BONITA SHAIN v. THOMAS BURNETT
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RENDERED:
OCTOBER 14, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002395-ME
BONITA SHAIN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 98-FC-001467
v.
THOMAS BURNETT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
BARBER, JUDGE:
Appellant, Bonita Burnett Shain (Shain), appeals
the order of the Jefferson Family Court granting custody of her
minor children to her ex-husband, Appellee, Thomas Burnett
(Burnett).
The family court’s ruling is affirmed.
Burnett filed for dissolution of the parties’ marriage
in 1998.
After a custody hearing, Shain was granted custody of
the parties’ minor children with Burnett to have extensive
visitation due to the young age of the parties’ children.
Later, problems arose between the parties.
Burnett was
incarcerated for violation of a domestic violence protective
order.
As a result of his actions, Burnett was allowed only
supervised visitation with the children conditional upon
completion of parenting classes, and Domestic Violence Offender
Treatment Programs.
An evaluation of the parents conducted in
September, 1999, stated that both parties were contentious, and
that the relationship between the parties included repeated
domestic violence on the part of Burnett.
ongoing problem with alcoholism.
Burnett has an
The same evaluation noted that
Shain was found to be impeding the children’s’ relationship with
Burnett by encouraging the children to think badly of him.
The court granted Shain custody, but encouraged
increased visitation with Burnett upon completion of parenting
classes.
In April, 2001, the court held a hearing on
visitation.
Burnett was given visitation in accordance with
recommendations of the child’s therapist.
court held another hearing.
In January, 2002, the
At the hearing it was determined
that no visitation had taken place, and that the parties and the
child’s therapist had not been able to agree upon visitation.
In February, 2002, Burnett’s visitation with the children was
suspended when he showed up under the influence of alcohol for a
visitation.
Burnett was required to attend treatment for
alcoholism and parenting safety prior to the resumption of
visitation.
In March, 2002, the court again provided for
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supervised visitation between Burnett and the children.
July, 2002, the court held another hearing.
In
At that hearing it
was stated that Shain believed Burnett had sexually abused the
oldest child.
The child’s therapist testified that she was
treating him for sexual abuse.
Shain later contended that the
individual supervising visitation had physically abused the
child and left him with bruises.
The court ordered that the
child’s therapist be replaced, as concerns were expressed about
the validity of the sexual abuse charges.
The court took no
action on the claim that the social worker supervising the
visitation had bruised the child.
The charges of sexual and
physical abuse of the child were unsubstantiated.
The parties had ongoing conflict regarding visitation
with the children.
In October, 2003, Burnett made a motion that
the children be placed in the temporary custody of his relatives
Shelby and Gary Hadley.
motion.
The trial court held a hearing on that
Testimony from Ms. Luttrell, a social worker in the
case who had supervised visitation with the children, was to the
effect that Shain was alienating the children from Burnett.
Following the hearing, the court ruled that “the current
environment may seriously endanger the children’s physical,
mental, moral or emotional health and orders the children to be
removed and placed temporarily in the care of Shelby and Gary
Hadley, effective immediately.”
This was a temporary order.
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Shain contends that the evidence presented at the
hearing did not support the court’s ruling.
Shain contends that
there was insufficient evidence to support removal of the
children, and that the court’s actions were an abuse of
discretion.
Burnett contends that the temporary removal order
is not on appeal.
Burnett argues that the court properly
applied the law in determining temporary custody should be
placed with a non-parent.
The statute permits the court to
enter temporary custody orders for the safety and protection of
the children.
KRS 403.280(1).
The court must apply a “best
interests” of the children analysis in making such a temporary
custody determination.
Id.
The record shows that the court
held a hearing and heard from witnesses before making the
temporary custody determination.
There has been no showing that
this order was clearly erroneous.
Under the circumstances, that
order, which has long since expired, does not constitute
reversible error.
In response to the court’s order, Shain took the
children and lived in hiding for seven months.
During that
time, Burnett was not allowed any contact with the children and
had no knowledge of their location or their safety.
Shain was
eventually found and arrested, and the children were placed with
the Hadleys.
Shain served several months incarceration.
Shortly after the children were placed with the Hadleys, Burnett
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and his wife took physical custody of the children without
seeking court approval.
Shain was permitted visitation with the
children in accordance with the court’s orders.
Burnett made a motion in August, 2004, asking that he
be named custodial parent of the children.
After a hearing, the
court entered a new custody order providing that the children be
placed with Burnett as custodial parent.
ruling was in error.
Shain argues that this
The court entered an order mandating that
there be no corporal punishment of the children.
Burnett defied
that order, as the court noted in the order of October 28, 2004.
Shain continues to assert that Burnett abused the children.
court found no evidence of such abuse.
The
The court held that the
allegations were unfounded and constitute evidence that Shain is
attempting to interfere with Burnett’s relationship with the
children.
A child custody/visitation evaluation was made of
Shain in March, 2004.
She was evaluated as having a good
relationship with the children, and a reasonable knowledge of
parenting skills.
The evaluation of the children revealed
continuing physical abuse by Burnett in violation of court
orders mandating no corporal punishment of the children.
Despite that finding, the evaluation found that the children
were well integrated into school, the neighborhood, and
Burnett’s home.
The evaluation also found a need for the
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children to have continued counseling.
The recommendation of
the guardian ad litem and the counselor was that Burnett be
given custody and Shain be provided with regular unsupervised
visitation.
KRS 403.270 provides factors to be considered in
making a child custody determination.
Shain contends that the
court’s action, removing the children from her sole custody and
giving sole custody to Burnett, was unsupported by the evidence
in the record.
Burnett asserts that the trial court’s decision
giving custody to Burnett was proper.
He claims the court’s
decision to modify the initial custody award is supported by
sufficient evidence.
KRS 403.340(3) permits modification of an
award of custody where “a change has occurred in the
circumstances of the child or his custodian” and such
modification is necessary for the best interests of the child.
A custody determination will not be reversed absent a showing
that the decision is clearly erroneous.
S.W.2d 442 (Ky. 1986).
Reichle v. Reichle, 719
Burnett asserts that Shain has failed to
make such a showing.
The trial court was within its discretion in modifying
the initial custody award where the parents failed to cooperate
and the record contains evidence of the harm their actions
caused the children.
Such modification is permitted by law.
Scheer v. Zeigler, 21 S.W.3d 807, 814 (Ky.App. 2000).
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The trial
court held numerous hearings in this case, and based its
determination on the testimony of the parties, the children, and
various mental health professionals and social workers involved
in the case.
The law mandates that “we must affirm the trial
court’s factual findings unless clearly erroneous, and due
regard must be given to the opportunity of the trial judge to
view the credibility of the witnesses.”
S.W.3d 223, 227 (Ky.App. 2004).
Polley v. Allen, 132
Shain has failed to show that
the court’s ruling was clearly erroneous.
For this reason, the
ruling is affirmed.
MINTON, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wallace N. Rogers
Louisville, Kentucky
John H. Helmers, Jr.
Troy DeMuth
Louisville, Kentucky
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