Christopher Cameron, Jr. v. Emily Smith ( 2023 )

RENDERED: FEBRUARY 3, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1294-MR
CHRISTOPHER CAMERON, JR. APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 13-CI-00210
EMILY SMITH APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
CETRULO, JUDGE: Appellant Christopher Cameron, Jr. (“Father”), pro se,
appeals the Greenup Circuit Court order denying his motion for visitation1 with his
three minor children (the “children”).
1
The motion was officially titled, “Motion to Establish Reunification Plan with Minor Children”
but detailed a plan to start visitation; therefore, we will refer to it as such.
I. FACTUAL AND PROCEDURAL HISTORY
In 2013, Father and appellee Emily Smith (“Mother”) dissolved their
marriage. The dissolution decree granted them joint custody of the children and
designated Mother as primary residential parent. The decree further provided that
Father would receive visitation/timesharing according to Schedule B of the
Greenup County Visitation Guidelines.2 After years of tension between Mother
and Father and Father continuously attempting to modify his child support
payments to Mother, the event that spurred this litigation occurred.
In 2018, the Cabinet for Health and Family Services3 filed a lien on
Father’s bank account for past-due child support, which froze his account. Father
learned of the freeze while on a camping trip with the children and went into a
frenzy in front of the children, threatening to kill Mother. Mother then filed a
motion for immediate relief to suspend Father’s visitation. In her affidavit, Mother
stated that Father had told the children that “it was ‘D-Day’ and he had a loaded
gun in the car.” Further, she testified that Father had told her to sleep with one eye
open and said he was going to shoot her, then told the children “that they should
2
Usually, he had the children twice a week and every other weekend.
3
The Cabinet for Health and Family Services was not involved in this action aside from its
administration of child support payments.
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call [Mother] to say goodbye because he was going to jail, and [she] was going to
heaven.”
Additionally, Mother stated in her affidavit that Father used one of the
children “as a hostage” – refusing to let her participate in a basketball tournament –
to try to force Mother to sign paperwork stating he did not owe child support
arrearages. On another occasion, Mother testified that Father grabbed her during a
child drop-off and told her he would kill her. Mother explained that the children
were “terrified” of Father and the youngest child repeatedly asked whether they
would have to see him again and whether he would bring them back to her. In a
separate matter,4 an emergency protective order was put in place against Father.
Following a hearing on Mother’s motion, in late-October 2018, the
circuit court entered an agreed order suspending Father’s visitation/timesharing
and contact with the children. Further, the order stated that the children would
attend counseling; that Father would attend counseling for his anger and parenting
issues; and that Father could not contact Mother or the children.
A month and a half later, in December 2018, Father moved to
reinstate visitation; or in the alternative, to allow telephone communication. Father
4
Additionally, Father was charged with terroristic threatening due to his actions toward Mother.
One of Father’s bond conditions in that case was to stay away from, and have no contact with,
Mother or the children.
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argued that he had attended five5 counseling sessions and felt he should have
visitation again. However, Mother noted that the children had been in counseling
for only a short time and still needed to work through the traumatic events that had
occurred. The circuit court ordered that Father could have telephone contact with
the children only upon recommendation of the children’s counselor (“Counselor
Nichols”). Counselor Nichols never recommended such contact.
This pattern continued for the next couple of years: Father would
move to alter his visitation every few weeks; Mother would argue that the children
were not yet ready; and the circuit court would request that Father submit
documentation showing his counseling progress. Father would fail to submit such
documentation and the circuit court would deny his motion.
Eventually, Father moved the circuit court to appoint a Friend of the
Court (“FOC”) and recommended Honorable Kristin Francis. The circuit court
then appointed Honorable Kristin Francis as FOC (“FOC Francis”) to interview the
parties and children and provide a report to the circuit court.
At the end of May 2019, FOC Francis submitted her report on behalf
of the children. In preparation, FOC Francis had reviewed the record, interviewed
Counselor Nichols, attempted to contact Father’s counselor multiple times, and
5
The first letter from Father’s counselor stated he had been seen for five appointments; however,
the second letter stated the counselor had seen him on four occasions.
