B.B. v. Commonwealth
| Decision Date | 26 August 2021 |
| Docket Number | 2020-SC-0488-DGE |
| Parties | B.B., Appellant v. Commonwealth of Kentucky, CABINET FOR HEALTH AND FAMILY SERVICES; M.B.; J.B.; S.B.; and S.B., Mother, Appellee |
| Court | United States State Supreme Court — District of Kentucky |
COUNSEL FOR APPELLANT: Whitney True Lawson, Esq, True, Guarnieri Ayer, LLP, Frankfort.
COUNSEL FOR APPELLEE: Counsel for Commonwealth of Kentucky Cabinet for Health and Family, Services (Lead): Ricky Eugene Sparks, Frankfort, Moira Mulligan Wingate, Franklin County Attorney's Office.
Counsel for Appellee J.B. a minor: Raven Necole Turner, McNamara & Jones.
Counsel for Appellee M.B. a minor: Raven Necole Turner, McNamara & Jones.
Counsel for Appellee S.B. a minor: Douglas Clifton Howard, Howard Law Group, PLLC, Frankfort.
Counsel for Appellee S.B. a minor: Raven Necole Turner, McNamara & Jones.
Counsel for Cabinet for Health and Family Services Commonwealth of Kentucky: Ricky Eugene Sparks, Frankfort, Moira Mulligan Wingate, Franklin County Attorney's Office.
This case concerns dependency, neglect, and abuse ("DNA") petitions in Franklin Circuit Court. The trial court found that the natural, minor children of B.B. ("Father"), the Appellant, were abused or were at risk of being abused while in his care pursuant to KRS 1 600.020(1)(a)(5). Father raises two issues on appeal. First, Father argues that the trial court erred in admitting part of the testimony of his youngest child's therapist, which described the alleged abuse and which also named Father as the perpetrator. Father contends that such testimony did not meet the hearsay exception KRE 2 803(4) —the so-called "medical treatment" exception. Second, Father argues that the trial court erred in not giving greater weight to the grand jury findings of "no true bill" when they were submitted as evidence at the adjudication hearing. The Court of Appeals affirmed the trial court's orders finding no abuse of discretion in the issues raised by Father.
For the following reasons, we affirm.
B.B. is the biological father of three minor children—M.B., S.B., and J.B.3 Father and the natural mother ("Mother") of the children married in 2007 and divorced in 2017. At the time of the incidents at issue, the parents had joint custody of the children with approximately equal timesharing. By Mother's own admission, she and Father had an amicable co-parenting relationship until May 2018. At that time, M.B. was ten years old, S.B. was seven years old, and J.B. was four years old.
On May 4, 2018, J.B. ("Child") returned to Mother's home after a visit with Father. Child complained of pain around her vaginal area. Later that same day, Child complained of pain while urinating. Mother asked Child if anyone had touched her in the vaginal area. Child stated that Father had touched her there on multiple occasions. Mother immediately reported the alleged sexual abuse of Child by Father to the Franklin County Sheriff's Office ("FSCO"). The FSCO referred the allegations to the Franklin Department for Community Based Services ("Cabinet"). All three children were removed from Father's care pursuant to a prevention plan created by the Cabinet.
On May 11, 2018, Mother took Child to be examined by her pediatrician, Dr. Suresh Saxena ("Dr. Saxena"), pursuant to the Cabinet's instructions. Dr. Saxena diagnosed Child with vaginitis
or vulva vaginitis, described as redness around the perianal and vaginal area.
On May 14, 2018, Child completed a forensic interview and examination at the Child Advocacy Center of the Bluegrass ("CAC"), a nonprofit organization dedicated to reducing the trauma experienced by child victims of sexual abuse. During the interview, Child again repeated that Father rubbed her vagina while she was lying in bed and that he tickled her vagina when sitting in his lap. Dr. Jacqueline S. Sugarman ("Dr. Sugarman"), the Medical Director of CAC, performed the forensic examination. Dr. Sugarman reported that she could neither confirm nor deny that sexual abuse had occurred. On June 7, 2018, M.B. and S.B. were interviewed by CAC about the abuse allegations. Both M.B. and S.B. denied being abused and stated they had not witnessed abuse by Father at any time.
On March 5, 2019, however, S.B. told Mother that that he had witnessed the sexual abuse alleged by Child. He was promptly interviewed again by CAC on March 11, 2019. In his second interview, S.B. confirmed that he had witnessed Father touching Child in an inappropriate way. S.B. further disclosed that Father had given Child a popsicle in exchange for not telling anyone about the abuse. Shortly thereafter, on March 22, 2019, the Cabinet filed petitions initiating the dependency, neglect, and abuse actions (the "Petitions").
