)1. and

prior to the pre-trial conference, the Cabinet convened a case planning conference.

Mother attended; Father did not. Cabinet workers again asked Mother about

relatives who might be willing to take temporary custody of the twins. She again

said she knew of no one appropriate and claimed not to know Father’s

whereabouts.4 Thereafter, Mother had no further contact with the Cabinet.

On December 11, 2019, Mother’s twin daughter was discharged from

the hospital and her twin son was discharged on December 13, 2019. Both were

placed by the Cabinet with Misty Burchett who picked them up at the hospital.

At the December 17, 2019 pre-trial conference, in accordance with

KRS 620.100(1)(a), the district court appointed counsel for each twin. Counsel

was also appointed for Mother and Father; however, neither Mother nor Father

participated in the court proceedings in district court from the time of the pre-trial

conference. The district court also ordered that the twins remain in the Cabinet’s

temporary custody under the November 26, 2019 order, and that the twins’ medical

4
The initial investigating supervisor said in testimony that, although Mother did not identify any
of Father’s relatives by name, she did say “Father was out of state and, I think she said, possibly
[in] Michigan.”

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records be filed in the record. Finally, January 28, 2020 was set as the date to

adjudicate the Cabinet’s claim that the twins were neglected.

At that adjudication hearing, the district court entered an order finding

Mother and Father neglected the twins by abandonment and continuing the

Cabinet’s temporary custody of the twins under the November 26, 2019 order.

Finally, the court set March 10, 2020 as the date for a disposition hearing.

Cabinet workers prepared a dispositional report on March 4, 2020,

which the district judge reviewed the following day. Although the report said

Mother and Father were “not being compliant with their case plans[,]” the

Cabinet’s initial “recommended permanency goal” remained “Return [the twins] to

Parent.” See 922 KAR5 1:140 § 4(2)(a) (“A permanency goal shall include one (1)

of the following: (a) Return to parent . . . .”).

Although the parents could not then be located, the Cabinet stuck to

its permanency goal of reunification. Even so, the twins still would need to be

“placed” once the disposition order ended the Cabinet’s temporary custody in favor

of the required order of commitment to the Cabinet as it pursued a permanency

goal. Because “[n]o relatives were given [by Mother or Father] for placement of

the children[,]” and “[n]o suitable family could be found” by the Cabinet’s

5
Kentucky Administrative Regulations.

-6-
independent efforts, “the children were placed in the least restrictive placement

[available], which was foster care in a DCBS home in Louisa.” Of course, the

twins had been placed in foster care with Misty Burchett since their discharge in

mid-December 2019. And although the Cabinet’s dispositional report prepared on

March 4, 2020 kept its permanency goal as “Return to parent,” the Cabinet

changed the placement to Chris and Heather Wilson of Louisa, “an approved

foster-to-adopt home.”

According to testimony and by federal requirement, many foster

placements are part of concurrent planning that allows the Cabinet to pursue family

reunification while providing a “back-up” plan for the possibility of adoption by

the foster family. See 922 KAR 1:140 §1(6) (“‘Concurrent planning’ means the

cabinet simultaneously plans for: (a) The return of a child in the custody of the

cabinet to the child’s parent; and (b) Another permanency goal for the child if

return to parent is not achieved within fifteen (15) of the last twenty two (22)

months, in accordance with 42 U.S.C.[6] 675(5)(E).”). However, the foster parents

did not perceive the twins’ placement with them to be only a part of the Cabinet’s

concurrent planning. Chris Wilson’s affidavit expresses his position that “[f]rom

the first text [from the Cabinet], this was never foster care, this was adoption.”

6
United States Code.

-7-
 The Baties claimed throughout this case that Cabinet workers planned

for the Wilsons to adopt the twins early on. They assert this alleged plan was the

reason the Cabinet failed to engage in diligent efforts to find relatives, which they

also claim would have led to their much earlier pursuit of placement and custody.

However, the Cabinet’s stated permanency goal of “return to parent”

belies that conclusion. Furthermore, subsequent actions by the Cabinet undermine

that claim, especially when we consider the Cabinet did not immediately abandon

“return to parent” as its permanency goal even when the district court rejected it.

The district court disagreed with the Cabinet’s stated recommendation

that the initial permanency goal for the twins be reunification. Instead, “over

ob[jection of] parents’ attys[,]” the March 10, 2020 disposition order states: “Initial

Goal shall be TPR [termination of parental rights]/Adoption due to

abandonment[.]” The court also ruled “[t]here are no less restrictive alternatives”

available because “parents abandoned” the children, and “[r]easonable efforts were

made to prevent the [twins’] removal from the home[.]”7

7
This part of the order may have seemed ambiguous to Cabinet workers at the time because it
did not waive the Cabinet’s obligations to pursue reasonable efforts. See KRS 610.127. Another
indicator the district court did not expect the Cabinet to stop its “reasonable efforts” is the fact
that it did not set a permanency hearing within thirty (30) days as required by KRS 610.125(2)
when “reasonable efforts” are waived. Instead, the court set a 6-month permanency plan review
hearing for September 22, 2020. In any event, the Cabinet continued looking for Mother and
Father and searching for relatives after the March 10, 2020 order, an indication Mother’s and
Father’s case workers did not perceive the order to have absolved the Cabinet of its
responsibility to continue pursuing reunification.

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 Importantly, the disposition order ended the period of the Cabinet’s

temporary custody and began the period of commitment to the Cabinet for

placement of the twins pursuant to KRS Chapter 620. See, e.g., KRS 620.363(7)

(child entitled to “[p]lacement in the least restrictive setting . . . to the extent that

such placement is available”). As discussed below, this order compelled the

Cabinet to pursue concurrent planning to reunify the family while moving forward

with the district court’s order of TPR and adoption; i.e., “[c]oncurrent planning.”

922 KAR 1:140 §1(6).

The disposition order’s entry signaled the Cabinet to “file a case

permanency plan . . . no later than thirty (30) days after the effective date of the

order.” KRS 620.230(1). A case permanency plan is comprehensive. Relevant

here, the Cabinet needed to prepare a plan that included the reasons the Cabinet

was granted custody and the actions it proposes over the next six (6) months to

assure that while a permanency goal is pursued, the contemplated placement for

the children minimizes harm. See KRS 620.230(2). The district court set a “6

Month Permanency Progress Review (PPR)” hearing for September 22, 2020.

