Opinion
NO. 2011-CA-002008-ME
02-08-2013
KAREN CHILDERS APPELLANT v. SHAUNNA CHILDERS APPELLEE
BRIEF FOR APPELLANT: Donald Kyle Deskins Pikeville, Kentucky BRIEF FOR APPELLEE: Jennifer Burke Elliott Prestonsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KNOTT FAMILY COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 10-CI-00210
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. MOORE, JUDGE: Karen Childers is the permanent custodian of her two minor grandchildren. She appeals from a Knott Family Court order that modified her daughter Shaunna's visitation with the children. Having reviewed the record, we reverse and remand because the family court did not make the necessary finding pursuant to KRS 403.320(3) of whether modification of visitation is in the best interests of the children.
Kentucky Revised Statutes.
Shaunna Childers has a daughter, born on September 16, 2002, and a son, born on December 20, 2006. The children were removed from Shaunna's custody following an incident of abuse which occurred in October 2007. Shaunna's live-in boyfriend, Jonathan Crum, pushed two baby wipes down the younger child's throat. The child was taken to the hospital, and a physician used forceps to remove the wipes from his throat. CPR was performed on the child and he was placed on a ventilator. As a result of being deprived of oxygen for at least thirty minutes, he has permanent brain damage and suffers from seizures. On prior occasions, social workers witnessed Crum placing his hand over the baby's nose and mouth to keep him from crying.
Crum was charged with first-degree criminal abuse. Shaunna was charged with criminal neglect and ultimately entered a plea of guilty to second-degree criminal abuse. The court ordered no contact between Shaunna and the children. Eventually, the children were placed in the permanent custody of Shaunna's mother, Karen. Shaunna was given one hour per week of visitation, supervised by Karen. In December 2010, the visitation was increased to weekly sessions alternating in duration from one to four hours.
On July 15, 2011, Shaunna filed a motion for additional visitation. An evidentiary hearing was conducted and testimony was heard from Shaunna, Karen, Dr. David Bliss, a clinical psychologist and early childhood mental health specialist who treats the son, Dr. Paulette Alise, a therapist who treats the daughter, and Paul Salyers, Karen's live-in boyfriend, who has accompanied her to the supervised visitations.
The family court found that no evidence had been submitted to show that Shaunna would be a danger to her children and entered an order granting her visitation that increased in successive four-month periods. The first four months, visitation was set every other weekend, Saturday from 10:00 a.m. to 6:00 p.m. and Sunday 1:00 p.m. to 6:00 p.m.; the next four months, every other weekend from Saturday at noon until Sunday at 6:00 p.m., to be supervised by Shaunna's father, Larry Childers; the next four months the same schedule but unsupervised and, finally, standard visitation as recognized by the court. This appeal by Karen followed.
KRS 403.320(3) provides that "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" "[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).
Karen argues that the evidence presented at the hearing did not support the family court's decision to extend visitation. Specifically, she contends that the family court gave insufficient weight to a Comprehensive Assessment & Training Services (CATS) assessment, performed in October 2008, which was ordered by the Cabinet following Shaunna's conviction for criminal abuse. Karen stresses that the CATS assessment was the only psychological evidence presented to the court regarding Shaunna's parenting abilities. The report found that Shaunna has never accepted responsibility for any of the acts which led to the children's removal from her custody, and that she continues to be at high risk to commit future child abuse.
Karen argues that there was no testimony since the CATS assessment, and Shaunna has admitted she needed counseling. She submits that Shaunna continues to believe that what happened to her son could happen to anyone, and that she was a victim of circumstances.
Further, Karen contends that there is no support in the record for the family court's findings that nothing in the CATS assessment described whether or not the minor children would be at risk with their mother, and that the children's visitation with Shaunna occurred without incident. She contends that this finding completely ignores the testimony of Paul Salyers, who stated that during visitation Shaunna focused on her daughter while ignoring and failing to supervise her son. Salyers and the daughter's therapist both testified that the daughter wets the bed and suffers nightmares after visitation with Shaunna.
As to the court's finding that the daughter's therapist could not articulate a reason why the visitation should be supervised, Karen points to Dr. Alise's testimony that the daughter feels safer with her grandmother. On cross-examination, Dr. Alise admitted that the daughter had not expressly told her that she fears her mother. Dr. Alise recommended supervised visitation with a neutral supervisor.
Karen also argues that the family court failed to consider whether Larry Childers was an appropriate supervisor of the visitation, because Shaunna reported in the CATS assessment that throughout her childhood, her father drank alcohol, and was violent toward her mother when he was intoxicated. A court report in the record showed a history of domestic violence actions against him.
The family court made no specific findings regarding whether increased unsupervised visitation would serve the best interests of the children, which is the appropriate standard for modification. KRS 403.320(3). The family court focused almost solely on whether increased visitation without Karen's supervision would pose a risk of harm to the children. It acknowledged that the testimony of Dr. Bliss and Dr. Alise was of limited utility, because neither had observed Shaunna interacting with her children. Dr. Bliss expressly testified that he had no basis upon which to give a recommendation regarding extended or unsupervised visitation.
Taken as a whole, very little evidence was presented to support the motion for modification. This is particularly troubling given that the family court failed to make the essential finding regarding whether increased visitation with Shaunna is in the best interests of the children. Pursuant to KRS 403.320(3), the family court was required to make this finding prior to ordering a modification of visitation. Pennington v. Marcum, 266 S.W.3d 759, 769-770 (Ky. 2008). Having failed to do so, we must remand for additional proceedings upon which the family court can make additional findings of whether it is in the children's best interests to have increased visitation with their mother.
Based on the foregoing, the order of the Knott Family Court is hereby reversed and remanded so that findings regarding the children's best interest can be made.
ACREE, CHIEF JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: Donald Kyle Deskins
Pikeville, Kentucky
BRIEF FOR APPELLEE: Jennifer Burke Elliott
Prestonsburg, Kentucky