Opinion
NO. 2015-CA-000009-ME NO. 2015-CA-000340-ME
12-09-2016
A.W., father APPELLANT v. BOONE COUNTY ATTORNEY'S OFFICE; K.D., mother; B.D.S., great-grandmother; AND A.W., minor child APPELLEES
BRIEFS FOR APPELLANT: Zachary S. Smith Florence, Kentucky BRIEF FOR APPELLEE: Andrew M. Boyer Assistant Boone County Attorney Burlington, Kentucky
NOT TO BE PUBLISHED APPEALS FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 09-J-00678-004 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND D. LAMBERT, JUDGES. DIXON, JUDGE: In case number 2015-CA-000009, A.W. (Father) appeals a judgment of the Boone Circuit Court finding that his child, A.W. (Child), was abused. In case number 2015-CA-000340, Father appeals a subsequent order of the Boone Circuit Court denying his motion to set aside the judgment pursuant to CR 60.02. These cases were consolidated for appellate review, and we affirm both orders from which Father appeals.
In September 2014, the Cabinet for Health and Family Services filed a dependency, neglect, and abuse petition against Father in Boone Circuit Court. The petition alleged Father sexually abused Child, age five, by inappropriately touching and rubbing Child's genitals. Father and Child's mother, K.D. (Mother), were never married and shared joint custody of Child. Following a temporary removal hearing, the court ordered temporary custody to Child's maternal great-grandmother, B.D.S. (Grandmother).
The record indicates Child frequently stayed with Grandmother before the petition was filed. --------
In November 2014, an adjudication hearing was held where the Commonwealth presented the testimony of Grandmother, Child, and the testimony of Karey Cooper, the social worker assigned to the case. Grandmother testified that, in early July 2014, Child stated Father had put his finger in her bottom. Grandmother also testified that Child complained of painful urination and stated daddy had done it again. Child testified in-chambers, stating Father touched the front part of her bottom and moved his hand up and down.
Father testified on his own behalf, denying the allegations and asserting that he did not know why Child would make those statements. Father also presented the testimony of a police officer for the city of Florence, Detective Pat Cottingham. Detective Cottingham testified that he conducted a criminal investigation regarding the statement Child allegedly made in July, and he concluded there was insufficient evidence to support the allegation.
In its final judgment, the trial court found that a preponderance of the evidence established that Father abused Child. The court relied on the testimony of Child and Grandmother and the Cabinet's reports to support its conclusion. The court ordered that temporary custody would remain with Grandmother and that Father was allowed supervised visitation. Father now appeals.
Father contends the court erred by failing to grant his motion to strike the testimony of Child as unreliable and unduly suggestive. The Commonwealth asserts this error was not preserved for appellate review.
Here, Child testified in-chambers, and the allegedly objectionable portion of the testimony lasted approximately seven minutes. Once the parties returned to the courtroom, Father moved the court to strike Child's testimony. The court overruled the motion, noting that Father had failed to make a timely objection during Child's testimony.
"It is well settled that a party must object and seek relief at the time the error or objectionable behavior occurs." Hadley v. Commonwealth ex rel. Jackson, 105 S.W.3d 427, 429 (Ky. 2003). Furthermore, "[a] motion to strike is not an appropriate vehicle for revival of a neglected opportunity to object." Williams v. Commonwealth, 602 S.W.2d 148, 149 (Ky. 1980). We conclude Father failed to timely object to the testimony; consequently, this issue was not preserved for appellate review.
We are mindful that the trial court has broad discretion in its determination of whether a child is abused. Dept. for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). On appeal, we may not reverse the trial court unless its decision was clearly erroneous. C.R.G. v. Cabinet for Health and Family Services, 297 S.W.3d 914, 916 (Ky. App. 2009).
Pursuant to KRS 620.100(3), the Commonwealth, as the complaining party, bears the burden of proof, "and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 600.020(1)(a)(6) provides for a finding of abuse when a child's welfare is threatened with harm because a parent has created a risk that an act of sexual abuse or sexual exploitation will be committed upon the child.
In addition to the records and interviews compiled by the Cabinet, the Commonwealth presented Child's testimony regarding Father. The trial court found the Commonwealth's evidence to be the most compelling and determined that Child gave credible testimony. Although Father cites testimony that could have supported a finding in his favor, the record reflects the trial court's findings of abuse were supported by substantial evidence. We find no error in the court's ruling.