The record shows the Cabinet intensified documenting its own

proposed permanency goal of reunification, as well as the goal ordered by the

district court of parental rights termination and adoption. In the same month the

disposition order was entered, March 2020, the ongoing case worker assigned in

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December 2019, Tina Hammond, received a communication from a child

protective services worker in Ohio who was working with Mother and Father to

place their three-year-old daughter with the Baties in Michigan.8 That is when

Hammond learned Mother and Father were residing in a motel in Ironton, Ohio,

but the Ohio worker provided no other contact information for the parents, or for

Grandmother or Uncle.

In March 2020, Hammond also learned the Cabinet’s protocol of a

prompt LexisNexis internet search for relatives was never conducted.9 Normally,

such a search occurs within ten (10) days of the first case plan, which was created

on December 5, 2019, shortly before Hammond was assigned as the ongoing case

worker. In fact, such diligence in identifying relatives is a requirement of federal

law.10 No one in the Cabinet could explain the delay when asked.

8
The record does not reveal whether the communication was before or after March 10, 2020, the
date of the dispositional hearing.
9
The record also fails to indicate when in March 2020 this discovery occurred.
10
Federal law requires Kentucky’s legislative plan for foster care and adoption to:

provide[] that, within 30 days after the removal of a child from the
custody of the parent or parents of the child, the State shall exercise
due diligence to identify and provide notice to the following
relatives: all adult grandparents, all parents of a sibling of the child,
where such parent has legal custody of such sibling, and other adult
relatives of the child (including any other adult relatives suggested
by the parents), subject to exceptions due to family or domestic
violence, that –

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 Hammond testified that when she discovered no LexisNexis search

had been conducted, “I took it upon myself” to initiate one. On March 11, 2020,

the day after the district court entered the disposition order, Hammond received the

search results. It identified several relatives but not Grandmother or Uncle who

were identified only as “associates” of Father.11 Hammond then sent form letters

to the identified relatives, but none responded with a willingness to take in the

twins. For reasons of confidentiality and as a matter of protocol, letters were not

sent to persons identified as associates; consequently, no letters were sent to

Grandmother or Uncle.

As noted, the Cabinet pursued concurrent planning for the twins.

Although the district court ruled the parents had abandoned the twins and ordered

the Cabinet to terminate Mother’s and Father’s parental rights (requiring a separate

(A) specifies that the child has been or is being
removed from the custody of the parent or parents of
the child;

(B) explains the options the relative has under
Federal, State, and local law to participate in the
care and placement of the child, including any
options that may be lost by failing to respond to
the notice . . . .

42 U.S.C. § 671(a)(29).
11
The domestic relations commissioner who heard the evidence in the instant circuit court action
supposed the reason was that after Grandmother remarried, she and Father no longer shared the
same name. The district judge commented on the imperfect nature of this particular internet
search.

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legal proceeding in circuit court), the legislative scheme imposes a duty upon the

Cabinet, an executive branch agency, and not the judiciary, to make its own

determination as to when all reasonable efforts toward reunification have been

exhausted. See KRS 625.090(3)(c) (Cabinet must show it “made reasonable efforts

. . . to reunite the child with the parents”); KRS 620.020(13) (defining

“[r]easonable efforts” as requiring Cabinet’s “ordinary diligence and care . . . to

utilize all preventive and reunification services available”). The statutory duty

regarding TPR actions under “KRS 625.090(3)(c) focuses only on the Cabinet’s

efforts prior to the TPR petition, irrespective of the permanency goals” such as the

district court ordered in this case. Cabinet for Health and Fam. Servs. v. K.H., 423

S.W.3d 204, 213 (Ky. 2014) (emphasis added). With its duty in mind, the Cabinet

continued its search to locate Mother and Father consistent with its initial

“recommended permanency goal” for the twins of “Return to Parent” – a goal that

did not change within the Cabinet for a few months after disposition.

Furthermore, even after a disposition order is entered, if the Cabinet

can succeed in securing a relative placement, the Cabinet is required to “request an

exception for proceeding with involuntary termination of parental rights[.]” 922

KAR 1:140 § 6(2)(a). Consistent with that possibility in this case, the Cabinet

continued to search for relatives, even after the district court’s disposition order for

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the Cabinet to initiate TPR actions. Testimony revealed that as of May 2020, the

Cabinet’s efforts still included locating nonparent relatives.

Despite such efforts, the Cabinet had to comply with the district

court’s order. Hammond compiled a “TPR packet” for Cabinet attorneys to

prosecute TPR actions that would soon be filed. But Father’s casual act of finally

telling Grandmother about the twins would change the entire trajectory of this case.

On June 28, 2020, Father sent Grandmother the picture of himself

with the twins taken more than seven months earlier. She shared it with Uncle, and

both mistakenly believed it to be a relatively recent photo. Then, in July 2020,

Mother and Father were arrested in their hotel room in Ironton, Ohio, for

trafficking in fentanyl. On July 30, 2020, the Cabinet initiated TPR actions against

Mother and Father, but the cases never proceeded to a conclusion.

When the Baties learned Mother and Father were arrested, they

reached out to various child protective services agencies in Ohio and Kentucky to

locate the twins and pursue custody, in the same manner they worked with the

Ohio child protective services office for custody of the twins’ three-year-old sister.

Their work with Ohio authorities familiarized them with the placement and

adoption process across state lines, including the home assessment procedure under

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the Interstate Compact on the Placement of Children (ICPC);12 they were prepared

to do the same with Kentucky authorities. After many tries, Uncle finally

contacted Hammond who testified that Uncle called her at “the beginning of

September.”

According to Hammond’s testimony, Uncle said Father told him and

Grandmother the twins were in foster care, leading to their belief foster care was

recent and a consequence of Father’s incarceration. Uncle told Hammond he and

Grandmother desired custody of the twins. Hammond took down all his contact

information, including his social security number, and the same contact

information for Grandmother. Hammond said she told Uncle that “whenever we

get towards the one-year mark, that that’s when we look at the goal being changed

to adoption and looking at permanency” which would be two months later, in

November 2020. Though this statement would be true in most cases, it was

inaccurate here because the district court changed the permanency goal in its

March 10, 2020 disposition order and, in May 2020, the Cabinet’s goal also

“changed to adoption.”13

12
The Interstate Compact on the Placement of Children is codified in Ohio as Ohio Rev. Code
Ann. § 5103.20 et seq., and in Kentucky as KRS 615.030 et seq.
13
On or about June 8, the Case Review Board filed findings and recommendations indicating
May 18, 2020 was the date the Cabinet changed its permanency goal to coincide with the
disposition order.

