S.T. v. COMMONWEALTH OF KENTUCKY, CABINET FOR FAMILIES AND CHILDREN; D.C., THE NATURAL FATHER OF M.E.T.; AND THE GUARDIAN AD LITEM FOR M.E.T.
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RENDERED:
APRIL 28, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001341-ME
S.T.1
APPELLANT
APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 04-J-00615
v.
COMMONWEALTH OF KENTUCKY,
CABINET FOR FAMILIES AND CHILDREN;
D.C., THE NATURAL FATHER OF M.E.T.;
AND THE GUARDIAN AD LITEM FOR M.E.T.
APPELLEES
OPINION
AFFIRMING IN PART; REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE.2
JOHNSON, JUDGE:
S.T. has appealed from the May 26, 2005, order
of the Hardin Family Court which suspended her supervised
visitation with her minor child, M.E.T.
Having concluded that
the family court’s determination of neglect was proper and not
1
Individuals will be referred to by their initials to protect the interests
of the minor child.
2
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
prejudiced by any ex parte communication, but that the family
court abused its discretion in suspending S.T.’s supervised
visitation with M.E.T., we affirm in part, reverse in part and
remand.
S.T. is
the biological mother of M.E.T., who was born
on August 26, 2004, and D.C.3 is her biological father.
The
parties were never married, but cohabited together with D.C.’s
natural child, M.C., who died as the result of shaken baby
syndrome in May 2004.
S.T. has been indicted in Fayette County,
Kentucky, for the murder of M.C., and is currently out of jail
on a conditional bond awaiting trial.
On August 26, 2004, Lauren Wells, a social worker with
the Cabinet for Families and Children (the Cabinet), filed a
juvenile dependency, neglect, and abuse petition in the family
court, alleging that M.E.T. was at risk of serious physical
harm.4
Wells also signed an affidavit for an emergency custody
order which asserted the same allegations.
Based on the
testimony of Wells, the Hardin Family Court entered an emergency
3
D.C.’s paternity was established through D.N.A. testing.
4
Wells alleged that S.T. was currently being investigated by Lexington Crimes
Against Children for the homicide of another child, M.C., while under her
care. This incident occurred in May 2004. Dr. Betty Spivack, a forensic
pediatrician with the Kentucky Medical Examiner’s office, reported that S.T.
would be a danger to any child she supervised at that time. S.T.’s other
child, A, age 2, was currently in the custody of her father due to the
current investigation. The petition originally did not indicate a specific
ground for removal; however, the Commonwealth was allowed to amend the
petition to specifically allege neglect. S.T. was served with a summons on
August 27, 2004.
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custody order on August 27, 2004, removing M.E.T. from S.T.’s
custody, and placing her in the custody of the Cabinet.
The
family court specifically found that M.E.T. was in danger of
eminent death or serious physical injury, and her continued
presence in S.T.’s home would be contrary to her welfare and
best interests.
30, 2004.5
A temporary removal hearing was held on August
The family court found probable cause to remove
M.E.T. from S.T.’s custody based on the written report of Dr.
Spivack, indicating that M.C. had died from brain injuries as
the result of being a shaken baby and it was her opinion that
M.E.T. might suffer the same harm if left in S.T.’s care.6
The
family court ruled that M.E.T’s temporary custody would remain
with the Cabinet,7 with S.T. and D.C. having visitation at the
Cabinet’s discretion.8
5
See Graham and Keller, Kentucky Practice § 6.15 (2003) (stating that “[t]he
temporary removal hearing statute’s substantive standard strikes the balance
between parental rights and child protection by erring on the side of child
protection. . . . The focus of a temporary removal hearing is the
possibility of harm to the child rather than a determination of the truth or
falsity of the dependency, neglect, or abuse petition’s allegations”). See
also KRS 620.080(2) (noting that the burden of proof is the same as at the
adjudication hearing, i.e., preponderance of the evidence; however, at a
temporary removal hearing, hearsay testimony is allowed for good cause).
6
The family court was unsure whether Dr. Spivack interviewed S.T. However,
Dr. Spivack specifically stated in her report that “[s]imilarly situated
infants and toddlers are at significant risk of abusive head trauma, once an
initial child has been abused in this manner. . . . I consider it a matter
of high risk for [S.T.] to provide care to any young child.”
