Opinion
2023-CA-0617-ME 2023-CA-0620-ME 2023-CA-0621-ME 2023-CA-0619-ME
11-17-2023
M.L., APPELLANT v. A.L., A CHILD; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND J.L. APPELLEES AND M.L. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.L.; AND Z.L., A CHILD, APPELLEES AND M.L. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; J.L.; AND X.L., APPELLEES AND M.L. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; A.L., A CHILD; AND J.L. APPELLEES
BRIEF FOR APPELLANT: Ben Wyman La Grange, Kentucky BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT HONORABLE DOREEN S. GOODWIN, JUDGE ACTION NOS. 20-J-00098-001, 20-J-00099-001, 20-J-00100-001, 20-J-00101-001
BRIEF FOR APPELLANT: Ben Wyman La Grange, Kentucky
BRIEF FOR APPELLEE: Leslie M. Laupp Covington, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND KAREM, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE:
In this consolidated appeal, M.L. ("Appellant") appeals from adjudication and disposition orders of the Oldham Circuit Court, Family Division, in dependency, neglect, and abuse ("DNA") proceedings involving his minor children. In those proceedings, the family court determined that Appellant abused one of his children, Z.L. ("Child"), therefore placing his other three children at risk of abuse. He argues that the court's findings were not supported by substantial evidence, and that the rulings based thereon constituted an abuse of discretion. After careful review, we find no error and affirm the orders on appeal.
Because this is a Dependency, Neglect, and Abuse proceeding involving minor children, we will use the initials of the parties and the children.
FACTS AND PROCEDURAL HISTORY
Appellant married J.L. ("Mother"), and adopted her biological daughter, A.L. Thereafter, Appellant and Mother adopted three children who had been in foster care: Z.L., X.L., and another child with the initials A.L.
On November 16, 2020, Child told Mother that Appellant had sexually abused her by touching her private parts in appropriately. The Oldham Family Court conducted a temporary removal hearing on December 21, 2020, an ordered that the children remain in the home with Mother and that Appellant have no contact.
On July 8, 2021, the Oldham Family Court conducted an adjudication proceeding, where proof was heard. Child testified, as did social worker Lindsey Brotzge who had interviewed Child. Ms. Brotzge's video of the forensic interview was admitted into evidence, as were records from Seven County Services. Ms. Brotzge conducted several sessions with Child, but determined that the type of therapy being employed was not suitable for Child because it increased Child's level of distress. At the hearing, Child repeatedly testified that she did not know or could not remember the answers to many of the questions being asked of her at the hearing. Child did recall telling Mother about what happened. Ms. Brotzge testified, and the therapy notes so indicated, that Child told Mother of the abuse after it occurred.
After considering the testimony, the family court entered a finding of abuse or neglect pursuant to Kentucky Revised Statutes ("KRS") 600.020(1)(a)5. The court determined in relevant part that although Child stated several times at the hearing that she did not know or could not remember the answers to the questions being asked her, she consistently stated that Appellant touched her private parts and that she told her mother about it. The rulings were amended on August 21, 2021, to include findings of risk of harm to Child's siblings. On April 27, 2023, the family court conducted a disposition hearing after which it ordered the children to remain with Mother. Appellant's visitation, if any, was ordered to be at the discretion of a child therapist. This appeal followed.
STANDARD OF REVIEW
In a dependency proceeding, "[t]he adjudication shall determine the truth or falsity of the allegations in the complaint. The burden of proof shall be upon the complainant, and a determination of dependency, neglect, and abuse shall be made by a preponderance of the evidence." KRS 620.100(3). The preponderance of the evidence standard is satisfied if it can be proven that the child was "more likely than not" abused or neglected. See Ashley v. Ashley, 520 S.W.3d 400, 404 (Ky. App. 2017). "In a DNA action, the trial court has a great deal of discretion in determining whether the child is dependent, neglected, or abused." B.B. v. Cabinet for Health and Family Services, 635 S.W.3d 802, 807 (Ky. 2021), reh'g denied (Dec. 16, 2021) (citation omitted).
Since the family court is in the best position to evaluate the testimony and to weigh the evidence, an appellate court should not substitute its own opinion for that of the family court. If the findings of fact are supported by substantial evidence and if the correct law is applied, a family court's ultimate decision . . . will not be disturbed, absent an abuse of discretion. Abuse of discretion implies that the family court's decision is unreasonable or unfair. Thus, in reviewing the decision of the family court, the test is not whether the appellate court would
have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005) (footnotes and citations omitted).
ARGUMENTS AND ANALYSIS
Appellant argues that the Oldham Family Court's findings of fact are unsupported by substantial evidence and therefore are clearly erroneous. He directs our attention to numerous instances in the record when Child denied that sexual abuse occurred. Child also repeatedly stated that she could not remember the answers to certain questions. Appellant asserts that Child's recollection is incongruent and contradictory, and that she "has trouble with the truth." He notes that Child stated that sometimes her "brain gets messed up," and she doesn't know if she is telling the truth or a lie.
Appellant contends that in Child's forensic interview, she gave conflicting statements about where various family members were at the time of the alleged abuse. He maintains that due to the comings and goings of Mother and the other three children in the house, the residence was akin to "Grand Central Station" and there was no opportunity for the abuse to occur. Appellant asserts that Child could not remember if she had a forensic interview to determine what happened, and that Child equivocated by saying that the abuse probably occurred on the couch and that Appellant probably touched her under her clothes. The focus of Appellant's argument is that Child's statements and answers were so vague and conflicting as to not credibly support the allegation of abuse.
The record contains conflicting evidence on the allegation of abuse. On one hand, Child gave equivocating answers at the adjudication hearing, and repeatedly stated that she could not remember or did not know what she had previously stated about the abuse. Child's apparent lack of memory, or her unwillingness to fully engage in the questioning, resulted in the Commonwealth treating her as a hostile witness and asking her leading questions.
On the other hand, however, Child also repeatedly stated at the hearing that she told Mother that Appellant had touched her private parts. In addition, Ms. Brotzge testified that Child told her that Child informed Mother of the abuse soon after it occurred. This testimony was supported by Ms. Brotzge's therapy notes. When asked why Child would display ignorance on the matter at the hearing after earlier claiming that abuse had occurred, Ms. Brotzge testified that this was a common response to trauma. The record reveals that Child was stressed out at both the therapy sessions and the hearing, which is understandable under the circumstances. This may have contributed to her inconsistent answers. The testimony of Child and Ms. Brotzge was unrebutted, as they were the only persons to testify.
The right to believe some portions of the testimony while not believing other portions falls squarely within the sound discretion of the finder of fact, who is best situated to judge the demeanor and credibility of the witnesses. K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006) (citation omitted). In exercising its discretion as the finder of fact, the Oldham Family Court was persuaded by Ms. Brotzge's testimony while giving less credence to Child's vague and equivocating answers at the hearing. In addition to being a credible witness, Ms. Brotzge's testimony was supported by the video of the forensic interview and the certified records from Seven County Services. Her testimony constitutes substantial evidence. For this reason, the court's findings were not clearly erroneous, and the rulings based thereon did not constitute an abuse of discretion.
CONCLUSION
For the foregoing reasons, we affirm the adjudication and disposition orders of the Oldham Family Court.
ALL CONCUR.