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 When Hammond’s supervisor, Robin Mautz, spoke with Grandmother

later in September, she confirmed the permanency goal was changed to adoption

already, that the twins were with a good foster family, and that “it would be in the

best interests of the children not to change placement at this time, given their

attachment and the length of time they had been in these foster parents’ care.”

Notwithstanding the Baties’ contacts with the Cabinet, the DNA cases

proceeded as scheduled. On September 22, 2020, the district court conducted the

permanency progress review hearing. Hammond recommended “that the children

remain committed to the custody of the Cabinet with the current goal of adoption

in their current placement [with the foster-to-adoption family, the Wilsons], and

that reasonable efforts [to reunify with parents] be waived” pursuant to KRS

610.127.14 She also testified that she did not inform the district court that Uncle

had contacted her, and did not tell the court that Uncle and Grandmother “wanted

to have custody or placement of these children.” The reason for not informing the

district court, she said, was that “the goal was changed . . . to adoption.”

At the September 22, 2020 hearing, the district court entered an order

continuing the twins’ commitment to the Cabinet with continued placement with

14
The court appointed special advocate supervisor, Jessica Sexton, presumably thought the
Cabinet was still working under its initial permanency goal of reunification because her
recommendation was “a goal change to adoption in [the] current placement, and that reasonable
efforts be waived.” (Emphasis added.)

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the Wilsons and with the same goal of TPR and adoption. The order expressly

“waive[d] reas[onable] efforts” which, pursuant to KRS 610.127, relieved the

Cabinet of its statutory duty to continue pursuing reunification with Mother and

Father. Finally, the district court set a permanency hearing for November 17,

2020, as required by KRS 610.125(1) (“District Court shall conduct a permanency

hearing no later than twelve (12) months after the date the child is considered to

have entered foster care[.]”).

In the meantime, the Baties hired legal counsel. On October 29, 2020,

their counsel entered her appearance in the district court’s DNA actions but did not

immediately pursue intervention or custody in that forum. The district court

conducted the November 2020 permanency hearing as scheduled and ordered that

the twins remain committed to the Cabinet with a permanency goal of adoption.

Another permanency hearing was scheduled for November 16, 2021. But the

district court also noted in its record that the Baties had initiated a custody petition

in Boyd Circuit Court and that it would defer to that court’s decision. When the

Baties sought custody in the DNA actions, the district court again noted the

pending circuit court custody action they filed and deferred decision-making to

what it called the Boyd Circuit Court’s “superior jurisdiction.”

The Baties’ counsel filed their custody petition in circuit court the

same day she entered her appearance in the DNA actions. Besides seeking

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custody, the petition states “[t]hat the Petitioners are more than willing to

participate in the ICPC process with respect to the minor children”; i.e., a home

assessment. The “ICPC process” recognizes that children of parents deemed

unsuited to the responsibility of their custody might best be placed with a person,

often a relative, who does not live in the state. Generally, it seeks to “maxim[ize

the] opportunity [of a child] to be placed in a suitable environment and with

persons or institutions having appropriate qualifications and facilities to provide a

necessary and desirable degree and type of care.” KRS 615.030, Art. I (a).

More specifically, the ICPC allows that: (1) the state where the child

might be placed will “have full opportunity to ascertain the circumstances of the

proposed placement” by conducting a home study; (2) the state having initial

jurisdiction of the child and pursuing placement out of state may “obtain the most

complete information on the basis of which to evaluate a projected placement

before it is made”; and, finally, ongoing “[a]ppropriate jurisdictional arrangements

for the care of children will be promoted.” KRS 615.030, Art. I (b), (c), and (d).

The Cabinet’s response denied the Baties were fit and proper persons

to have custody of the twins and further denied it is in the best interests of the

twins to reside permanently with them. Significantly, the Cabinet asserted the

affirmative defense that the petitioners lacked standing to pursue custody.

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 The circuit court referred the matter to its domestic relations

commissioner (DRC) for a hearing on the Baties’ motion for temporary custody.

On January 27, 2021, the DRC conducted a virtual hearing in accordance with

Court of Justice administrative orders relating to COVID-19. The question was

whether the Baties should be awarded temporary custody of the twins. The

guardian ad litem (GAL) for the children and the GALs for the biological parents

recommended placements with the Baties as being in the best interest of the twins.

The Cabinet challenged this, again believing the stability of the twins’ lives should

not be lost by placing them with new caregivers. After concluding the hearing, the

DRC prepared proposed findings and conclusions, and recommended the Baties’

petition for custody of the twins be granted.

The Cabinet filed exceptions, most notably challenging Uncle’s and

Grandmother’s standing to initiate an original custody action. On April 19, 2021,

the circuit court heard arguments of counsel. Considerable heat was generated

about whether this was “an egregious case of the [C]abinet workers failing to meet

their obligation to a family and to these children.”

When all counsel had their say, the circuit court addressed them from

the bench. The court recognized the good intentions and suitability both of the

Baties and of the foster family. The court further acknowledged the challenging

nature of the Cabinet’s work, and that of its workers, stating:

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 The [circuit] court has had numerous cases with the
Cabinet . . . and is convinced beyond all doubt that the
Cabinet, as a whole, does the best for the children of our
community . . . .

But the court expressed concern about the Cabinet’s efforts in this case, stating,

These are perplexing circumstances that we find ourselves
in. It appears to the court that the reason that the
petitioners [the Baties] were not discovered earlier was
this LexisNexis report – although there is evidence that
Ohio [child protective services] made the Cabinet aware
of the petitioners.

....

We’ve got, obviously, a loving group of petitioners who
have already taken in two children who are the siblings of
these children and . . . , if we’re looking at the overall
purpose of what the state should be doing in these matters,
it’s to keep families together.

The court noted there have been “outstanding foster parents . . . [who] lost the

child that they were caring for because of the rehabilitation of the parent.” The

rationale there was reunification of the family, and that rationale motivated the

court to award custody to the only parties involved who were related to the twins.

I don’t doubt the sincerity of the foster parents or the
officials of the Cabinet for doing what they think is best
for the child[ren]. But I think the overreaching [sic;
perhaps “overarching”] obligation of this Commonwealth
is to keep families together wherever possible. And that’s
the basis upon which I’m going to uphold the [domestic
relations] commissioner’s report because I believe you’ve
got a caring [G]randmother and a caring [U]ncle who now
live together . . . . But even more importantly than just that

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 is they have two [siblings] of these twins and I think those
twins should be able to grow up in their family unit.

(Emphasis expressed by the circuit court.)