7
The family court also ordered that S.T. and D.C. complete parenting classes,
that home studies be conducted, and that all parties fully cooperate with the
Cabinet. Both S.T. and D.C. completed the parenting classes.
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By order entered on September 7, 2004, the family
court found that M.E.T. was at risk of harm, as S.T. was under
investigation for the homicide of another child.
By a
preponderance of the evidence, the family court found that there
were reasonable grounds to believe that it would be contrary to
M.E.T.’s welfare to be returned to S.T.’s custody, because she
could be neglected or abused, and that while reasonable efforts
were made to prevent M.E.T.’s removal from her home, there were
no less restrictive alternatives available at that time.9
The
family court further found based on Wells’s testimony that S.T.
was unable or unwilling to protect M.E.T.10
On September 22, 2004, S.T. filed a motion asking the
family court to return M.E.T. to her, or in the alternative, to
increase her visitation with M.E.T.
On October 28, 2004, D.C.
filed a motion requesting the family court to discontinue S.T.’s
visitation with M.E.T. until the neglect proceedings were
concluded.
D.C. argued that discontinuing visitation between
M.E.T. and S.T. would be proper to protect the safety and well-
8
M.E.T. was placed by the Cabinet with D.C., and S.T. was allowed supervised
visitation every Monday with M.E.T. from 9:00 a.m. to 10:00 a.m. at the
Cabinet’s office.
9
See KRS 620.090.
10
The family court made specific findings in support of continued removal of
M.E.T. by stating that “[o]pinion of Dr. Spivack that [M.E.T.] is in danger
of harm by [S.T.] since older child [M.C.] died by shaken baby syndrome and
brain injuries. High risk of harm. [S.T.] being investigated for homicide.”
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being of M.E.T.11
Another motion to discontinue visitation was
filed by D.C. and the Cabinet on November 8, 2004, stating the
same grounds as D.C.’s earlier motion.
D.C. filed an affidavit
along with this motion stating his personal knowledge of the
allegations set out in the motion.
The family court entered an
order on December 13, 2004, stating that a “Cabinet worker shall
be physically present during visitation and the paternal
grandmother shall be present during visitation to be arranged at
[the] discretion of [the Cabinet] regarding date and time.”
S.T. was indicted by a Fayette County grand jury in
December 2004 for the murder of M.C.12
D.C. filed a third motion
to discontinue visitation on December 29, 2004, based on the
murder indictment against S.T., stating that her continual
harassment of D.C.’s mother, H.C., and her recent outbursts
directed at H.C. during the supervised visits “demonstrated a
severe disregard for the well-being of [M.E.T.].”
On January 4,
2005, S.T. filed a motion accompanied by an affidavit from her
mother, C.P., requesting that C.P. be allowed unsupervised
11
D.C. asserted the following in his motion: (1) that S.T. was under
investigation for homicide; (2) that S.T.’s current supervised visitation did
not provide for the “constant and consistent safekeeping and well[-]being and
life” of M.E.T.; (3) that “due to current and recent publicity [S.T.’s]
involvement in the homicide of [M.C.] and [S.T.’s] mental and emotional
instability as observed by both Hardin County and Fayette County Social
Service Workers [S.T.’s] self-control is questionable at best with the life
of [M.E.T.] at risk”; and (4) that the Fayette Family Court recently limited
visitation by S.T. with her other minor child due to the investigation
regarding the suspected homicide.
12
S.T. was briefly incarcerated before being released on bond.
case is proceeding, but no trial date has been set.
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The criminal
weekly visitation with M.E.T.
The family court entered an order
on January 25, 2005, which denied D.C.’s motion to discontinue
visitation, denied S.T.’s motion for unsupervised visits for
C.P., and reiterated that a Cabinet worker was to be physically
present during S.T.’s visitations with M.E.T.
On January 26, 2005, an adjudication hearing was held.
S.T. stipulated that, based on proposed witness testimony,
M.E.T. would more than likely be found to be a neglected child.
The family court entered an order on February 4, 2005, and,
based on that stipulation, made a finding by a preponderance of
the evidence that M.E.T. was a neglected child as alleged in the
Cabinet’s petition.13
The case was set for a disposition hearing
and M.E.T. remained in the custody of D.C. pending the outcome
of the disposition.14
S.T.’s visitation with M.E.T. continued to
be at the discretion of the Cabinet, and supervised by the
Cabinet with a Cabinet worker present at all times.
