Sherry G. Ballard v. Brooks Houck

RENDERED: APRIL 15, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0473-MR
SHERRY G. BALLARD APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
v. HONORABLE STEPHEN A. HAYDEN, JUDGE
ACTION NO. 15-CI-00446
BROOKS HOUCK APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE,
JUDGES.
CETRULO, JUDGE: This is an appeal from the Nelson Circuit Court of a
grandparent visitation case that has been pending for years and has already been
before this Court once before. This case presents tragic and challenging facts;
however, this Court is obligated to affirm the trial court, which denied the request
for visitation rights to the appellant, Sherry Ballard (“Grandmother”).
FACTS
Grandmother and her late husband Thomas (“Grandfather”) are the
maternal grandparents of E.P.H. (the “Grandparents”). Their daughter, Crystal
Rogers, was the mother of E.P.H., and Appellee Brooks Houck (“Father”) is the
father of E.P.H. Crystal has been missing since July 3, 2015, and law enforcement
officials have declared that she is presumed dead. As the sole living parent, Father
has custody of E.P.H. Crystal had four other children, who are not Father’s
children, and those children have been in Grandmother’s custody since Crystal’s
disappearance.
The Grandparents have long believed that Father was involved in the
disappearance or death of their daughter. They have also long sought to have
visitation with E.P.H., and Father has objected. Within about a year of Crystal’s
disappearance in 2015, Grandfather was shot and killed. No one has been charged
with either of these two deaths. Grandmother, however, has maintained a billboard
in Bardstown which states that Brooks Houck is the main suspect in Crystal’s
disappearance1 and provides a number to call with new information. Grandmother
has testified that she has participated in podcasts and news interviews stating her
belief that Father was responsible for Crystal’s disappearance and confirming that
she does not like him. Despite this animosity for Father, Grandmother has sought
1
This is according to local law enforcement.
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visitation rights with E.P.H. since shortly after Crystal’s disappearance. The
procedural history has been torturous to say the least.
In December of 2015, the Nelson Circuit Court entered an order
granting the Grandparents temporary visitation with E.P.H. The circuit court
subsequently entered a series of orders expanding visitation, and then entered a
final order granting grandparent visitation rights in September 2017. The circuit
judge concluded that
[t]he court believes that both [Father] and the
[Grandparents] came into the hearing with the
motivation of protecting E.P.H.’s best interest; they
simply have differing opinions as to what is in his best
interest.
After considering all the relevant facts the court has
determined that [Father] is mistaken in his belief that
visitation with the [Grandparents] is not in E.P.H.’s best
interest. The court understands [Father]’s position
given the current tension between [Grandmother], her
late husband and himself. However, the court believes
that [Grandmother] is a loving grandmother and will not
say or do things in E.P.H.’s presence that would harm
his relationship with [Father].
Father appealed that ruling to this Court and in November 2018, a
prior panel of this Court entered an Opinion reversing that award. This Court
specifically held that
[w]e are of the opinion that the trial court not only failed
to apply the correct evidentiary standard but essentially
placed the burden on [Father] to show visitation was not
in E.P.H.’s best interest, when, in fact, it was
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[Grandmother]’s burden to prove, by clear and
convincing evidence, that [Father] was clearly mistaken
in his belief.
Houck v. Ballard, No. 2017-CA-001692-ME, 2018 WL 5778773, *4 (Ky. App.
Nov. 2, 2018).
Father’s belief, alluded to above, was that visitation with the
Grandparents was not in his child’s best interest. In 2018, this Court thus
remanded the matter to the Nelson Circuit Court for a new evidentiary hearing,
stating as follows:
The evidence herein unquestionably establishes that the
relationship between the parties is plagued by acrimony
and that the hostility between them is unlikely to abate.
Under such circumstances, the added strain of the trial
court’s intrusion upon the relationship between [Father]
and E.P.H. is manifest. As previously noted, Walker[2]
warned that grandparent visitation should not be ordered
where it was clearly detrimental to the parent-child
relationship. Id. at 872. As in Grayson, we appreciate
the trial court’s attempt “to preserve a thread in the torn
fabric of this family.” Id. at 432. The circumstances
herein are tragic at best, and we are sympathetic to
[Grandmother’s] desire for visitation with her grandson.
