Opinion
NO. 2017-CA-001757-ME
07-27-2018
S. O., MOTHER APPELLANT v. J. J. L., A MINOR CHILD BY AND THROUGH HIS GUARDIAN AD LITEM, MICHAEL G. SIMS; BOBBIE JO LEWIS, ANDERSON COUNTY ATTORNEY; S. L., FATHER; L. D., CUSTODIAN; AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEES
BRIEF FOR APPELLANT: Patricia L. Guthrie Louisville, Kentucky BRIEF FOR APPELLEE: W. Steven Middleton Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ANDERSON FAMILY COURT
HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 11-J-00101-001 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: S.O. (mother), appeals from an order from the Anderson Family Court suspending all visitation between mother and J.J.L. (child) and denying mother's motion to enforce visitation.
In 2010, the Cabinet for Health and Family Services received a report that child, who was a one-year-old, was residing with his parents, S.L. (father) and mother, in an unsafe trailer with no utilities. The Cabinet investigated and discovered the allegations were true and the trailer was unsanitary. Parents agreed to a prevention plan which stated that child would stay in the home of paternal grandmother L.D. (grandmother). Later, the Cabinet filed a juvenile dependency, neglect or abuse (DNA) petition regarding child based on mother stating that she would not continue to comply with the prevention plan because it kept her from residing with father, who had to remain out of Anderson County based on pending rape charges.
Following a temporary removal hearing, on October 10, 2010, child was placed in the temporary custody of grandmother and mother had visitation. Mother engaged in weekly supervised visitation with child and was taking parenting classes.
In March 2011, based on parents' stipulation, the family court adjudicated that child was at risk of neglect. At the disposition hearing, mother consented to child being permanently placed with grandmother and having visitation. In the May 2011 disposition order, mother was ordered to pay child support, complete parenting classes, demonstrate skills learned during supervised visitation, follow recommendations of her mental health assessment and domestic violence treatment from Anderson County Comprehensive Care, abide by a DVO, obtain her driver's license and stable transportation, obtain her GED, obtain stable and clean housing of her own, participate in supervised visitation and attend child's medical appointments.
Mother continued to exercise weekly visitation per the prevention plan. Later that year, the family court ordered mother to have unsupervised visitation as arranged with the Cabinet.
On September 23, 2011, grandmother filed a motion requesting custody of child. On November 8, 2011, by agreement, it was ordered that child be placed in the permanent custody of grandmother. The family court ordered mother to pay child support and continue exercising her existing visitation per the prevention plan. Mother engaged in some supervised visitation during the following two years but stopped visiting with child shortly after child's fourth birthday.
In March 2016, the Anderson County Attorney moved to increase mother's child support from $60 per month to an amount in accordance with the Kentucky Uniform Child Support Guidelines and hold her in contempt for her arrearage, claiming mother owed an arrearage in the amount of $582.14 and her last payment through the Cabinet was dated August 12, 2015. Mother failed to appear at the hearing and her child support obligation was raised to $206.50 per month to be payable through wage assignment. Mother was eventually arrested pursuant to a bench warrant. Mother was released from custody on March 1, 2017, after stipulating to contempt and she was ordered to pay all support due. On March 23, 2017, mother filed a motion seeking to enforce her visitation with child.
At a hearing held on September 22, 2017, the family court heard testimony from mother and grandmother. Mother testified that she previously had supervised visits with child about once a week and they went well but she had not seen child in two and a half years. She testified she wrote child a letter at least every other month, provided her phone number in the letters and left voicemails with grandmother and her husband but received no response. Grandmother's phone was disconnected and mother learned from Facebook that grandmother was divorced. Mother admitted knowing where grandmother lived but never went there as she did not have grandmother's permission. Mother testified that she did not think grandmother was intentionally keeping child from her but that everyone had become busy, with mother fighting for her two other children and grandmother being busy with her divorce.
Mother testified she sent gifts for child's birthday and Christmas although they were sometimes delayed. She testified she sent child clothes and toys for Christmas in 2016 and she was currently knitting a "baby blanket" for his birthday, which occurred a few days earlier, but was making it an appropriate size for his age.
Mother testified she is employed and pays child support through a wage assignment. She stated she had also begun paying an extra amount on her arrearage.
Mother admitted that she is currently married to a registered sex offender and knew he was a sex offender when she married him. She has not seen him since 2015, she does not want child around him and wants to get a divorce but cannot afford it. Mother admitted the two children she had with her husband were taken away based on his history and hers. She testified that she fought for those children for two and one-half years. She admitted she had not completed her case plan for her younger children and voluntarily allowed her rights to be terminated in 2016 after their goal was changed to adoption. Mother testified she gave up her rights because her youngest child developed health problems and she knew she could not provide for her with those problems.
Mother admitted to having a possession charge in February 2017 for having half a pill of pain medication but claimed that she took the charge for someone else. She testified her drug test was negative, she served six days for that charge, is on probation for two years and is clean.
Mother testified that after her rights to her younger children were terminated, she was in a more positive relationship, had obtained a better job, had her own place and was working on getting a car. Mother testified she wants visitation with child even if it is supervised. She would agree to any conditions, including parenting classes and reunification counseling. She testified she would have pursued enforcing her visitation earlier but could not afford counsel and was occupied with seeking to be reunited with her other children.