-4-
interviewed the children. The report stated that Counselor Nichols, however, had
contacted Father’s counselor and the counselors spoke extensively about Father’s
progress. Father’s counselor told Counselor Nichols that Father’s sessions focused
on “what he c[ould] do to get his kids back” not his anger issues. Counselor
Nichols noted that she believed Father needed to address his anger issues,
specifically when intoxicated.
Further, Counselor Nichols emphasized the children’s “tremendous
fear of their father.” As such, Counselor Nichols did not believe it was safe for the
children to visit with Father until he had fully addressed his anger issues with his
counselor. At that point, she did not believe he had done so.
During the interview with Father, he told FOC Francis that the
contentious relationship with Mother “boiled down to money” and he confirmed
that he had made comments about hurting Mother in front of the children, which he
regretted. He admitted that he was a “high intensity person” who let himself get
overly emotional in front of his children. However, FOC Francis did note that he
seemed distraught that he could not see the children and he stated he would do
whatever was necessary to be able to see them.
When FOC Francis interviewed the children, they recounted the
events from the 2018 camping trip. They explained that Father first got angry
because one of the children wanted to attend basketball practice. They noted that
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Father began throwing things, including a glass of wine, and made multiple
comments about killing Mother. The oldest child also stated that she overhead
Father say, “I can’t wait to see the way [Mother’s] eyes pop out of her head when I
choke her.” They further noted that during the camping trip, Father continued to
drink alcohol and became angrier, then got in his car to drive away and told the
children that he had a loaded gun and was going to go find Mother to kill her.
Ultimately, the children made it clear to FOC Francis that they did not
have any desire to visit with Father after the camping trip. They each reported
being terrified of seeing him because they feared he would be angry with them for
not wanting to see him. They stated that there was no scenario in which they
would want to see Father.
Following FOC Francis’s report, Father continued to violate the
circuit court’s orders and contacted Mother, incessantly. Further, he failed to pay
for the children’s counseling sessions, per the court’s orders. Father admitted that
he had violated the orders, and the circuit court found him in contempt. The circuit
court sentenced Father to 60 days of incarceration, suspended so long as Father
paid the counseling fees and did not contact Mother or the children.
Father then moved for production of the children’s counseling records
and for a status conference. Mother noted that the “guardian ad litem/friend of the
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court”6 had been appointed to review such documents and had already reported her
findings to the court. The circuit court overruled Father’s motion and ordered the
“Guardian Ad-litem” to file a report on the status of counseling. Additionally,
Father was to file a report on the status of his counseling.
FOC Francis then supplemented her report with an update on the
children’s counseling. FOC Francis explained that the children had been seen
multiple times, with sessions ending in May 2019. Counselor Nichols had reported
that the children did very well during their sessions, and they had ceased sessions
because they were “secure and comfortable” with Mother. At that time, Counselor
Nichols had not been updated on Father’s counseling progress. FOC Francis again
attempted to contact Father’s counselor – multiple times – but was unsuccessful.
When FOC Francis spoke with Father on his progress, he mentioned
that he did not believe he needed to continue counseling. FOC Francis informed
him that Counselor Nichols had spoken with his counselor and concluded that he
needed to continue his counseling sessions. At that point, Father noted that he had
not been to counseling in “a couple of months.”
Then again, in late 2019, Mother moved for contempt of Father and
for his incarceration. Father had shown up to two of the children’s ballgames,
6
After using both terms, Mother’s counsel used “guardian ad litem” throughout the response.
This is noted because Father later argues that such misidentification of FOC Francis was an
“abuse of discretion.”
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despite the circuit court’s June 2019 order stating “absolutely no contact with
[Mother] or [the children] . . .” and Father previously being found in contempt for
contacting Mother. These incidents triggered the youngest child’s anxiety, which
led to reinstatement of his counseling sessions. In October 2019, the circuit court
found Father had violated the June 2019 order on three separate occasions when he
attended the children’s ballgames and contacted one of the children. Therefore, the
circuit court set aside the incarceration suspension and sentenced Father to 60 days
in the Greenup County Detention Center.