The family
court allowed D.C. and H.C. to be present at S.T.’s visitations
with M.E.T., if they desired.
A disposition hearing was held on March 2, 2005.
By
order entered on March 5, 2005, the family court ordered that
13
The family court found that reasonable efforts were made to prevent
M.E.T.’s removal from S.T.’s home. M.E.T.’s best interests required the
family court to change her custody because continuation in S.T.’s home was
contrary to M.E.T.’s welfare and there were no less restrictive alternatives.
14
The family court ordered a home study of D.C.’s residence and ordered D.C.
to follow all of the Cabinet’s recommendations. The Cabinet filed its home
evaluation report on March 1, 2005, recommending that M.E.T.’s placement
continue with D.C.
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M.E.T. remain in D.C.’s home, as it was found not to be contrary
to her best interests.
The family court found reasonable
efforts were made to prevent M.E.T.’s removal from S.T.’s home,
and no less restrictive alternatives were available.
At the
hearing, the Cabinet indicated that it was willing to continue
to supervise S.T.’s visitation with M.E.T.
However, D.C.
objected to S.T. having any visitation with M.E.T.
Following a
lengthy hearing in which D.C., H.C., Wells, and C.P. testified
solely on the issue of visitation, the family court suspended
S.T.’s visitation with M.E.T., unless D.C. agreed to allow the
visitation.
S.T. filed a motion on March 14, 2005, asking the
family court to order that all ex parte communications filed of
record be excluded.
On March 15, 2005, S.T. filed a motion to
alter, amend, or vacate the order suspending her visitation
rights, but the family court denied the motion on May 26, 2005,
stating visitation would be harmful to M.E.T.
The docket sheet
from the hearing on the motion to alter, amend, or vacate
reflects that the family court sustained S.T.’s motion to
exclude ex parte communications.
This appeal followed.
S.T. claims that the family court erred in finding
that M.E.T. was a neglected child under KRS 600.020, in
suspending S.T.’s supervised visitation and in limiting her
visitation to the discretion of D.C., and by referring to and
considering ex parte communications during the disposition
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hearing.
Our review of these issues requires us to determine
whether the factual findings of the family court are clearly
erroneous.15
A finding of fact is clearly erroneous if it is not
supported by substantial evidence, which is evidence sufficient
to induce conviction in the mind of a reasonable person.16
Since
the family court is in the best position to evaluate the
testimony and to weigh the evidence, an appellate court should
not substitute its own opinion for that of the family court.17
If the findings of fact are supported by substantial evidence
and if the correct law is applied, a family court’s ultimate
decision regarding custody will not be disturbed, absent an
abuse of discretion.18
Abuse of discretion implies that the
family court’s decision is unreasonable or unfair.19
Thus, in
reviewing the decision of the family court, the test is not
whether the appellate court would have made a different
decision, but whether the findings of the family court are
15
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719
S.W.2d 442, 444 (Ky. 1986).
16
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
17
Reichle, 719 S.W.2d at 444.
18
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Sherfey v. Sherfey, 74
S.W.3d 777, 782 (Ky.App. 2002).
19
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
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clearly erroneous, whether it applied the correct law, or
whether it abused its discretion.20
We find no merit to S.T.’s argument that the family
court erred in finding M.E.T. to be a neglected child as defined
in KRS 600.020.
The family court has broad discretion in
determining whether a child is abused or neglected, as defined
in the Kentucky statutes.21
S.T. argues that there was no proof
that M.E.T. had actually been harmed by S.T., but rather the
family court only found a “risk of harm” because S.T. was under
investigation for the homicide of another child.
She accuses
the family court of “leapfrogging” to find neglect, based on the
death of M.C.22
However, S.T. does not deny that she stipulated
at the adjudication hearing on January 26, 2005, that the
testimony to be presented, including the expert testimony of Dr.
Spivack, would support the allegations contained in the
20
Sherfey, 74 S.W.3d at 782-83.
21
R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 38
(Ky.App. 1999).
22
In making this argument, S.T. cites the case of J.H. v. Commonwealth,
Cabinet for Human Resources, 767 S.W.2d 330, 334 (Ky.App. 1988) which
prohibited the Commonwealth from “taking its evidence and inferentially
leapfrogging from child to child in its efforts to remove them from their
natural parents.” The appellees have argued that J.H. should be severely
limited because of the change in the statutory law defining a neglected or
abused child, since the case was published almost 20 years ago, specifically,
that J.H. did not discuss the risk of harm, but such may be considered in
neglect and abuse cases, pursuant to current Kentucky statutes. S.T.’s
stipulation in this case makes the determination of the application of J.H.
moot.