Grandmother testified that mother has not seen child in four years. Mother visited him for the last time a few days after his fourth birthday and that occasion was the last time she gave him a gift. Grandmother testified that mother showed very little interest in child after grandmother obtained permanent custody. When mother did contact her after her final visit, she did not ask to see child and made excuses why she could not see him. Grandmother testified that the last phone contact mother made was in 2014 to her husband, who did not respond to her messages.
Grandmother testified that mother sporadically sends letters, usually whenever she has a court date and wants to show she is a good mother. Those letters are often mailed a month or two after they are dated. While grandmother has kept the letters, she said that because those letters bring up questions for child she has quit reading them to him or letting him see them. Grandmother testified in mother's letters mother has never provided her phone number and never asks to see child.
Grandmother testified that child had a hard time dealing with grandmother's divorce and her husband leaving and is worried that child seeing mother would confuse him. Grandmother testified that child calls her "Mom," does not know or remember mother although he knows that he does have a birth mother and why he is living with grandmother.
Grandmother testified that child has a therapist, an individual education plan for his attention deficit hyperactivity disorder (ADHD) and is on medication for his ADHD. Child sometimes requires special education services at school. Grandmother testified, without any objection from mother, about the contents of a letter she had from child's therapist. The therapist opined that it would not be in child's best interest to see mother because child is dealing with grandmother's divorce and seeing mother would bring him insecurity.
Grandmother testified that when mother visited with child, mother did not interact with him. Child was not upset because grandmother was there.
Grandmother introduced mother's latest letter to child into evidence, which was dated November 15, 2016. Grandmother testified that she did not receive mother's letter until December 2016 or January 2017. In the letter, mother addressed child multiple times as "Baby Boy." She told child that she loves him and misses him and expressed a hope that he was receiving her letters. She shared memories of seeing child, stated her wish that child could see his brother and sister, told child she was doing well and that she had a job and a house. She told child of her wish that he could meet "her new man," mentioned they live together in Louisville, expressed her hope that grandmother and grandfather would allow them to see child, and told him she believed that her boyfriend, child and grandfather would get along well as they all share a love of cars. Mother stated that she would write again in a week.
The family court entered a handwritten order suspending all visits between mother and child and denying mother's motion to enforce visitation. The family court made the following factual findings: mother went four years without seeing child (the time period between when he was four years old until he was eight years old), had no valid reason for not attempting to exercise visitation during this time and only sporadically visited before that time; mother had her parental rights terminated for two children born after child; mother did not complete any of the tasks on any of her case plans; mother was unlikely to consistently visit child, which "would seriously endanger his mental and emotional growth[;]" mother needed to seek "intensive counseling for herself and extensive parenting classes" because she had been involved with two registered sex offenders and "apparently chose to stay with her last husband over having her two (2) other children returned to her[;]" and mother had criminal charges for drugs, claimed the drugs belonged to someone else but refused to disclose who. The family court concluded:
KRS [Kentucky Revised Statutes] 403.320 provides that visitation is an entitlement unless the Court finds that visitation would seriously endanger the child. In this case, as set forth in its findings, any visitation would seriously endanger the child at this time because the mother has not attempted to exercise visitation in 4 years. Even prior to that, [mother] only visited sporadically with the child, so that she is a stranger to the child. Further [mother] has failed to undergo any treatment of any sort to show that she is committed to changing her behavior.
Mother argues that the family court erred as a matter of law by suspending her visitation where there was no evidence to support its decision that visitation with mother would seriously endanger child as required by KRS 403.320(1), abused its discretion by failing to enforce her visitation as required by KRS 403.320(3) and was arbitrary, capricious and violated mother's right to procedural due process by suspending her visitation without complying with KRS 403.320(3).
Regarding mother's third argument, she erroneously cited KRS 340.370(3), a nonexistent statute, while quoting the language of KRS 403.320(3).
We will only reverse a family court's decision regarding visitation if it "constitutes a manifest abuse of discretion or was clearly erroneous in light of the facts and circumstances of the case." Ryan v. Ryan, 473 S.W.3d 637, 639 (Ky.App. 2015). We review the family court's legal conclusions de novo. Id.
The version of KRS 403.320 in effect when the family court heard this issue, specifies as follows:
We note that KRS 403.320 was amended from this version, effective July 14, 2018, with section one adding language referencing shared parenting time. --------
(1) A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child's physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.
. . . .
(3) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health.
"Clearly the statute has created the presumption that visitation is in the child's best interest for the obvious reason that a child needs and deserves the affection and companionship of . . . parents. The burden of proving that visitation would harm the child is on the one who would deny visitation." Smith v. Smith, 869 S.W.2d 55, 56 (Ky.App. 1994).
We agree with the family court that grandmother met her burden in proving that visitation with mother would seriously endanger child's mental and emotional health. Mother has made many poor choices and appears to be continuing in very destructive behavior. When this is combined with her longstanding and voluntary lack of contact with child and the likelihood that any contact she would have with child would be short-lived, we have no doubt that contact with mother under these circumstances would seriously endanger child.
Accordingly, we affirm the Anderson Family Court's order suspending all visitation between mother and child and denying mother's motion to enforce visitation.
ALL CONCUR. BRIEF FOR APPELLANT: Patricia L. Guthrie
Louisville, Kentucky BRIEF FOR APPELLEE: W. Steven Middleton
Frankfort, Kentucky