Opinion
NO. 2011-CA-002031-ME
07-20-2012
BRIAN WAYNE MEEKS APPELLANT v. SHEILA F. MEEKS APPELLEE
BRIEFS FOR APPELLANT: Brian Wayne Meeks, Pro se Central City, Kentucky BRIEF FOR APPELLEE: Susan E. Neace Kentucky Legal Aid Madisonville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 11-CI-00016
OPINION
AFFIRMING
BEFORE: DIXON, MOORE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Brian Meeks appeals from an order and judgment denying his motion for in-person visitation with his children while he is incarcerated. He contends that the Caldwell Circuit Court erred by considering the best interest of the children, and that there was insufficient evidence to establish that the visitation would seriously endanger the children. We disagree with Brian's contentions and affirm.
Brian and Sheila Meeks were married on March 12, 2005, and have two children, B.R.M. and C.D.M., ages four and three years when an evidentiary hearing was held regarding visitation. In 2011, Sheila filed a petition for dissolution of marriage after Brian was convicted of incest, third-degree rape, third-degree sodomy, and first-degree sexual abuse of his minor step-daughter and sentenced to ten-years' imprisonment.
Because Sheila sought employment with the Kentucky Department of Corrections and could not be married to a felon, she sought and obtained immediate dissolution of the marriage. Subsequently, an evidentiary hearing was conducted regarding Sheila's motion for custody and child support and Brian's motion for in-person visitation. Brian participated in the hearing via telephone and a guardian ad litem was appointed to represent him.
At the time of the hearing, Sheila was employed at the Kentucky State Penitentiary as a corrections officer and, as a condition of her employment, was not permitted to have contact with a felon. Sheila testified that prior to filing her petition for dissolution of marriage and her employment with the Kentucky Department of Corrections, she took the children to visit Brian at the Union County and Crittenden County Jails. Following his convictions, in November 2010, she and the children accompanied Brian's daughter, Sarah Meeks, to LaGrange, Kentucky for visitation.
Sheila testified that during the 2010 visitation, B.R.M. was visibly upset and has exhibited disturbing behavior. She expressed concerns about in-person visitation including that other inmates and families would be present, armed guards would be in the room, and the children would have to endure pat-down searches. She testified that her employment prohibited her from accompanying the children to the prison and that none of Brian's relatives have a sufficient ongoing relationship with her two young children to transport them. Although Sarah had contact with the children in their earlier years, she has not seen the children since November 2010.
Evidence was introduced concerning prison regulations and policies regarding inmate visitation. Further, Brian introduced evidence that he was participating in self-improvement programs but has not received sexual offender treatment and will not be eligible to participate in the Sexual Offender Treatment Program until he is within four years of parole eligibility. Because of his crimes, Brian will not be eligible for parole until 2018.
After hearing the evidence, the circuit court made extensive findings of fact. It found that Sheila could not transport the children to the prison or accompany them during visitation. Because of the children's young ages, pat-down searches, the prison environment, visitation with their father who is a convicted sex offender and Sheila's inability to be present during visitation, the circuit court found that in-person visitation would seriously endanger the children's mental and emotional health. The circuit court concluded that it was in the children's best interest to have continued contact and access to Brian through correspondence and telephone.
The law regarding a non-custodial parent's right to visitation is set forth in KRS 403.320(1):
A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.A non-custodial parent, even one who is incarcerated, may not be deprived of visitation "because of the mere whim or lack of cooperation of the custodian." Smith v. Smith, 869 S.W.2d 55, 57 (Ky.App. 1994).
In Smith, the Court summarized the standard to be applied:
In this jurisdiction the non-custodial parent cannot be denied reasonable visitation with his or her child unless there has been a finding that visitation will seriously endanger the child. The non-custodial parent is not required to show visitation is in the child's best interest[.] Clearly the statute has created the presumption that visitation is in the child's best interest for the obvious reason that a child needs and deserves the affection and companionship of both its parents. The burden of proving that visitation would harm the child is on the one who would deny visitation.Id. at 56 (internal footnote, citations and bracket omitted). Although an incarcerated parent does not have to be physically present, a non-custodial parent is entitled to a hearing before visitation can be denied. Alexander v. Alexander, 900 S.W.2d 615 (Ky.App. 1995).
The circuit court held a hearing and made specific findings. Nevertheless, Brian contends that the circuit court erred because it used a best interest of the children standard in deciding to deny in-person visitation.
"[T]his Court will only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky.App. 2000). The circuit court denied Brian's motion for in-person visitation after careful consideration of how such visitation would impact the children based on their ages and individualized situation. After making its threshold finding that "institutional visitation would seriously endanger the children's mental or emotional health," it concluded that it was in the children's best interest to have continued contact and access to Brian through correspondence and telephone. Despite its reference to the children's best interest, the circuit court's findings properly support its conclusion that visitation would seriously endanger the children.
Based on the foregoing, the order and judgment of the Caldwell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brian Wayne Meeks, Pro se
Central City, Kentucky
BRIEF FOR APPELLEE: Susan E. Neace
Kentucky Legal Aid
Madisonville, Kentucky