Nevertheless, after reviewing the record as a whole, we
are compelled to conclude that the trial court failed in
both according the decision of [Father], as a fit custodial
parent, any material weight, and failing to require
[Grandmother] to provide by clear and convincing
evidence that [Father’s] decision was mistaken.
Id. at *5.
2
Walker v. Blair, 382 S.W.3d 862, 872 (Ky. 2012).
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At this point, some other significant facts occurred. While the matter
was pending before this Court in 2017, the Kentucky Legislature added a new
section to the grandparent visitation statute, KRS3 405.021. That provision seemed
to be directly applicable to these facts, i.e., where one parent is deceased. The
amendment to subsection 1(b) specifically provided that, in those circumstances,
“there shall be a rebuttable presumption that visitation with the grandparent is in
the best interest of the child if the grandparent can prove a pre-existing significant
and viable relationship with the child.” Subsection 1(c) then set out the means by
which a grandparent could establish that relationship by a preponderance of
evidence. Both of those subsections were subsequently declared unconstitutional,
as Grandmother concedes. However, there was a brief time when that statute was
the law of the land, and the evidence present in this case appeared to keep with that
statute.
Then, in September 2020, the circuit court conducted a hearing on
Grandmother’s continuing motions for visitation, as this Court directed.
Unfortunately for her, at that time the Kentucky Supreme Court declared
subsections 1(b) and 1(c) of KRS 405.021 to be unconstitutional in Pinto v.
Robison, 607 S.W.3d 669, 670 (Ky. 2020). In Pinto, our Supreme Court
unanimously held that “[t]he statute, on its face, runs afoul of a parent’s
3
Kentucky Revised Statute.
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fundamental constitutional right to the care and custody of his or her child.” Id. at
675.
On February 20, 2021, the new Nelson Circuit Court judge assigned
to this matter, Judge Stephen Hayden, entered findings and conclusions of law
based upon Pinto and the record – including the September 2020 hearing. The trial
court therefore followed Pinto, analyzed the requisite factors, and addressed the
controlling statute, which created a presumption that a parent is fit and acting in the
child’s best interests when considering a motion for visitation.
The Nelson Circuit Court thus outlined the factors set forth in Walker
v. Blair,4 which this Court had found to be missing in the previous appellate
decision. That prior decision had specifically found that the previous trial court
ruling did not place “sufficient weight on the hostility between the parties and did
not articulate its decision based upon the clear and convincing standard.” In an
attempt to comply with this Court’s directive on remand, the lower court denied
Grandmother visitation, and this appeal resulted.
In so ruling, the Nelson Circuit Court specifically addressed the
continued hostility between Father and Grandmother and her admission that there
had been no change in the hostility level since this Court’s prior order of reversal.
During the hearing, Grandmother provided evidence that she would instruct all
4
Walker, 382 S.W.3d at 871.
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family members to refrain from saying anything disparaging about Father during
visitation that might be granted with E.P.H. Father presented evidence that E.P.H.
knew the picture on the billboard is of his biological mother, that E.P.H. could
read, and that he knew that his “grandmother hates his father.” There was
evidence that E.P.H. was excited to see his half-siblings and Grandmother at a
recent encounter at Walmart, but there was also evidence that it has now been
several years since there has been any other contact between E.P.H. and
Grandmother.
This time frame is unfortunate but is the result of the prior ruling of
this Court and some delays that do not appear to be the fault of either party. Much
of the evidence that the new circuit judge had to consider was simply the testimony
from the initial hearings in 2015. However, there were several hours of testimony
presented via Zoom in 2020, and this Court has reviewed all of that information.
As the court below stated in its decision, Father believes contact with the
Grandmother would alienate him from his child. While the Court believes that
both parties are motivated to protect the best interest of E.P.H., they simply have
differing opinions as to what is in his best interest.