In late October 2019, Father’s attorney withdrew, citing that he could
be of no further assistance to Father and that there were no matters pending for
which Father needed representation.
Throughout 2019 and 2020, the pattern continued, with Father filing
back-to-back-to-back motions with the circuit court for visitation. The circuit
court denied each of them, however, because Father failed to submit
documentation of his counseling progress, as requested. Finally, in October 2020,
Father began counseling in Washington, D.C., and his counselor noted in a letter
that he had attended six appointments. Upon the recommendation of the
counselor, Father completed a four-hour virtual anger management class in January
2021 and a four-hour virtual co-parenting class in February 2021. Additionally, he
completed a psychological evaluation in March 2021.
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In June 2021, Father filed a motion to establish a reunification plan
with the children and attached a letter from his counselor noting his attendance and
progress; certificates of completion from his two online courses; the psychological
evaluation report; reference letters from a neighbor, a life coach, and a family
friend; and affidavits from Father’s mother and brother. Specifically, the motion
requested that the circuit court amend the October 2018 order, which had modified
Father’s visitation rights, to “create a clear path toward reunification with [the]
children.”
Further, the motion claimed that the record was “missing key facts
and details that could have dramatically altered the direction of this case and the
Court’s impression of [Father].”7 Finally, Father insisted that he was ignorant
when he “hastily” signed the October 2018 agreed order “under intense duress,
under bad legal counsel and under the assumption his children were going to testify
against him in open Court.”
7
These “missing facts” included Father’s insistence that he had apologized to his children on the
evening of the 2018 camping trip, “[y]et for some unknown reason, the two adults who actually
saw what happened [that night] were never called to testify . . . .” Additionally, Father claimed
his previous attorney was largely the reason for his troubles. He claimed the attorney told Father
he could attend his children’s sporting events following the no contact order and that the attorney
failed to inform him of the cease-and-desist letter following his first appearance at a game.
Further, Father claimed there was a conspiracy to “hide” these facts from the circuit court.
Father concluded that the attorney’s actions created the “impression” that he had no respect for
the court’s orders, the cease-and-desist letter, Mother, or his children, not that he, in fact, had no
respect for them. Father claimed that his former attorney “told [Father] to commit [contempt].”
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Father then proposed a three-phase therapeutic reunification plan.
Phase One incorporated supervised Skype calls and eventual supervised visits of
increasing length, all while continuing counseling. Phase Two then incorporated
longer, unsupervised visits and Phase Three added mediation to determine a future
parenting schedule, and rights and responsibilities moving forward. The parties
would not move on from Phase One until Father provided status updates to the
circuit court and it ordered advancement to Phase Two.
In response, Mother emphasized that Father had downplayed his role
in the situation, blaming his shortcomings on his previous attorney and failing to
acknowledge that he had engaged in acts of violence and terroristic threatening.
The children had residual effects of the trauma and had no desire to communicate
with Father. Mother added that the company with which Father completed his
online courses recommended eight hours for each of the courses, not eight hours
total. Therefore, Mother concluded that Father attempted the “bare minimum” to
check off some boxes. Finally, Mother objected to the admission of the remaining
attachments because they were uncertified and there had not been an opportunity
for cross examination.8
In September 2021, the circuit court heard Father’s motion for
visitation. Present were Mother, represented by counsel; Father, pro se; Counselor
8
This Court did not consider these documents in this Opinion.
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Nichols; FOC Francis; Lawrence Craft, Father’s friend; and Gail Cameron,
Father’s mother. Father testified that he had three sessions with his counselor over
the course of three years, with his last session six months prior to the hearing.
Further, he testified that he renewed his faith, stopped drinking as regularly, and
promised that he was a changed man.
Mother testified that the children were more relaxed without
visitation, and each could act more like “normal children.” Further, she testified
that the oldest child had blocked Father on her phone. Mother noted that the
youngest was much calmer now but still occasionally fixated on whether the house
doors were locked, if he was triggered. Mother also emphasized that the children
had no desire to see Father and that they never talked about him.
