B. S. S. v. K. S. Now K.G.

• Court: Kentucky Supreme Court
• Decided: March 26, 2020
• Docket: 2019-SC-0019
• Status: Unpublished

Opinion

RENDERED: MARCH 26, 2020

2019-SC-000019-DE

B.S.S. APPELLANT

ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2018-CA-00122-ME CARTER CIRCUIT COURT NO. 15-CI-00184

K.S., NOW K.G. APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

REVERSING

Appellant challenges a decision of the Court of Appeals that held the

Carter County Family Court abused its discretion by granting him visitation

with his child. Finding no abuse of discretion, we reverse the Court of Appeals

and reinstate the family court’s visitation order.

FACTUAL AND PROCEDURAL BACKGROUND

The child at issue in this case, K.S. (Child), was bom in August 2011

during the marriage of B.S. (Father) and K.S. (Mother).1 The Mother and

Father separated less than four years later in May 2015.

A month after the parties separated the Mother filed a petition for the

dissolution of the marriage (dissolution action), as well as a motion for

temporary relief seeking sole custody of the Child, who was then three years

1 Because the facts of this case involve alleged sexual abuse of a child, all parties will remain anonymous. 1 old. She stated in her motion that the Father was under investigation by the

Cabinet for Health and Family Services (Cabinet) for allegedly sexually abusing

the Child. In July 2015, the family court entered an agreed order in the

dissolution action granting the Mother temporary sole custody of the Child.

Two weeks later the Father filed for visitation in the dissolution action.

The day after the Father filed for visitation in the dissolution action, a

Dependency, Neglect, or Abuse Petition (DNA action) was filed before the same

family court judge that was presiding over the dissolution action.2 The petition

alleged that the Father had sexually abused the Child and sought removal of

the Child from the Father’s care. The family court denied the Father’s motion

for visitation in the dissolution action, taking judicial notice of the pending

DNA action against him.3

In the DNA action, the family court ultimately entered an amended

adjudication order that found:

[a]fter an Adjudication Hearing, the Court finds that the allegations contained in the Petition have been proven by a preponderance of the evidence, and hereby makes the following specific findings of fact: The Court finds the petition as true as the child disclosed that her father “spanked” her vagina; the child exhibited fear of the father; the physical exam reveals non-specific notch in child’s hymen; and the Court finds a risk of harm to the child if returned to the care of her father.

Pending disposition of the DNA action, the Child was to be in the Mother’s care

2 Because we do not have the benefit of the record in the DNA action, it is unclear whether the DNA petition was filed by the Mother or the Cabinet. Further, we do not know the specifics of the allegations therein, other than as addressed in the adjudication order and as related in the dissolution action. 3 The Father was also criminally investigated by the Kentucky State Police, but no charges were filed. 2 only. A disposition hearing was scheduled, but before it could occur the Father

appealed the family court’s adjudication order to the Court of Appeals. Failing

to recognize that the appeal was interlocutory, the Court of Appeals

subsequently affirmed the family court in the DNA action.

Less than three months after the Court of Appeals ruled on the DNA

action, the Father filed a motion in the dissolution action to modify the

previously established agreed custody order. The Father argued that it would

be in the Child’s best interest to have visitation with him.

Following a hearing on the matter, the same family court judge who

presided over the DNA action entered an order in the dissolution action

granting the Father’s motion to gradually establish visitation. The court’s

findings of fact and conclusions of law noted that “[t]he Court did not find that

sexual abuse occurred in [the DNA action].” It also found that the Child

“expressed a desire to see her father,” and that the Child did not associate the

absence of her father with sexual abuse. Instead, the Child believed “her father

went to work one day and never returned.”

Accordingly, the family court ordered an incremental reunification plan

for the Father and the Child.4 The Mother moved the family court to alter,

4 The reunification plan began by granting the Father two hours of visitation every Saturday at a neutral location that the Mother could supervise. After two of those Saturday visits, the Child’s paternal grandmother could also be present. After two months of visits, the Father would have visitation every Saturday for four hours at his home, to be supervised by his mother. After six months, the Father would have eight hours of unsupervised visitation at his home. After nine months, the Father would have overnight visitation every other weekend with no required supervision. Finally, after one year the Father would have visitation in accordance with statutory guidelines. 3 amend, or vacate its order. When her motion was denied, she appealed to the

Court of Appeals.