STANDARD OF REVIEW
A family court’s factual findings are reviewed for clear error, and
therefore, the clearly erroneous standard is used. Moore v. Asente, 110 S.W.3d
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336, 354 (Ky. 2003); CR5 52.01. Further, a finding supported by substantial
evidence is not clearly erroneous. Moore, 110 S.W.3d at 354. Substantial
evidence is that which is “sufficient to induce conviction in the mind of a
reasonable person.” Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009)
(citation omitted). Moreover, we must give due regard to the family court’s
opportunity “to judge the credibility of the witnesses.” CR 52.01. Nonetheless,
statutory interpretation and application of the appropriate standard to the facts are
issues of law and, consequently, are reviewed de novo. Hill v. Thompson, 297
S.W.3d 892, 895 (Ky. App. 2009) (citation omitted).
It is well established that the circuit court was required to presume
that Father was acting in his child’s best interest. This presumption in favor of the
fit parent is mandated by the seminal United States Supreme Court decision in
Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Troxel
was predicated on the notion that the state should not ordinarily “inject itself into
the private realm of the family to further question the ability of [the] parent to
make the best decisions concerning the rearing of that parent’s children.” Id. at 68-
69, 120 S. Ct. at 2061. The Court therein held that the Due Process Clause of the
Fourteenth Amendment gives parents a fundamental liberty interest in the care,
custody, and control of their children and a presumption that fit parents act in the
5
Kentucky Rule of Civil Procedure.
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best interests of their children. Id. Indeed, the United States Supreme Court held
that due process demands courts presume fit parents to act in their child’s best
interest, and only permit grandparent visitation over a parent’s objections upon a
showing by the grandparents that a lack of visitation harms the child. Id. at 74,
120 S. Ct. at 2064.
In Walker, the Kentucky Supreme Court discussed the impact of
Troxel on our grandparent visitation statute as it existed prior to the
aforementioned amendments in 2018. Walker, 382 S.W.3d at 866. The Supreme
Court found the statute to be constitutional at that point but set forth factors that
must be shown in order to comport with Troxel, and for any court to grant
visitation over the objections or wishes of a parent. Id. at 871.
This Court’s 2018 decision in this case discussed those factors and
found the previous trial court’s ruling was lacking because it failed to hold the
grandparent to the clear and convincing standard adopted in Walker. Those factors
are as follows:
1) the nature and stability of the relationship between the
child and the grandparent seeking visitation;
2) the amount of time the grandparent and child spent
together;
3) the potential detriments and benefits to the child from
granting visitation;
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4) the effect granting visitation would have on the child’s
relationship with the parents;
5) the physical and emotional health of all the adults
involved, parents and grandparents alike;
6) the stability of the child’s living and schooling
arrangements; and,
7) the wishes and preferences of the child.
To this list, we add:
8) the motivation of the adults participating in the
grandparent visitation proceedings.
Id.
As we consider each of those factors in light of Pinto, it appears that
the circuit judge did not err in applying the facts and considering the evidence
pursuant to those factors. The court below specifically noted the prior stability of
the relationship between E.P.H. and Grandmother and the amount of time that they
had spent together in the years before his mother went missing. The court
considered the potential detriment and benefit that visitation would bring to the
child, but also noted that visitation had previously caused a negative effect on the
relationship between Father and E.P.H. There was no indication that the physical
health of the adults involved was a factor, but the stability of the child’s current
living and schooling arrangements was discussed. There was no interview of the
child, but one is not required nor raised on this appeal. There was testimony that
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the lack of contact with E.P.H. negatively impacted the half-siblings, but there was
no testimony that E.P.H. had been negatively affected. While Father’s motivation
to deny visitation for this child with his own half-siblings and his Grandmother
appear to be harsh to this Court, that alone is not enough to find that the circuit
court erred. Moreover, it is understandable based on the testimony that the
Grandmother’s continued public comments against Father are such that he does not
believe visitation could be free from any suggestion of his involvement in the
mother’s presumed death.