However, courts speak through their written orders. Immediately

after the hearing, without fanfare or elaboration, the circuit court entered an order

stating only that the report of the DRC’s findings, conclusions of law, and

recommendations are “hereby adopted and confirmed as an ORDER of this

COURT.” Thus, the circuit court’s order regarding the Cabinet’s challenge to

Grandmother’s and Uncle’s standing was what the DRC had expressed: “the issue

at this point is not one of standing, [but] . . . ultimately what is in the best interest

of the children.”

Two days later, on April 21, 2021, the Cabinet filed motions seeking

the circuit court’s order specifically addressing standing.15 Two days after that, the

circuit court entered a twelve-page order addressing all pending motions.

The court placed blame squarely on the Cabinet for the circumstances

the circuit court was compelled to address. Quoting J.L.C. v. Cabinet for Health

and Family Services, the court concluded that, “immediately following removal of

a child, the Cabinet is clearly mandated to consider placement with relatives that

15
The Cabinet filed several other motions, not relevant here, designed to maintain the status quo
so the twins would remain with the foster parents who sought unsuccessfully to intervene.

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are known and are qualified.” 539 S.W.3d 692, 695 (Ky. App. 2018). Then,

quoting Baker v. Webb, the court said, “Here, the Cabinet completely failed to

follow its own policies and procedures by not initiating a home study of [the

Baties].” 127 S.W.3d 622, 625 (Ky. 2004). Faulting the Cabinet for not more

quickly identifying the Baties as relatives, the circuit court said “the delay is

impossible to explain . . . .” The court noted “that the Ohio Cabinet advised the

Kentucky Cabinet that it was placing another child of [the twins’ father] with these

same Petitioners.”

Responding to the Cabinet’s claim that the Baties lacked standing, the

circuit court deemed the Cabinet’s conduct in violation of KRS 620.090 and 922

KAR 1:140, its own regulation preferring relative placement.16 It concluded such

conduct “constitute[s] exceptional and extraordinary circumstances and the

equities involved in this case are such that it is applicable [sic; perhaps

“appropriate”] to apply estoppel against the Cabinet.” Though the Baties never

raised or asserted an equitable estoppel argument to defeat the lack-of-standing

defense, the circuit court applied it sua sponte.

16
Notably, the current version of 922 KAR 1:140 makes no reference to “least restrictive
placement.” Furthermore, although the regulation notes that it “relates to” KRS 620.090, that
statute is no longer otherwise referenced in this regulation. The circuit court was obviously
referring to the 2004 version of the regulation that was in effect when the Kentucky Supreme
Court cited the regulation in Baker, 127 S.W.3d at 625.

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 Furthermore, the court eventually also concluded the Baties did have

standing to petition for custody, stating:

In the adoption setting, a relative under KRS 622.090 [sic;
KRS 620.090] had a specific right of intervention. Baker
v. Webb, 172 [sic; 127] S.W.3d 622 (Ky. 2004). No less
should be granted Petitioners here. “Here[,] the Cabinet
completely failed to follow its own policies and
procedures.” Id. at 625. The Court found the regulations
and policies of the Cabinet “grant a significant legal
interest” under the Intervention Rule [CR17 24.01], and the
[Boyd Circuit] Court believes this applicable to standing
as well.

(Record (R.) 188.)

After concluding the Baties had standing, the circuit court applied the

best-interests analysis to substantiate its prior ruling when adopting the DRC’s

recommendation that custody should be granted to the Baties.

Finally, the circuit court addressed the Baties’ motion, supported by

the twins’ father, to have the Cabinet immediately deliver the twins to them, with

law enforcement assistance if necessary. The circuit court stated:

[It] is not unmindful of the situation of changing homes on
such young children. The Court directs the Petitioners to
meet the children with a counselor of the Cabinet present,
together with the foster parents at a time and place, before
noon on April 24, 2021, to be agreed between the parties
to transfer the children.

17
Kentucky Rules of Civil Procedure.

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(R. 190.)

When the district court learned of the circuit court decision, it

determined that “perm[anency was] achieved by Cir. Ct. assuming juris[diction]

over child[ren] & issuing custody order.” The DNA cases were stricken from the

district court docket, with “leave to redocket if remanded.”

The Cabinet now appeals the circuit court’s order, seeking the specific

relief that “this matter be remanded to the Boyd Circuit Court with directions that

the [Baties’] petition be dismissed due to lack of standing.”

STANDARD OF REVIEW

Because the question of standing is “an issue of law, we review de

novo.” Tax Ease Lien Investments 1, LLC v. Commonwealth Bank & Tr., 384

S.W.3d 141, 143 (Ky. 2012) (citation omitted). A different standard applies to the

circuit court’s equitable estoppel holding which involves questions of fact and law.

We will set aside a circuit court’s factfinding only if clearly

erroneous. Lawson v. Loid, 896 S.W.2d 1, 3 (Ky. 1995); CR 52.01. But we review

the court’s application of law de novo, without deference to the circuit court.

Cummings v. Commonwealth, 226 S.W.3d 62, 65 (Ky. 2007). This two-step

standard applies when reviewing a circuit court’s equitable estoppel decision.

Weiand v. Bd. of Trustees of Kentucky Ret. Sys., 25 S.W.3d 88, 92 (Ky. 2000).

-23-
 ANALYSIS – LACK OF STANDING

The Cabinet’s timely raised lack-of-standing defense did not persuade

the circuit court to dismiss the Baties’ custody petition. The first of two ways the

circuit court found that defense unavailing was by analogy to the Supreme Court’s

analysis of KRS 620.090(2) in Baker v. Webb, supra, thereby concluding, in effect,

that the Baties had statutory standing. See Kenton County Board of Adjustment v.

Meitzen, 607 S.W.3d 586, 597 (Ky. 2020) (describing statutory standing). Later in

this Opinion, we will address the second of the two ways – equitably estopping the

Cabinet from asserting the defense. For now, Baker is our starting point.

To begin, Baker does not analyze the same question presented in this

appeal – whether a nonparent relative who is neither a de facto custodian, KRS

403.270(1), nor a person acting as a parent, KRS 403.800(13), has standing to sue

for a child’s custody based on the relationship alone. As we discuss below, Baker

presented an unusual set of facts which the Supreme Court concluded required the

circuit court to grant its appellants’ intervention in their second cousin’s pending

adoption action. Baker, 127 S.W.3d at 623. Because “standing and intervention

are two distinct concepts,” A.H. v. W.R.L., 482 S.W.3d 372, 374 (Ky. 2016), Baker

is distinguishable on its face.

