Opinion
NO. 2016-CA-000918-ME
05-19-2017
P.S. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; P.W. (MOTHER): AND B.B. (A CHILD) APPELLEES
BRIEF FOR APPELLANT: James T. Skinner, II Sebree, Kentucky BRIEF FOR APPELLEE: Rebecca J. Johnson Marion, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CRITTENDEN FAMILY COURT
HONORABLE BRANDI ROGERS, JUDGE
ACTION NO. 16-J-00010-001 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR, AND THOMPSON, JUDGES. MAZE, JUDGE: P.S. (hereinafter "Father") appeals from numerous orders of the Crittenden Family Court restricting his contact with his son. Father also contests an evidentiary ruling during a hearing concerning custody and visitation, as well as the many requirements the trial court and the Cabinet for Health and Family Services placed upon him.
We observe no abuse of discretion in the trial court's decision to deny Father custody and visitation until Father complied with the Cabinet's case plan. The trial court applied the proper legal standard. Hence, we affirm.
Background
On March 2, 2016, the Cabinet for Health and Family Services (hereinafter "the Cabinet") received emergency custody of B.B., a child, following allegations that the child was dependent, as defined in KRS 600.020(20), due to conduct on the part of P.W. (hereinafter "Mother"). The Cabinet alleged dependency based upon the fact that a court had revoked Mother's probation and the Cabinet could not locate another appropriate caregiver for B.B. The trial court conducted a temporary removal hearing two days after it granted the Cabinet emergency custody of B.B. Although Father was not named in the Cabinet's petition as a party responsible for B.B.'s dependency, Father appeared at this hearing and requested custody of B.B., or visitation with him in the alternative. The trial court granted both parents supervised visitation at the conclusion of this hearing.
Kentucky Revised Statutes.
Six weeks later, at an adjudicative hearing on the petition against Mother, Father asked the trial court to enforce its prior order awarding him supervised visitation because the Cabinet had not allowed him to have visits with B.B. A social worker for the Cabinet confirmed that she had not complied with the trial court's prior order because she believed supervised visitation between Father and B.B. would endanger the child. The Cabinet and the child's guardian ad litem objected to Father having custody or visitation because of prior substantiated allegations of child and sexual abuse against Father. Following this hearing, the trial court suspended its order awarding Father supervised visitation.
At a May 10, 2016, hearing on Father's motion for temporary custody or visitation, the trial court heard testimony from Father, a state social worker, and a young woman who testified that, years before, Father physically and sexually abused her. Father denied these allegations in his testimony, although he acknowledged that he eventually pled guilty to an amended charge of wanton endangerment based upon the allegations. The Cabinet continued to object to Father having any contact with B.B. until Father complied with a case plan under which Father was required to attend and complete a Sex Offender Treatment Program (SOTP), domestic violence counseling, alcohol abuse counseling, and a mental health assessment. Mother and the child's guardian ad litem also objected to Father having contact with B.B. At the conclusion of this hearing, the trial court overruled Father's motion for custody and visitation.
At the dispositional hearing for Mother's dependency action, Father again appeared and renewed his motion for visitation with B.B. The Cabinet again objected, stating that Father needed to comply with his case plan. Father objected to the Cabinet's case plan, stating that the requirements that he undergo substance abuse counseling and a mental health assessment were unnecessary, that nothing in his history supported a need for domestic violence counseling, and that he could not attend SOTP because the program would require him to admit to committing sexual abuse, which Father claimed he did not commit. At the conclusion of this hearing, the trial court held that the Cabinet's case plan and its recommendations were reasonable and in B.B.'s best interests. The court informed Father that he would have to comply with the case plan to be considered for placement or visitation with B.B.
At counsel's request, the trial court reduced to writing its findings of fact and conclusions of law concerning Father's requests for custody and visitation. In a May 24, 2016, order, the trial court overruled Father's motion for custody. The trial court concluded that it was not in B.B.'s best interest to have contact with Father "given the ... history of substantiations, criminal history, testimony of [Father's] crime, alcohol abuse history, and lack of treatment." The trial court further found that "it would place the child at risk of harm of physical, emotional, mental[,] or moral injury" to allow Father to have contact before he had complied with the Cabinet's case plan. Father now appeals.
Standard of Review
This case primarily concerns itself with Father's challenge of the trial court's decision concerning his custody and visitation right to his son. It is well-established in Kentucky jurisprudence that "[t]rial courts are vested with broad discretion in matters concerning custody and visitation." Truman v. Lillard, 404 S.W.3d 863, 869 (Ky. App. 2012), citing Futrell v. Futrell, 346 S.W.2d 39 (Ky. 1961) and Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). Therefore, we will not disturb the trial court's decision absent an "arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Id., quoting Sherfey v. Sherfey, 74 S.W.3d 777 (Ky. App. 2002). It is not for us to say whether we would have decided differently, but whether the trial court's rulings constituted an abuse of its broad discretion. Id., citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Analysis
We observe at the outset that Father's brief attempts to relitigate the facts of the case before this Court. At trial, he attempted to discredit the young woman who accused him of sexual and physical abuse, and he now asserts that the trial court erred in relying on her testimony. Indeed, the trial court expressly stated in its order that it found the victim's testimony at trial "credible," while it found Father's testimony "to be inconsistent and not credible." However, under the applicable standard of review which we outline supra, these judgments were solely the trial court's to make, and we shall show them "due regard." See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) ("[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court."). Instead, we focus our review on the truly substantive points in Father's brief, including those concerning the appropriate legal standard and Father's right to parent his son.