The Mother presented two arguments to the second panel of the Court of

Appeals. First, she argued that because the prior panel previously affirmed the

finding of sexual abuse in the DNA action, the doctrine of law of the case

precluded the family court from disregarding that finding in the dissolution

action. She also argued that the family court abused its discretion by

disregarding its own previous finding of sexual abuse and granting the Father

visitation.

The Court of Appeals held: “[w]hether or not the law of the case doctrine

applies in this case, we hold that the family court’s finding in the [dissolution]

action that it did not make a finding of sexual abuse in the [DNA] action is

clear error.”5 It then reversed the family court and vacated its order granting

Additional facts are discussed below as necessary.

I. ANALYSIS

A. Law of the case does not apply here.

As a preliminary matter, we feel we must address the issue of law of the

case doctrine raised below and before this Court. “It is an iron rule, universally

recognized, that an opinion or decision of an appellate court in the same

cause is the law of the case for a subsequent trial or appeal however erroneous

the opinion or decision may have been.”6

5 K.S. v. B.S., 2018-CA-000122-ME, 2018 WL 5091047 (Ky. App. Oct. 19, 2018). 6 Union Light, Heat, & Power Co. v. Blackwell’s Adm’r, 291 S.W.2d 539, 542 (Ky. 1956) (emphasis added). 4 In this case two separate, albeit related, causes of action are involved.

As previously discussed, the first cause of action appealed was the DNA matter

under KRS7 620 et seq., while the current cause of action is a motion to modify

a previously established custody order under KRS 403.320(3), in the

dissolution action. With regard to whether these actions are separate for the

purposes of law of the case, this Court agrees with the conclusion of the Court

of Appeals in S.R. v. J.N., Id. at 637. S.R. held that “[t]he purpose of the

dependency, neglect, and abuse statutes is to provide for the health, safety,

and overall wellbeing of the child. It is not to determine the custody rights

which belong to the parents.”8 Inversely, the purpose of a custody and

visitation proceeding is to determine the rights of individuals with standing to

seek custody of or visitation with a child. It is not to determine whether or not

that child is dependent, neglected, or abused.

We therefore hold that for law of the case purposes DNA actions and

custody actions are separate and distinct, notwithstanding that the same child

is involved, or that the actions are before the same judge in the same family

court. Accordingly, in this case the Court of Appeals’ holding in the DNA

action did not constitute law of the case for the subsequent visitation

proceedings in the dissolution action.

B. The trial court did not abuse its discretion.

7 Kentucky Revised Statues, 8 307 S.W.3d 631, 637 (Ky. App. 2010). 5 Next we must determine whether the family court’s ruling in the

dissolution action warrants reversal. This Court’s review of a custody or

visitation action involves a two-step analysis:

First, we review a trial court's findings of fact under an abuse of discretion standard, only disturbing such findings when they are clearly erroneous. A judgment is not clearly erroneous if it is supported by substantial evidence. Substantial evidence is evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men. Second, we examine the trial court's application of the law de novo.9

“[T]he test is not whether the appellate court would have decided it differently,

but whether the findings of the family court are clearly erroneous, whether it

applied the correct law, or whether it abused its discretion.”10

In addition to our conclusion that law of the case does not apply, we also

note that the Court of Appeals’ ruling in the DNA action was entitled to no

weight by the family court when it made its subsequent visitation

determination in the dissolution action. As noted, following an adjudication

hearing in the DNA action a disposition hearing was scheduled, but never

occurred. Therefore, the Court of Appeals was acting outside its jurisdiction

when it addressed the Father’s DNA action appeal on the merits. J.E. v.