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Cabinet’s petition for neglect.
It was after S.T.’s stipulation
that the family court made its finding of neglect.
KRS 600.020(1) defines an abused or neglected child as
follows:
[A] child whose health or welfare is harmed or
threatened with harm when his parent, guardian,
or other person exercising custodial control or
supervision of the child [emphasis added]:
(a)
Inflicts or allows to be inflicted upon the
child physical or emotional injury as
defined in this section by other than
accidental means;
(b)
Creates or allows to be created a risk of
physical or emotional injury as defined in
this section to the child by other than
accidental means;
(c)
Engages in a pattern of conduct that renders
the parent incapable of caring for the
immediate and ongoing needs of the
child . . . .;
(d)
Continuously or repeatedly fails or refuses
to provide essential parental care and
protection for the child, considering the
age of the child; . . .
(h)
Does not provide the child with adequate
care supervision, food, clothing, shelter,
and education or medical care necessary for
the child’s well-being. . . .
The formalities of filing a dependency, neglect, or
abuse action are outlined in KRS 620.070.
All juvenile
proceedings “shall consist of two (2) distinct hearings, an
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adjudication and a disposition . . . .”23
In a dependency,
neglect, or abuse case, “[t]he adjudication shall determine the
truth or falsity of the allegations in the petition[.]”24
“The
burden of proof shall be upon the complainant, and a
determination of dependency, neglect, and abuse shall be made by
a preponderance of the evidence.”25
The adjudication, which
determines whether a child has in fact been neglected or abused
is considered a trial and the parties have a right to appeal.26
In this instance, S.T., in stipulating to the evidence
to be submitted by the Cabinet, waived any claim that it was
inadmissible.
A stipulation has been defined as “an agreement,
admission, or other concession made in a judicial proceeding by
the parties or their attorneys” [footnote omitted].27
When a
party stipulates to the contents of documents and that it is
unnecessary for the authors of the documents to testify at trial
concerning the documents, the documents are admissible into
evidence.28
S.T. offered no evidence to dispute Dr. Spivack’s
report, and therefore the family court’s finding of neglect is
23
KRS 610.080.
24
KRS 610.080(1); see also KRS 620.100(3).
25
KRS 620.100(3).
26
KRS 620.100(2); see also KRS 610.060(1)(a) (noting that both the child and
his or her parents have a right to counsel at such hearings).
27
83 C.J.S. Stipulations § 2 (Supp. 2005).
28
Tamme v. Commonwealth, 973 S.W.2d 13, 35 (Ky. 1998) (cert. denied 525 U.S.
1153, 199 S.Ct. 1056, 143 L.Ed.2d 61 (1999).
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supported by substantial evidence and cannot be viewed as
clearly erroneous.29
S.T. next argues that the family court erred in
discontinuing her visitation with M.E.T., except as allowed by
D.C.
After the family court makes a determination by a
preponderance of the evidence30 that a minor child is dependant
due to neglect and abuse, it will hold a separate hearing to
determine the temporary removal of the child pursuant to KRS
620.080.
In determining the temporary custody of a child found
to be dependant, neglected, or abused, the family court shall
make its determination based on the best interests of the
child.31
In determining custody in such a situation, the family
29
Sherfey, 74 S.W.3d at 782.
30
KRS 620.100(3).
31
See KRS 620.023 which states as follows:
(1)
Evidence of the following circumstances if
relevant shall be considered by the court in all
proceedings conducted pursuant to KRS Chapter
620 in which the court is required to render
decisions in the best interest of the child:
(a)
Mental illness as defined in KRS 202A.011
or mental retardation as defined in KRS
202B.010 of the parent, as attested to by
a qualified mental health professional,
which renders the parent unable to care
for the immediate and ongoing needs of the
child;
(b)
Acts of abuse or neglect as defined in KRS
600.020 toward any child;
(c)
Alcohol and other drug abuse, as defined
in KRS 222.005, that results in an
incapacity by the parent or caretaker to
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court, as a district court, “shall utilize the provisions of KRS
Chapter 40332 relating to child custody and visitation.”33
provide essential care and protection for
the child;
(d)
(e)
32
Any other crime committed by a parent
which results in the death or permanent
physical or mental disability of a member
of that parent’s family or household; and
(f)
(2)
A finding of domestic violence and abuse
as defined in KRS 403.270, whether or not
committed in the presence of the child;
The existence of any guardianship or
conservatorship of the parent pursuant to
a determination of disability or partial
disability as made under KRS 387.500 to
387.770 and 387.990.