However, we conclude the legal distinction between standing and

intervention is not the primary reason the circuit court erred in relying on Baker.

-24-
Although the Baties base their claim of standing on the same statute found to be

decisive in Baker, KRS 620.090(2), the meaningful distinction between that case

and this is not legal, but factual. The Baties cannot assert the same facts the

second cousins proved in Baker to establish their “interest relating to the . . .

transaction” of the adoption. CR 24.01(1)(b).

For this analysis only, we set aside consideration of the legal

distinction between standing and intervention and focus on the “interest” the Baties

claim supports both intervention in Baker and standing here. We first examine the

statutory source of the interest Baker identifies; then, we identify the factual

distinctions that make Baker inapposite in this case.

Relative placement preference under an order of temporary custody

In deciding Baker, the Supreme Court came to “believe that the

policies”18 behind the Cabinet’s role in Kentucky’s broken families give rise to an

18
Generally, those policies are expressed in the Unified Juvenile Code as “promoting
. . . protection and care of children[.]” KRS 600.010(2)(a). The policy of KRS Chapter 620
addressing dependent, neglected, or abused children more specifically focuses on protecting the
best interests of children. The statute defining the chapter’s purpose says:

Children have certain fundamental rights which must be protected and preserved,
including but not limited to, the rights to adequate food, clothing and shelter; the
right to be free from physical, sexual or emotional injury or exploitation; the right
to develop physically, mentally, and emotionally to their potential; and the right to
educational instruction and the right to a secure, stable family. It is further
recognized that upon some occasions, in order to protect and preserve the rights
and needs of children, it is necessary to remove a child from his or her parents.

KRS 620.010 (emphasis added). Notwithstanding this legislative policy focus on children’s
interests, the Supreme Court said the legislation also identifies an “interest relating to the . . .

-25-
interest the appellants could claim as grounds to intervene in their cousin’s

adoption case. Baker, 127 S.W.3d at 625. The Baties argue by analogy that the

same policies and same interest support their claim of standing. However, the

interest identified in Baker is not the right of relatives, simply because they are

relatives, to adopt. Id. (“Appellants do not have a superior right to adopt.”).

Similarly, the interest identified in Baker does not support the Baties’ right to

claim custody of the twins simply because they are related.

Rather, the identified interest is the right of known relatives to be

“evaluated for relative placement, as mandated by [the Cabinet’s] own policies and

regulations,” after which the Cabinet can “make an informed recommendation to

the circuit court as to the best placement option for the child” during the temporary

removal phase. Id. at 626 (emphasis added). This advances the policies of KRS

Chapter 620 consistent with the child’s statutory rights. See KRS 620.363(7)

(“child . . . shall have the following rights to . . . [p]lacement in the least restrictive

setting”); 922 KAR 1:140 § 3(3)(a)1 (2004) (“[p]lacement shall be [s]elected

according to the least restrictive appropriate placement available, as required

by KRS 620.090(2) . . . .”).

transaction” that can be claimed by nonparent relatives who establish the right facts. Baker, 127
S.W.3d at 624 (quoting CR 24.01(1)(b)).

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 Baker shows clearly enough that the Supreme Court did not read the

statute more broadly than to identify the need for timely protection of the child’s

interest in having known relatives evaluated and preferred as the placement most

likely to be the least restrictive setting for the child while permanency goals are

pursued. Citing the same authority as the circuit court in the instant case19 – KRS

620.090(2) and 922 KAR 1:140 (2004) – the Supreme Court said:

[T]he policies and administrative regulations of the
Cabinet that give priority to relatives of a child placed for
adoption, . . . vest Appellants with a sufficient, cognizable
legal interest in the adoption proceeding of this child.

Baker, 127 S.W.3d at 625 (emphasis added). We emphasize the words “placed”

and “placement” because KRS 620.090 addresses only the Cabinet’s placement of

a child while it has custody pursuant to a temporary custody order authorized by

that statute. Of course, the Supreme Court did not misread KRS 620.090(2) as

directing the Cabinet to prefer relative placement generally and interminably, but

recognized the statute specifically requires preferential consideration of relatives

only when “placing a child under an order of temporary custody . . . .” Baker, 127

S.W.3d at 625 (quoting KRS 620.090(2) (emphasis added)). This language

effectively delineates the duration of the Cabinet’s obligation to prefer appropriate

relative placement as coterminous with its order of temporary custody. See LOUISE

19
See supra n.15.

-27-
EVERETT GRAHAM & JAMES E. KELLER, 16 KY. PRAC. SERIES, DOMESTIC

RELATIONS L., Adoption – Who may adopt and be adopted § 26:2 (2021) (“When a

child is removed from his or her home in an emergency, a temporary custody order

under KRS 620.090(2), the statute relied upon by the Supreme Court, is good for

only forty-five days, . . . . [T]he statute cited by the court requires consideration

[of preferred relative placement] only in the temporary removal context.”).

To understand why the second cousins in Baker established their

interest and why the Baties cannot, we must compare the facts of the former case

with those of the current one.

Facts needed to establish interest sufficient to intervene of right in Baker

“The facts of [Baker were] somewhat disputed and very little is in the

record[,]” Baker, 127 S.W.3d at 623, and that might lead the casual reader to miss

an important circumstance plainly on the face of the opinion – the DNA action was

prosecuted in Warren District Court and the subsequent adoption action was filed

in the Edmonson Circuit Court. Id. The opinion does not indicate that either court

knew the other action was proceeding. Another subtle fact that plays significantly

in Baker is that little time passed from the date the child was removed from

parental custody in Warren County to the date the relatives tried to intercede in the

Edmonson County adoption. As the opinion states:

[I]n late June 2001, the Warren District Court removed the
minor child, then four years old, from the custody of his

-28-
 father due to the biological father’s arrest on pornography
charges. The child was placed in the temporary custody
of the Warren County Cabinet for Families and Children
(hereinafter “Cabinet”), and the biological father
committed suicide a few days later. On June 26, 2001, the
child was placed in the Webb’s [sic] foster home. Upon
learning of the father’s suicide, Appellants, who are
second cousins to the child, contacted the Cabinet and
expressed their interest in adopting the child. Appellants,
who live in Ohio, contend that their first contact with the
Cabinet occurred the day before the biological father’s
funeral. . . . Appellants eventually learned from outside
sources that the mother’s parental rights had been
terminated and that the Webbs had filed an adoption action
in the Edmonson Circuit Court.

