Opinion
NO. 2011-CA-002054-ME
10-19-2012
JENNIFER KARNES APPELLANT v. DAVID HEAD APPELLEE
BRIEFS FOR APPELLANT: Edward A. Baylous, II Lexington, Kentucky BRIEF FOR APPELLEE: Albert W. Barber, III Owensboro, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JAY A. WETHINGTON, JUDGE
ACTION NO. 09-CI-00590
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Jennifer Karnes appeals from the Daviess Circuit Court's October 7, 2011, order adopting the Commissioner's recommendations designating David Head as the primary residential parent of their son, A.D.H. After careful review, we affirm.
By agreed order entered on November 6, 2009, Jennifer and David agreed that it was in the best interests of their child that they share joint custody and that Jennifer be designated as the primary residential parent. On April 11, 2011, David filed a motion styled "Emergency Motion to Modify Custody and Parenting Time." That motion was scheduled for a hearing before the trial court and resulted in an order entered on April 22, 2011. In that order, the trial court found that the child's present environment (living primarily with the mother) seriously endangered his physical and emotional well-being. The court changed the designated primary residential parent from Jennifer to David.
Thereafter, the parties scheduled a hearing before the Commissioner to hear evidence and make a recommendation as to a permanent parenting time that would be in the best interest of A.D.H. The Commissioner conducted the hearing on August 16 and 25, 2011.
At that hearing, David testified that he is 38 years of age and is the father of A.D.H., age eight. A.D.H. has been living with David and David's nephew in a three-bedroom house since the entry of the April 22, 2011, order. A.D.H. has his own bedroom and attends the same school he attended while living primarily with Jennifer. David is disabled due to kidney failure from diabetes. He attends dialysis at the hospital on Monday, Wednesday, and Friday of each week. On the days that David attends dialysis treatment, he leaves the home at 5:00 a.m., and his mother puts A.D.H. on the bus for school.
David testified that he filed his motion seeking the modification of custody because of allegations of abuse made against Jennifer's live-in paramour, Josh Reynolds, toward A.D.H. David alleged that Jennifer had failed to protect the child. Regarding the alleged abuse, David introduced pictures that illustrated bruises on the child. Further, a protective order was issued against Mr. Reynolds ordering that he have no contact with the child. Even after the protective order had been issued against Mr. Reynolds, Jennifer permitted him to live with her and A.D.H.
Case No. 2011-D-00072-001, currently on appeal to this Court.
As a result of the allegations made against Mr. Reynolds, the Cabinet for Health and Family Services (the Cabinet) became involved. Both Jennifer and Mr. Reynolds signed a prevention plan with the Cabinet. The case worker testified at the hearing that she had difficulty scheduling home visits with Jennifer and Mr. Reynolds. Mr. Reynolds denied the abuse and stated that he had appealed the Cabinet's finding that the allegations were substantiated. Jennifer also denied that Mr. Reynolds had abused her child, but she had no explanation for the bruises that were depicted in the pictures of A.D.H. She was unaware of the bruises until the Cabinet initiated its investigation.
The Commissioner conducted an in camera interview with A.D.H. and concluded that the bruises were caused by Mr. Reynolds. Since Jennifer has continued to live with Mr. Reynolds, the Commissioner concluded that the same presents a danger to the child's physical and emotional well-being. For that reason, the Commissioner found that the best interest of the child would be served by designating David as the primary residential parent. Jennifer was granted guideline visitation but was prohibited from having visitation with Mr. Reynolds present. Child support had been set by a previous order.
Jennifer now appeals the trial court's October 7, 2011, order adopting the recommendations of the Commissioner.
Modification of visitation, such as the designation of a primary residential parent, is governed by the children's best interest. Pennington v. Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008); Kentucky Revised Statutes (KRS) 403.320(3). The best interest of the child may be different in each case; therefore, that determination is left within the sound discretion of the family court. See id. Thus, we review the family court's decision for clear error and an abuse of discretion. Id. See also Kentucky Rules of Civil Procedure (CR) 52.01.
Jennifer argues on appeal that the evidence failed to establish that A.D.H.'s physical and emotional health was endangered. She further argues that there was no direct testimony of any act of abuse by Mr. Reynolds or any other person, specifically contending that even in the in camera interview, A.D.H. did not tell the Master Commissioner that Mr. Reynolds physically abused him. These arguments are without merit. A review of the transcript of the in camera interview indicates that A.D.H. did in fact testify that Mr. Reynolds had punched him several times, that he often punches him, but that he is just "playing." He also indicated in the interview that he did not want Mr. Reynolds to know he had told the Commissioner he punches him, and that there is "the truth" and his "mom's truth." Thus, Jennifer's argument that there was no direct testimony about who caused the bruises is disproven by the evidence of record. Because the evidence supported the trial court's decision, there was no clear error or abuse of discretion.