Finally, Father contends the court erred by denying his motion to vacate the judgment on the basis of newly discovered evidence pursuant to CR 60.02(b). Father points to a February 2015 investigation into new allegations by Grandmother against Mother. Cooper interviewed Child, and Child recanted the earlier allegations against Father. Father believes Child's statement conclusively established that Child was an unreliable witness; consequently, the court erred by relying on Child's testimony to support the finding of abuse by Father at the November 2014 trial. Father also contends he was deprived of exculpatory evidence that was contained in the Cabinet's file; however, he acknowledges that he voluntarily withdrew his pre-trial motion requesting a copy of the Cabinet's file.
Pursuant to CR 60.02(b), a trial court may grant "relief from a final judgment based upon newly discovered evidence only if: (1) the evidence was discovered after entry of judgment; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5) the evidence, if introduced, would probably result in a different outcome." Hopkins v. Ratliff, 957 S.W.2d 300, 301-02 (Ky. App. 1997).
The trial court denied Father's CR 60.02 motion, concluding that Child's statement recanting the allegations did not warrant setting aside the judgment. The court had already considered the credibility of Child's testimony during trial, as Child both denied and admitted the allegations of abuse during the course of questioning. We are not persuaded that Father presented newly discovered evidence within the meaning of CR 60.02(b); accordingly, the trial court did not abuse its discretion by denying Father's motion to set aside the judgment.
For the reasons stated herein, the orders of the Boone Circuit Court are affirmed.
COMBS, JUDGE, CONCURS.
D. LAMBERT, JUDGE, DISSENTS AND FILES SEPARATE OPINION. D. LAMBERT, JUDGE, DISSENTING: I respectfully dissent.
As the majority noted, the Commonwealth bears the burden of proving by a preponderance of the evidence that a minor child is placed at risk for sexual abuse or exploitation by a parent. See KRS 620.100(3), KRS 600.020(1)(a)(6).
In this case, the father and mother had shared joint custody of their daughter for some time, with the father having the child from Thursday night through Sunday night each week. When the child was just over five years old, the father filed a motion for sole custody of the child. The following week, the maternal grandmother reported that the child had disclosed to her that her father was sexually abusing her. After two interviews of the child at the Children's Advocacy Center, the cabinet decided not to move forward and closed their case. The Florence Police Department conducted a criminal investigation and the father was interviewed twice. The child was examined a second time. The officer concluded that there was insufficient evidence to proceed against the father.
After a couple of months, the hearing on the motion for custody was to be heard on September 25, 2014. But the Cabinet filed a petition two days prior to the hearing date, which contained a new allegation that the minor child had made to her maternal grandmother and a different Cabinet worker. The new worker did not seek a Children's Advocacy Center interview this time and there was no police investigation of the second allegation. The worker interviewed the child for about an hour on the maternal grandmother's porch and the child did not make any allegations. When the worker told the grandmother of the lack of disclosure, the grandmother told the child that this was important, placed her in her lap and questioned the child who then disclosed to the worker.
At the adjudication hearing held on November 14, 2014, the child denied any allegations against her father during the commonwealth's direct questioning.
The trial court is vested with discretion to weigh the credibility of the evidence in dependency, abuse, and neglect proceedings under Dept. Human Resources v. Moore, 552 S.W.2d 672 (Ky.App. 1977). The trial court made its findings that the Father had abused the Child based on records and interviews compiled by the Cabinet plus the Child's own self-contradictory testimony.
Though the trial court found the Child's testimony to be credible in the original ruling, it was, at the time, supported by other evidence. That support came from those reports consistent with the child's testimony, which have since been disavowed under oath by the individuals who investigated the matter and generated them. Moreover, the case originated with Grandmother's allegations that the Child had disclosed abuse by both parents to Grandmother, which the Child later recanted when outside the presence of the Grandmother.
The trial court's finding of credibility as to the Child's testimony, which was necessary to both of the rulings on appeal, is not supported by substantial evidence, and is in fact refuted by it. The trial court committed clear error in failing to consider the changed context of the Child's testimony in light of the clear repudiation of all of the evidence supporting it, and the evidence showing the young Child was highly susceptible to suggestibility. The trial court ignored all of this evidence, which is substantial in that it is of such character that it would induce a reasonable person to doubt the reliability and veracity of the child's testimony.
That the trial court later used the lack of credibility in similar allegations by Grandmother as the basis for granting the Mother's motion to remove the Child from the Grandmother's care only showcases the arbitrariness of the trial court's finding that her Father has abused her.
The trial court acted in an unfair and arbitrary manner in denying the Father's motions, and thereby abused its discretion. For this reason I would reverse the trial court's rulings finding that Father had abused the Child, as well as denying the Father's motion to set aside the same finding. BRIEFS FOR APPELLANT: Zachary S. Smith
Florence, Kentucky BRIEF FOR APPELLEE: Andrew M. Boyer
Assistant Boone County Attorney
Burlington, Kentucky