A.T.W. v. Commonwealth (2026)

Case details
Full caption
A.T.W. v. Commonwealth of Kentucky
Country
United States
Jurisdiction
Kentucky (KY)
Court
Kentucky Supreme Court
Decided
2026
Disposition
Affirmed
Majority
Opinion Affirming Combs (J.) (unanimous Court)
A.T.W. APPELLANT v. COMMONWEALTH OF KENTUCKY,..., Not Reported in S.W.... WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1443318Only the Westlaw citation is currently available.Unpublished opinion. See KYST RAP Rule 41 before citing.NOT TO BE PUBLISHEDCourt of Appeals of Kentucky.A.T.W. APPELLANTv.COMMONWEALTH OF KENTUCKY,CABINET FOR HEALTH AND FAMILYSERVICES; COMMONWEALTHOF KENTUCKY; D.A.N.; J.W.; ANDM.N., A MINOR CHILD APPELLEESANDA.T.W. APPELLANTv.COMMONWEALTH OF KENTUCKY,CABINET FOR HEALTH AND FAMILYSERVICES; COMMONWEALTHOF KENTUCKY; J.J.N., A MINORCHILD; AND V.R.B. APPELLEESNO. 2025-CA-1508-ME, NO. 2025-CA-1542-ME|RENDERED: MAY 22, 2026APPEAL FROM FAYETTE CIRCUIT COURTHONORABLE LIBBY G. MESSER, JUDGE ACTION NO.15-J-01783-001APPEAL FROM FAYETTE CIRCUIT COURTHONORABLE LIBBY G. MESSER, JUDGE ACTION NO.16-J-01500-001Attorneys and Law FirmsBRIEFS FOR APPELLANT: A.T.W., pro se Nicholasville,KentuckyBRIEFS FOR APPELLEE: Angela Evans Fayette CountyAttorney Jade Morgan John Hayne Assistant Fayette CountyAttorneys Lexington, KentuckyBEFORE: THOMPSON, CHIEF JUDGE; CETRULO ANDCOMBS, JUDGES.OPINION AFFIRMINGCOMBS, JUDGE:*1 Appellant, A.T.W. (Mother), appeals from an Order ofthe Fayette Circuit Court denying her CR 1 60.02 motions.After our review, we affirm.BackgroundOn December 4, 2015, the Cabinet filed a juvenile DNA(dependency, neglect, or abuse) petition regarding M.N., afemale child born in 2015 (Fayette Family Court, No. 15-J-01783-001). According to the allegations of the petition,the Cabinet had received a referral after the child (then fourmonths of age) was seen at the University of KentuckyEmergency Room due to concerns of non-accidental trauma.At that time, the child had redness on the bottom of her feet, ablister covering the majority of her right foot, a scratch on herright eyelid, and a bruise above her left eye and on the rightabdomen. The child was admitted.A skeletal survey revealed healing posterolateral 5th ribfracture, three acute rib fractures, and a distal left tibialmetaphyseal corner fracture. “Considering the severity of theinjuries, no reasonable explanation given, the child being non-mobile, and being in the care of both parents at the time theinjuries could have been inflicted,” the Cabinet recommendedthat the child be placed in the Cabinet's custody.On December 4, 2015, Mother stipulated to probable cause,and the child was placed in the temporary custody of theCabinet. On April 4, 2016, Mother stipulated to risk of abuse,and the adjudication hearing was cancelled. Disposition washeld on May 23, 2016. At that time, Mother was pregnant withher son, J.N.On October 31, 2016, the Cabinet filed a DNA petition in theinterest of J.N. (Fayette Family Court No. 16-J-01500-001).On November 21, 2016, Mother stipulated to risk of neglect.Disposition was held on January 9, 2017.
