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March 13, 2026 Get Citation Alerts Download PDF Add Note

2026 Ca Admin - Non-Confidential Opinion - 003

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0831, 0892
• Precedential Status: Non-Precedential
• Judges: Thompson

• Disposition: OPINION AND ORDER DISMISSING

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

OPINION AND ORDER DISMISSING

Combined Opinion

                        by [Kelly Thompson](https://www.courtlistener.com/person/7345/kelly-thompson/)

RENDERED: MARCH 13, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0831-ME

E.L.B., JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 24-J-502425-001

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; A.P.; AND
M.P.B., A MINOR CHILD APPELLEES

AND

NO. 2025-CA-0892-ME

E.L.B., JR. APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 24-J-502425-002

COMMONWEALTH OF KENTUCKY,
CABINET FOR HEALTH AND
FAMILY SERVICES; A.P.; AND
M.P.B., A MINOR CHILD APPELLEES
OPINION AND ORDER
DISMISSING

---

BEFORE: THOMPSON, CHIEF JUDGE; CETRULO AND KAREM, JUDGES.

THOMPSON, CHIEF JUDGE: E.L.B., Jr. (“Father”) appeals from an order which

returned to his custody his minor child M.P.B. (“Child”).1 The only issue raised on

appeal revolves around the constitutionality of Kentucky Revised Statutes (KRS)

620.027. We conclude that the case is moot and this consolidated appeal should be

dismissed.

FACTS AND PROCEDURAL HISTORY

Father is the natural father of Child. Child was born on February 24,

2024, and was found to have drugs in her system. Child’s mother was an active

illegal drug user. Child was experiencing withdrawal symptoms after birth and

placed in the Norton Children’s Hospital NICU. In May of 2024, the Cabinet for

Health and Family Services filed a petition alleging Child’s mother neglected her

due to her drug usage. Father was not named in the petition. Child was placed in

the temporary custody of Child’s paternal grandfather and Father agreed to the

placement. The status of the case then remained unchanged for some months.

1
This case involves allegations of dependency and neglect against a minor child; therefore, we
will not use the names of the parties in order to protect the child’s privacy.

-2-
On November 24, 2024, Father filed a motion seeking to have Child

returned to his custody. On December 2, 2024, the Cabinet and the grandfather

moved for the grandfather to be given permanent custody of Child. The Cabinet

was concerned that Father needed more time to show his ability to parent Child

and care for her medical needs before custody could be returned to him. There was

also concern from the Cabinet that Father was allowing Child’s mother to have

contact with Child in violation of a court order prohibiting such contact.

Father later filed a motion which argued that KRS 620.027 was

unconstitutional. KRS 620.027 states:

The District Court has jurisdiction, concurrent with that
of the Circuit Court, to determine matters of child
custody and visitation in cases that come before the
District Court where the need for a permanent placement
and custody order is established as set forth in this
chapter. The District Court, in making these
determinations, shall utilize the provisions of KRS
Chapter 403 relating to child custody and visitation. In
any case where the child is actually residing with a
grandparent in a stable relationship, the court may
recognize the grandparent as having the same standing as
a parent for evaluating what custody arrangements are in
the best interest of the child.

Father claimed that the last sentence of the statute, which gives a grandparent

standing equal to a parent for custody issues, violated his Fourteenth Amendment

rights to the care, custody, and control of his child. See Troxel v. Granville, 530

U.S. 57, 65-66, 120 S. Ct. 2054, 2059-60, 147 L. Ed. 2d 49 (2000).

-3-
A hearing was held, and on May 27, 2025, the court entered an order

returning Child to the custody of Father and finding that KRS 620.027 was

constitutional. This appeal followed.

ANALYSIS

During the briefing period of this case, the Cabinet moved to dismiss

the appeal as moot because Child was returned to Father’s custody and any ruling

on the constitutional issue would be advisory only. During a motion panel, this

Court denied the motion; however, the Cabinet, in its appellate brief, asked again

that we consider dismissing the appeal. “This Court retains authority to review

decisions on motion panel that do not finally dispose of the case when the case is

considered by a full-judge panel to which it is assigned.” Commonwealth Bank &

Tr. Co. v. Young, 361 S.W.3d 344, 350 (Ky. App. 2012). After reviewing the

parties’ appellate briefs and the record of the case, we conclude that the appeal

should be dismissed as moot.

This Court “has no jurisdiction to decide issues which do not derive

from an actual case or controversy.” Commonwealth v. Hughes, 873 S.W.2d 828,

829 (Ky. 1994) (citations omitted). “The concern underlying this rule as to

mootness is ultimately the role of the courts within our system of separated

powers, a role that does not extend to the issuance of merely advisory opinions.”

