Houck v. Ballard

• Decision Date: 02 November 2018
• Docket Number: NO. 2017-CA-001692-ME,2017-CA-001692-ME
• Parties: BROOKS HOUCK APPELLANT v. SHERRY G. BALLARD APPELLEE
• Court: Kentucky Court of Appeals

BROOKS HOUCK APPELLANT v. SHERRY G. BALLARD APPELLEE

NO. 2017-CA-001692-ME

Commonwealth of Kentucky Court of Appeals

NOVEMBER 2, 2018

NOT TO BE PUBLISHED

APPEAL FROM NELSON CIRCUIT COURT

HONORABLE JOHN D. SEAY, JUDGE

ACTION NO. 15-CI-00446

OPINION

REVERSING AND REMANDING

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BEFORE: COMBS, DIXON AND MAZE, JUDGES.

DIXON, JUDGE: Appellant, Brooks Houck, appeals from a judgment of the Nelson Circuit Court granting Appellee, Sherry Ballard, grandparent visitation pursuant to KRS 405.021. For the reasons set forth herein, we reverse the decision of the trial court and remand this matter for further proceedings consistent with this opinion.

E.P.H. is the minor son of Houck and Crystal Rogers. Houck and Rogers were not married but had been living together with E.P.H. and several of Rogers' other children. During the Fourth of July weekend 2015, Rogers disappeared and her whereabouts remain unknown. Houck and the Ballard family (Rogers' family) have been at odds since Rogers' disappearance as Houck has been the only suspect named in the matter. E.P.H., who was only two years old at the time of Rogers' disappearance, continues to live with Houck, and Rogers' other children reside with the Ballard family.

On July 31, 2015, Sherry and Thomas Ballard,¹ Rogers' parents, filed a petition for grandparent visitation in the Nelson Circuit Court pursuant to KRS 405.021. Following a hearing, the trial court entered a temporary order on December 10, 2015, granting the Ballards visitation with E.P.H. for four hours on alternating Saturdays. Subsequently, additional hearings were held to review the status of the temporary order and each time additional visitation was granted.

The trial court held a final hearing on January 26, 2017, during which numerous witnesses testified. In its subsequent order entered on September 28, 2017, the trial court granted the Ballards visitation with E.P.H. from Saturday at 10:00 am until Sunday at 6:00 pm every other weekend, in addition to holidays in accordance with the local rules. In so doing, the trial court acknowledged theanimosity between the parties but observed that "[t]he potential benefit to E.P.H. in having contact with a loving grandmother who has been such a significant part of his life and contact with his older siblings, outweighs the potential for detriments of visitation." The trial court further concluded,

The court believes that both Houck and the Ballards came into the hearing with the motivation of protecting E.P.H.'s best interest; they simply have differing opinions as to what is in his best interest.

After considering all the relevant facts the court has determined that Houck is mistaken in his belief that visitation with the Ballards is not in E.P.H.'s best interest. The court understands Houck's position given the current tension between petitioner, her late husband and himself. However, the court believes that Sherry Ballard is a loving grandmother and will not say or do things in E.P.H.'s presence that would harm his relationship with Houck.

Houck thereafter appealed to this Court as a matter of right.

Houck argues on appeal that the trial court erred in determining that he was clearly mistaken in his belief that grandparent visitation was not in E.P.H.'s best interest. Houck contends that his motivation in denying visitation with the Ballards is to protect E.P.H. from the clear negativity and hostility, and to prevent a wedge from being driven between him and E.P.H, thus damaging their relationship. Furthermore, Houck argues that the trial court erred by failing to hold Ballard to the clear and convincing evidentiary standard that is required to show that grandparent visitation was in E.P.H.'s best interest.

A family court's factual findings are reviewed for clear error, and therefore, the clearly erroneous standard is used. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986); CR 52.01. Further, a finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is that which is "sufficient to induce conviction in the mind of a reasonable person." Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009). Moreover, we must give due regard to the family court's opportunity "to judge the credibility of the witnesses." CR 52.01. Nonetheless, statutory interpretation and application of the appropriate standard to the facts are issues of law and, consequently, are reviewed de novo. Hill v. Thompson, 297 S.W.3d 892, 895 (Ky. App. 2009).

In the seminal case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court considered grandparent visitation and the federal constitutional implications of state statutes that permit courts to grant non-parent visitation with children over the objections of their parents. The Court noted that the Due Process Clause of the Fourteenth Amendment gives parents a fundamental liberty interest in the care, custody, and control of their children. Id., 530 U.S. at 66, 120 S.Ct. at 2060. Further, the Court recognized "a presumption that fit parents act in the best interests of their children[,]" and as such,

so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.

Id. 68-69, 120 S.Ct. 2061 (citing Reno v. Flores, 507 U.S. 292, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).

In Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), our Supreme Court discussed the impact of Troxel on Kentucky's grandparent visitation statute, KRS 405.021(1), which states in pertinent part, "The Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so." The Walker Court upheld the constitutionality of the statute, but emphasized that for the statute to comport with Troxel, courts must presume that a fit parent acts in his or her child's best interest:

When considering a petition for grandparent visitation, the court must presume that a fit parent is making decisions that are in the child's best interest. "[T]he Due Process Clause does not permit a [s]tate to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." So long as a parent is fit, "there will normally be no reason for the [s]tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." So a fit parent's wishes are not just a factor to consider in determining what is in the child's bestinterest. The constitutional presumption that a fit parent acts in the child's best interest is the starting point for a trial court's analysis under KRS 405.021(1).

Walker, 382 S.W.3d at 870-71(footnotes omitted).

Essentially, in a grandparent visitation dispute, a parent and grandparent are not on equal footing, and a parent's decision to deny visitation is given special weight. Furthermore, the Walker Court explained that because a fit parent is presumed to act in the best interest of the child, a grandparent seeking visitation against a parent's wishes must overcome the presumption by clear and convincing evidence. Thus, for a court to grant visitation over the wishes of the parents, the grandparents must establish compelling evidence, that is, clear and convincing, that visitation is in the child's best interest. Id. at 871. In other words, the grandparent must show that "the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation." Id. "Given that these cases involve the fundamental right of parents to raise their children as they see fit without undue interference from the state, the use of the [clear and convincing] heightened standard of proof is required." Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. App. 2004).

While "best interest" is a broad term, the Walker Court adopted a nonexclusive list of factors, which initially were delineated by this Court in Vibbert, for a trial court to consider when grandparent visitation is sought. With some necessary modification, those factors are:

1) the nature and stability of the relationship between the child and the grandparent seeking visitation;

2) the amount of time the grandparent and child spent together;

3) the potential detriments and benefits to the child from granting visitation;

4) the effect granting visitation would have on the child's relationship with the [custodial nonparents];

5) the physical and emotional health of all the adults involved, [nonparents] and grandparents alike;

6) the stability of the child's living and schooling arrangements; and

7) the wishes and preferences of the child.

Walker, 382 S.W.3d at 871. Moreover, Walker added an additional factor: "the motivation of the adults participating in the grandparent visitation proceedings." Id.

Chief among these factors is a consideration of the effect that granting non-parent visitation would have on the child's relationship with his parents.In Troxel, the Court noted that "[t]he extension of statutory rights in this area to persons other than a child's parents ... comes with an obvious cost. For example, the [s]tate's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship." Id., 530 U.S. at 64, 120 S.Ct. at 2059. The Kentucky Supreme Court has recognized that this reasoning is especially true where animosity...