A.T.W. APPELLANT v. COMMONWEALTH OF KENTUCKY,..., Not Reported in S.W.... WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Both DNA cases were closed in 2017 with custody entrustedto a relative.On October 1, 2025, Mother filed motions for relief fromjudgment pursuant to CR 60.02(d), (e), and (f) in both cases.Mother contended that M.N.’s removal was based primarilyupon medical proof (from UK Children's Hospital) ofmultiple rib fractures and other injuries consistent with non-accidental trauma. She also contended that J.N.’s removal in2016 was based upon the removal of M.N. in 2015. Motherargued that the diagnosis of “multiple rib fractures” withrespect to M.N. was incorrect because later review confirmedthat there was only one rib fracture, which Mother maintainedwas consistent with an auto accident. Various supportingdocumentation was dated 2015–2017.The motions were heard on October 15, 2025. On October 17,2025, the circuit court entered an Order denying relief fromjudgment pursuant to CR 60.02. The court found that Motherwas represented by appointed counsel at every stage of theunderlying juvenile proceedings; that no appeals were everfiled in those cases; and that Mother had failed to completeher case plans, which resulted in closure in 2017 with custodyremaining with relatives. In addition, the court found asfollows:*2 6. Several years later, [Mother] filed custody actionsin Family Court to re-establish timesharing and custody ofher children, case numbers 21-CI-2675 and 22-CI-3273.The Court takes Judicial Notice of its findings and orderstherein. There has been consistent and regular litigationin those two matters over the last few years in front ofmultiple judges, including evidentiary hearings. While theinjuries themselves and the neglect and abuse have notbeen the subject of those proceedings, as they are bestinterest custody proceedings, some testimony related to theinjuries has been relevant. [Mother] has testified, like herarguments in this motion, that the injuries noted in themedical records are not consistent with the Cabinet'spetition and that they can be explained by other non-accidental means. She relied on the same recordsobtained through this Juvenile action to support thatclaim in the civil action. She was cross examined onthis issue by the custodians and confronted with themedical records from this action. While the Court in thatcase did not specifically re-adjudicate the underlying abuseallegations, it did find in its order that [Mother's] continuedrefusal to accept the actual medical findings and thereforeaddress the original circumstances leading to the children'sremoval was a factor in its best interest determination.This is relevant to this 60.02 motion as it is furtherevidence that [Mother] has had access to the medicalevidence and maintained these opinions regarding thejuvenile findings for a number of years prior to filingthis motion.7. Court takes Judicial Notice that [Mother] has appealedseveral of the findings in the custody matters and hasobtained some favorable and some unfavorable rulings.But no ruling in any of those actions by any Family CourtJudge, or Appellate Court has served to vacate, change, orimpugn any of the findings in these Juvenile actions.(Emphases added.)The court concluded that Mother had failed to plead anyfacts which would support a finding of fraud affecting theproceedings under CR 60.02(d).The court rejected Mother's argument under CR 60.02(e) thatthe judgment is void as follows in relevant part:No judgment in this action was based upon a judgmentthat has been rendered, void, satisfied, discharge or vacatedunder any legal definition. In 15-J-1783 [Mother] arguesthat the judgment is “void” based on language she quotes asthe holding in Burke v. Sexton, 814 S.W.2d 290 (Ky. 1991).This case does not state as [Mother] quotes.... [Burke]does not contain any language which is even close to thatquoted in [Mother's] motion. This causes the Court concernregarding credibility and candor with the Court. Thoughshe is a pro se litigant [Mother] is a trained paralegal andshould understand the importance of verifying that hercitations to law she provides to this court are not misleadingor incorrect. However, to the extent that [Mother] impliesthat the judgment in these cases should be rendered voidand 60.02 apply based on some violation of her dueprocess right to present exculpatory evidence, the Courtwill address the same. The record is clear that in both cases[Mother] was served with notice of the allegations againsther. She was present at all court appearances; she wasappointed counsel who represented her at every level ofthe proceedings. As stated above she was provided accessto the evidence that the Commonwealth had against her....She never moved the court for funds to obtain her ownexpert to evaluate that skeletal survey if she could notafford one, despite the fact she requested and was givenan adjudication hearing date. Instead, she chose, with theassistance of counsel, to waive that adjudication hearingand stipulate to Risk of Abuse. She was clearly given noticeand a fair opportunity to be heard. She chose not to present
