Opinion
NO. 2016-CA-001219-ME
05-26-2017
S. T. APPELLANT v. KENTON COUNTY ATTORNEY OF KENTUCKY AND S.T. (A CHILD) APPELLEES
BRIEFS FOR APPELLANT: Andrew M. Campbell Covington, Kentucky BRIEF FOR APPELLEES: Andrew Beshear Attorney General of Kentucky Frankfort, Kentucky Drew C. Harris Special Assistant Attorney General Covington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KENTON CIRCUIT COURT
HONORABLE D. MICHAEL FOELLGER, SPECIAL JUDGE
ACTION NO. 07-J-01066-005 OPINION
AFFIRMING
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BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. LAMBERT, J., JUDGE: S.T. (the Father) appeals from the Kenton Circuit Court judgment holding that S.T. (the Child) is abused and ordering that the Child remain in custody of the Cabinet for Health and Family Services. We affirm.
The Father and T.T. (the Mother) are the parents of four children, all daughters, born between 1999 and 2010. The Child, the only one involved in this appeal, is the oldest. The Mother has a son, B.B., from a previous relationship, and he resided with the family. The family has a history of involvement with the Cabinet beginning in 1998, with incidents reported in nine of the subsequent sixteen years. In August 2014, the daughters were placed with a relative after the Cabinet received custody following reports of inappropriate discipline, medical neglect, and substance abuse.
Further investigations indicated that B.B. had sexually abused the two older daughters, including the Child, for years. Criminal charges were brought against B.B. The children were removed from the relative's care (not because she was unsuitable but because she wished to relinquish that duty) and placed in various agencies within the Cabinet's domain. At the time of the hearing, the Child was residing at Sunrise Children's Services where she was thriving. The Child maintained contact with her sisters, but she expressed a desire not to see either of her parents.
The Cabinet filed the within petition to find the Child dependent, neglected, or abused on September 23, 2015. An adjudication hearing was held on June 17, 2016, after which the Kenton Circuit Court entered an order adjudging the Child to be an abused or neglected child pursuant to Kentucky Revised Statute (KRS) 600.020. The parents filed a "joint motion for a new trial or, in the alternative, to alter, amend or vacate judgment or take additional testimony and enter a new judgment." Kentucky Rules of Civil Procedure (CR) 59.05 and 59.07. Another hearing was held on July 21, 2016. The disposition hearing for the Child was held on the same date. The circuit court denied the parents' motion on July 29, 2016. The Child remained committed to the Cabinet.
Individual petitions were filed regarding all four daughters; this appeal solely concerns the status of the Child.
The trial court's specific finding was: "Court finds child has been sexually abused, by half-brother, while child was residing with parents, who failed to prevent such abuse and/or created the risk thereof." --------
Both parents appealed, but the Mother's appeal (taken pro se) was dismissed on January 11, 2017, for failure to file a brief.
The Father asserts two claims of error before this Court. His first argument is that the circuit court "abused its discretion by limiting cross-examination of the Child by the Mother's attorney and others." The Father specifically finds fault with the circuit court's handling of the Child's testimony during the hearing. At the hearing, direct examination of the Child lasted approximately seventeen minutes, followed by questioning by the Guardian Ad Litem (GAL). After the conclusion of the GAL's questions, the circuit court allowed cross-examination by the Mother's attorney but limited it to "five to ten minutes" and with the proviso that only "non-accusatory" questions would be permitted (a condition that was also placed on the GAL prior to cross-examination of the Child). The Mother's attorney's cross-examination of the Child was interrupted by the circuit court shortly after it began. In so doing, the court commented that the questions being asked were without value and that continued questioning in that vein would "serve no purpose." The court agreed, however, to review all prior recorded statements by the Child with an eye for inconsistencies and credibility issues. The Father's attorney was then permitted to cross-examine the Child without limitation or interruption. The circuit court took the matter under submission and entered its ruling five days later.
The Father argues that the limitation of cross-examination of the Child by the Mother's attorney resulted in violation of the Father's right to a "full adjudicatory hearing" including confrontation and cross-examination of "all adverse witnesses." KRS 620.100(2). The Father insists that the Mother's cross-examination would have assisted the circuit court in determining which parent was responsible for allowing the abuse to occur. Although the Father concedes that his own attorney's cross-examination was limited neither in scope nor duration, he maintains that the circuit court's limitation of the Mother's cross-examination proved a chilling effect on the Father's subsequent questioning of the Child. We disagree.
We are not persuaded that the circuit court abused its discretion in limiting the questions the Mother's attorney asked the Child. The circuit court was acting within its discretionary powers by protecting the Child from undue stress of being questioned by her parents' attorneys. See Addison v. Addison, 463 S.W.3d 755, 763-64 (Ky. 2015). The circuit court's review of all prior statements and interviews of the Child remedied the limitation of cross-examination. The Father does not indicate what testimony could have been elicited from the Child if the Mother's attorney's cross-examination had been allowed to continue. In fact, the Father concedes that abuse occurred; but he contends that further questioning of the Child might have indicated which parent (if either) created the risk in the first place or allowed the sexual abuse by B.B. to continue. However, it is unlikely that the Mother's own attorney would have elicited testimony in the Father's favor, and the Mother's appeal is not at issue here. We hold that the circuit court did not abuse its discretion in limiting the cross-examination of the Child witness during the hearing. Kentucky Rules of Evidence (KRE) 611(a)(3); Addison, 463 S.W.3d at 762.
The Father secondly argues that the circuit court "violated the parents' due process rights by limiting cross-examination of the Child." The limited cross-examination of the Child, according to the Father, violated his protected liberty interest in the care and custody of his daughter. The Father cites Morgan v. Getter, 441 S.W.3d 94, 111-12 (Ky. 2014), to support his second argument.
Again the Father falls short in his burden of persuasion. As stated in the discussion of the Father's first argument, the circuit court did not curtail the Father's cross-examination of the Child, nor did it abuse its discretion in imposing the limitations on the Mother's cross-examination. During the hearing, both parents testified on their own behalves and explained their reasons (employment) for leaving their daughters unsupervised in B.B.'s presence even after they knew of the allegations against B.B. The parents' imposing a supposed "five foot rule" in their absence was ineffective in preventing further abuse by B.B. The circuit court was not without sufficient evidence to make its determination regarding the status or placement of the Child; testimony educed upon further cross-examination of the Child would not have affected the outcome of the circuit court's decision. KRS 620.140; B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005).
The judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Andrew M. Campbell
Covington, Kentucky BRIEF FOR APPELLEES: Andrew Beshear
Attorney General of Kentucky
Frankfort, Kentucky Drew C. Harris
Special Assistant Attorney General
Covington, Kentucky