Alexander v. Alexander

EMBERTON, Judge.

The appellant, Larry David Alexander, appeals from an order of the Oldham Circuit Court which denied him visitation with his infant daughter.

Appellant is incarcerated at the Kentucky State Reformatory where he is serving a ten year sentence for sexual abuse, first degree, in an unrelated ease. The record reveals that the entire family has had difficulties providing a safe and nurturing environment for the child. She resided in a foster home under the care of the Cabinet for Human Resources from 1990 until 1991, when she was returned to the custody of the mother. While the child was in the care of the Cabinet, visitation with the appellant was on a weekly basis subject to the rules and regulations of the Cabinet.

On December 6, 1991, after the child had been returned to the custody of the mother, appellant filed a motion for reasonable visitation. Without a hearing, the court denied the motion, relying on, among other things, a January 1991 report of the Cabinet for Human Resources recommending that visitation be denied on the basis that contact with the appellant would result in further psychological trauma to the child.

The appellant, even though incarcerated, is entitled to a hearing before his visitation rights can be denied. Ky.Rev.Stat. (KRS) 403.320(1) provides “that a parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health.” (our emphasis). Section (2), which relates to the modification of visitation orders, is no less stringent. Homback v. Homback, Ky.App., 636 S.W.2d 24 (1982). A parent’s incarceration does not suspend, nor deprive him of, his right to a hearing before he is denied visitation with his child. Smith v. Smith, Ky.App., 869 S.W.2d 55 (1994).

Although appellant is entitled to a hearing, the question of whether he has the right to attend the hearing is not properly presented to this court. Appellant mentions in his brief that he has transportation available to a hearing should he be so entitled; there is no assertion, nor authority cited, however, which would support his right to attend. And, he has not named as parties the warden or any other custodian who could be ordered to provide transportation. Moreover, the record reveals that the only request for transportation made before the trial court was to a November 1990, custody hearing. As a result of the failure to properly present the issue to this court, we decline to decide whether an inmate has a right to attend a visitation or custody hearing. Hall v. Arnett by Greene, Ky.App., 709 S.W.2d 850 (1986). It is sufficient to state that this appellant does not.

We are not unmindful of the flagitious nature of the act for which appellant presently stands convicted, and of the reports from those who have worked with the family. Following a hearing, the trial court may find that visitation seriously endangers the child and deny visitation. Even in the face of such likelihood, appellant is entitled to a hearing.

The order of the Oldham Circuit Court denying visitation is vacated and the case is remanded for further proceedings consistent with this opinion.

JOHNSTONE, J., concurs. HOWERTON, J., concurs in result and files separate opinion in which JOHN-STONE, J., joins.