Jennifer also argues that the trial court erred by prohibiting her from calling A.D.H. as a witness at the hearing. She argues that the trial court was erroneously under the impression that KRS 403.290 prohibits the child from being called as a witness. There is nothing to indicate that the trial court prevented Jennifer from calling A.D.H. as a witness because it believed KRS 403.290 prohibited it. That statute states:
(1) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.Again, nothing in the statute prohibits Jennifer from calling A.D.H. as a witness, and there is nothing in the record that indicates that the trial court in fact prohibited Jennifer from doing so. Ultimately, the trial court had the in camera interview conducted by the Commissioner to consider, and it was clear from that interview that A.D.H. felt pressure from Mr. Reynolds not to talk about the bruises. This is sufficient for the trial court to determine that calling A.D.H. as a witness would create unnecessary anxiety for A.D.H., when the trial court had the benefit of his testimony through another means; namely, the in camera interview. We find no abuse of discretion in this regard.
(2) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel upon request. Counsel may examine as a witness any professional personnel consulted by the court.
Discerning no reversible error and no abuse of the trial court's discretion in modifying the designation of the primary residential parent, we affirm the October 7, 2011, order adopting the recommendations of the Commissioner.
VANMETER, JUDGE, CONCURS AND FILES SEPARATE OPINION.
VANMETER, J., CONCURRING: I concur in the majority opinion, but I write separately to add one case citation which is necessary to the decision.
With respect to the claim that the court erred in failing to permit Jennifer to call A.D.H. as a witness, KRS 403.290(1) permits the trial court to interview the child in chambers. In reviewing this statute and the protections afforded families, the Kentucky Supreme Court has stated as follows:
While it is within the trial court's discretion as to whether counsel is present during the interview, the statute clearly provides that "[t]he court shall cause a record of the interview to be made and to be part of the record in the case."Couch v. Couch, 146 S.W.3d 923, 925-26 (Ky. 2004). The implication of this last-quoted paragraph is that the trial court has the discretion to deny the parties the right to call their child as a witness. While the majority opinion suggests that the trial court did not prevent Jennifer from calling A.D.H. as a witness, under Couch, no error would have occurred if in fact the trial court had refused to permit Jennifer from cross-examining A.D.H.
. . . .
We are cognizant of the fact that in many instances it may be helpful for the trial court to privately interview the child whose welfare is so vitally affected by the trial court's decision in an attempt to protect him or her from the pain of openly choosing sides. Nevertheless, it is the parties' constitutional right to hear all of the evidence offered in the case. In an action concerning custody or visitation, any procedure whereby the trial court prohibits disclosure of the transcript of a child's interview to the parties raises significant due process questions. The
parties are entitled to know what evidence is used or relied upon by the trial court, and have the right generally to present rebutting evidence or to cross-examine, unless such right is waived. If a trial court accepts and acts upon statements made by the child during the in camera interview, it is manifestly unfair not to record and disclose the contents of the interview in order to provide an opportunity for rebuttal. See generally S. Bernstein, Annotation, Propriety of Court Conducting Private Interview With Child in Determining Custody, 99 A.L.R.2d 954 (1965).
In striking the appropriate balance between the interests of children and the procedural rights of parents, we hold that while it is certainly within the discretion of the trial court to conduct an in camera interview in the absence of the parties and counsel, a record of such interview must be made so that the parties are afforded the subsequent opportunity to determine and contradict the accuracy of statements and facts given during the interview.
In this instance, the trial Commissioner conducted an in camera interview of A.D.H. and a transcript of the interview was made. Jennifer makes no claim that she was not given a copy of the transcript or was denied an opportunity to rebut A.D.H.'s statements made therein. No error occurred in the trial Commissioner following the procedure outlined in Couch. As a court, we are bound to follow the precedent of the Kentucky Supreme Court and its predecessor court. Supreme Court Rules (SCR) 1.030(8)(a). Couch constitutes such precedent.
CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CAPERTON, JUDGE, DISSENTING: Jennifer argues that she was erroneously prohibited from calling A.D.H. as a witness due to the Commissioner's reliance on KRS 403.290 and, further, that the Commissioner relied on statements made by A.D.H. during the course of interview in deciding issues other than the desires of the child as to custody and visitation. In reviewing the transcript, it does appear that the Commissioner did in fact rule that Jennifer could not call A.D.H. as a witness. Further, is also appears that the Commissioner used statements made by A.D.H. as testimony on issues other than the simple desires of A.D.H. on custody and visitation.
Jennifer relies on the transcript of August 16, 2011, at page 117, lines 1-6 in hopes of supporting her argument.