Counselor Nichols testified that the two older children met with her
only a couple of times because they were able to get to a stable place quickly. The
youngest child, however, took longer to process that summer’s events, then had
restarted counseling once Father unexpectedly showed up at his game the next
year. Counselor Nichols further testified that she did not think Father’s counseling
had been sufficient because it had not specifically addressed his anger. She still
had concerns about the children restarting visitation with Father. She emphasized
that the long-term work Father needed to complete before reuniting with the
children could not have been completed in three sessions over three years. She
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explained that until those standards were met, she could not recommend
reunification.
FOC Francis then testified as FOC.9 Further, FOC Francis stated that
she had interviewed the children multiple times since 2019 and reviewed the
counseling records. FOC Francis recommended that the children not have contact
with Father. She noted that the children had “come into [her] office and expressed
a fear that [Father] will hurt [Mother] that exceeded anything I have seen in a very
long time. [The youngest child] really lives with that fear.” She was adamant that
the children did not want to see Father. FOC Francis applauded Father’s ability to
get “over” the events from 2018, but made it clear that the children still had not.
Lawrence Craft testified as to Father’s character, but noted that he had
not been in contact with Father since Father moved to Washington, D.C. several
years earlier. Finally, Gail Cameron testified that she had not seen the children
since August 2018, but she believed that her son had changed.
In October 2021, the circuit court overruled Father’s motion for
visitation because despite a few statements and “certificates of completion,” Father
failed to provide proof that there had been any change in his behavior by way of
9
The circuit court and FOC Francis clearly stated that she was “appointed as Friend of the Court,
as opposed to Guardian ad litem” and that she had submitted her reports in that capacity, but she
would testify, if asked, because she had spoken with the children since she submitted her initial
reports. Further, FOC Francis testified that she was “not the guardian ad litem, [she was] not
representing them in that particular way, but [she had] formed a relationship with the children
and they don’t want this.”
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professional testimony or other evidence to verify his position. The circuit court
reminded the parties that it had stopped contact due to Father’s “outrageous
behavior and the harm that it was doing to the children.” Absent evidence that
such behaviors had changed, the circuit court would not reinstate visitation at that
time.
Additionally, the circuit court emphasized that the children still did
not want contact with Father – noting the oldest child had blocked him from her
phone. The testimony provided that the children had not yet gotten over Father
terrorizing them and threatening to kill Mother. As such, the circuit court found by
clear and convincing evidence that it would be detrimental to the children to
reintroduce Father into their lives “at that time.” Further, the circuit court noted
Counselor Nichols’s concerns about the children being around Father and FOC
Francis’s recommendation that the no contact order remain in place.
Father appeals the circuit court’s October 2021 order denying his
motion for visitation.
II. STANDARD OF REVIEW
This Court will not reverse a circuit court’s decision regarding
visitation unless the “determination 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) (citing Drury v. Drury, 32 S.W.3d
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521, 525 (Ky. App. 2000)). “The test is not whether we would have decided the
issue differently, but whether the findings of the trial court were clearly erroneous
or an abuse of discretion.” Id. (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.
1982)).
III. ANALYSIS
Father claims that the circuit court abused its discretion regarding
multiple findings: (A) that it de facto terminated his parental rights without due
process; (B) that it did not make a reasonable effort to reunify the children with
him; (C) that FOC Francis did not comply with her statutory obligations as a
Friend of the Court; (D) that Counselor Nichols did not provide a clear plan of
care; (E) that the circuit court adopted erroneous facts; and (F) that the circuit court
failed to prepare an adequate “Finding of Facts and Conclusions of Law” under
CR10 52.01.
A. De facto Termination of Parental Rights
First, Father argues that the circuit court de facto terminated his
parental rights without due process. Father acknowledges that he voluntarily
suspended his visitation/timesharing schedule in the October 2018 agreed order;
10
Kentucky Rule of Civil Procedure.
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however, he argues that the failure of the October 2021 order to establish a
reunification plan permanently terminated his parental rights.11 We disagree.
As stated, “the family court has broad discretion” to modify
timesharing. Layman v. Bohanon, 599 S.W.3d 423, 431 (Ky. 2020) (citation
omitted). Therefore, the question before this Court is whether the circuit court
abused that discretion when it denied Father’s motion for visitation, “in light of the
facts and circumstances of the case.” Drury, 32 S.W.3d at 525.
