L.G. v. Commonwealth, Cabinet For Health & Family Servs.
| Decision Date | 20 August 2021 |
| Docket Number | 2020-CA-0579-ME,2020-CA-0298-ME,2020-CA-0578-ME,2020-CA-0299-ME |
| Parties | L.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.M.; H.M.; J.M.; AND JEFFERSON COUNTY APPELLEES AND L.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.M.; H.M.;J.M.; AND JEFFERSON COUNTY ATTORNEY APPELLEES AND L.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.M.; H.M.; J.M.; AND JEFFERSON COUNTY ATTORNEY APPELLEES AND L.G. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.M.; H.M.; J.M.; AND JEFFERSON COUNTY ATTORNEY APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
BRIEFS FOR APPELLANT: John H. Helmers, Jr. Louisville, Kentucky Kevin C. Burke Jamie K. Neal Louisville, Kentucky
BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY: Daniel Cameron Attorney General of Kentucky Michael J. O'Connell Jefferson County Attorney David A. Sexton Special Assistant Attorney General Louisville, Kentucky
GUARDIAN AD LITEM'S BRIEF FOR APPELLEE CHILD: Kathleen Serey Snyder Louisville, Kentucky BRIEF FOR APPELLEE J.M William D. Tingley Fort Mitchell, Kentucky
BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
L.G. ("Mother") appeals from the decision of the Jefferson Family Court, which, based on the family court's finding of abuse, ordered that H.M. ("Child") be placed in J.M.'s ("Father") custody and that Mother have only limited, supervised visits with Child. This case began in November 2017 when a Cabinet for Health and Family Services (the "Cabinet") social worker filed a Dependency, Abuse, or Neglect ("DNA") petition in Jefferson Family Court asserting that Father had been sexually abusing Child. In January 2019, a different social worker filed a separate DNA petition in Jefferson Family Court asserting that Mother had been emotionally injuring Child by interfering with Child's counseling relationships and possibly inducing Child to manufacture sexual abuse allegations against Father. The Cabinet pursued these two petitions in tandem and proceeded to trial. The family court found that the petition of sexual abuse by Father was unsubstantiated and that Mother had emotionally abused her son by harming his relationship with his father.
Mother appealed the family court's determination. After a thorough review, we reverse and remand the judgment of the Jefferson Family Court.
Mother and Father married in July 2004, and Child was born in February 2007. They divorced in 2009 when Child was just two years old. Mother and Father shared equal custody until April of 2012, when five-year-old Child made his first report of sexual abuse by Father.
Child's report came shortly after the parties had a dispute over parenting time. According to Father, Mother told him he would not get Child over Derby weekend, even if she "had to call [Child Protective Services ('CPS')]." Father received a call from CPS shortly thereafter. The Cabinet investigated Child's report but ultimately found it to be unsubstantiated, although Child never recanted his allegations. In June 2012, Mother filed a petition for a Domestic Violence Protective Order (hereafter "EPO/DVO") against Father on behalf of Child shortly after another dispute over parenting time. Later that month, CPS received an additional report from Mother alleging that Father had threatened to harm Child.
In October 2012, Father moved to modify parenting time. One week later, CPS received a third report that Father sexually abused Child and an anomaly had been discovered on Child's penis.[1] Mother again petitioned for an EPO/DVO against Father on behalf of Child. Eventually, the June and October petitions of abuse were also found to be unsubstantiated, and all restrictions on Father's contact with Child were lifted. Father and Child went through reunification therapy, and in 2014, the court reestablished an equal parenting schedule between the parties. Child's most recent allegation of sexual abuse by Father came in 2017. This report came shortly after Father communicated to Mother via email that he did not want Child to play football the following school year. Child had been participating in a program at his school intended to teach children about appropriate and inappropriate contact between adults and children. Following the program, Child disclosed to his stepfather, Mother's husband, that Father had been sexually assaulting him for years.[2] Child testified in his interview with CPS social worker Chris Hogan that the most recent occurrence of sexual abuse was about one month prior. This time, CPS substantiated the allegations against Father and initiated this DNA action, Case No. 17-J-504406-001, based upon alleged abuse of Child and risk of abuse to his two half-siblings.[3]
On November 22, 2017, the Cabinet filed a DNA petition in Jefferson Family Court, alleging sexual abuse of Child by Father. The family court ordered Child to attend therapy and permitted Father to have weekly supervised visitation with Child.