While pursuing the Petitions, the Commonwealth of Kentucky ("Commonwealth") presented an allegation of abuse against Father to the Franklin County Grand Jury ("Grand Jury") on two separate occasions. On January 22, 2019, the offense of criminal abuse, first degree was submitted for consideration. It resulted in a "no true bill." After S.B. changed his testimony, the Commonwealth again presented this matter to the Grand Jury seeking a charge of sexual abuse, first degree, victim under 12 years of age. A "no true bill" was returned for the second time. During this same time frame, Mother alleged that Father had sexually assaulted her during their marriage. The Commonwealth presented the charge of rape, first degree on October 30, 2018. The Grand Jury returned a "no true bill" on this matter as well.
On September 20, 2019, the Franklin County Circuit Court held an adjudication hearing for the allegations contained in the Petitions. The trial court heard testimony from the Cabinet's investigative worker, Valerie Nally ("Nally"). She testified that while Child's behavior4 as reported by Mother indicated sexual abuse, Nally never witnessed the alleged behavior of the Child personally. However, Mother did show Nally a video of Child sexually acting out on dolls, which caused Nally concern. In the course of her investigation, Nally did not speak to any other family members, including Father, about the alleged abuse and Child's subsequent behavior.
Dr. Saxena testified next. She confirmed the diagnosis of vaginitis
. Dr. Saxena testified that vaginitis was a common diagnosis in children of Child's age due to poor hygiene habits; however, it could also have been caused by the rubbing of the vaginal area as described by Child.
The trial court also heard testimony from Kelly Dykus ("Dykus"), a licensed therapist. Dykus received her trauma therapy license in 2012. Mother took Child to Dykus after the abuse allegations had been made. Dykus testified that she had diagnosed Child with post-traumatic stress disorder
for an individual under six years of age ("PTSD"). She based this diagnosis on Child's behavioral issues. These issues were reported to Dykus by Mother and Child during their sessions. Over Father's objection, Dykus testified that Child5 told her that Father had once touched her vagina and inserted a "slimy stick" in her rectum. Dykus also witnessed Child inserting a pen into a doll's rectum during one of the sessions.
Both parents testified at the adjudication hearing. Father testified and consistently maintained his innocence regarding the abuse allegations. He explained that the "slimy stick" inserted into Child's rectum was most likely a suppository, which all three of the children had needed when they were little for medical reasons. Mother testified and confirmed that Child first reported the alleged abuse on May 4, 2018 and identified Father as her abuser.
On September 25, 2019, the trial court entered three orders finding that Child had been abused and that her brothers, M.B. and S.B., were at risk of abuse under Father's care. A disposition hearing was held on November 22, 2019. The parties were ordered to attend therapy with the goal of reunification. Father filed a timely appeal for the issues discussed herein after the Circuit Court's final disposition order.6
On September 4, 2020, the Court of Appeals affirmed the trial court's decision during the adjudication hearing in allowing Dykus’ testimony to come in and not giving more weight to the Grand Juries’ "no true bills." The Court of Appeals found Dykus’ testimony was allowed under KRE 803(4), commonly known as the "medical treatment" exception to hearsay. Additionally, the Court of Appeals affirmed admission of Dykus’ testimony identifying Father to come in by relying again on KRE 803(4) and Colvard v. Commonwealth , 309 S.W.3d 239 (Ky. 2010). Finally, the Court of Appeals found that the trial court did not abuse its discretion in giving little to no weight to the "no true bills" since the weight and credibility of any and all evidence is determined by the trial court. Cabinet v. P.W. , 582 S.W.3d 887, 896 (Ky. 2019). This appeal followed.
Additional facts are discussed below as necessary.
In a DNA action, the trial court has a great deal of discretion in determining whether the child is dependent, neglected, or abused. Cabinet for Health & Fam. Servs. v. K.S., 585 S.W.3d 202, 209 (Ky. 2019) (See also M.P.S. v. Cabinet for Human Res. , 979 S.W.2d 114, 117 (Ky. App. 1998) ). Under CR 7 52.01, a trial court's finding of fact "shall not be set aside unless clearly erroneous[.]" However, before considering whether the trial court's order met the clearly erroneous standard required in DNA petitions, we must consider the evidentiary issues which form the basis of this appeal. On evidentiary matters, the proper appellate standard of review is abuse of discretion. Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575, 576 (Ky. 2000). "The test for abuse of discretion is whether the court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. Padgett, 563 S.W.3d 639, 645 (Ky. 2018) (internal citation...
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