Generally, the Kentucky Supreme Court has explained that it has two
options when determining whether to modify visitation: it could (1) modify
visitation if it found that would be in the best interest of the children; or (2) it could
restrict timesharing if it found the children’s “physical, mental, moral or emotional
health was seriously endangered.” Layman, 599 S.W.3d at 431 (citing KRS12
403.320(3)); see also Moore v. Moore, 626 S.W.3d 535, 538 (Ky. 2021) (citing
KRS 403.320(3)).
However, this Court has clarified that the analysis shifts slightly when
“a prior order . . . denied visitation.” McNeeley v. McNeeley, 45 S.W.3d 876, 877
(Ky. App. 2001). In those cases, “the presumption of entitlement to visitation is no
11
Father summarizes the history of the case and the resulting string of orders. Further, he takes
issue with nearly all of them, claiming each is contradictory and unfair. However, importantly,
those orders are not on appeal. Therefore, our focus remains on the October 2021 order before
this Court, which denied Father’s motion for visitation.
12
Kentucky Revised Statute.
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longer a factor[,]” and “the standard for modification is not serious endangerment;
rather, the best interests of the children governs.” Id. at 877-78 (citing Hornback v.
Hornback, 636 S.W.2d 24, 26 (Ky. App. 1982)).
Here, the circuit court had previously denied Father’s motions for
visitation (on multiple occasions); therefore, there was no longer a presumption of
entitlement to visitation and the best interests of the children governed. The circuit
court followed that standard and conducted a best interest analysis, which found –
based, in part, on Mother, Counselor Nichols, and FOC Francis’s testimonies – that
the children had not yet gotten over Father terrorizing them and threatening to kill
Mother. As such, the circuit court found by clear and convincing evidence that it
would be detrimental to the children to reintroduce Father into their lives “at that
time.” Further, the circuit court found that Father had not provided adequate
evidence that he had overcome the issues that resulted in the agreed order.
Counselor Nichols and FOC Francis did not mince words when they
proclaimed that they did not recommend the children be around Father. Further,
the oldest child’s decision to block Father on her personal phone weighed heavily
on the circuit court. The circuit court’s reliance on such evidence in maintaining
the current visitation schedule – again, “at this time,” not permanently – was
supported by sufficient evidence and not an abuse of discretion.
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Additionally, Father argues that the circuit court “circumvented the
clear statutory processes” to involuntarily terminate his parental rights. He argues
the circuit court’s failure to adhere to KRS 625.050-KRS 625.090 when
terminating his rights deprived him of due process. As Mother noted, however,
termination of parental rights under those statutes is a completely separate cause of
action – one which we do not find here, not even “de facto.” As such, the circuit
court’s avoidance of statutes that did not apply was not an abuse of discretion.
B. Reasonable Efforts to Reunify
Father next argues that the circuit court did not make a “reasonable
effort” to reunify Father with the children. Importantly, however, the circuit court
had no duty to do so. Despite Father’s acknowledgement of that reality, he
essentially argues that it is unfair for parents in dependency, neglect, and abuse
actions13 to have greater opportunities to reunify with their children than he did.
Although we are sensitive to Father’s desire to reunify, we cannot ascribe duties to
the circuit court from statutes under which this action was not brought.
Unfortunately, perceived lack of fairness is not a legal cause of action.
13
Father also notes that the Family First Prevention Act – another piece of legislation irrelevant
to this case – references “reasonable efforts.”
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C. Friend of the Court Duties
Third, Father argues that FOC Francis did not comply with her
statutory obligations as Friend of the Court because (1) she did not complete a
thorough investigation; and (2) she acted in the capacity of a guardian ad litem and
Friend of the Court. It is unclear exactly what Father is claiming, but he states that
because FOC Francis is an officer of the court, Father applied “the ‘abuse of
discretion’ standard of review to [FOC Francis’s] investigation and
recommendations.” He therefore concludes that because “[FOC Francis] abused
her discretion,” the circuit court did as well.