In Massie v. Navy, the Kentucky Supreme Court reversed this Court,
and reinstated the trial court ruling, which had denied visitation to the grandparent,
stating as follows:
Although the trial court’s order denying [the
grandmother] visitation was brief, it is clear that the court
considered several relevant factors in reaching its
decision. The record also indicates that the court
considered [the grandmother’s] extensive testimony
wherein she voiced her concerns and motivation for
seeking visitation. Therefore, we cannot say that the trial
court’s factual findings were clearly erroneous or that its
application of those facts to the relevant law was error.
Massie v. Navy, 487 S.W.3d 443, 447 (Ky. 2016).
Every case is certainly different, and Walker recognizes the fact-
intensive nature of ruling on requests for grandparent visitation. Walker, 382
S.W.3d at 871. The Supreme Court clarified in Massie that because “the facts of
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each case dictate which Walker factors are most relevant and possibly
dispositive . . . all eight Walker factors need not be considered[.]” Massie, 487
S.W.3d at 447.
The Walker Court further recognized that granting grandparent
visitation over the objection of the parents can be especially burdensome to the
parent-child relationship when “animosity exists between the parent and
grandparent[,]” and concluded that such visitation “should not be granted if it is
clearly detrimental to the parent-child relationship.” Walker, 382 S.W.3d at 872.
Where this Court previously analyzed these factors under similar
circumstances, it has come to similar conclusions. Hamilton v. Duvall, 563
S.W.3d 697, 701 (Ky. App. 2018) (reversing the family court’s grant of visitation
and concluding that despite the loving relationship between grandparents and child,
the family court erred when it failed to determine “that child was harmed by
refusing more visitation[.]”); Grayson v. Grayson, 319 S.W.3d 426, 432 (Ky. App.
2010) (quotation omitted) (reversing the trial court’s grant of visitation because the
“state of discord prevailing [was] far more than a trivial disagreement and
exceed[ed] the bounds of a family quarrel of little significance.”).
Unlike those cases, however, the circuit court here did properly
consider the Walker factors and denied Grandmother’s petition for visitation.
Therefore, we simply cannot find that the trial court erred in its determination
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based upon these specific and heart-wrenching facts. Grandmother may feel
justified in her concerns about Father, but he has not been charged with any crime
related to her daughter’s disappearance, despite the seven years that have passed
since the event. Grandmother has not taken down the billboard or changed the
wording to remove Father’s name, which the evidence suggests the child can read.
Further, there was evidence that she continues to make frequent public and
disparaging comments to multiple media sources suggesting that Father is
responsible. These facts go beyond a family quarrel of little significance. That,
with the fact that there was no evidence presented to suggest the child is suffering
any harm by denying grandparent visitation, reflects that the result is appropriate.
While it is understandable that Grandmother continues to advocate for
answers regarding her daughter’s disappearance and yearns for a relationship with
her grandson, those wishes simply are not enough to overcome the presumption in
favor of the parent’s wishes. This Court is sympathetic to Grandmother and we
recognize her desire to be involved in E.P.H.’s life; however, this Court cannot be
persuaded by emotion and must act according to the laws of this Commonwealth.
This Court must uphold the trial court’s decision, as the statute imposes upon a
grandparent who seeks visitation the burden to prove by clear and convincing
evidence that it is in the best interest of the child to have such visitation. Grayson,
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319 S.W.3d at 431. Further, it includes a presumption that the parent’s preferences
are in the best interests of the child. Id.Previously, this Court instructed the circuit court to apply KRS
405.021 and determine whether visitation was affirmatively proven by clear and
convincing evidence to be in the child’s best interest. Applying this standard, we
can reach no conclusion other than that the trial court complied with its obligation
and the prior instructions of this Court. It complied with the law as set forth by our
Supreme Court and the United States Supreme Court, and as such, we likewise
affirm the Nelson Circuit Court in its conclusions and judgment upon the evidence
presented.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Phyllis K. Lonneman Jeremy S. Aldridge
Elizabethtown, Kentucky Elizabethtown, Kentucky
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