Opinion
NO. 2015-CA-000257-ME NO. 2015-CA-000258-ME NO. 2015-CA-000259-ME NO. 2015-CA-000272-ME NO. 2015-CA-000273-ME NO. 2015-CA-000274-ME
04-22-2016
G.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND R.C., A MINOR CHILD APPELLEES AND G.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND S.C., A MINOR CHILD APPELLEES AND G.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.C., A MINOR CHILD APPELLEES AND F.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND R.C., A MINOR CHILD APPELLEES AND F.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND S.C., A MINOR CHILD APPELLEES AND F.C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND K.C., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT, G.C.: Darrell A. Cox Covington, Kentucky BRIEF FOR APPELLANT, F.C.: Joseph T. Ireland Covington, Kentucky BRIEF FOR APPELLEE, CABINET FOR HEALTH AND FAMILY SERVICES: Jack Conway Attorney General Christopher S. Nordloh Special Assistant Attorney General Assistant Kenton County Attorney Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-J-00428 & 14-J-00428-004 APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-J-00429 & 14-J-00429-004 APPEAL FROM KENTON FAMILY COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 14-J-00430 & 14-J-00430-004 OPINION
AFFIRMING
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BEFORE: CLAYTON, MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: The Cabinet for Health and Family Services filed a petition alleging R.C., S.C. and K.C. were abused or neglected under Kentucky revised Statutes (KRS) 600.020. The Kenton Family Court found the children were abused and neglected and mother and father appealed. The sole issue presented by mother and father is whether the family court properly relied on the testimony of R.C. to support its findings that the children were abused or neglected. We affirm.
The Cabinet filed an abuse and neglect petition after the children's aunt reported finding two of the children acting in a sexual manner with one another and the children were interviewed. An adjudication hearing was conducted. R.C., age seven, and K.C. age eight, were found competent to testify after appropriate inquiry and without objection by mother and father. Five-year- old S.C. was found not competent to testify.
R.C. testified that father taught him about sex, which he understood to mean using a finger in the vaginal area of a female. He also testified that father told him to have sex with K.C. and that he had sexual contact with his sister.
Mother and father point to inconsistencies in R.C.'s testimony. For instance, on direct, R.C. testified that father threatened if he did not have sexual contact with K.C., he would break out of jail and harm him. However, on cross-examination R.C. testified that his father was present when he had sexual contact with K.C. Upon further questioning by the guardian ad litem, R.C. testified father threatened to punch him in the knees if he did not have sex with K.C. He later testified that his uncle and his children were present at the time and, upon further questioning, that his mother was present and threatened father with a butcher knife. It was undisputed that father was incarcerated since R.C. was five years old.
R.C. also testified to witnessing sexual acts between adults. He testified that he was in the same bed with mother and father and witnessed them having sex. He also testified that another man named James was in the home and he witnessed sex between him and mother. R.C. testified that an additional man who also stayed in the home had sex with mother.
Mother and father ignore that R.C. was not the only child witness. After being found competent to testify, K.C. described sex consistent with R.C.'s definition and testified that she had also seen father and mother having sex after being invited into the room. She also had seen sex movies. Like R.C., she witnessed mother having sex with James after father was incarcerated. She testified that the sex would occur after mother called her into the bedroom. K.C. testified that R.C. had sex with her, which R.C. stated he learned from father. There was also testimony that a man named Joey was permitted to live in the parent's residence and sexually abused K.C.
The family court made oral findings in the record that mother and father intentionally had sex while their children were watching, father taught R.C. about sexual touching and encouraged him to have sexual contact with K.C. The family court also found the children were exposed to pornography while in the home. Further, the family court found that the parent's permitted a man to reside in the residence who sexually abused K.C. Based on these findings, the family court adjudicated each of the children to be abused and neglected under KRS 600.020. Mother and father filed separate appeals which this Court ordered to be heard together.
On appeal, the court's findings will be reviewed under the "clearly erroneous" standard. C.R.G. v. Cabinet for Health & Family Services, 297 S.W.3d 914, 916 (Ky.App. 2009). The "clearly erroneous" standard "requires that there be proof of a probative and substantive nature carrying the weight of evidence sufficient to convince ordinary prudent-minded people." Id.
The sole error claimed by mother and father is that R.C.'s testimony was unreliable because his testimony was inconsistent regarding the details of his sexual contact with K.C. Notably, mother and father did not object to R.C.'s competency to testify at trial court and do not challenge his competency on appeal. They argue only that his testimony could not be relied on by the family court to find abuse and neglect.
As explained by our Supreme Court, a child witness's inability to "recollect all of the specific details surrounding her abuse by [the defendant] . . . affect[s] only the credibility of her testimony, not her competency to testify." Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000). After a child has been found competent to testify, as with any other witness, the credibility of the testimony is determined by the fact-finder. Capps v. Commonwealth, 560 S.W.2d 559, 560 (Ky. 1977).
There is no argument that R.C. was not competent to testify. The inconsistencies in his testimony went only to the weight that testimony should be afforded. As the fact-finder, the family court judge was "free to judge [R.C.'s] credibility as a witness and to give [his] testimony the appropriate consideration." Howard v. Commonwealth, 318 S.W.3d 607, 613 (Ky.App. 2010).
Mother and father argue that no reasonable person could have believed R.C.'s testimony. We disagree. Although R.C.'s details of the events may have varied, R.C. and K.C. consistently testified that they were knowingly exposed to sexual acts and to their own sexual contact. They consistently offered the same definition of sex as digital penetration of the vaginal area, witnessing adults having sex, and viewing pornography. There was also testimony that the children were acting in a sexual manner toward one another. As in Crum v. Com., Cabinet for Human Res., 928 S.W.2d 355, 358 (Ky.App. 1996), the "statements by the children are compelling and persuasive, given their ages and what should be a lack of knowledge of the kinds of things they described."
Based on the foregoing, the orders of the Kenton Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT, G.C.: Darrell A. Cox
Covington, Kentucky BRIEF FOR APPELLANT, F.C.: Joseph T. Ireland
Covington, Kentucky BRIEF FOR APPELLEE, CABINET
FOR HEALTH AND FAMILY
SERVICES: Jack Conway
Attorney General Christopher S. Nordloh
Special Assistant Attorney General
Assistant Kenton County Attorney
Covington, Kentucky