Opinion
NO. 2015-CA-001076-ME
05-20-2016
CHRISTIAN H. BARRERA APPELLANT v. KATHERINE MARIE BARRERA APPELLEE
BRIEFS FOR APPELLANT: Bryan J. Dillon Louisville, Kentucky BRIEF FOR APPELLEE: Sarah A. Huyck Justin R. Key Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 15-D-500376-001 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, CHIEF JUDGE; DIXON AND J. LAMBERT, JUDGES. DIXON, JUDGE: Christian H. Barrera appeals from a domestic violence order (DVO) entered by the Jefferson Circuit Court. Katherine Marie Barrera, Christian's ex-wife, obtained the DVO on behalf of their son, A.B. After careful review, we vacate and remand for dismissal.
On January 19, 2015, after his weekend visitation, Christian dropped off A.B. with the babysitter. The babysitter notified Katherine that A.B. had a red mark on his cheek. Katherine immediately picked up A.B. and called Christian regarding the red mark. Christian told Katherine that he did not know how the mark happened and asserted that sometimes his beard irritated A.B.'s face when Christian hugged A.B. Katherine then contacted the Cabinet for Health and Family Services, and a social worker advised Katherine to seek medical attention for A.B. The following day, the court granted Katherine's petition for an EPO on behalf of A.B., who was three years old at the time. The petition alleged:
[A.B.] was dropped off at the sitters with a red handprint on his left cheek. When [A.B.] was asked how he got the mark his reply was "daddy smack me." CPS has been notified and taken pictures of [A.B.]'s face where the markings were.
At the hearing, Katherine testified consistently with the allegations in her petition, and she introduced photographs of the red mark on A.B.'s face. According to Katherine, she was concerned that if Christian was allowed contact with A.B., Christian might hurt A.B. in retaliation because A.B. reported that Christian had smacked him. On cross-examination, Katherine conceded that Christian had never been accused of abusing A.B. prior to the incident in question. Katherine further acknowledged that she called Christian about the mark to find out what happened because she initially doubted that Christian could have caused harm to A.B. Katherine agreed that A.B. was a rambunctious child, noting that he once bruised his eye by running into the edge of a table while in her care. Finally, Katherine also conceded that she and Christian continued to litigate the parties' parenting time, as Christian wanted to increase his time with A.B.
Charles Kelley, the Cabinet's investigating social worker, testified on Katherine's behalf. Kelley asserted that he advised Katherine to seek an EPO because he believed A.B. had been hit in the face. Kelley provided discharge paperwork from the emergency room indicating A.B. had been diagnosed with a facial contusion. In the course of the investigation, Kelley interviewed Christian, who stated he had noticed the red mark while at the park during the weekend and also noted his beard could have irritated A.B.'s skin. On cross examination, Kelley conceded he did not know with certainty how A.B. received the mark on his face.
Mario Aban, Christian's brother and roommate, testified on Christian's behalf. Mario first testified that he noticed the mark on A.B.'s cheek on Sunday, and he later testified he saw the mark on Saturday. He asserted that A.B. never seemed upset during the weekend and that A.B. went to the park with Christian both days. Mario asserted that he had never seen Christian lose his temper with A.B. or hit him. Christian's girlfriend also provided limited testimony on Christian's behalf. She explained that she was not at Christian's home during the weekend in question; however, she noted that she had never seen Christian strike A.B.
Christian testified on his own behalf. He explained that, after he took A.B. to the park on Sunday, he noticed a red mark on A.B.'s face. Christian acknowledged that A.B. had played with other children at the park and had not been within Christian's sight at all times. According to Christian, when he asked A.B. how the mark happened, A.B. stated he did not know. Christian also testified he had made a previous complaint to the Cabinet about A.B.'s babysitter, after A.B. had bruises on three different occasions, allegedly from being bitten by another child. Finally, Christian asserted that he did not harm A.B. and would never hurt him.
At the conclusion of the hearing, the court issued a three-year DVO against Christian restraining him from contacting A.B. and granting temporary custody of A.B. to Katherine. The court also ordered Christian to enroll in domestic violence offender treatment and undergo a psychological evaluation. This appeal followed.
On appeal, we are mindful of the trial court's opportunity to assess the credibility of the witnesses, and we will only disturb the lower court's finding of domestic violence if it was clearly erroneous. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). A finding of fact is not clearly erroneous if it is supported by substantial evidence, which is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
On appeal, Christian contends the DVO must be vacated because there was insufficient evidence to support the court's finding that domestic violence occurred and that such an act may occur again. Christian also asserts the court improperly relied on the hearsay statement of A.B. contained in the petition.