A.T.W. APPELLANT v. COMMONWEALTH OF KENTUCKY,..., Not Reported in S.W.... WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3a defense to the Court. She was in no way prevented fromdoing so.*3 [Mother] relies ... on this due process argumentveiled ... as 60.02(e) argument in 15-J-1783 to supporther related argument ... in 16-J-1500.... However, asthat argument has failed, so does her argument in thesubsequent action.... It should further be noted that in hermotion [Mother] cites to non-existent case law .... Again,this causes the Court concerns regarding [Mother's] candorwith the Court, and she has been advised as such.The circuit court also rejected Mother's argument that reliefwas warranted under 60.02(f) for extraordinary cause.Significantly, the court determined that Mother had not filedher motion within a reasonable time:[Mother] has known about and had access to these medicalrecords she now relies on since 2016; almost 10 years ago.These medical records and her alleged inconsistencies havealso been referenced in the civil cases between [Mother]and the custodians of the children beginning in 2021....These children were infants when [Mother] first had accessto those records. They are now nine and ten years old. TheCourt cannot find under those facts and circumstances thatthis motion was filed within a reasonable time.Mother appealed. We address her separate briefs together.ON APPEALThe burden of proof in a CR 60.02 proceeding fallssquarely on the movant to affirmatively allege factswhich, if true, justify vacating the judgment and furtherallege special circumstances that justify CR 60.02 relief....We review the denial of a CR 60.02 motion underan abuse of discretion standard. The test for abuseof discretion is whether the trial judge's decision wasarbitrary, unreasonable, unfair, or unsupported by soundlegal principles. Therefore, we will affirm the lowercourt's decision unless there is a showing of some flagrantmiscarriage of justice.Foley v. Commonwealth, 425 S.W.3d 880, 885–86 (Ky. 2014)(internal quotation marks and citations omitted).The first issue that Mother raises is that the family courtabused its discretion in denying her motion because CR60.02(e) permits relief where “it is no longer equitable thatthe judgment should have prospective application.”In its entirety, CR 60.02 provides as follows:On motion a court may, upon such terms as are just, relievea party or his legal representative from its final judgment,order, or proceeding upon the following grounds: (a)mistake, inadvertence, surprise or excusable neglect; (b)newly discovered evidence which by due diligence couldnot have been discovered in time to move for a newtrial under Rule 59.02; (c) perjury or falsified evidence;(d) fraud affecting the proceedings, other than perjury orfalsified evidence; (e) the judgment is void, or has beensatisfied, released, or discharged, or a prior judgmentupon which it is based has been reversed or otherwisevacated, or it is no longer equitable that the judgmentshould have prospective application; or (f) any otherreason of an extraordinary nature justifying relief. Themotion shall be made within a reasonable time, andon grounds (a), (b), and (c) not more than one year afterthe judgment, order, or proceeding was entered or taken.A motion under this rule does not affect the finality of ajudgment or suspend its operation.(Emphases added.)Although Mother based her motion upon CR 60.02(e) in part,it does not appear that she made the particular argument uponwhich she now relies -- that “it is no longer equitable that thejudgment should have prospective application.” Rather, as theCommonwealth notes, Mother's argument below focused onthe assertion that due process was violated because she wasnot given an opportunity to present exculpatory evidence.*4 When the grounds of the argument are “differentfrom those asserted in the court below, [they] are notproperly preserved for appellate review.” Daugherty v.Commonwealth, 572 S.W.2d 861, 863 (Ky. 1978) (citationsomitted). “Our jurisprudence will not permit an appellantto feed one kettle of fish to the trial judge and another tothe appellate court.” Owens v. Commonwealth, 512 S.W.3d1, 15 (Ky. App. 2017) (footnote omitted).Pons v. Commonwealth, 673 S.W.3d 813, 817 (Ky. App.2023).We need not address Mother's remaining arguments becausethe circuit court's determination that the CR 60.02 motionswere not filed within a reasonable time is dispositive. Inher opening Appellant's briefs, Mother did not raise anargument that the circuit court erred in concluding that herCR 60.02 motions were not filed within a reasonable time.She addressed that issue only in her reply briefs. Thus,we consider it waived. Seeger Enterprises, Inc. v. Town &
A.T.W. APPELLANT v. COMMONWEALTH OF KENTUCKY,..., Not Reported in S.W.... WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Country Bank and Tr. Company, 518 S.W.3d 791, 796 (Ky.App. 2017) (where appellant did not raise issue in initial brief,he was not permitted to raise issue for first time in reply brief);Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979) (replybrief not device for raising new issues essential to the successof appeal).We conclude that the circuit court did not abuse its discretionin denying Mother's CR 60.02 motions. We affirm thedecision of the Fayette Circuit Court.ALL CONCUR.All CitationsNot Reported in S.W. Rptr., 2026 WL 1443318Footnotes1Kentucky Rules of Civil Procedure.End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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