I. Custody and Visitation
The United States Supreme Court has held that parents have "a fundamental liberty interest" in the care and custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L. Ed. 2d 599 (1982). "This fundamental interest 'does not evaporate simply because they have not been model parents ....'" Cabinet for Health and Family Servs. v. K.H., 423 S.W.3d 204, 209 (Ky. 2014), quoting Santosky at 754-755. This policy is codified in Kentucky statutes and the rigorous evidentiary standard which usually applies when a party seeks to assert his rights of custody and visitation. KRS 403.270 states, in pertinent part, that "[t]he court shall determine custody in accordance with the best interest of the child and equal consideration shall be given to each parent ...." In determining the best interest of the child, KRS 403.270(2) requires the trial court to look to factors which include the mental and physical health of all individuals involved.
Even if a parent is denied custody of his child, he is nevertheless entitled to "reasonable visitation rights" unless a trial court finds that visitation would "endanger seriously the child's physical, mental, moral, or emotional health." KRS 403.320(1). The burden of such a showing falls upon the party seeking to deny the parent his visitation rights. See Smith v. Smith, 869 S.W.2d 55, 56 (Ky. App. 1994). This is the law in traditional custody and visitation cases brought in the circuit or family court.
Father argues that the trial court erred in failing to apply these rigorous statutory standards and "misallocated" the burden of proof in its decision overruling his request for custody and visitation. He asserts that the trial court should have adopted the "serious endangerment" standard of KRS 403.320 instead of the "best interests" standard the trial court applied under KRS Chapter 620, Kentucky's dependency, neglect, and abuse statutes. We disagree.
Kentucky law distinguishes between dependency, neglect, and abuse claims asserted under Kentucky's Juvenile Code and common custody and visitation cases brought pursuant to KRS Chapter 403. This is by design, and it is by necessity. The emergent and solemn circumstances unique to dependency, neglect, and abuse cases, make the distinction necessary. Hence, we have held that "[t]he purpose of dependency, neglect, and abuse statutes is to provide for the health, safety, and overall well-being of the child. It is not to determine custody rights which belong to the parents." N.L. v. W.F., 368 S.W.3d 136, 147 (Ky. App. 2012), citing KRS 620.010 (internal citation omitted). The custody rights of parents, while important, are not, and cannot be, the trial court's highest priority in such cases. Id. While cases prosecuted under KRS Chapter 620 almost always require determinations of temporary custody and visitation arrangements, they are not the forum for a parent to demand that the trial court undergo legal analysis befitting a traditional custody or visitation case under KRS Chapter 403. Rather, KRS Chapter 620 grants trial courts the discretion to determine what placement is appropriate on a temporary basis. KRS 620.090(1).
Within this framework and pursuant to KRS Chapter 620, it was sufficient that the trial court heard evidence, including testimony regarding Father's criminal history, issues with substance abuse, and a three-year absence from his child's life, and ruled based upon B.B.'s best interests. The trial court acted within its broad discretion when it held that sudden contact between Father and B.B., after Father was absent from the child's life for a number of years, would create a "risk of harm of physical, emotional, mental or moral injury" to the child.
II. The Cabinet's Case Plan
Father takes issue with the Cabinet's case plan and the requirements it imposed upon him before he could enjoy contact with his son. Specifically, Father argues that the conditions that he undergo a mental health assessment and attend and complete domestic violence, alcohol abuse, and sex offender counseling are unreasonable and unfounded in the record. Again, we disagree.
There was substantial evidence in the record to support each of these conditions which the trial court found to be in B.B.'s best interests. We begin with the requirement that Father attend SOTP, where he would be required to admit to sexually abusing the victim who testified against him at trial. The Cabinet, Commonwealth, and the trial court relied heavily upon the fact that Father pled guilty to an amended charge on the allegations of sexual and physical abuse. However, it is apparent on the face of the judgment and sentence on plea of guilty the Commonwealth made part of the record that Father's plea was an Alford plea, meaning that Father maintained his innocence while acknowledging that sufficient evidence existed to convict him of wanton endangerment in the first degree. By its very nature, Father's Alford plea did not constitute his admission to sex abuse, and therefore, it was likely insufficient by itself to require Father's attendance at SOTP. At the very least, the trial court relied too heavily upon this fact.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed. 2d 162 (1970). --------
Nevertheless, the victim testified that Father sexually abused her over a span of years, and the trial court found her testimony credible. Despite Father's attempts at trial and on appeal to discredit the victim, the victim's testimony constituted substantial evidence to support the trial court's conclusion that Father's attendance at SOTP was necessary and in B.B.'s best interest.
Regarding the remaining requirements, the trial court heard testimony from the victim that when she and her mother lived with Father, he physically abused them and often drank until he lost consciousness. The trial court found Father's denial of these allegations unpersuasive. Furthermore, Father acknowledged that he had a drinking problem and "anger issues" which group counseling was helping with. However, he admitted that he was not attending sessions as often as he used to and that his attendance was not required. This testimony constitutes substantial evidence supporting the necessity for the Father's attendance at the programs outlined in the Cabinet case plan - programs where his attendance would be required and monitored. We affirm as to these requirements, and on remand, Father's compliance with these conditions, or lack thereof, may impact the trial court's conclusions concerning visitation.
Conclusion
The trial court properly applied the best interest standard and acted within its broad discretion under Chapter 620 in denying Father's request for custody and visitation and in concluding that the Cabinet's case plan served the child's best interests. Accordingly, the May 24, 2016, order of the Crittenden Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James T. Skinner, II
Sebree, Kentucky BRIEF FOR APPELLEE: Rebecca J. Johnson
Marion, Kentucky