Norma Hatfield (Kentucky Lantern photo by Sarah Ladd)
Lawyers for the Kentucky Cabinet for Health and Family Services and Gov. Andy Beshear on Wednesday questioned Auditor Allison Ball’s right to sue over an unfunded law that would have helped kinship care families.
During a Wednesday morning court hearing, held over Zoom, Beshear attorney Taylor Payne said the auditor has “zero standing” to push for enforcement of that law.
This hearing came nearly three months after Ball asked the Franklin Circuit Court to rule that the Beshear administration must implement Senate Bill 151, passed in 2024 with the goal of giving much-needed financial relief to families raising minor relatives. The legislature didn’t fund SB151, which Beshear signed and the cabinet said would cost $20 million to implement.
Since then, the administration and legislature have argued over what related case law requires of the administration. The cabinet has maintained, citing Fletcher v. Commonwealth, that the state is precluded from spending money the legislature has not appropriated. The parties did no formal mediation in this case.
“Simply auditing a public agency to determine how they’re spending their money, whether they’re being responsible with their money, is a role she’s obviously statutorily assigned to do,” Payne said, “but in this situation, (Auditor Ball) … has no injury due to the cabinet’s inability to enforce.”
Alexander Magera, an attorney for the auditor’s office, countered that “an investigatory body has the standing to vindicate its investigatory authority in court if it’s being obstructed.”
Standing is the question of whether plaintiffs’ circumstances meet legal standards entitling them to challenge the law. Ball has maintained that the Beshear administration did not cooperate with her initial inquiry into whether or not the cabinet had the funds (or could access federal money) to implement SB151 without a General Assembly budget line.
“It looks like, to me, that you can do an audit, go in there and look at their books, raise 15 cans of cane, do a report, get in front of all these newspapers and tell them everything bad that’s occurring,” Franklin Circuit Judge Thomas Wingate said. “I just don’t know if you can sue. That’s where I’m hung up.”
He later said it “might be creating a bad precedent to allow the auditor to sue.”
Wesley Duke, general counsel for the cabinet, said the cabinet hasn’t questioned the auditor’s investigative authority or obstructed her audits and, therefore, there isn’t a controversy or case. Furthermore, he said, “the auditor just does not have standing to bring this action.”
Norma Hatfield, who is raising two grandchildren and is a longtime advocate for kinship care families in Kentucky, took serious issue with the Wednesday arguments.
“Shame on you. There is a controversy. There is a case here,” she told the Lantern after the hearing, which she attended.
In 2024, there were around 55,000 Kentucky children being raised with a relative, according to a report from Kentucky Youth Advocates. In 2023, there were about 1,500 new placements.
Government financial support for kinship care families in Kentucky has been lacking, in part because caregivers make an important custody decision hastily, under stress and without all the information they need.
When the state removes a child from a home, grandparents and other family members often choose to take temporary custody rather than have the child go into state custody. State custody is the first step toward foster care. That first decision is permanent under current law which has excluded kinship caregivers who take temporary custody from ever receiving the $750 a month that foster parents receive for each child, the Lantern has reported.
Senate Bill 151, on paper and not yet in practice, gives kinship caregivers 120 days to apply to become foster parents for their minor relatives and allows children who are being removed from homes to request their preferred familial caregivers, if they are able.
If half the eligible families applied for the assistance, that alone would cost around $15 million, Payne said.
“There’s just a practical matter: Without money to give direct payments to people, it’s impossible for the cabinet to give those payments,” Payne said.
Hatfield has asked that the cabinet at least update paperwork and start asking children who need to be placed with families where they would like to go, but isn’t aware of that happening.
The judge’s concern over setting lawsuit precedent “bothered me,” Hatfield said. “To me, if you follow that, you set a precedent that organizations…have no teeth in what they do.”
Wingate said he will “probably” dismiss Beshear from the lawsuit. He will then rule on the state’s motion to dismiss the lawsuit, a ruling that he said could take a couple of weeks.
Hatfield said even if the judge drops Beshear from the lawsuit, she believes the governor “still owns this” issue and “owes” it to kinship care families to do more for them.
“While the judge might pull him out of the complaint,” Hatfield said, “that does not alleviate the governor from his responsibilities and his promises that he made to the people of Kentucky.”
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