B. S. S. v. K. S. Now K.G. ( 2020 )

RENDERED: MARCH 26, 2020
2019-SC-000019-DE
B.S.S. APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2018-CA-00122-ME
CARTER CIRCUIT COURT NO. 15-CI-00184
K.S., NOW K.G. APPELLEE
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING
Appellant challenges a decision of the Court of Appeals that held the
Carter County Family Court abused its discretion by granting him visitation
with his child. Finding no abuse of discretion, we reverse the Court of Appeals
and reinstate the family court’s visitation order.
FACTUAL AND PROCEDURAL BACKGROUND
The child at issue in this case, K.S. (Child), was bom in August 2011
during the marriage of B.S. (Father) and K.S. (Mother).1 The Mother and
Father separated less than four years later in May 2015.
A month after the parties separated the Mother filed a petition for the
dissolution of the marriage (dissolution action), as well as a motion for
temporary relief seeking sole custody of the Child, who was then three years
1 Because the facts of this case involve alleged sexual abuse of a child, all
parties will remain anonymous.
1
old. She stated in her motion that the Father was under investigation by the
Cabinet for Health and Family Services (Cabinet) for allegedly sexually abusing
the Child. In July 2015, the family court entered an agreed order in the
dissolution action granting the Mother temporary sole custody of the Child.
Two weeks later the Father filed for visitation in the dissolution action.
The day after the Father filed for visitation in the dissolution action, a
Dependency, Neglect, or Abuse Petition (DNA action) was filed before the same
family court judge that was presiding over the dissolution action.2 The petition
alleged that the Father had sexually abused the Child and sought removal of
the Child from the Father’s care. The family court denied the Father’s motion
for visitation in the dissolution action, taking judicial notice of the pending
DNA action against him.3
In the DNA action, the family court ultimately entered an amended
adjudication order that found:
[a]fter an Adjudication Hearing, the Court finds that the
allegations contained in the Petition have been proven
by a preponderance of the evidence, and hereby makes
the following specific findings of fact: The Court finds
the petition as true as the child disclosed that her father
“spanked” her vagina; the child exhibited fear of the
father; the physical exam reveals non-specific notch in
child’s hymen; and the Court finds a risk of harm to the
child if returned to the care of her father.
Pending disposition of the DNA action, the Child was to be in the Mother’s care
2 Because we do not have the benefit of the record in the DNA action, it is
unclear whether the DNA petition was filed by the Mother or the Cabinet. Further, we
do not know the specifics of the allegations therein, other than as addressed in the
adjudication order and as related in the dissolution action.
3 The Father was also criminally investigated by the Kentucky State Police, but
no charges were filed.
2
only. A disposition hearing was scheduled, but before it could occur the Father
appealed the family court’s adjudication order to the Court of Appeals. Failing
to recognize that the appeal was interlocutory, the Court of Appeals
subsequently affirmed the family court in the DNA action.
Less than three months after the Court of Appeals ruled on the DNA
action, the Father filed a motion in the dissolution action to modify the
previously established agreed custody order. The Father argued that it would
be in the Child’s best interest to have visitation with him.
Following a hearing on the matter, the same family court judge who
presided over the DNA action entered an order in the dissolution action
granting the Father’s motion to gradually establish visitation. The court’s
findings of fact and conclusions of law noted that “[t]he Court did not find that
sexual abuse occurred in [the DNA action].” It also found that the Child
“expressed a desire to see her father,” and that the Child did not associate the
absence of her father with sexual abuse. Instead, the Child believed “her father
went to work one day and never returned.”
Accordingly, the family court ordered an incremental reunification plan
for the Father and the Child.4 The Mother moved the family court to alter,
4 The reunification plan began by granting the Father two hours of visitation
every Saturday at a neutral location that the Mother could supervise. After two of
those Saturday visits, the Child’s paternal grandmother could also be present. After
two months of visits, the Father would have visitation every Saturday for four hours at
his home, to be supervised by his mother. After six months, the Father would have
eight hours of unsupervised visitation at his home. After nine months, the Father
would have overnight visitation every other weekend with no required supervision.
Finally, after one year the Father would have visitation in accordance with statutory
guidelines.
3
amend, or vacate its order. When her motion was denied, she appealed to the
Court of Appeals.
