Opinion
NO. 2013-CA-001093-ME
05-30-2014
COREY ZENDNER APPELLANT v. TRACY SCHADT APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NOS. 09-J-504823 & 09-J-504823-001
OPINION
REVERSING AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND VANMETER, JUDGES. CAPERTON, JUDGE: Corey Zendner appeals from the family court's denial of his motion for visitation with his son entered May 21, 2013. Zendner argues that the court's order conditioning his visitation on completion of the Protective Parenting Group program requires him to waive his Fifth Amendment right against self-incrimination and, thus, should be reversed. After a review of Zendner's argument, the record, and the applicable law, we reverse and remand this matter for further proceedings.
On October 30, 2009, the Cabinet for Health and Family Services took out a Juvenile Dependency, Neglect, and Abuse Petition for the protection of Zendner's son based on the allegation that Zendner had sexually abused his former stepson and, therefore, his son was at risk of similar abuse. The family court held an evidentiary hearing and found that Zendner had sexually abused his stepson and that the son was at risk of similar abuse. The court ordered that Zendner complete a drug and alcohol evaluation with Jefferson Alcohol & Drug Abuse Center (JADAC) and to participate in the Protective Parenting Group in order to have visitation with his son. Zendner completed that JADAC evaluation. His admission into the Protective Parenting Group was declined as he refused to admit that he sexually abused his stepson.
Zendner filed a motion for supervised visitation with his son. At the hearing on this matter Zendner testified that as a prerequisite to Protective Parenting Group he was required to admit that he sexually abused his former stepson, which he denied. The court denied the motion and found:
Zendner contends that criminal charges were never filed.
Zendner has not been accepted in Protective Parenting Group because he continues to deny that he sexually abused his stepson ... as found by the court after a hearing ... Zendner refuses to acknowledge his problem which resulted in him perpetrating sexual abuse. He has not received appropriate treatment for the problem. Court order of 1/25/11 laid out what Mr. Zendner needs to do to obtain visitation-He is noncompliant with thatIt is from this order that Zendner now appeals.
order. The court finds that it is in the best interest of [son] that his father not have contact with him until Mr. Zendner is compliant with court orders.
On appeal Zendner presents one issue, namely, whether the court's decision directing him to complete the Protective Parenting Group program requires him to waive his Fifth Amendment right against self-incrimination. Appellee has not filed a brief in response.
At the outset, we note that our standard of review in the area of child custody is well settled in this Commonwealth. As our Kentucky Supreme Court held in Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008), the party seeking modification of custody or visitation/timesharing is the party who has the burden of bringing the motion before the court. Further, it is clear that the change of custody motion or modification of visitation/timesharing must be decided in the sound discretion of the trial court. Id. It is well-settled that an appellate court may set aside a lower court's findings:
[O]nly if those findings are clearly erroneous. And, the dispositive question that we must answer, therefore, is whether the trial court's findings of fact are clearly erroneous, i.e., whether or not those findings are supported by substantial evidence. "[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence ... has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trialMoore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted).
court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.
We note that this appears to be a matter of first impression in Kentucky. As such, we have turned to our sister states for guidance. The Appellate Court of Illinois, Fifth District addressed this issue recently:
The [F]ifth [A]mendment provides that no person "[S]hall be compelled in any criminal case to be a witness against himself." U.S. Const., [A]mend V. This provision of the [F]ifth [A]mendment applies to the states through the [F]ourteenth [A]mendment. Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (1986). This prohibition permits a person to refuse to testify against himself at a criminal trial in which he is a defendant and permits him "not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 281 (1973). The state may not impose a substantial penalty against an individual who elects to exercise his [F]ifth [A]mendment privilege against self-incrimination. Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409, 424 (1984). If the state, expressly or by implication, imposes a penalty for the exercise of the privilege, the failure to assert the privilege is excused. Murphy, 465 U.S. at 435, 104 S.Ct. at 1146, 79 L.Ed.2d at 424. Accordingly, the [F]ifth [A]mendment bars a juvenile court from compelling a parent to admit to a crime that could be used against him in a subsequent criminal proceeding by threatening the loss of parental rights. See In re A.W., 231 Ill.2d at 108, 324 Ill.Dec. 530, 896 N.E.2d 316; In re L.F., 306In re P.M.C., 387 Ill. App. 3d 1145, 1150-52, 902 N.E.2d 197, 202-04 (Ill. App. Ct. 2009).
Ill.App.3d 748, 753, 239 Ill.Dec. 780, 714 N.E.2d 1077 (1999); see also Mullin v. Phelps, 162 Vt. 250, 268, 647 A.2d 714, 724-25 (1994); In re M.C.P., 153 Vt. 275, 300, 571 A.2d 627, 641 (1989); In re Welfare of J.G.W., 433 N.W.2d 885, 886 (Minn.1989); In re Welfare of J.W., 415 N.W.2d 879, 883 (Minn.1987); In re Clifford M., 6 Neb.App. 754, 765-66, 577 N.W.2d 547, 554-55 (1998); In re Amanda W., 124 Ohio App.3d 136, 141, 705 N.E.2d 724, 727 (1997). However, there is a fine, but important, distinction between terminating parental rights based specifically upon a parent's refusal to admit that which he denies, thereby forcing him to waive the [F]ifth [A]mendment privilege against self-incrimination, and terminating parental rights based upon a parent's failure to comply with an order to undergo meaningful therapy or rehabilitation, because a parent's refusal to admit sexual abuse inhibits meaningful therapy. The latter is constitutionally permissible, while the former is not. See In re A.W., 231 Ill.2d at 107, 324 Ill.Dec. 530, 896 N.E.2d 316; In re L.F., 306 Ill.App.3d at 753, 239 Ill.Dec. 780, 714 N.E.2d 1077; see also Mullin, 162 Vt. at 268, 647 A.2d at 724-25; In re M.C.P., 153 Vt. at 300, 571 A.2d at 641; In re Welfare of J.G.W., 433 N.W.2d at 886; In re Welfare of J.W., 415 N.W.2d at 883; In re Clifford M., 6 Neb.App. at 765-66, 577 N.W.2d at 554-55; In re Amanda W., 124 Ohio App.3d at 141, 705 N.E.2d at 727. "Accordingly, a trial court may order a service plan that requires a parent to engage in effective counseling or therapy[ ] but may not compel counseling or therapy requiring the parent to admit to committing a crime."