Importantly, however, appellate standards of review apply to the order
on appeal, i.e., the order this Court is reviewing. Therefore, here, this Court uses
the applicable standard of review to analyze the October 2021 order. Father’s
standard for his own “review” of a third-party’s report is irrelevant and does not
transfer to the circuit court. Further, if Father took issue with FOC Francis’s
reports, he needed to address those with the circuit court years ago, when she
submitted them. This Court may only review such claims; we cannot make the
initial determinations regarding them. Drury, 32 S.W.3d at 526 (“Since the issue
was not raised in the proceeding below prior to the filing of the notice of appeal,
we conclude that it is not properly presented on appeal.”).
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Nevertheless, here, FOC Francis interviewed the children, their
counselor, Mother and Father, and reviewed the counseling records and case
history. Further, she provided detailed reports describing the family dynamics, the
events that led to those issues, and the children’s progress during counseling. The
circuit court did not abuse its discretion by relying, in part, on the work product for
which it had appointed her.
Second, the record is clear that FOC Francis understood the capacity
under which the circuit court appointed her. During the 2021 hearing, the circuit
court and FOC Francis clearly acknowledged that she was “appointed as Friend of
the Court, as opposed to Guardian ad litem” and that she had submitted her reports
in that capacity. She agreed to testify, if asked, because she had spoken with the
children since she had submitted her initial reports. Neither party objected.
Further, FOC Francis testified that she was “not the guardian ad litem, [she was]
not representing them in that particular way, but [she had] formed a relationship
with the children” and testified as to that relationship.
There is substantial evidence that FOC Francis and the circuit court
were aware of FOC Francis’s capacity, despite a single motion and order from
years earlier that used “guardian ad litem” instead of “friend of the court.” FOC
Francis clearly understood that she was serving as FOC and had submitted her
reports and testified as such. The circuit court did not abuse its discretion.
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D. Counselor Nichols’s Plan of Care
Fourth, Father claims that Counselor Nichols did not provide a clear
plan of care. He argues that 201 KAR14 36:040(4), the Code of Ethics for Licensed
Professional Counselors, compelled Counselor Nichols to devise a counseling plan
for the children. And further, that her failure to do so “led the [circuit] court to
abuse its discretion.”
Again, that issue was never raised with the circuit court and is not
properly before this Court. Drury, 32 S.W.3d at 526. Father never questioned
whether Counselor Nichols had developed a plan for the children or whether she
had violated her code of ethics in the circuit court.15 But even if he had tried, the
circuit court was not the appropriate venue to initiate such action. The appropriate
administrative process requires submission of a complaint under 201 KAR 36:050.
The circuit court did not abuse its discretion.
E. Erroneous Facts
Although Father claims that the circuit court adopted erroneous facts,
facts are not “clearly erroneous if supported by substantial evidence.” Ehret v.
Ehret, 601 S.W.3d 508, 511 (Ky. App. 2020) (citing Janakakis-Kostun v.
14
Kentucky Administrative Regulation.
15
Further, the circuit court was evaluating Father’s adherence to a counseling program to
determine whether his anger management and parenting issues had been mitigated. At that point,
whether and how much the children attended counseling was irrelevant to when Father could
restart visitation.
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Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999)). “Substantial evidence is that
evidence, when taken alone or in the light of all the evidence, has sufficient
probative value to induce conviction in the minds of reasonable people.” Id.Therefore, the question before this Court is whether the circuit court’s
findings of fact were supported by evidence of sufficient probative value.
Specifically, Father takes issue with two such “adoptions” of erroneous fact: (1)
the circuit court’s alleged renaming of Father’s motion; and (2) the circuit court’s
statement that Father had not provided proof by way of professional testimony or
other evidence to verify his position as “a changed man.” We will focus on those.
First, Father claims that the circuit court referred to his motion as
“[Father’s] Motion to Start Visitation or Contact with the Parties’ Children”
instead of “Motion to Establish Reunification Plan with Minor Children,” which
Father took to mean that the circuit court did not make a “fair decision.” We
disagree.