The Mother presented two arguments to the second panel of the Court of
Appeals. First, she argued that because the prior panel previously affirmed the
finding of sexual abuse in the DNA action, the doctrine of law of the case
precluded the family court from disregarding that finding in the dissolution
action. She also argued that the family court abused its discretion by
disregarding its own previous finding of sexual abuse and granting the Father
visitation.
The Court of Appeals held: “[w]hether or not the law of the case doctrine
applies in this case, we hold that the family court’s finding in the [dissolution]
action that it did not make a finding of sexual abuse in the [DNA] action is
clear error.”5 It then reversed the family court and vacated its order granting
visitation.
Additional facts are discussed below as necessary.
I. ANALYSIS
A. Law of the case does not apply here.
As a preliminary matter, we feel we must address the issue of law of the
case doctrine raised below and before this Court. “It is an iron rule, universally
recognized, that an opinion or decision of an appellate court in the same
cause is the law of the case for a subsequent trial or appeal however erroneous
the opinion or decision may have been.”6
5 K.S. v. B.S., 2018-CA-000122-ME, 2018 WL 5091047 (Ky. App. Oct. 19, 2018).
6 Union Light, Heat, & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky.
1956) (emphasis added).
4
In this case two separate, albeit related, causes of action are involved.
As previously discussed, the first cause of action appealed was the DNA matter
under KRS7 620 et seq., while the current cause of action is a motion to modify
a previously established custody order under KRS 403.320(3), in the
dissolution action. With regard to whether these actions are separate for the
purposes of law of the case, this Court agrees with the conclusion of the Court
of Appeals in S.R. v. J.N., Id. at 637. S.R. held that “[t]he purpose of the
dependency, neglect, and abuse statutes is to provide for the health, safety,
and overall wellbeing of the child. It is not to determine the custody rights
which belong to the parents.”8 Inversely, the purpose of a custody and
visitation proceeding is to determine the rights of individuals with standing to
seek custody of or visitation with a child. It is not to determine whether or not
that child is dependent, neglected, or abused.
We therefore hold that for law of the case purposes DNA actions and
custody actions are separate and distinct, notwithstanding that the same child
is involved, or that the actions are before the same judge in the same family
court. Accordingly, in this case the Court of Appeals’ holding in the DNA
action did not constitute law of the case for the subsequent visitation
proceedings in the dissolution action.
B. The trial court did not abuse its discretion.
7 Kentucky Revised Statues,
8 307 S.W.3d 631, 637 (Ky. App. 2010).
5
Next we must determine whether the family court’s ruling in the
dissolution action warrants reversal. This Court’s review of a custody or
visitation action involves a two-step analysis:
First, we review a trial court's findings of fact under an
abuse of discretion standard, only disturbing such
findings when they are clearly erroneous. A judgment
is not clearly erroneous if it is supported by
substantial evidence. Substantial evidence is evidence
of substance and relevant consequence having the
fitness to induce conviction in the minds of reasonable
men. Second, we examine the trial court's application
of the law de novo.9
“[T]he test is not whether the appellate court would have decided it differently,
but whether the findings of the family court are clearly erroneous, whether it
applied the correct law, or whether it abused its discretion.”10
In addition to our conclusion that law of the case does not apply, we also
note that the Court of Appeals’ ruling in the DNA action was entitled to no
weight by the family court when it made its subsequent visitation
determination in the dissolution action. As noted, following an adjudication
hearing in the DNA action a disposition hearing was scheduled, but never
occurred. Therefore, the Court of Appeals was acting outside its jurisdiction
when it addressed the Father’s DNA action appeal on the merits. J.E. v.
Cabinet for Health and Family Services is on point in this regard, rendering the
interlocutory appeal a nullity.11
9 S.E.A. v. R.J.G., 470 S.W.3d 739, 742 (Ky. App. 2015) (citations and internal
quotation marks omitted).
10 Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008).
11 553 S.W.3d 850 (Ky. App. 2018).
6
In J.E., the trial court conducted an adjudication hearing in a DNA
action and determined that the children involved were dependent, neglected, or
abused.12 A disposition hearing was scheduled, but before it could take place
the parents appealed the case to the Court of Appeals; no disposition hearing
occurred.13 Therefore, as a matter of first impression, the court addressed the
issue of whether the case was properly appealed or if it was instead
interlocutory and required dismissal.14
The court began its analysis by noting that under KRS 620.155:
a parent aggrieved by a proceeding in a dependency,
neglect, or abuse case may appeal as a matter of right.