Cabinet for Health and Family Services is on point in this regard, rendering the

interlocutory appeal a nullity.11

9 S.E.A. v. R.J.G., 470 S.W.3d 739, 742 (Ky. App. 2015) (citations and internal quotation marks omitted). 10 Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). 11 553 S.W.3d 850 (Ky. App. 2018). 6 In J.E., the trial court conducted an adjudication hearing in a DNA

action and determined that the children involved were dependent, neglected, or

abused.12 A disposition hearing was scheduled, but before it could take place

the parents appealed the case to the Court of Appeals; no disposition hearing

occurred.13 Therefore, as a matter of first impression, the court addressed the

issue of whether the case was properly appealed or if it was instead

interlocutory and required dismissal.14

The court began its analysis by noting that under KRS 620.155:

a parent aggrieved by a proceeding in a dependency, neglect, or abuse case may appeal as a matter of right. The statute, however, does not delineate with particularity the type of proceeding that may be appealed. Juvenile proceedings, including dependency, neglect, and abuse (DNA) actions, are bifurcated proceedings, i.e., they consist of two distinct hearings, adjudication and disposition. KRS 610.080.15

Accordingly, the court was tasked with determining “whether the rights of all

parties are fully adjudicated for purposes of appellate review in the absence of

the completion of both the adjudication and disposition hearings” in

accordance with Kentucky Civil Rule of Procedure (CR) 54.01.16

12 Id. at 851.

13 Id.

14 Id. at 851-52.

15 Id. at 851.

16 Id. at 852.

7 The court held that “a disposition order, not an adjudication order, is the

final appealable order with regard to a decision of whether a child is dependent,

neglected, or abused.”17 It therefore dismissed the appeal as interlocutory.18

Consequently, in the DNA action at issue in this case, the Court of

Appeals should have dismissed the Father’s appeal as interlocutory, as the

rights of the parties had not been fully determined via disposition proceedings.

This clear error by the Court of Appeals further bolsters our previous

conclusion that the family court was under no obligation to give weight to the

Court of Appeals’ decision in the DNA action when making its visitation

determination in the dissolution action.

Further, our courts have previously held that it is in fact desirable for

family courts to keep DNA actions and custody actions separate in their minds

for the purposes of fact finding:

We learn by the case before us that if a family’s various causes of action in family courts are not kept distinct by the court’s adherence to well-founded rules, parties or the court itself could leverage mere impressions from a prior proceeding into findings in a subsequent one, despite that in the prior action the impression was not sufficient to merit establishment as a judicially noticeable finding of fact. This can and does occur when a party attempts to re-adjudicate custody issues by raising allegations of dependency, abuse, or neglect. Dutifully following well-founded rules of court will prevent such manipulation.19

With these principles in mind, we must now address whether the family

court’s findings of fact in the visitation proceedings were clear error.

17 Id. at 853. 18 Id. 19 S.R., 307 S.W.3d at 638. 8 During the hearing, which lasted approximately four hours and fifteen

minutes, the court heard testimony from the Child’s mother, father,20 paternal

grandmother, paternal great aunt, paternal great uncle, and therapist Jennifer

Williams (Ms. Williams). The Father’s current girlfriend also testified, and the

testimony of Dr. Edward Connor (Dr. Connor), a licensed clinical psychologist,

was entered into evidence via deposition. There was also testimony through

various witnesses that tended to weaken the Mother’s credibility that may not

have been introduced in the DNA adjudication hearing.21

The court made the following relevant findings of fact: the court did not

find that sexual abuse occurred in the DNA action; the Child does not associate

the Father’s absence with abuse, and instead believes he went to work one day

and never returned; the Child has expressed a desire to see her father; that

children without both a mother and a father can have a number of

psychological difficulties; and the Father has several healthy relationships with

minor children including his girlfriend’s fourteen year old daughter and his

infant niece. He routinely cares for these children without supervision and

there have been no complaints from those children or their parents.

The court found that it would be in the best interest of the Child to have

visitation with the Father. The final portion of the order held: “[t)he Court,

20 We note that the Father did not testify during the DNA action on the advice of counsel. This was therefore the first time the family court heard testimony from him. 21 We did not have the benefit of the record in the DNA case and therefore did not have the video record of the DNA adjudication hearing. Testimony was introduced in this action that the Mother did not allow the Child to sleep in her own bed because the Mother saw demons under it on one occasion. There was also evidence that she initially called off her wedding to the Father because she thought a balloon at a concert told her she was making a mistake. 9 considering all of the testimony before the Court does not believe the child

would be harmed by visiting with her father, but could be harmed by the

absence of a relationship with her father.”