Morgan v. Getter, 441 S.W.3d 94, 99 (Ky. 2014) (citations omitted).

-4-
Here, there is no active case or controversy. Father has custody of

Child. Father argues that the grandfather could, sometime down the line, seek

custody or visitation of Child and be given standing to do so based on KRS

620.027. This, however, is merely a hypothetical situation. Should the grandfather

later seek custody, Father could raise the constitutional issue again at that time.

Furthermore, “[c]onsiderations of propriety, as well as long-established practice,

demand that we refrain from passing upon the constitutionality of an act of [the

legislature] unless obliged to do so in the proper performance of our judicial

function[.]” Commonwealth v. Bredhold, 599 S.W.3d 409, 414 (Ky. 2020)

(internal quotation marks and citations omitted). In the case at hand, there is no

case or controversy and it would be erroneous for us to rule on the constitutional

issue raised on appeal.

Father also argues that there are exceptions to the mootness doctrine

and that they would apply to this case. We acknowledge that there are exceptions

to the mootness rule, but we disagree with Father that they apply in this case.

There are four exceptions: the collateral consequences exception; the voluntary

cessation exception; the exception for issues capable of repetition, yet evading

review; and the public interest exception. We will address each in turn.

Under the collateral consequences exception to the
mootness doctrine, some concrete and continuing injury
. . . must exist if the suit is to be maintained. For
instance, the expiration of a criminal sentence has been

-5-
held not to moot an appeal from the judgment of
conviction, because there remain consequences of the
conviction (such as the loss of various civil rights)
deemed sufficient to keep alive the appellant’s personal
stake in the outcome of the appeal.

Beshear v. Goodwood Brewing Company, LLC, 635 S.W.3d 788, 799 (Ky. 2021)

(internal quotation marks and citations omitted). The collateral consequences

exception does not apply here because there are no current or continuing

consequences to the custody order. Father has custody of Child and the

grandfather does not. A hypothetical future custody dispute is not sufficient to

keep Father’s appeal alive.

Under the voluntary cessation exception to the
mootness doctrine, an appeal may proceed
notwithstanding the defendant’s voluntary cessation of
the challenged action, a primary concern being that a
dismissal in those circumstances leaves the defendant
free to return to his old ways. This exception also seeks
to address the concern that parties should not be free to
manipulate mootness so as to frustrate, after the
investment of significant judicial resources, the public
interest in having the legality of their practices settled.

Id. (internal quotation marks and citations omitted). In the case at hand, there was

no voluntary cessation, Father won his case.

The “capable of repetition, yet evading review” exception “has two

elements: (1) the challenged action must be too short in duration to be fully

litigated prior to its cessation or expiration, and (2) there must be a reasonable

expectation that the same complaining party will be subjected to the same action

-6-
again.” Id. at 800-01 (internal quotation marks and citation omitted). Here, if the

grandfather brings an action seeking custody of Child, Father can challenge the

constitutionality of KRS 620.027. The issue can be fully litigated at that time and

it will not evade review.

The final exception is the public interest exception. This exception

has three elements: “(1) the question presented is of a public nature; (2) there is a

need for an authoritative determination for the future guidance of public officers;

and (3) there is a likelihood of future recurrence of the question.” Id. at 801

(citation omitted). “Subject to rare exceptions where great public interest is

involved, the court will not decide an abstract question.” Commonwealth by

Breckinridge v. Woods, 342 S.W.2d 534, 535 (Ky. 1961). “We must be vigilant

and use our discretion only when a demonstrated need justifies a ruling from this

Court. Otherwise, the public interest exception would be so broad as to virtually

eliminate the notion of mootness.” Commonwealth v. Collinsworth, 628 S.W.3d

82, 87 (Ky. 2021) (internal quotation marks and citation omitted).

We decline to apply this exception because the issue in this case does

not sufficiently apply to the greater public. This issue would only apply in a case

concerning the dependency, neglect, or abuse of a child where the child is placed

with a grandparent with whom they have a stable relationship. The grandparent

would then have to seek permanent custody of the child. If the statute provided

-7-
that a grandparent has the same standing as a parent in all custody or visitation

cases, not just dependency, neglect, and abuse cases, then the public interest

exception might apply; however, such is not the case. Since the statute is narrowly

tailored to a specific set of circumstances, the first element of the public interest

exception is not met.

CONCLUSION

Based on the foregoing, we ORDER that this appeal be, and is hereby,

DISMISSED as moot.

ALL CONCUR.

ENTERED: 03/13/2026 ________________________
CHIEF JUDGE, COURT OF
APPEALS

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
COMMONWEALTH OF
Zack McKee KENTUCKY, CABINET FOR
Louisville, Kentucky HEALTH AND FAMILY
SERVICES:

Harold F. Dyche II
London, Kentucky

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