The statute, however, does not delineate with
particularity the type of proceeding that may be
appealed. Juvenile proceedings, including
dependency, neglect, and abuse (DNA) actions, are
bifurcated proceedings, i.e., they consist of two distinct
hearings, adjudication and disposition. KRS
610.080.15
Accordingly, the court was tasked with determining “whether the rights of all
parties are fully adjudicated for purposes of appellate review in the absence of
the completion of both the adjudication and disposition hearings” in
accordance with Kentucky Civil Rule of Procedure (CR) 54.01.16
12 Id. at 851.
13 Id.14 Id. at 851-52.
15 Id. at 851.
16 Id. at 852.
7
The court held that “a disposition order, not an adjudication order, is the
final appealable order with regard to a decision of whether a child is dependent,
neglected, or abused.”17 It therefore dismissed the appeal as interlocutory.18
Consequently, in the DNA action at issue in this case, the Court of
Appeals should have dismissed the Father’s appeal as interlocutory, as the
rights of the parties had not been fully determined via disposition proceedings.
This clear error by the Court of Appeals further bolsters our previous
conclusion that the family court was under no obligation to give weight to the
Court of Appeals’ decision in the DNA action when making its visitation
determination in the dissolution action.
Further, our courts have previously held that it is in fact desirable for
family courts to keep DNA actions and custody actions separate in their minds
for the purposes of fact finding:
We learn by the case before us that if a family’s
various causes of action in family courts are not kept
distinct by the court’s adherence to well-founded rules,
parties or the court itself could leverage mere
impressions from a prior proceeding into findings in a
subsequent one, despite that in the prior action the
impression was not sufficient to merit establishment
as a judicially noticeable finding of fact. This can and
does occur when a party attempts to re-adjudicate
custody issues by raising allegations of dependency,
abuse, or neglect. Dutifully following well-founded
rules of court will prevent such manipulation.19
With these principles in mind, we must now address whether the family
court’s findings of fact in the visitation proceedings were clear error.
17 Id. at 853.
18 Id.19 S.R., 307 S.W.3d at 638.
8
During the hearing, which lasted approximately four hours and fifteen
minutes, the court heard testimony from the Child’s mother, father,20 paternal
grandmother, paternal great aunt, paternal great uncle, and therapist Jennifer
Williams (Ms. Williams). The Father’s current girlfriend also testified, and the
testimony of Dr. Edward Connor (Dr. Connor), a licensed clinical psychologist,
was entered into evidence via deposition. There was also testimony through
various witnesses that tended to weaken the Mother’s credibility that may not
have been introduced in the DNA adjudication hearing.21
The court made the following relevant findings of fact: the court did not
find that sexual abuse occurred in the DNA action; the Child does not associate
the Father’s absence with abuse, and instead believes he went to work one day
and never returned; the Child has expressed a desire to see her father; that
children without both a mother and a father can have a number of
psychological difficulties; and the Father has several healthy relationships with
minor children including his girlfriend’s fourteen year old daughter and his
infant niece. He routinely cares for these children without supervision and
there have been no complaints from those children or their parents.
The court found that it would be in the best interest of the Child to have
visitation with the Father. The final portion of the order held: “[t)he Court,
20 We note that the Father did not testify during the DNA action on the advice of
counsel. This was therefore the first time the family court heard testimony from him.
21 We did not have the benefit of the record in the DNA case and therefore did
not have the video record of the DNA adjudication hearing. Testimony was introduced
in this action that the Mother did not allow the Child to sleep in her own bed because
the Mother saw demons under it on one occasion. There was also evidence that she
initially called off her wedding to the Father because she thought a balloon at a
concert told her she was making a mistake.
9
considering all of the testimony before the Court does not believe the child
would be harmed by visiting with her father, but could be harmed by the
absence of a relationship with her father.”
It was the family court’s first finding of fact, as to whether sexual abuse
occurred, that the Court of Appeals held was clear error. We disagree.