In determining the best interest of the child,
the court may consider the effectiveness of
rehabilitative efforts made by the parent or
caretaker intended to address circumstances in
this section.
KRS 403.270(2) states as follows:
The court shall determine custody in
accordance with the best interests of the child
and equal consideration shall be given to each
parent and to any de facto custodian. The
court shall consider all relevant factors
including:
(a)
The wishes of the child’s parent or parents, and any
de facto custodian, as to his custody;
(b)
The wishes of the child as to his custodian;
(c)
The interaction and interrelationship of the child
with his parent or parents, his siblings, and any
other person who may significantly affect the child’s
best interests;
(d)
The child’s adjustment to his home, school, and
community;
(e)
The mental and physical health of all individuals
involved;
(f)
Information, records, and evidence of domestic
violence as defined in KRS 403.720;
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Prior to the order being entered on March 5, 2005,
visitation was within the discretion of the Cabinet, and S.T.
was having supervised visitation with M.E.T. for one hour every
week.
None of the witnesses at the disposition hearing
presented any evidence of danger caused by S.T.’s supervised
visitations with M.E.T.34
In fact, Wells specifically testified
that the Cabinet’s regional supervisors supported continuation
of the visitation between S.T. and M.E.T., and Wells testified
that the Cabinet would be willing to continue to aid in the
supervision process after it closed its case.
Aside from the
pending murder allegations against S.T., there is no testimony
of record, other than personal spats between D.C.’s family and
S.T., to indicate there were further concerns regarding S.T.’s
supervised visitation with M.E.T.35
This case does not involve
(g)
(h)
The intent of the parent or parents in placing the
child with a de facto custodian; and
(i)
33
The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;
The circumstances under which the child was placed or
allowed to remain in the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720
and whether the child was placed with a de facto
custodian to allow the parent now seeking custody to
seek employment, work, or attend school.
KRS 620.027.
34
Those who testified included D.C., Wells, H.C., and C.P.
testify.
35
S.T. did not
Testimony at the hearing including the following: (1) H.C. testified that
S.T. gave her “bad looks” during visitation and that she was afraid S.T.
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conflicting evidence from which the family court had to choose.36
Despite any evidence that S.T.’s visitation with M.E.T. was not
in M.E.T.’s best interests, or would seriously endanger her, the
family court ruled from the bench after the disposition hearing,
and stated that because of the volatile situation between the
adults, S.T.’s visitation with M.E.T. would be discretionary
with D.C.
The family court did not mandate this visitation, but
rather stated the following:
This is a very difficult for me to try and
decide on visitation. It is my
understanding that the allegations against
[S.T.] are that she did not necessarily
contribute directly to the death of [M.C],
but that she may have somehow allowed it, or
contributed to it in that fashion, although
not directly causing it. Because of that,
and because of the fact that people are
innocent until proven guilty, I have wanted
to try to give [S.T.] an opportunity to see
[M.E.T.] and have that contact, but have it
supervised to where I was convinced that
[M.E.T] would be safe. I have heard
testimony, that although [S.T.] has not done
anything directly that has caused the
Cabinet alarm and concern, I have heard
enough testimony that I think that this is
such a volatile situation, it is just a
powder keg ready to explode. Although I do
would harm M.E.T. “to get back at H.C.’s family”; (2) D.C. testified that he
did not see S.T. do anything physically during the visits that concerned him
and in fact he brought in his laptop computer during the visits and worked
while he was there; (3) Wells testified that she recalled hearing S.T. tell
H.C. to stop staring at her, but that she never felt there was a need to stop
the visits; she was further willing to continue supervising the visits even
after the Cabinet closed its case; and (4) C.P. testified that she attended
all visits and found no reason to believe that S.T. would harm M.E.T. during
the visits.
36
Gates v. Gates, 412 S.W.2d 223, 225 (Ky. 1967).