In re A.W., 231 Ill.2d at 108, 324 Ill.Dec. 530, 896 N.E.2d 316.In In re A.W., the Supreme Court held that the father failed to prove that his Fifth Amendment right against self-incrimination was violated when the circuit court relied on the father's failure to complete sex-offender counseling as a reason for finding the father unfit. In re A.W., 231 Ill.2d at 110, 324 Ill.Dec. 530, 896 N.E.2d 316. The [S]upreme [C]ourt found it significant that the circuit court did not specifically require the father to admit wrongdoing and did not
order him to complete a specific program requiring him to admit abuse. In re A.W., 231 Ill.2d at 108, 324 Ill.Dec. 530, 896 N.E.2d 316. The supreme court also noted that the father presented no evidence of other available treatment programs offering sex-offender counseling without requiring an admission of sexual abuse and that the father had refused to return to sex-offender counseling to see if progress was possible without making any admission of past abuse.
In re A.W., 231 Ill.2d at 109-10, 324 Ill.Dec. 530, 896 N.E.2d 316. The [S]upreme [C]ourt concluded that the record failed to support a holding that the circuit court's order had the effect of requiring the father to incriminate himself. In re A.W., 231 Ill.2d at 110, 324 Ill.Dec. 530, 896 N.E.2d 316.
This case is distinguishable from In re A.W. Because the therapists' testimony did not involve the relevant time period to assess the respondent's efforts or progress in therapy, the sole remaining basis for the circuit court's order finding the respondent unfit involved the respondent's refusal at the hearing to admit the abuse and his corresponding testimony that his admissions in therapy during the relevant time period were insincere. In its order, the circuit court concluded that the "considerable amount of sex [-]offender[-] specific counseling" was "of no value whatsoever to [the respondent because] he denie[d] any sexual abuse to his daughter." Considering the lack of evidence regarding how the respondent's refusal to admit the sexual abuse inhibited his meaningful therapy during the relevant time period, the circuit court's determination of unfitness was improper because it was based on the respondent's refusal to admit to the sexual abuse and had the effect of requiring the respondent to incriminate himself....
We also note that the State is not prejudiced from filing another petition to terminate the respondent's parental rights on lawful grounds and
presenting evidence to support that petition, if and when it becomes appropriate. To avoid a [F]ifth [A]mendment infringement and to encourage the respondent to participate in "meaningful therapy" in the present case, the State may offer the respondent protection from the use of any compelled statements and any evidence derived from those answers in a subsequent criminal case against him. See Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135-36, 53 L.Ed.2d 1, 6-7 (1977). The respondent may also offer evidence that refusing to admit that which he denies may not inhibit "meaningful therapy."
We agree with our sister state that "a trial court may order a service plan that requires a parent to engage in effective counseling or therapy, but may not compel counseling or therapy requiring the parent to admit to committing a crime." In re A.W., 231 Ill. 2d 92, 108, 896 N.E.2d 316, 326 (2008) (citing In re L.F., 306 Ill.App.3d at 754, 239 Ill.Dec. 780, 714 N.E.2d 1077). Sub judice, the trial court in effect ordered Zendner to relinquish his Fifth Amendment rights when it ordered Zendner's attendance and participation at the Protective Parenting Group. As such, we must reverse and remand this matter for further proceedings. On remand, the court may compel effective therapy or counseling, but may not order Zendner to relinquish his Fifth Amendment rights. However:
There was no evidence that said group was the only effective therapy. Indeed, on appeal, we are bereft of an explanation as to what this group actually accomplishes; we are presuming it constitutes therapy.
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While the state may not compel therapy treatment that would require appellants to incriminate themselves, it may require the parents to otherwise undergo treatment. Therapy, however, which does not include incriminating disclosures, may be ineffective; and ineffective therapy may hurt the parents' chances of regaining their children. These consequences lie outside the protective ambit of the Fifth Amendment.Matter of Welfare of J.W., 415 N.W.2d 879, 883 (Minn. 1987).
We remind Zendner that he bears the burden of proving that the treatment he undergoes is effective when conducted without such an admission. Additionally, if the counseling does require such an admission, then the court shall consider whether Zendner's refusal to admit to the sexual abuse prevented him receiving meaningful therapy and, if so, to what extent.
In light of the aforementioned, we reverse and remand for further proceedings.
ACREE, CHIEF JUDGE, AND VANMETER, JUDGE, CONCUR IN RESULT ONLY. BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky
NO BRIEF FOR APPELLEE