The DNA action’s order’s “findings of fact” section states:
After an Adjudication Hearing, the Court finds that the
allegations contained in the Petition have been proven
by a preponderance of the evidence, and hereby makes
the following specific findings of fact: The Court finds
the petition as true as the child disclosed that her father
“spanked” her vagina; the child exhibited fear of the
father; the physical exam reveals non-specific notch in
child’s hymen; and the Court finds a risk of harm to
the child if returned to the care of her father.22
Further, the order’s “conclusions of law” section states: “The Court
therefore concludes the above named child is neglected or abused as defined in
KRS 600.020(1); as follows: her parent...[c]reated or allowed to be created a
risk that an act of sexual abuse...will be committed on the child.”23 This
section of the order is particularly significant. The order is a “check the box”
form, and among the options the family court had was a box that stated the
child was neglected or abused because his or her parent “[c]ommitted or
allowed to be committed an act of sexual abuse” upon the child.24 This box
was not checked, meaning that the family court did not find that the alleged
act of sexual abuse actually occurred.25
22 (emphasis added).
23 (emphasis added).
24 (emphasis added).
25 We also believe it is significant that the order later states, “reasonable efforts
to prevent removal were not provided, but are being made to reunify the family.”
10
Often we find that discerning what a lower court judge meant by or
intended to do with a particular order is an onerous task. But here, the exact
issue of what the family court judge meant by his DNA action order was
discussed in the dissolution action when the following exchange occurred:
Father’s Attorney: (questioning Ms. Williams) You
understand, do you not, that there is no...finding that
[the Child] was sexually abused?
[...]
Mother’s Attorney: Judge I’m going to renew my
objection, if you look at the actual [DNA action] order
‘sexual abuse’ is the term used by the court in its
order: “based upon the testimony at the hearing the
court finds a continuing risk of harm of sexual abuse if
returned to the father...he created or allowed to be
created a risk that an act of sexual abuse, sexual
exploitation, or prostitution will be committed upon
the child.”
[...]
Court: The court did find a risk of sexual abuse. The
court did not find in that case that sexual abuse had
occurred.
Given the preceding facts, we are convinced that the family court did not
find in the DNA action that the alleged sexual abuse actually occurred. Instead
it found that the Father created a risk that an act of sexual abuse would occur.
Accordingly, we reverse the Court of Appeals’ holding that the family court
abused its discretion in the dissolution action when it did not find that sexual
abuse occurred in the DNA action.
(emphasis added). We interpret this to mean that the family court judge did not
believe the Child should never been reunified with the Father.
11
We further hold that the remainder of the court’s findings of fact upon
which it based its decision to grant visitation were supported by substantial
evidence. The finding that the Child believes the Father is absent because he
went to work one day and did not return as well as her expressed desire to see
her father were both founded upon the Child’s therapy notes in Ms. Williams’
testimony. Dr. Connor’s deposition covered the various developmental issues
children with an absent parent can develop. And finally, the Father, the
Father’s girlfriend, and the Child’s paternal grandmother all testified that the
Father regularly takes care of his girlfriend’s fourteen-year-old daughter and
his infant niece. There have been no complaints by the children or their
parents, and no one in his life has any reservations about allowing him to keep
those children unsupervised.
Therefore, we cannot hold that the family court abused its discretion by
finding that an incremental visitation and reunification plan between the
Father and the Child was in the child’s best interest, as substantial evidence
supports the court’s findings of fact. We thus reinstate the family court’s order
for visitation.
in. CONCLUSION
We reverse the holding of the Court of Appeals that the family court
abused its discretion. The family court’s visitation order is hereby reinstated.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ.,
sitting. Nickell, J., recused. Hughes, Keller, Lambert, VanMeter and Wright,
JJ., concur.
Minton, C. J., dissents because he would affirm the Court of Appeals’
decision to remand this case to the family court with directions to make
12
specific findings to explain why, in light of its adjudication that the father
posed a risk of sexual abuse to the child, modification of visitation to require
contact with the father promotes the best interests of the child.
COUNSEL FOR APPELLANT:
W. Jeffrey Scott
Whitley Hill Bailey
W. Jeffrey Scott, P.S.C.
COUNSEL FOR APPELLEE:
Tracy Denise Frye
Marie Elizabeth Troxler
Fry Law Offices, P.S.C.
13