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not want adults to get hurt, my primary
focus is the safety of this child. Because
the fact that there is so much volatility
here, I feel like, although very regretfully
so, that I am going to have to suspend
[S.T.’s] visitation. I don’t like doing
that, I don’t like it really at all, because
I would like for you [S.T.] to have an
opportunity to be with your child [M.E.T.],
and if you [S.T.] are successful on your
criminal case, you would not have lost that
opportunity to be with your child [M.E.T.].
But, with [D.C.] being awarded custody
of . . . I don’t think it is appropriate,
under the circumstances, to continue to have
the Cabinet be in the same room and
supervise this with all this hostility and
volatility. My concern is that at some
point in time some adult, and I am not
pointing my finger at any one adult, because
I think there is enough animosity, its so
thick you can cut it with a knife, and I can
understand that . . . and . . . truly I do
understand that. I would probably feel the
very same way if it was my child. . . . I
am not saying that that is necessarily
inappropriate emotions under the
circumstances. I do try to think in terms
of the mother if she is acquitted of this,
it is going to be very unfortunate for her.
I have tried very hard to give her as much
meaningful visitation as I could, given the
circumstances. But, my better judgment
tells me it’s not in the best interests of
the child [M.E.T.] for the situation to
continue. So, . . . I am going to not
require the Cabinet to supervise visits
anymore. I will grant visitation, but only
as agreed upon by the father [D.C.].
Basically, that may mean no visitation, I
realize that for [S.T.]. But, that is the
best that I am going to do at time being.
In the event that [S.T.’s]
circumstances should change and she is
acquitted, then maybe slowly she can be
reintroduced into this child’s [M.E.T.’s]
life with supervision, because there is
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always going to be this lingering concern
that acquittal doesn’t mean innocence. I am
sorry to say that, but I am sure that is
going to be their position. But maybe,
slowly we can reacquaint, if [S.T. is]
acquitted . . ., but because it is just so
volatile, I think it is in the best
interests of your baby [M.E.T.] for this to
be suspended. I am very truly sorry for you
but, I am sorry for all your circumstances,
for the death of [M.C.]. I am sorry for you
that you had to endure this and your family.
It is a very sad thing to have to deal with,
and I have a great deal of sympathy for
everybody involved in this case. . . . I
will allow visitation but its only going to
be by agreement with what is consented to by
the father [D.C.]. The [family] court
realistically knows that is probably not
going to be any.
“[T]he court shall not restrict a parent’s visitation
rights unless it finds that the visitation would endanger
seriously the child’s physical, mental, moral, or emotional
health.”37
The burden of proving that visitation with a parent
would “seriously endanger” the child is on the “one who would
deny visitation.”38
We see neither indication that this burden
was met, nor that such a finding was made.
We are not unmindful
that our review of this issue is limited to the determination of
the family court’s mistake of law or its application.39
However,
not only was there no substantial evidence to warrant denial of
37
KRS 403.320(3).
38
Smith v. Smith, 869 S.W.2d 55, 56 (Ky.App. 1994).
39
McCormick v. Lewis, 328 S.W.2d 415, 417 (Ky. 1959).
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court-ordered visitation, albeit supervised, but the record is
completely void of any facts that indicate that supervised
visitation was contrary to M.E.T.’s best interests or put her in
serious danger.
The apparent problems between D.C.’s family and S.T.,
should not affect M.E.T. in a supervised visitation setting.
The family court stated that if S.T. is acquitted of the murder
charges, or the charges are dismissed, that S.T. could petition
the family court to establish visitation.40
This indicates that
the basis of the denial of visitation was based on the
indictment, not on any other risk of danger to M.E.T.
Further,
it is evident from the record, and acknowledged by the family
court, that, due to the animosity between D.C’s family and S.T.,
leaving her visitation with M.E.T. at the discretion of D.C. was
the same as granting S.T. no visitation at all.41
The family
court could have taken less restrictive measures, considering
the lack of proof to support that supervised visitations with
S.T. would seriously endanger M.E.T.
This Court appreciates the seriousness of the charges
against S.T.
However, the threat of these charges was present at
the time of entry of the emergency custody order on August 27,
40
See Richie v. Richie, 596 S.W.2d 32, 34 (Ky.App. 1980) (citing KRS
403.320(2)).
41
The family court also provided in its findings that both D.C. and H.C.
could attend S.T.’s visitations with M.E.T. if they chose to do so.