Pursuant to KRS 403.740, the court may issue a DVO following a hearing if it "finds by a preponderance of the evidence that domestic violence and abuse has occurred and may again occur[.]" Under the preponderance standard, the court must believe from the evidence that the petitioner "was more likely than not to have been a victim of domestic violence." Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). Further, KRS 403.720(1) defines "domestic violence and abuse" as "physical injury, serious physical injury, stalking, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]"
We first address the court's finding that Christian committed an act of domestic violence against A.B. During the hearing, several photographs of the red mark on A.B.'s face were introduced as evidence. Katherine testified she believed the mark was a handprint and that it had occurred during Christian's parenting time. Kelley testified he believed the mark resulted from a "hit" to A.B.'s face. Christian denied hurting A.B., noting that A.B. had been playing at the park with other children. In its ruling from the bench, the court opined it was convinced the photographs depicted a handprint on A.B.'s cheek, and the court found the testimony of Katherine and her witness to be the most persuasive. Although this Court may have decided this issue differently, we are mindful that our concern is whether the court's findings were clearly erroneous. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). However, there was little evidence supporting the court's finding that Christian perpetrated an act of domestic violence against A.B.
Regardless, there was no substantial evidence presented supporting the second prong of KRS 403.740, which requires a finding that an act of domestic violence "may again occur." The trial judge appears somewhat confused about the evidence presented when she addressed this issue from the bench, ruling, in relevant part:
. . . The standard here is by a preponderance of the evidence, which is much lower than beyond a reasonable doubt in a criminal case. I am concerned about the safety of this child. Um, nobody seems to be able to agree on the Respondent's side when exactly these marks became apparent. Um, they are apparent, and on a child this size - it's concerning. I'm going to find that domestic violence has occurred.
Now, will it occur again? Mr. Barrera testified that there had been bruises previously on this child and that he had made a complaint to CPS against the babysitter and that what I've gathered from the parties' testimony, the complaint was unsubstantiated. Um, there was a decline to introduce those photos, um I have no idea what the nature of those marks are. There's some testimony there was a bruise on his knee, there's some testimony that the child said it was mom. What is clear is that there is a history of violence toward this child, whether it's bruising on the knee - and Mr. Barrera testified that the bruising he noticed happened three times, so there's something going on here. Is it from Mr. Barrera's home? Is it from the babysitter? Is it from mom? I do not know. What I will tell mom is you might want to think about taking this child out of the babysitter's care if you have a question about that, okay?
Um, I am convinced by a preponderance of the evidence that this is not the first time that this child has
been harmed while in dad's care. There was a lot of discussion about the little bit of visitation time, although no one, we're here to talk about violence toward this child, there was a lot of focus on this side of the room on visitation time. Uncle's really concerned about the little bit of time that we have, he said it three times: 'the little bit of visitation that we get, the little bit of visitation that we get.' [Christian's] girlfriend: 'was this the last time that we got to see the child?' There was a lot of concern about visitation, especially in light of the fact that there is a custody issue before this court. So the court is going to find that domestic violence has occurred and could occur again.
Now what do I do as far as contact? Sir, you are ordered, you are not to commit any further acts of domestic violence. Clearly this was a slap on the face, and maybe this is the first time the bruises occurred. I'm worried. So you're going to have no contact with this child until you have completed some sort of therapy or counseling, until the court feels safe. This is not any sort of punishment but the court is looking out for the safety of this child. We hear about it all the time - there were bruises once - and then the next time the child is dead.
So - you're going to complete counseling and then you can revisit the issue of visitation with the child. I'm going to grant temporary custody to the petitioner. I am not going to restrict communication between the petitioner and the respondent there is no evidence to support that is necessary - but sir, you are going to stay away from the petitioner's home. Again, you know, as soon as you complete or are compliant with treatment then you come before this court and ask for some relief, okay?
We have carefully reviewed the record in this case, and there was simply no evidence indicating an act of domestic violence - perpetrated by Christian against A.B. - would occur again. The court clearly indicated it did not know how the child received the previous bruises; however, there was absolutely no testimony that Christian caused the prior bruises or that the bruises occurred during his parenting time. Rather, the record reflects that it was Christian who reported the earlier bruises to the Cabinet, a fact Katherine acknowledged in her testimony. Further, Katherine conceded that Christian had never been accused of any prior abuse and that she initially doubted that Christian could have harmed A.B.
In Guenther v. Guenther, 379 S.W.3d 796 (Ky. App. 2012), a panel of this Court reversed a DVO due to insufficient evidence. The Court explained:
While we are mindful of the trial court's difficult role, we agree with Keith that the record sub judice does not support a finding that by a preponderance of the evidence that an act or acts of domestic violence and abuse may again occur in the future as contemplated by KRS 403.750 or KRS 403.720. Rachelle's monosyllabic responses to her attorney's leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties is insufficient to base a finding that domestic violence may occur again. Thus, we reverse the decision of the trial court because entry of a DVO based on the evidence presented exceeded the discretion of the court.Id. at 802.
We conclude the court's finding that an act of domestic violence "may again occur" is clearly erroneous as it lacks any evidence to support such a conclusion. We vacate the DVO entered against Christian on behalf of A.B. and remand this matter to the trial court for entry of an order dismissing the petition. We need not address Christian's remaining arguments, as our decision to vacate the DVO renders those issues moot.
For the reasons stated herein, we vacate the order of the Jefferson Circuit Court and remand this case for further proceedings consistent with this opinion.
ALL CONCUR BRIEFS FOR APPELLANT: Bryan J. Dillon
Louisville, Kentucky BRIEF FOR APPELLEE: Sarah A. Huyck
Justin R. Key
Louisville, Kentucky