Id.

Obviously, the Cabinet and the second cousins were communicating

with each other within as little as one week, certainly no more than two weeks,

after the child’s removal by the Warren District Court’s order of temporary

custody. The unavoidable implication is that the Cabinet knew, while it had

temporary custody of the child, that these relatives were willing to have the child

placed with them. This was well before the Warren District Court conducted an

adjudication hearing and disposition. The Cabinet was under the obligation of

KRS 620.090 to determine whether those relatives qualified and, if so, to consider

preferring them for placement. KRS 620.090(2). The Cabinet even told the

cousins in June 2001 that Cabinet workers “would have to complete an adoptive

-29-
home study before the child could be placed in their home” but “[t]he Cabinet

concede[d] that it did not initiate such actions.” Baker, 127 S.W.3d at 623-24.

Unfortunately, the opinion does not tell us the date the adoption

commenced in Edmonson Circuit Court or the date the second cousins moved to

intervene. It does not tell us whether the Warren District Court’s order of

temporary custody was still in place when either event occurred. However, we can

deduce that the temporary custody order was still in effect when the second cousins

moved to intervene by considering the facts we do know in the context of the

Supreme Court’s ruling, as follows.

The final adoption hearing occurred in Edmonson Circuit Court less

than seven (7) months after the child was removed by an order of the Warren

District Court. Id. (“On June 26, 2001, the child was placed in the Webb’s [sic]

foster home. . . . [F]inal adoption hearing [was held] on January 14, 2002”).

Although an order of temporary custody favoring the Cabinet is initially limited to

forty-five (45) days, the Warren District Court was authorized to “extend such time

. . . .” KRS 620.090(6). From such facts alone, we cannot eliminate the possibility

that the second cousins’ intervention motion in Edmonson Circuit Court preceded

the termination of the Warren District Court’s temporary custody order in the DNA

action. However, the opinion itself makes that sequence of events almost certain.

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 When it comes to the sequence, Baker says little, but enough. The

Supreme Court said KRS 620.090(2) provides the necessary interest. But the

opinion casts that interest in a temporal context by finding more than that the

second cousins had an interest. As CR 24.01 requires, said the Supreme Court, the

second cousins’ interest is “a ‘present substantial interest . . . .’” Baker, 127

S.W.3d at 624 (emphasis added) (quoting Gayner v. Packaging Serv. Corp. of Ky.,

636 S.W.2d 658, 659 (Ky. App. 1982)). If the temporary custody order under KRS

620.090(1) had been replaced by an order of commitment, the preference of KRS

620.090(2) no longer would have applied, and the interest the second cousins

claimed would have lapsed – it would no longer be a present interest as the

Supreme Court held, but a past interest.

It is not truly problematic that the sequence is not expressly stated in

the opinion. Either the Supreme Court knew or justly concluded the second

cousins moved to intervene in the Edmonson Circuit Court adoption before the

Warren District Court replaced the temporary custody order with an order of

commitment to the Cabinet. If that was not the sequence, it would refute the axiom

that “justices are presumed to know the law[.]” Burton v. Foster Wheeler Corp.,

72 S.W.3d 925, 930 (Ky. 2002). To the contrary, it would suggest the Justices in

the majority did not know the time limitation of KRS 620.090(2) or the present-

interest requirement of CR 24.01. We know, however, that neither is so. Justice

-31-
Keller expressly identified the former point of law in his dissent, Baker, 127

S.W.3d at 629 (Keller, J., dissenting), and the majority opinion expressly states the

latter point. Id. at 624.

To be clear, there is a substantive distinction between a temporary

custody order and an order of commitment. A temporary custody order in favor of

the Cabinet cannot last beyond the dispositional hearing. KRS 620.090(6) (“child

shall remain in temporary custody with the cabinet for a period of time not to

exceed forty-five (45) days . . . court may extend such time after making written

findings establishing the need”); KRS 620.140(2) (“An order of temporary custody

to the cabinet shall not be considered as a permissible dispositional alternative.”).

A commitment order, on the other hand, can remain effective until a child is

twenty-one years old. KRS 620.140(1)(e) (“court may authorize commitment up

to the age of twenty-one (21)”). The transition from a temporary custody order to

an order of commitment brings to an end the relative placement preference of KRS

620.090(2). It is the demarcation between the pre-adjudication, temporary removal

phase of a DNA action and the post-adjudication period of the child’s commitment

to the Cabinet. See KRS 620.140(1)(d) and (2) (showing dispositional alternative

as “[c]ommitment of the child to the custody of the cabinet for placement for an

indeterminate period of time . . . order of temporary custody to the cabinet shall not

be considered as a permissible dispositional alternative”); KRS 620.180(2)(b)

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(referencing regulations to address “children committed to the cabinet as

dependent, neglected or abused and placed in foster family homes”).

Therefore, we conclude the rule in Baker will find application when

courts are faced with such unusual facts as found in that case. Then, the court can

turn to Baker for the rule that intervention of right in an adoption is required upon

proof the intervenor: (1) is known to the Cabinet, KRS 620.090(2); (2) is “a

relative who has been denied consideration” for placement, Baker, 127 S.W.3d at

625; and (3) asserts the interest while the child is still subject to an order of

temporary custody under KRS 620.090(1) – i.e., before the “present” interest under

KRS 620.090(2) lapses. Baker, 127 S.W.3d at 624.

Baties do not allege facts necessary to claim interest identified in Baker

Applying the rule in Baker, we conclude the Baties’ interest under

KRS 620.090(2), if it ever existed, lapsed before they filed their petition in circuit

court. The Baties were not known to the Cabinet until long after the order of

temporary custody was replaced by the order of commitment entered at the

dispositional hearing. Furthermore, there is no reason to believe an earlier

LexisNexis search would have made a difference. The search still would have

identified the Baties as associates. There is no proof the Ohio workers identified

the Baties specifically or gave the Kentucky Cabinet workers contact information

but, if they did, the information was conveyed long after the temporary removal

-33-
phase and its corresponding relative placement preference ended. Therefore, the

Baties could satisfy neither the first nor third parts of the Baker rule. At most, they

could claim to be relatives not considered for placement by the Cabinet. That is

not enough.

Unable even to assert the interest that permitted intervention in Baker,

the Baties have no standing to claim the right to pursue custody of the twins.

ANALYSIS – ESTOPPEL

As a sort of back-up plan to its ruling that the Baties had standing, the

circuit court ruled the Cabinet was equitably estopped from asserting otherwise.

