Opinion
NO. 2014-CA-001048-ME
05-01-2015
DANIELLE ANN THOMAS APPELLANT v. JOSEPH ALAN THOMAS APPELLEE
BRIEF FOR APPELLANT: Lori A. Kinkead Elizabethtown, Kentucky BRIEF FOR APPELLEE: Mary Eleanor Burnett Radcliff, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE MATTHEW BRENT HALL, JUDGE
ACTION NO. 13-D-00387
OPINION
AFFIRMING
BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. JONES, JUDGE: This appeal arises from an order of the Hardin Circuit Court, Family Division, granting a domestic violence order ("DVO") against Appellant Danielle Ann Thomas. On appeal, Danielle asserts that the family court's finding of domestic violence was clearly erroneous as it was not supported by substantial evidence. She also asserts that the DVO was entered in violation of KRS 403.320. For the reasons more fully explained below, we AFFIRM.
Kentucky Revised Statutes.
I. BACKGROUND
Danielle and Joseph Alan Thomas are the parents of two minor children, C.T. and T.T. At the time of the events in question, C.T. was two years old and T.T. was four years old.
In 2013, Danielle and Joseph filed for divorce. Their dissolution action, including issues related to child custody, was pending before the Hardin Family Court. On February 11, 2014, the family court entered a temporary custody order awarding Joseph and Danielle joint custody of C.T. and T.T. with Joseph designated as the primary residential parent. Danielle was awarded supervised visitation with the children to take place in accordance with Appendix 6 of the Hardin Family Court Local Rules. Danielle's visitation was to be supervised at all times by her sister, Alecia Lawson.
On Friday, May 16, 2014, Danielle picked up C.T. and T.T. for their regularly scheduled visitation. Danielle returned the children to Joseph on Sunday May 18, 2014, at around six o'clock in the evening. Before leaving, Danielle told Joseph that C.T. had diaper rash and gave him a tube of ointment. When Joseph got the children back home, he proceeded to change C.T.'s diaper. Joseph alleges that C.T.'s diaper was soaked, his buttocks were a purplish-red color, and that C.T. would "flinch" whenever he tried to touch the area. Joseph took two pictures of C.T.'s buttocks with his cell phone.
Joseph did not believe that the injuries to C.T.'s buttocks were the result of diaper rash. The following morning, Joseph attempted to get an appointment with C.T.'s regular physician so that a medical professional could examine C.T.'s buttocks. Joseph was not able to get C.T. into the doctor until Tuesday, May 20. On that day, C.T. was seen at Ireland Army Community Hospital by a nurse, Ms. Ames. The following day, Wednesday, May 21, Dr. Justin Costa, C.T.'s regular physician, saw him for a second opinion. Dr. Costa examined C.T. and noted that the marks on C.T.'s buttocks were, in his opinion, more consistent with trauma than a rash. Dr. Costa's medical records state as follows:
Exam is remarkable for approximately 5x7 pink pigmented area on right buttock and contiguous similar lesion on left buttock which is smaller about 3x3 cm in since [sic]. Shape is irregular with no skin excoritation (sic). The perianal area and inside the buttock is spared. The pattern of bilateral area of involvement with sparing between and possible healing bruise is more consistent with trauma than rash, although it is now healing and difficult to determine based on pictures of more bright red involvement acutely. Case handed over the peds LCSQ MAJ Trenta to assist father in contacting CPS with his concerns and findings on exam.
On Thursday, May 22, 2014, Joseph filed a domestic violence petition/motion on behalf of C.T. and T.T. Joseph's petition recounted his discovery of the alleged injuries to C.T.'s buttocks and the actions he had taken since. He stated that he believed, consistent with Dr. Costa's opinion, the marks on C.T.'s buttocks were not caused by diaper rash, but rather some trauma. He asserted that he feared for the safety of both children if they were allowed to have additional contact with Danielle.
Based on the allegations in Joseph's petition, the family court granted an emergency order of protection. It also issued a summons to Danielle and set a domestic violence hearing for June 2, 2014. Three witnesses testified at the hearing: Joseph, Danielle, and Ms. Lawson. Dr. Costa's certified medical records were also introduced and entered into the record.
Joseph testified consistent with the allegations set forth in his petition. He also testified that on the Thursday before Danielle picked C.T. up for visitation, the child had received two immunizations.
Danielle testified that she picked C.T. and T.T. up for visitation on Friday, May 16, 2014. Danielle testified that when C.T. awoke on Saturday morning, he began having episodes of diarrhea, which continued throughout the weekend. Danielle testified that she was not overly concerned about C.T.'s diarrhea because he frequently had diarrhea and/or a fever following immunizations. Danielle explained that she treated C.T. as she had in the past when he experienced these reactions by keeping him hydrated, applying ointment to his buttocks during diaper changes, and that she tried to keep his diaper off as much as possible.
Danielle testified that despite her efforts, on Sunday morning, she observed a diaper rash on C.T.'s buttocks. She testified that she took pictures of the rash because she was concerned that Joseph would accuse her of harming C.T. She introduced her photographs to the family court.
Danielle testified that she and Ms. Lawson left in the middle of the afternoon on Sunday to return the children to Joseph. Danielle testified that the trip took about three and one-half hours by car and that they had to stop three or four times to change C.T.'s diaper and apply more ointment to his buttocks.