In March 2018, Kaleigh Thoma took over from Chris Hogan as the Cabinet social worker on Child's case. Thoma's reports to the family court noted a breakdown in the relationship between Child and his then-current counselor, Leanne Gardner. Gardner had been court-appointed as Child's therapist in 2014. Gardner testified that she and Child had a comfortable therapeutic relationship up until the most recent allegations arose, when Child began saying that he "hates" Gardner and does not "feel safe" with her. Record of Case No. 17-J-504406-001 ("R1.") at 32, 43. Consequently, Mother took Child back to Family & Children's Place, where Child had previously received court-ordered counseling, although she did not seek approval from the court to do so. Only afterward did Mother move the family court to replace Gardner as Child's counselor. As a result, the Cabinet filed a contempt motion against Mother through the County Attorney regarding the unapproved visits to Family & Children's Place.
At the contempt hearing, the Cabinet moved the family court to order a mental health evaluation of Child, seeking to inquire whether Child was being emotionally abused by either of his parents. Subsequently, the family court ordered Child to have a mental health evaluation with Dr. Kathryn Berlá. As Dr. Berlá testified at trial, the evaluation request she received was not common - she had never before received a pre-DNA petition request from the Cabinet to evaluate whether a parent's behavior had had a negative impact on a child's mental health. Dr. Berlá issued her report, concluding that she believed Mother had emotionally abused Child through her interference with Child's therapeutic relationships and his relationship with his father. CPS substantiated emotional abuse on behalf of Mother and subsequently filed Case No. 17-J-504406-002 against Mother on behalf of Child.
Before trial, Mother moved to strike Dr. Berlá and exclude her opinions pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Mother argued that Dr. Berlá's expert opinion was based on unreliable evidence because Dr. Berlá had failed to generate alternative hypotheses to explain Child's strained relationship with Father and had interviewed only Mother, Father, Child, and Child's various therapists rather than neutral, collateral individuals such as Child's teachers, coaches, stepparents, or babysitters. The family court did not rule on that motion until after trial, ultimately denying it.
The trial on both petitions was conducted over the course of three separate partial days and one full day from June 2019 through September 2019. The family court heard testimony from the following witnesses: Father; Mother; Child; social workers Chris Hogan and Kayleigh Thoma; stepparents Galadriel and Tim; visitation supervisor Carletta Kilgore; Child's homeroom teacher Suzanne Noland; and psychology professionals Dr. Kathryn Berlá, Dr. Stephanie Tabashneck, and Dr. Karen Eisenmenger. The family court also took judicial notice of prior orders in related actions involving this family and admitted into evidence numerous exhibits, including reports from Dr. Berlá, Dr. Tabashneck, and Dr. Eisenmenger as well as records from Leanne Gardner, MA. Mother also presented testimony from Dr. Ginger Crumbo, the psychologist recommended by Dr. Berlá who had most recently been treating Child.
At trial, Father denied abusing Child in any way, asserting that each of the sexual abuse allegations was triggered by a parenting dispute with Mother. He testified that he believes Mother supports, even encourages, Child to lie and manipulate people to get what he wants. Father described instances in which Child lied so that he could attend football games and solar eclipse viewings with Mother during Father's parenting time, as well as misleading stories about his stepfather, Tim. Father asserted his belief that Child lies to please Mother and maintain peace with her. Father also testified that Mother referred to him as a pedophile and made other similar comments in front of Child and Child's schoolteachers.
Mother testified at trial, denying Father's allegations that she influenced Child to lie. She maintained that she believes Father sexually abused Child and that no professional will ever be able to convince her otherwise. She denied undermining Child's therapeutic relationships or calling Father a pedophile in front of others although several individuals testified to the...
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