In re Marriage of J.H.

• Docket Number: 125,823
• Decision Date: 01 September 2023
• Parties: In the Matter of the Marriage of J.H., Appellee and K.H., Appellant.
• Court: Court of Appeals of Kansas

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In the Matter of the Marriage of J.H., Appellee and K.H., Appellant.

No. 125,823

Court of Appeals of Kansas

September 1, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge.

BreAnne Hendricks Poe, of Harris Kelsey, Chtd., of Ottawa, for appellant.

No appearance by appellee. Before COBLE, P.J., GARDNER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM:

In the divorce between J.H. and K.H., the district court granted K.H. (Mother) full custody of the parties' two minor children and ordered that J.H. (Father) would have unsupervised parenting time on the weekends. Mother now appeals the district court's denial of her motion to reconsider that custody order. Mother argues the district court erroneously excluded a police officer's testimony concerning Father's alleged sexual abuse of Mother's child from a previous relationship as hearsay, because the reporting child was present and available for cross-examination. Because the district

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court failed to admit this evidence, Mother argues the order allowing Father unsupervised parenting time was unreasonable.

On review, we find the district court's decision to exclude the evidence was based on an error of law, and this error implicated Mother's due process right to be meaningfully heard regarding her fundamental right to the care, custody, and control of her children. We therefore reverse the district court's order of custody and parenting plan and remand the case for further proceedings consistent with the rulings herein.

FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother were married in 2017. On May 4, 2020, Father filed for divorce from Mother, and both parties moved for temporary orders preserving the marital assets. At the time of the divorce filing, the parties shared one minor child born in 2018, and were expecting another child due in June 2020. Mother also had two minor children from a previous relationship including J.B., who was seven years old at the time the divorce was initiated. Before the divorce trial, the district court temporarily granted Father supervised parenting time progressing up to six hours per week with the parties' two minor children.

The divorce trial to address both the parenting plan issue and property issue was held on May 18, 2022. Father testified that he began supervised visitations with the two children in May 2021. The visits occurred once per week and lasted two to three hours. But Father stated Mother would occasionally cancel the visits and he did not receive six hours of visitation time as anticipated by the temporary parenting plan. At that time, Father lived in a house in Topeka with his new girlfriend and her seven-year-old son. Father felt that he had bonded with his and Mother's two children during his supervised visits and could care for both at his new residence. Father requested unsupervised

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visitation of the children for three weekends per month, and possibly even a day of the week, summer visitation, and standard holiday schedule.

A protection from abuse (PFA) order was previously filed in a separate case against Father that prevented him from seeing J.B. The order alleged Father had inappropriately touched J.B. on several occasions. The allegations were substantiated by the Kansas Department for Children and Families (DCF). Father appealed the findings through the Office of Administrative Hearings but, at the time of the hearing, had not yet received a result. Law enforcement officers investigated Father, but the State did not charge him with a crime.

Father had prior convictions of aggravated assault, aggravated battery, and criminal discharge of a firearm for which he spent 15 years in prison. Accordingly, Father was registered as a violent offender. Father's most recent therapist diagnosed him with post-traumatic stress disorder, intermittent explosive disorder, and antisocial personality disorder. Father stated that other physicians had diagnosed him with bipolar disorder as well, but he does not agree with his diagnoses.

Father called three witnesses to testify. Char'dae Bell was a supervisor with TFI Family Services and supervised Father's visitations with the children at her Lawrence office from April 2021 to November 2021. Bell testified that Father and the children would play together for the entire visit. She believed Father's behavior with the children was normal and appropriate but acknowledged most parents can maintain their behavior for the brief visits. Next, Father's girlfriend testified she had no concerns about Father's parenting of her son.

Tracey Lyn, a mediator and conciliator with People Solutions, began supervising Father's visits in December 2021 and had been doing so for approximately 16 weeks. Lyn was concerned that Father tends to treat the children differently when he buys them gifts,

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but he tries to equally divide his time between the children. She was also concerned that Father would openly discuss the court process with her while the children were present. Normally, the visits would last two hours because the youngest child would begin asking for Mother halfway through. Lyn felt she could not evaluate parenting skills from the supervised visits because Father did not perform certain parenting tasks and most people can behave themselves for two to three hours.

Testifying for Mother was Ottawa Police Detective Josh Pence, who investigated Father's alleged sexual abuse of J.B. In April 2020, Detective Pence interviewed Mother and another detective conducted a forensic interview with J.B. A few months later, Detective Pence observed a DCF investigator conduct a second forensic interview with J.B. Detective Pence stated the substance of the child's interview stayed the same, but she disclosed more information in the second interview.

When Mother's attorney asked Detective Pence to describe what J.B. disclosed during the April interview, Father's attorney raised a hearsay objection, arguing the child was not made available to testify. Mother's attorney immediately informed the district court that J.B. was present at the hearing and available to testify. The district court asked Mother's attorney whether she intended to call J.B. as a witness, and Mother's attorney responded that Father's attorney could call her.

The district court sustained the objection and refused to allow Detective Pence to testify about what J.B. disclosed in the forensic interview. The court ruled that hearsay testimony based on a child's statements was inadmissible if the child either did not testify or attempted to testify but was unable to finish testifying. Mother's attorney then stated she was willing to call J.B. to the stand and suggested the district court could conduct its own interview with the child in chambers. The district court had no stance either way about Mother calling J.B. to testify but stated it was not prepared to interview the child on

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its own. Ultimately, J.B. did not testify, and no evidence was admitted regarding the substance of J.B.'s forensic interviews.

Detective Pence also interviewed Father in April 2020. Father denied the abuse allegations and told the detective that J.B. fabricated the allegations to break up the family. Detective Pence stated it was uncommon for a seven-year-old child to lie about such allegations and did not find it believable that a seven-year-old child would do so to break up the family. When the information that a child provides stays consistent, Detective Pence stated he believes the child based on his child interview training. There was no physical evidence to support the allegations, and the State eventually declined to prosecute.

Next, Father's ex-girlfriend testified that her relationship with Father from 2015 to 2017 was tumultuous because of Father's heavy drinking. She claimed Father would verbally and physically abuse her. The ex-girlfriend also testified Father would often enforce physical exercise as a punishment for her son. Because her son had seen Father treat her poorly, she stated her son resented Father, but her daughter had a close relationship with Father. As a result, Father favored her daughter.

Finally, Mother testified that J.B. first reported to J.B.'s maternal grandmother that Father had molested J.B. in December 2019. J.B. told her grandmother that she had crawled into bed with Father and Mother, and Father began touching her private parts. After J.B.'s grandmother told Mother what had happened, Mother called Father and asked if it was true. Father denied that it had happened, and if it did happen then he did so accidentally. In April 2020, J.B. told Mother that Father had inappropriately touched her again. When Mother confronted Father, Father became angry and accused...