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2004.
We regret that the family court’s order does not set out
specific findings for the denial of supervised visitation, except
as allowed by D.C.
However, S.T. failed to request amended or
additional findings pursuant to CR 52.02.42
Thus, we are
constrained from remanding this order to the family court for
additional findings of fact.43
However, we do not find that D.C.
met his burden by a preponderance of the evidence, and reverse
that part of the family court’s March 5, 2005, order denying
court-ordered visitation, as the family court abused its
discretion by failing to make a finding that such visitation
would seriously endanger M.E.T.
S.T.’s final argument pertains to a letter written by
H.C. to the family court.
At the disposition hearing on March
2, 2005, the family court informed the parties of the contents
of the letter, dated January 13, 2005.44
S.T.’s attorney
objected at the hearing, describing the letter as an ex parte
42
When a party fails to make a CR 52.02 request for additional findings, CR
52.04 provides that:
A final judgment shall not be reversed or
remanded because of the failure of the trial court to
make a finding of fact on an issue essential to the
judgment unless such failure is brought to the
attention of the trial court by a written request for
a finding on that issue or by a motion pursuant to
Rule 52.02.
43
Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997) (citing Cherry, 634
S.W.2d at 423).
44
In the letter, H.C. discussed why visitation between S.T. and M.E.T. should
be terminated.
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communication to the family court, which was not certified to
all parties.
D.C.’s counsel argued that a copy of the letter
was given to all parties at the adjudication hearing on January
26, 2005.
However, S.T. denies that it was distributed at the
hearing.
The trial court took a recess after S.T.’s objection
to the letter to allow all parties time to review the letter.
It was determined during the recess that the letter
had been submitted to the family court through the circuit
clerk’s office and that, while D.C.’s attorney stated a copy had
been sent to S.T.’s attorney’s mailbox, S.T.’s attorney denied
receiving a copy of the letter.
Because the family court was
unsure whether the letter was entered into the record as an
exhibit or an ex parte communication, it had copies of the
letter distributed to all parties.
Subsequently, H.C. testified
at the hearing as to her purpose in sending the letter to the
family court, and S.T.’s counsel had an opportunity to examine
her.
Later in the hearing, the trial court, during Wells’s
testimony, asked her if she knew whether the contents of H.C.’s
letter was true.45
Wells testified that she had no knowledge as
to the veracity of H.C.’s statements in the letter.
S.T.’s
attorney had an opportunity to cross-examine Wells.
S.T. argues that H.C.’s letter to the family court was
an ex parte communication, that its use at the hearing was not
45
S.T. placed her objection on the record.
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harmless error, and that, pursuant to CR 61.01,46 it
substantially affected S.T.’s rights.
The appellees argue that
even if the letter was an ex parte communication, the error was
cured when H.C. testified to its contents under oath, and S.T.
had an opportunity to cross-examine her.
Further, they argue
that S.T. had an opportunity to submit her own evidence to
refute any harm caused by the letter.
The appellees also argue
that the letter is more akin to hearsay, which is permissible at
dispositional hearings of this nature.47
Regardless of the
nature of the letter, H.C., its author, was present at the
hearing for direct and cross-examination, and, thus, we see no
prejudice the letter might have caused.
Further, as stated
earlier, the family court noted in the record that it sustained
S.T.’s motion to exclude all ex parte communications from its
consideration in ruling in this case.
For the foregoing reasons, the order of the Hardin
Family Court is affirmed in part and reversed in part, and this
46
CR 61.01 states that: “[t]he court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.”
47
KRS 610.110(2) provides as follows:
At the disposition, all information helpful in making
a proper disposition, including oral and written
reports, shall be received by the court in compliance
with sub-section (1) of this section and relied upon
to the extent of their probative value, provided the
parties or their counsel shall be afforded an
opportunity to examine and controvert the reports.
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matter is remanded for further proceedings consistent with this
Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
Margo A. Burnette
Elizabethtown, Kentucky
BRIEF FOR APPELLEE, CABINET
FOR FAMILIES AND CHILDREN:
Richard G. Sloan
Elizabethtown, Kentucky
BRIEF FOR APPELLEES, D.C.,
M.E.T., AND THE GUARDIAN AD
LITEM:
Jennifer R. Hall
R. Julius Craig
LeeAnna Dowan
Elizabethtown, Kentucky
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