Appeals Court Weighs In On Child Abuse Records Case

by Devin Katayama on February 7, 2012

The Kentucky Court of Appeals is weighing in Tuesday on whether the Cabinet for Health and Family Services can transfer full jurisdiction from the Circuit Court in a case regarding the release of its child abuse records.

Circuit Court Judge Phillip Shepherd has previously said the agency has failed to comply with his orders, after it redacted certain information from records he ordered released. The Cabinet is asking the appeals court to uphold its decision to withhold this information, which includes identifying factors for individuals involved in the cases but who are still living.

“The issues that the Cabinet policy makers and the Governor feels strongly about is there are things in the files that are confidential, and for any other record you’re allowed to explain that confidentiality and not give out the record and these files shouldn’t be any different from that,” said Christina Heavrin, general counsel for the Cabinet.

The three papers that filed suit, including the Lexington Herald-Leader, the Courier-Journal, and the Todd County Standard, say the records did little to improve transparency in the child welfare system.

When Shepherd made his orders final, that allowed the Cabinet to appeal his ruling. The papers are now asking that Shepherd amend his order and make it non-final, therefore preventing the appeals court from taking charge of his orders, which demand the Cabinet to make more information in the records available.

“We filed a motion with Judge Shepherd to amend his order to make it non-final and non-appealable so that he retains jurisdiction and the Court of Appeals does not have jurisdiction and there would be no appeal,” said attorney Jon Fleischaker, who represents the C-J and the Todd County Standard.

Shepherd is also deciding whether he wants to amend his orders, a decision Fleischaker said he can still make this week.

But the Court of Appeals must weigh in first and it may decide to stay Shepherd’s motion and keep jurisdiction; or it may decide to give Shepherd a chance to amend his previous ruling. If Shepherd maintains jurisdiction, he would make a final order based on the complete review of all files and records, said Fleischaker.

That order could then be appealed by the Cabinet.

“The Cabinet announced, really for the first time, they weren’t going to abide by the judges orders. They felt that they had appealed, that the judge’s orders had been stayed by the Court of Appeals and that they had no legal obligations to produce any records,” said Fleishaker.

The case is likely to continue towards the state Supreme Court, said Heavrin.

This story was updated at 4:30pm after receiving a call from the Cabinet for Health and Family Services.

 

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