It is within the discretion of the court as to whether a child may be called as a witness. Brown v. Brown, 510 S.W.2d 14 (Ky. 1974). However, the interview of A.D.H. went beyond the bounds set by KRS 403.290 by admitting the statements of A.D.H. into testimony on issues other than the child's wishes on custody and visitation. KRS 403.290 permits a trial court to interview a child in camera for the purpose of determining the child's wishes as to custodian and to visitation. KRS 403.290(1). A second and very distinct issue is the propriety of the trial court taking in camera testimony on issues other than the wishes of the child, which is not authorized by KRS 403.290(1).
The record does not disclose whether the interview was recorded; however, it does not appear from my review of the record that the parties were provided with either the transcript or video record of the interview during the course of the trial. Accordingly, it seems that Jennifer had neither the opportunity to cross-examine A.D.H. nor the opportunity to review A.D.H.'s testimony and present any rebuttal evidence.
In Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971), our Supreme Court stated:
Most trial courts are extremely reluctant to permit parents to embroil their children in controversies between themselves, to subject them to questioning in the presence of parents and the rigors of cross-examination, especially where the child is of tender years. Even though proceedings concerning custody of children remain adversary proceedings in our law and even though in such proceedings a party is generally permitted to be present when all witnesses are examined and given the right of cross-examination of all witnesses, the situation here presented is a delicate one. The elementary principles of humanitarianism are so strongly against the placing of a child between its parents that we feel a trial court should have a wide latitude in protecting the child. Here the child was not interrogated concerning anything except its own desires relative to the parent with whom it wished to live and even though the better practice might have been to permit appellant's attorney to be present when the out-of-court conference took place, we do not believe it was so prejudicial as to require a reversal of the case.Parker at 597 (emphasis added).
In the matter sub judice, unlike the situation presented in either Brown or Parker, A.D.H. was not interviewed simply as to the child's wishes, but instead to provide substantive evidence which would serve as a basis to establish the best interest of the child in modifying timesharing pursuant to KRS 403.320 and 403.720. I believe this to be a key distinction. And, despite recognizing the validity of the concerns surrounding the involvement of children in domestic litigation, I believe that due process is a keystone of any litigated case and that the parties to a child custody action are entitled to know what evidence is used or relied upon by the trial court. See Couch v. Couch, 146 S.W.3d 923, 925 (Ky. 2004).
There was no indication in the briefs filed with this court that the trial court advised the parties of the intent to use the child's statements during the course of the interview as substantive evidence on issues other than the wishes and desires as to the child's custody and visitation. KRS 403.290 allows only that the in camera interview be used for the child's wishes and desires on custody and visitation. Further, there is nothing in the briefs filed with this court to indicate that the parties were provided with the transcript before the decision of the Commissioner on October 5, 2011, or that the Commissioner provided the parties any opportunity to challenge the in camera interview with the child before issuing his opinion. Lastly, Karnes is not prevented from raising issues of sufficiency of the evidence on appeal, CR 52.02.
Further, the parties have the right to present rebutting evidence or to cross-examine, unless such right is waived. Id. Certainly, KRS 403.290(1) authorizes a trial court to "interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation." However, insofar as KRS 403.290 is sought to be applied as a statutory exception to established case law and evidentiary rules, I believe that it should be strictly construed. And, while the court can interview the child as to the child's wishes on custody and visitation, there is a substantial difference between the court inquiring into the child's wishes on custody and visitation and the court using the child's perception of facts and conclusions upon which to base its own factual findings and conclusions.
Unquestionably, the statements of the child as to why particular wishes are formulated and the basis for the child's wishes can certainly supply the court with reason to delve deeper into evidentiary issues in open court with the parties and counsel present. However, this was not the case in the matter sub judice. While the child's wishes are a relevant consideration under KRS 403.270(2)(b), they provide no basis for finding any of the remaining factors relevant to a custody or timesharing determination found in KRS 403.320 or 403.720.
The next consideration is the propriety of the trial court taking in camera testimony on issues other than the wishes of the child. In considering the modification of timesharing the trial court was statutorily bound to consider all factors found in KRS 403.320. In so doing, the trial court must go beyond the inquiry allowed in KRS 403.290 which is restricted to the wishes of the child. In considering these factors the trial court below necessarily used the testimony of A.D.H. to make findings relevant to modifying timesharing. This use of the in camera testimony of A.D.H. invokes constitutional concerns.
In the litigation process all parties have due process rights which are grounded in the Fifth and Fourteenth Amendments of our United States Constitution. See Cabinet v. A.G.G., 190 S.W.3d 338,345 (Ky. 2006)(citing Willner v. Comm. on Character and Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963)). And, as we have held in Couch, due process affords the parties the right to know the evidence against them, and to address that evidence through either cross-examination or rebuttal evidence.