We conclude the circuit court erred.

First, the Baties never asserted or argued the doctrine of equitable

estoppel to overcome their lack of standing. The circuit court itself was first to

raise the estoppel argument and did so only after the Cabinet pressed the court for a

decision on its timely lack-of-standing defense. Estoppel, like lack of standing, is

an affirmative defense that is waived if not raised by the party who would benefit.

See CR 8.03. The Supreme Court held that because certain defensive arguments

“may be waived, an appellate court errs by injecting [such defense] into a case on

its own motion.” Harrison v. Leach, 323 S.W.3d 702, 709 (Ky. 2010); see also

Bailey v. Bailey, 231 S.W.3d 793, 800 (Ky. App. 2007) (where non-jurisdictional

defense is not raised or argued by parties, it is error for trial court to raise it sua

-34-
sponte). We see no reason the Harrison ruling on this point should not apply

equally here to the circuit court.20 See Bowling v. Ky. Dep’t of Corrections, 301

S.W.3d 478, 485 (Ky. 2009) (citing Watts v. K, S & H, 957 S.W.2d 233 (Ky.

1997)) (“failure to assert timely an affirmative defense waives that defense and

precludes its consideration by the trial court”); see also Givens v. Commonwealth,

359 S.W.3d 454 (Ky. App. 2011) (party could not raise equitable estoppel on

appeal where party did not raise equitable estoppel in the circuit court).

“[T]he judge should leave to the lawyers the development of the case

and be cautious and circumspect in his participation and conduct . . . .” Transit

Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413, 416 (Ky. 1992).

We conclude the circuit court erred by raising the estoppel defense to cure the

Baties’ lack of standing and subsequently finding its own argument persuasive.

Additionally, we are persuaded that if the Baties had timely raised the

estoppel argument themselves, they still could not have prevailed. We agree with

the Cabinet that the circuit court erred in its application of the doctrine.

20
We note in some instances, equitable estoppel, even if waived, may be raised by the circuit
court. Application of this exception appears to be limited to parties failing to adequately plead
unjust enrichment. See Rose v. Ackerson, 374 S.W.3d 339, 343 (Ky. App. 2012) (“A party’s
failure to assert the existence of unjust enrichment does not serve to make it nonexistent.”).
Unjust enrichment falls under the umbrella of equitable estoppel. Id. This case is not one in
which this exception could apply.

-35-
 “Under the doctrine of equitable estoppel, certain conduct by a party

is viewed as being so offensive that it precludes the party from later asserting a

claim or defense that would otherwise be meritorious.” Akers v. Pike Cty. Bd. of

Educ., 171 S.W.3d 740, 743 (Ky. 2005). It is a “defensive doctrine founded on the

principles of fraud, under which one party is prevented from taking advantage of

another party whom it has falsely induced to act in some injurious our [sic]

detrimental way.” Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 594-95 (Ky.

2012). The elements of equitable estoppel are:

(1) conduct which amounts to a false representation or
concealment of material facts, or, at least, which is
calculated to convey the impression that the facts are
otherwise than, and inconsistent with, those which the
party subsequently attempts to assert; (2) the intention, or
at least the expectation, that such conduct shall be acted
upon by, or influence, the other party or other person;
and (3) knowledge, actual or constructive, of the real
facts. And, broadly speaking, as related to the party
claiming the estoppel, the essential elements are (1) lack
of knowledge and of the means of knowledge of the truth
as to the facts in question; (2) reliance, in good faith,
upon the conduct or statements of the party to be
estopped; and (3) action or inaction based thereon of such
a character as to change the position or status of the party
claiming the estoppel, to his injury, detriment, or
prejudice.

City of Richmond v. Spangler Apts., LLC, 547 S.W.3d 556, 562 (Ky. App. 2018)

(quoting Sebastian-Voor Props., LLC v. Lexington-Fayette Urb. Cty. Gov’t, 265

S.W.3d 190, 194-95 (Ky. 2008)). Thus, “equitable estoppel requires both a

-36-
material misrepresentation by one party and reliance by the other party[.]” Fluke

Corp. v. LeMaster, 306 S.W.3d 55, 62 (Ky. 2010). This record does not support a

factual finding that the Cabinet’s conduct amounted to a misrepresentation or

concealment of material facts upon which the Baties relied. Nor is there any

evidence the Cabinet intended or expected the Baties to do anything in reliance on

the Cabinet’s words or deeds.21

Furthermore, this case involves a state agency and specific rules

govern application of equitable estoppel when a state agency is the defendant. The

circuit court never addressed these rules. “[E]quitable estoppel cannot be applied

against a state agency absent exceptional circumstances.” Bd. of Trustees,

Kentucky Retirement Sys. v. Grant, 257 S.W.3d 591, 594 (Ky. App. 2008); see also

Spalding v. Marion Cty. Bd. of Educ., 452 S.W.3d 611 (Ky. App. 2014).

“Circumstances that are so exceptional as to allows [sic] equitable estoppel against

a government agency, we think, must include some gross inequity between the

parties.” City of Shelbyville ex rel. Shelbyville Mun. Water and Sewer Comm’n v.

Commonwealth, 706 S.W.2d 426, 430 (Ky. App. 1986). Equitable estoppel

“serves to offset the benefit that the offending party would otherwise derive from

the conduct.” Akers, 171 S.W.3d at 743. We fail to see any benefit derived by the

21
During the hearing on the Cabinet’s CR 59 motion, it was suggested that Cabinet workers
were ill-motivated. However, even if the Cabinet’s conduct could be called indolent or
negligent, this alone would not support proper application of the estoppel doctrine.

-37-
Cabinet. We also see no circumstances so exceptional they would clear the high

hurdle for applying the doctrine. Most importantly, the circuit court failed to

identify such circumstances for this Court to review and our independent review of

the record failed to find any. We especially note that the circuit court even stated it

was unaware of any benefit the Cabinet would receive by its actions, a necessary

predicate to the doctrine’s applicability to the Cabinet. (R. 182.)

Therefore, for the foregoing reasons, the circuit court erred by

applying equitable estoppel to deprive the Cabinet of the benefit of its defense that

the Baties lacked standing to pursue the claims in their petition.

VOIDABILITY OF THE ORDERS

The Baties’ lack of standing does not make the circuit court’s orders

void ab initio, and the orders are not incurable legal nullities entitled to no

deference by any court of the Commonwealth. See Mathews v. Mathews, 731

S.W.2d 832, 833 (Ky. App. 1987) (distinguishing voidable judgment from void

judgment, noting the latter “is not entitled to any respect or deference by the courts

of the Commonwealth”); Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 610 (Ky.

