Opinion
NO. 2017-CA-000453-ME
01-26-2018
CINDY WELLS APPELLANT v. CARL JOHNSON APPELLEE
BRIEF FOR APPELLANT: MaLenda S. Haynes Grayson, Kentucky BRIEF FOR APPELLEE: Robert W. Miller Grayson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 16-CI-00274 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND MAZE, JUDGES. DIXON, JUDGE: Cindy Wells appeals an order of the Carter Circuit Court denying her motion to establish visitation with her minor child, B.C. After careful review, we affirm.
In 2011, Cindy had a brief relationship with Carl Johnson, and she became pregnant. Cindy was on parole at the time, and she subsequently returned to prison for violating a condition of parole. The parties' son, B.C., was born in January 2012, one month before Cindy was released from incarceration. Cindy's parents took care of B.C. following his birth, and Cindy moved in with them following her release. Cindy and B.C. lived with her parents for two and one-half years, and Carl enjoyed liberal visitation with B.C. during that time. Sometime in July 2014, Cindy left B.C. in Carl's care, as she was scheduled to be sentenced to two years' incarceration due to a shoplifting conviction in Boyd Circuit Court. Cindy failed to appear for sentencing and fled to Paris, Kentucky with her then-boyfriend. More than a year later, in December 2015, Cindy was arrested on the bench warrant that had been issued following her failure to appear. Cindy was released from incarceration after serving eight months, and she resumed living with her parents.
In December 2016, Cindy filed a motion for visitation in Carter Circuit Court. Carl vigorously opposed Cindy having any visitation with the child. The court thereafter held an evidentiary hearing and heard testimony from both parties. At the time of the hearing, B.C. had just turned five years old. In addition to B.C., Cindy has two adult children, as well as a seven-year-old who lives with a family member in Tennessee. Cindy testified she was incarcerated from 2009 until 2011, for trafficking in Oxycontin. Cindy's parole was revoked in 2011, after she failed to complete the required substance abuse program. Cindy acknowledged she had not seen B.C. since July 2014, and she admitted she consciously decided to flee to avoid sentencing. Cindy attempted to contact Carl regarding B.C. during her absence, but Carl refused to speak to her. Cindy testified she was unemployed, and she relied on her parents for financial support. Cindy indicated her friends were not allowed in her parents' home, so she used her parents' camper (located across the street) for socializing. Cindy denied using any drugs.
After Cindy fled to avoid sentencing, Carl was granted sole custody of B.C.
Cindy was 38 years old at the time of the hearing. She testified her last job had been at McDonalds in 2007. She also stated she hoped to be approved for disability due to a back injury. --------
Carl testified B.C. believed his stepmother was his mother. Carl believed allowing visitation with Cindy would be detrimental and confusing to B.C. because she was a stranger to him. Carl emphasized B.C. was a happy and healthy child. Carl also introduced the recording of a 911 call that occurred three weeks prior to the hearing. The caller, sounding frantic, asserted Cindy had overdosed on heroin and was not breathing. Emergency personnel arrived to find Cindy alert and standing outside her parents' camper. Cindy advised the technician she had been sleeping, but her friend thought she was dead. The deputy sheriff that responded to the scene testified a man fled from the camper and attempted to hide from officers. The deputy found the man underneath the camper and identified him as Bernard Skaggs. Contrary to the deputy's version of events, Cindy testified Skaggs, her former boyfriend, was taking out the garbage. She further acknowledged Skaggs had a significant criminal history of trafficking in narcotics. A social worker for the Cabinet, Ruby Bailey, testified regarding a complaint she investigated against Cindy in July 2014. Cindy's case plan with the Cabinet required drug screens; however, Cindy did not appear for any scheduled drug screens, and then she fled to avoid sentencing. According to Bailey, she unsuccessfully attempted to contact Cindy for several months regarding the case plan.
The court made specific findings of fact noting Cindy had not seen B.C. in more than two years and that she had failed to cooperate with the Cabinet's previous investigation. Further, the court emphasized, although Cindy denied drug use, she still chose to associate with a known drug-trafficker as recently as three weeks prior to the hearing. The court denied Cindy's motion, concluding visitation, at that time, would seriously endanger B.C.'s health. This appeal followed.
Pursuant to KRS 403.320(1), a non-custodial parent "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." The term "endanger seriously" is not defined, and it is within the discretion of the trial court to determine what constitutes serious endangerment. Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). On appellate review, this Court will not reverse an order denying visitation unless it constituted "a manifest abuse of discretion, or [was] clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). "Abuse of discretion . . . implies arbitrary action or capricious disposition under the circumstances[.]" Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005). Further, we are mindful the lower court was in the best position to weigh the evidence and assess witness credibility. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Cindy challenges the sufficiency of the evidence supporting the trial court's determination visitation would seriously endanger B.C.'s health.
We have carefully reviewed the record, including the evidentiary hearing. B.C. was barely five years old at the time of the hearing. It was undisputed Cindy had been absent from B.C.'s life for two and one-half years, and her testimony implied she blamed Carl for keeping B.C. from her. Cindy's testimony was, at times, self-serving, and she contradicted the testimony offered by the deputy and social worker. The trial court was presented with conflicting testimony regarding Cindy's history and current lifestyle, and it was within the court's discretion to assess witness credibility. Id. We conclude the court's finding that visitation would seriously endanger B.C.'s physical, mental, moral, or emotional health was supported by substantial evidence.
For the reasons stated herein, the order of the Carter Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: MaLenda S. Haynes
Grayson, Kentucky BRIEF FOR APPELLEE: Robert W. Miller
Grayson, Kentucky