Couch interpreted KRS 403.290(1). In so doing, it held:
[W]hile it is certainly within the discretion of the trial court to conduct an in camera interview in the absence of the parties and counsel, a record of such interview must be made so that the parties are afforded the subsequent opportunity to determine and contradict the accuracy of statements and facts given during the course of the interview.Couch at 926.
The reference in Couch to the child's statements and facts given during the interview must be viewed in light of its interpretation of KRS 403.290(1), which concerns the wishes and desires of the child as to custody and visitation.
Our Supreme Court in A.A.G. stated:
A civil litigant's right of confrontation and cross-examination is grounded in the Due Process Clauses of the Fifth and Fourteenth Amendments. Willner v. Comm. on Character and Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 1180, 10 L.Ed.2d 224 (1963) ("[P]rocedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood."); Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir.1981). However, confrontation and cross-examination are not rights universally applicable to civil proceedings. Vitek v. Jones, 445 U.S. 480, 494-96, 100 S.Ct. 1254, 1264-65, 63 L.Ed.2d 552 (1980) (prisoner being transferred to mental hospital for involuntary psychiatric treatment may be denied right to confront and cross-examine witnesses upon finding of good cause);Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 345, 346 (Ky. 2006).
Wolff v. McDonnell, 418 U.S. 539, 567, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974) (right to confront and cross-examine witnesses may be denied in inmate civil rights proceeding challenging constitutionality of prison disciplinary proceedings); United States v. Alisal Water Corp., 431 F.3d 643, 658 (9th Cir.2005) ("[I]n the context of a civil suit, cross-examination is not, in every instance, a sine qua non of due process. It all depends on the situation.") (quotations omitted). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). Due process requires only that the evidence be "reliable," and "reliability can be inferred without more in a case where evidence falls within a firmly rooted exception to the hearsay rule." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), overruled as applied to criminal cases by Crawford. See also United States v. Medico, 557 F.2d 309, 314 n. 4 (2d Cir.1977) (Admission of hearsay statements "turns on due process considerations of fairness, reliability and trustworthiness. Experience has taught that the stated exceptions now codified in the Federal Rules of Evidence meet these conditions."); Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193, 1198 (1990) ("Evidence which would be admissible under standard evidentiary rules is presumptively reliable.").
Our Supreme Court recognized in A.A.G. that although the confrontation clause does not apply to civil cases, the due process clause does apply and requires either cross-examination or that the evidence be otherwise shown to be fair, reliable and trustworthy. One such way of demonstrating fairness, reliability and trustworthiness is through firmly rooted exceptions to the hearsay rule. In the case sub judice, cross-examination was denied and no exception to the hearsay rule appears applicable. The testimony of A.D.H. should have been excluded on all issues other than A.D.H.'s desires and wishes as to custody and visitation pursuant to KRS 403.290(1). See Kentucky Rules of Evidence (KRE) 611.
The exception to application of the cross-examination or firmly rooted hearsay exception aspects of the due process clause appear to be limited to prisoner and inmate cases. See Vitek v. Jones; Wolff v. McDonnell.
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If a court declines to allow the parties to cross-examine a child witness, as was the case in the matter sub judice, the requirements of due process must nevertheless still be met. In this case, Jennifer was afforded neither the opportunity to cross-examine A.D.H. nor the opportunity to review her testimony and provide rebuttal evidence. In addition, parents of a child are found to have a fundamental, basic, and constitutional right to raise, care for, and control their own children. Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989). Certainly, this right is made hollow if parties are not afforded the opportunity to review the evidence against them and to present their own evidence in rebuttal.
I recognize that KRE 611 does afford the court the discretion to exercise reasonable control over the mode of interrogation for purposes of protecting witnesses. However, I believe it is contrary to our fundamental evidentiary principles and to the mandates of due process to allow evidence to be submitted against a party without giving the party a chance to review and respond to same. Accordingly, while it may be in the discretion of the court to control the mode of cross-examination, there must be procedures available to the parties whereby they can review the evidence considered by the court and present rebuttal evidence which will assure that the demands of due process are met. Any mode used by the court in controlling cross-examination should be open to scrutiny to assure it meets the requirements of due process.
Cross-examination allows for the opportunity to ask follow-up questions and to obtain further testimony, while written questions submitted by the parties to the court for the purpose of interrogating a witness do not. The opportunity by the parties to openly question a witness allows the parties to fully and completely develop their theory of the case. Indeed, the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. See A.G.G. v. Cabinet, 190 S.W.3d at 346, citing Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1076).
In light of the aforementioned reasons, I would reverse and remand. BRIEFS FOR APPELLANT: Edward A. Baylous, II
Lexington, Kentucky
BRIEF FOR APPELLEE: Albert W. Barber, III
Owensboro, Kentucky