App. 1995) (same; judgment void ab initio is “a legal nullity, and a court has no

discretion in determining whether it should be set aside”). The defect in the circuit

court’s voidable orders is not incurable because the Cabinet’s waiver of its defense

at any time before this Opinion is rendered could cure the defect.

-38-
 In fact, it is the very ability to waive standing that makes such a

judgment voidable and not void ab initio. Basin Energy Co. v. Howard, 447

S.W.3d 179, 187 (Ky. App. 2014) (citing Hisle v. Lexington-Fayette Urban Cty.

Gov’t, 258 S.W.3d 422, 431 (Ky. App. 2008)) (if a court acts “outside its

particular-case jurisdiction, its acts are voidable, but not void . . . because the

parties can waive particular-case jurisdictional defects.”). “Once a court has

acquired subject matter and personal jurisdiction,” as the Boyd Circuit Court did

here, the Cabinet’s “challenges to its subsequent rulings and judgment are

questions incident to the exercise of jurisdiction rather than to the existence of

jurisdiction.” Commonwealth v. Steadman, 411 S.W.3d 717, 722 (Ky. 2013)

(quoting Hisle, 258 S.W.3d at 429-30; additional citations omitted). We therefore

focus on the circuit court’s exercise of its subject matter jurisdiction rather than on

the non-existence of its particular-case jurisdiction.

A court only “may have improperly exercised its general jurisdiction

over child custody matters” by adjudicating the claim of a petitioner lacking

standing. Harrison, 323 S.W.3d at 706 (emphasis added). Whether the exercise

was “improper” first depends on whether anyone objects. If no one objects in a

timely manner, there is no reason to prevent the circuit court from adjudicating

whatever controversy can be identified. Id. passim.

-39-
 Here, the Cabinet timely objected, and we concluded the circuit court

erred in the exercise of its jurisdiction in favor of the Baties who had no standing

to bring the petition. That makes the custody order merely “subject to being set

aside retroactively to its date of entry . . . .” Berry v. Cabinet for Families &

Children ex rel. Howard, 998 S.W.2d 464, 467-68 (Ky. 1999).

The well-acknowledged rule is that, because orders of a court acting

without jurisdiction are incurable legal nullities and void ab initio, they are entitled

to no deference by any court including the reviewing court which has no discretion

but to set them aside. Foremost Ins., 892 S.W.2d at 610. By negative implication,

this rule implies the converse is true regarding orders that are not incurable legal

nullities but merely voidable – i.e., that under some circumstances, such voidable

orders might be entitled to some deference, being merely improper exercises of

properly acquired jurisdiction. If this is a correct statement of law, this Court

might be able to affirm the circuit court’s custody order and its subsequent order

instructing the twins’ delivery to the Baties. That is a tempting proposition

because it seems to this Court the substance of the circuit court’s decisions and the

logic behind them are sound and supported by substantial evidence.

However, although this Court has identified the legal error, it is not

the best forum to provide the cure. Our decision to grant the Cabinet’s prayer for

relief in the form of reversal and remand with instructions to dismiss the petition

-40-
presents the Cabinet and the lower courts with a new, perhaps novel, set of

circumstances those courts are better able to address within their jurisdiction.

As noted, the district court reserved leave to re-docket the DNA

actions should the circuit court’s orders be remanded. That ruling was prophetic.

Now, the Cabinet will have to decide whether to seek re-docketing, whether to

seek enforcement of the commitment order, whether to request the twins’ return to

Kentucky, whether to pursue an ICPC assessment of the Baties’ home in Michigan,

and perhaps whether to pursue other matters this Court has yet to contemplate.

Regardless of any deference our jurisprudence may allow the circuit

court’s orders, the district court might well face difficult decisions in response to

the Cabinet’s entreaties, made all the more challenging by the twins’ residence

with the Baties for more than a year. Nevertheless, we are confident in the court’s

ability to make those difficult decisions.

Finally, we cannot ignore the fact that seeping to the surface of this

appeal is the Baties’ unaverred but passionately argued protest so evident in the

action below and in the briefs to this Court – their displeasure with the Cabinet for

failing to discover they were related to the twins in time to be considered a

preferred placement during the temporary removal phase. We will neither defend

nor condemn the Cabinet workers for conduct that certainly contributed to the need

for Kentucky courts to make these hard decisions. The Baties’ concern, though

-41-
legitimate, does not amount to a cognizable claim for which relief can be granted.

It is cause, however, for the Cabinet to improve its performance and assure its

workers satisfy its statutory duties to the best of their abilities.

To the extent it is necessary to mete out blame, more than the lion’s

share goes to Mother and Father. Who better to identify the Baties to the Cabinet?

Not doing so was among their several amoral choices that created this catastrophe.

Despite the Baties’ criticism of the Cabinet and its workers, the record reveals

every individual involved demonstrated a caring and concern eclipsing that of the

people who should have cared the most.

We do not repeat often enough that parental rights are “coupled with

the high duty” of parents to care for a child they together conceive and deliver into

the world. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S. Ct. 2054, 2060, 147 L.

Ed. 2d 49 (2000); see also Morton v. Tipton, 569 S.W.3d 388, 397 (Ky. 2019). It

is a “primary function” of procreators to be responsible for each child’s

“preparation for obligations the state can neither supply nor hinder.” Id. It was

Mother and Father who failed the Baties. Mostly, they failed the twins by

discarding them with little concern and without taking the least step to assure a

hope they would be entrusted to the loving care of relatives. And yet, the

imperfect statutory scheme, created and administered by imperfect beings in all

-42-
three branches of government, still served as a safety net despite the flaws in its

fabric.

CONCLUSION

For the foregoing reasons, the Boyd Circuit Court’s April 19, 2021

order awarding custody of the twins to the Baties is hereby reversed, and this case

is remanded to the circuit court with instructions to dismiss the Baties’ petition for

the custody of the twins.

ALL CONCUR.

BRIEFS FOR APPELLANT BRIEF FOR APPELLEES
COMMONWEALTH OF LATANYA BATIE AND ARNOLD
KENTUCKY, CABINET FOR BATIE, IV:
HEALTH AND FAMILY
SERVICES: Tracy D. Frye
Marie E. Troxler
Matthew Perdue Russell, Kentucky
Ashland, Kentucky

BRIEF FOR APPELLEE JAMES
WILLIAMS:

Sharon Rowsey
Ashland, Kentucky

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