The circuit court’s title, although modified, relayed the correct
request: that Father was asking the court to begin visitation or begin contact with
the children. Father’s motion, as discussed, laid out a plan to start video calls,
supervised visits, and unsupervised visits with the children; i.e., start
visitation/contact with the children. There was substantial evidence that Father
was requesting visitation/contact with the children in his motion. As such, the
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circuit court’s decision to refer to the motion in that capacity, but without using
Father’s chosen terms, was reasonable and does not constitute reversible error.
Second, Father argues that the attachments to his motion detailed the
therapeutic steps he took to address his anger and parenting and provided evidence
of his position. Again, we disagree. The circuit court’s October 2021 order
specifically took issue with Father’s failure to present professional testimony to
verify his “changes.” The only professionals who testified at the hearing were
Counselor Nichols and FOC Francis. Neither of them recommended that visitation
resume at that point.
Father simply called a friend of his and his mother to testify. That
was hardly the professional credibility that the circuit court sought. Further, the
attachments to Father’s motion contained informal letters from therapists and
references and printed “certificates of completion,” none of which were certified
nor taken under penalty of perjury. Again, there was substantial evidence that
Father did not present “professional testimony” at the hearing (or in his motion);
therefore, the circuit court did not err when it stated as much.
F. Findings of Fact and Conclusions of Law under CR 52.01
Lastly, Father argues that the circuit court abused its discretion
because it labeled its October 2021 order, “ORDER” and did not title it “Finding of
Facts and Conclusions of Law.” Additionally, Father argues that the order failed to
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make the findings “highly specific,” as required by Hicks v. Halsey, 402 S.W.3d
79, 84 (Ky. App. 2013). However, Father does acknowledge that the circuit court
“appeared to make several findings in its [ORDER] but they were not labeled as
‘Findings of Fact.’” Finally, he argues that the court made no “Conclusions of
Law.”
First, CR 52.01 does not contain title requirements. The rule simply
requires that the circuit court “find the facts specifically and state separately its
conclusions of law thereon and render an appropriate judgment[.]” CR 52.01. It
does not state that those sections must be labeled a certain way, nor that the
judgment must contain a certain title. Further, it states that “[i]f an opinion or
memorandum of decision is filed, it will be sufficient if the findings of fact and
conclusions of law appear therein.” I.e., the form of judgment (and therefore the
title) does not matter as much as the content.
As for Father’s reliance on Hicks, as Mother points out, this was not a
custody action. This was a motion for visitation. As such, the standard under
Hicks is irrelevant. Hicks determined whether the aunt was a de facto custodian for
custody purposes, under KRS 403.270(2). Hicks, 402 S.W.3d at 80-81. The
Kentucky Supreme Court has clarified, however, that “a modification of visitation
or timesharing is governed by KRS 403.320, rather than the standard for an initial
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custody determination as set forth in KRS 403.270.” Layman, 599 S.W.3d at 431.
As such, a case detailing a KRS 403.270 analysis is not persuasive.
Here, Father concedes that the circuit court provided findings of fact
(although not labeled as such, which again, was not required), which we discussed
at length in Section A, above. Therefore, the only question that remains is whether
the circuit court’s order contained conclusions of law. In Anderson v. Johnson,
350 S.W.3d 453, 458-59 (Ky. 2011), the Kentucky Supreme Court stated that in a
KRS 403.320 analysis, the circuit court’s determination as to whether the
modification was in the child’s best interest was a conclusion of law. Here, the
circuit court clearly stated in its October 2021 order that visitation with Father was
not in the best interest of the children at that time, based on the testimony and
recommendations of Counselor Nichols and FOC Francis and the general
unwillingness of the children to interact with Father. Therefore, the circuit court’s
October 2021 order properly contained findings of fact and conclusions of law, and
the circuit court did not violate CR 52.01.
CONCLUSION
The circuit court did not abuse its discretion when it denied Father’s
motion for visitation. As such, this Court AFFIRMS the October 2021 order of the
Greenup Circuit Court.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Christopher Cameron, Jr., pro se Sharon E. Rowsey
Washington, D.C. Ashland, Kentucky
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