Danielle testified that she observed C.T.'s buttocks during the last diaper change and believed that they looked greatly improved. She did not believe that his backside looked nearly as bad as it appeared in the pictures Joseph took later that evening. She emphatically denied that she struck or spanked C.T. during her visitation. She testified that Ms. Lawson was present during all times during her visitation.
Ms. Lawson also testified that she supervised Danielle's visitation at all times during the weekend in question, but that she did not sleep in the same bedroom as Danielle and the children. She testified that Danielle asked her to look at C.T.'s buttocks after his diarrhea had begun. Ms. Lawson, a home health aide, testified that she recommended that Danielle keep C.T.'s diaper off of him as much as possible. She also testified that she did not believe that there was cause to take C.T. to the doctor. She indicated that the pictures Joseph took on Sunday evening were not representative of the condition of C.T.'s buttocks during that weekend.
At the conclusion of the hearing, the family court entered a DVO against Danielle, which is set to expire on June 2, 2015. The terms of the order state that: (1) Danielle is restrained from committing further acts of abuse or threats of abuse; (2) Danielle is restrained from any physical contact with C.T. and T.T., but is allowed telephonic contact with the children; (3) Danielle shall remain at all times and places at five-hundred feet away from the children; and (4) Danielle is to enroll in parenting classes and undergo a psychological evaluation and shall follow the therapist's recommendations. The order further provided:
In order to assist in eliminating future acts of domestic violence, [Danielle's] visitation with the children shall be suspended until the investigation in this matter against her is completed. Upon [Danielle] completing her parenting classes and psychological evaluation, she may motion the court for reinstating her visitation.This appeal followed.
II. STANDARD OF REVIEW
Prior to entry of a DVO, the court must find "from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur . . . ." KRS 403.750(1). The preponderance of the evidence standard is satisfied when sufficient evidence establishes the alleged victim was more likely than not to have been a victim of domestic violence. Baird v. Baird, 234 S.W.3d 385, 387 (Ky. App. 2007). The definition of domestic violence and abuse, as expressed in KRS 403.720(1), includes "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members . . . ."
The standard of review for factual determinations is whether the family court's finding of domestic violence was clearly erroneous. Caudill v. Caudill, 318 S.W.3d 112, 114-15 (Ky. App. 2010). Findings are not clearly erroneous if they are supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is defined as "evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
"[I]n reviewing the decision of a family court, the test is not whether we would have decided it differently, but whether the findings of the family judge were clearly erroneous or that he abused his discretion." Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982) (citation omitted). Abuse of discretion occurs when a court's decision is unreasonable, unfair, arbitrary or capricious. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994) (citations omitted).
III. ANALYSIS
Danielle's first assignment of error is that the family court abused its discretion when it determined that an act of domestic violence had occurred. She believes that the evidence was insufficient for the family court to have concluded that she struck C.T. Instead, she asserts that the only logical inference that could be drawn from the evidence is that C.T. had a bad case of diaper rash following an episode of diarrhea caused by his recent immunizations. She believes that the family court did not confine itself to the evidence, but instead improperly relied on its own personal experiences to conclude that Danielle struck C.T.
To this end, Danielle quotes a portion of the family court's verbal findings:
When you look at the photographs, the cheeks are involved. The anus and perianal region is much less involved and if a child has diaper rash, typically, and you know I just had four kids so you know, that typically is involved as much or if not more, that portion. So this bruising or this redness on the buttocks themselves without the anal area being as involved in any of the photos seems to indicate that this was not a diaper rash that this was something else.
Upon review of the record, we must disagree with Danielle. We believe that substantial evidence supports the family court's opinion on the domestic violence finding. The family court viewed the pictures of C.T.'s buttocks in conjunction with Dr. Costa's medical records. While Dr. Costa did not render a definitive opinion, he opined that C.T.'s buttocks appeared more consistent with trauma than diaper rash. He based his opinion on the appearance of the buttocks as well as the sparing of the anus and perianal region. Furthermore, the family court heard the testimony of Danielle and Ms. Lawson. He was able to judge the credibility of that testimony firsthand.
In sum, we conclude that substantial evidence supported the family court's opinion. Moreover, it is apparent to us that while the family judge commented on his personal experiences of seeing diaper rash, he did not base his decision on his personal experiences, but rather on the photographs, medical opinions and testimony in this case.
Finally, citing KRS 403.320(2), Danielle asserts that the family court erred when it failed to consider less restrictive visitation. Again, we disagree. KRS 403.320(2) provides: "If domestic violence and abuse, as defined in KRS 403.720, has been alleged, the court shall, after a hearing, determine the visitation arrangement, if any, which would not endanger seriously the child's or the custodial parent's physical, mental, or emotional health."
In this case, the family court was familiar with the parties and had previously modified Danielle's visitation to supervised visitation only based on her past inappropriate conduct with the children. The domestic abuse the family court determined occurred during visitation that was supposed to be supervised. Having reviewed the record, we believe that the family court acted well within its discretion in limiting Danielle to telephone contact with the children until such time as she completed parenting classes, a psychological evaluation, and followed any recommendations made by the therapist.
IV. CONCLUSION
For the reasons set forth above, we affirm the Hardin Circuit Court-Family Division.
ALL CONCUR. BRIEF FOR APPELLANT: Lori A. Kinkead
Elizabethtown, Kentucky
BRIEF FOR APPELLEE: Mary Eleanor Burnett
Radcliff, Kentucky