K.S. v. B.S.
| Decision Date | 19 October 2018 |
| Docket Number | NO. 2018-CA-000122-ME,2018-CA-000122-ME |
| Parties | K.S. APPELLANT v. B.S. APPELLEE |
| Court | Court of Appeals of Kentucky |
K.S. has appealed from the Carter Family Court's findings of fact, conclusions of law, and order entered December 14, 2017, granting B.S.'s motion to reestablish visitation with their minor daughter as well as from the January 10, 2018, order denying her motion to alter, amend, or vacate that order. We vacate and remand.
K.S. (the Mother) and B.S. (the Father) are the biological parents of K.S. (the Child), who was born in August 2011.1 The Mother and the Father were married in 2011 in Grayson, Kentucky, and they separated in late May of 2015. The Mother filed a petition to dissolve the marriage on June 10, 2015, in which she sought sole custody of the Child and child support. Simultaneously, she filed a verified motion for temporary relief seeking sole custody, child support, and possession of the marital residence. She stated that the Father was under investigation by the Cabinet for Health and Family Services (the Cabinet) for sexually abusing the Child. An agreed order was entered in July 2015 stating that the Mother would have temporary custody of the Child and that no visitation would take place pending further order of the court, among other rulings. Two weeks later, the Father filed a motion for visitation, stating that the May 27, 2015, prevention plan by the Cabinet's Department for Community Based Services (DCBS) worker specifically stated he could visit the child at the DCBS office. At the time of the filing of the motion, the Cabinet had not yet filed a petition related to the abuse allegation. In response, the Mother stated that the Cabinet filed a Dependency, Neglect, or Abuse (DNA) Petition2 against the Father seekingremoval of the Child on July 15, 2015, making his motion moot. The family court denied the Father's motion by order entered later that month and took judicial notice of the juvenile action. We note that the same judge presided over both the underlying dissolution action and the juvenile action.
In the juvenile action, the family court entered an amended adjudication order on November 16, 2015, addressing the abuse allegations against the Father. The court found as follows: "The Court finds the petition as true as the child disclosed that her father 'spanked' her vagina; the child exhibited fear of the father, the physical exam reveals non-specific notch in child's hymen; and the Court finds a risk of harm to the child if returned to the care of the father." The court found that the Child had been abused or neglected by the Father pursuant to Kentucky Revised Statutes (KRS) 600.020(1), that the father "[c]reated or allowed to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child[,]" and that there was "a continuing risk of harm of sexual abuse if returned to the father." And while reasonable efforts were being made to reunify the family, it was in the best interests of the Child to change custody. The Father appealed this ruling, which this Court affirmed in an opinion rendered September 30, 2016.
By agreed order entered January 15, 2016, the family court dissolved the parties' marriage via a Putnam v. Fanning3 decree. The court granted the Mother sole legal custody of the Child, noting that this was in the Child's best interests but permitting the Father to file a motion if he were to be successful on his appeal of the companion juvenile action. Likewise, no visitation would be permitted pending a ruling in the juvenile action. The parties negotiated a resolution of the remaining issues prior to a final hearing and moved to enter an agreed order to that effect. The court entered the agreed order on March 30, 2016, which concluded the dissolution proceedings.
In December 2016, the Father moved the court to order visitation with the Child, stating it would be in her best interests and that the agreed order related to temporary custody was unconscionable. The Mother objected to the motion, stating that the Child's therapist stated that such would be harmful to the Child. She asserted that it would not be in the Child's best interests to either reestablish visitation or subject the Child to another therapist. The court scheduled a final hearing on the motion for October 20, 2017.
This Court has reviewed the entirety of the final hearing, including the testimony of the Child's therapist, Jennifer Williams, concerning the harm reintroducing the Child to the Father would have on her well-being, as well as thedeposition testimony of Dr. Edward Connor. On December 14, 2017, the family court entered its amended findings of fact, conclusions of law, and order granting the motion to reestablish visitation.4 In its findings, the court specifically stated:
The Court did not find that sexual abuse occurred in Case No. 15-J-00131-001. The final order in that action resulted in an order stating "The Court finds the petition as true as the child disclosed that her father 'spanked' her vagina; the child exhibited fear of the father, the physical exam reveals non-specific notch in child's hymen; and the Court finds a risk of harm to the child if returned to the care of the father[.]"
The court went on to discuss the witnesses who testified at the hearing:
The court concluded that based upon the testimony, "the child would [not] be harmed by visiting with her father, but could be harmed by the absence of a relationship with her father." The court set up a modified reunification plan loosely based upon Dr. Connor's recommendation, noting that the Child had expressed a desire to see the Father, that the implementation of a reunification therapist would create an undue expense for the parties, and that the Child's therapist declined to be involved with the process. The court set up an incremental series of supervised visitations as Dr. Connor suggested, with the visits moving to unsupervised ones after six months. Family members would be supervising the visits. The family court specifically found that visitation as it ordered "does not present a risk of harm to the minor child."
The Mother moved the court to alter, amend, or vacate its order, arguing that the order was not in the Child's best interests and placed her at aserious risk of harm or injury based upon the testimony at the hearing, to which the Father objected. The family court denied the Mother's motion on January 10, 2018, finding its ruling to be in the Child's best interests, and this advanced appeal now follows.5
An appellate court may set aside a lower court's findings made pursuant to Kentucky Rules of Civil Procedure (CR) 52.01 "only if those findings are clearly erroneous." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). To determine whether such findings are clearly erroneous, the reviewing court must decide whether the findings are supported by substantial evidence:
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its]reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.
Id. at 354 (footnotes omitted). "[W]ith regard to custody matters, 'the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.'" Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010) (citing Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974); Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982)).
For her first argument, the Mother argues that, based upon the law of the case doctrine, the family court could not...
To continue reading
Request your trial