It was the family court’s first finding of fact, as to whether sexual abuse

occurred, that the Court of Appeals held was clear error. We disagree.

The DNA action’s order’s “findings of fact” section states:

After an Adjudication Hearing, the Court finds that the allegations contained in the Petition have been proven by a preponderance of the evidence, and hereby makes the following specific findings of fact: The Court finds the petition as true as the child disclosed that her father “spanked” her vagina; the child exhibited fear of the father; the physical exam reveals non-specific notch in child’s hymen; and the Court finds a risk of harm to the child if returned to the care of her father.22

Further, the order’s “conclusions of law” section states: “The Court

therefore concludes the above named child is neglected or abused as defined in

KRS 600.020(1); as follows: her parent...[c]reated or allowed to be created a

risk that an act of sexual abuse...will be committed on the child.”23 This

section of the order is particularly significant. The order is a “check the box”

form, and among the options the family court had was a box that stated the

child was neglected or abused because his or her parent “[c]ommitted or

allowed to be committed an act of sexual abuse” upon the child.24 This box

was not checked, meaning that the family court did not find that the alleged

act of sexual abuse actually occurred.25

22 (emphasis added). 23 (emphasis added). 24 (emphasis added). 25 We also believe it is significant that the order later states, “reasonable efforts to prevent removal were not provided, but are being made to reunify the family.” 10 Often we find that discerning what a lower court judge meant by or

intended to do with a particular order is an onerous task. But here, the exact

issue of what the family court judge meant by his DNA action order was

discussed in the dissolution action when the following exchange occurred:

Father’s Attorney: (questioning Ms. Williams) You understand, do you not, that there is no...finding that [the Child] was sexually abused?

[...]

Mother’s Attorney: Judge I’m going to renew my objection, if you look at the actual [DNA action] order ‘sexual abuse’ is the term used by the court in its order: “based upon the testimony at the hearing the court finds a continuing risk of harm of sexual abuse if returned to the father...he created or allowed to be created a risk that an act of sexual abuse, sexual exploitation, or prostitution will be committed upon the child.”

Court: The court did find a risk of sexual abuse. The court did not find in that case that sexual abuse had occurred.

Given the preceding facts, we are convinced that the family court did not

find in the DNA action that the alleged sexual abuse actually occurred. Instead

it found that the Father created a risk that an act of sexual abuse would occur.

Accordingly, we reverse the Court of Appeals’ holding that the family court

abused its discretion in the dissolution action when it did not find that sexual

abuse occurred in the DNA action.

(emphasis added). We interpret this to mean that the family court judge did not believe the Child should never been reunified with the Father. 11 We further hold that the remainder of the court’s findings of fact upon

which it based its decision to grant visitation were supported by substantial

evidence. The finding that the Child believes the Father is absent because he

went to work one day and did not return as well as her expressed desire to see

her father were both founded upon the Child’s therapy notes in Ms. Williams’

testimony. Dr. Connor’s deposition covered the various developmental issues

children with an absent parent can develop. And finally, the Father, the

Father’s girlfriend, and the Child’s paternal grandmother all testified that the

Father regularly takes care of his girlfriend’s fourteen-year-old daughter and

his infant niece. There have been no complaints by the children or their

parents, and no one in his life has any reservations about allowing him to keep

those children unsupervised.

Therefore, we cannot hold that the family court abused its discretion by

finding that an incremental visitation and reunification plan between the

Father and the Child was in the child’s best interest, as substantial evidence

supports the court’s findings of fact. We thus reinstate the family court’s order

for visitation.

in. CONCLUSION

We reverse the holding of the Court of Appeals that the family court

abused its discretion. The family court’s visitation order is hereby reinstated.

Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ.,

sitting. Nickell, J., recused. Hughes, Keller, Lambert, VanMeter and Wright,

JJ., concur.

Minton, C. J., dissents because he would affirm the Court of Appeals’

decision to remand this case to the family court with directions to make 12 specific findings to explain why, in light of its adjudication that the father

posed a risk of sexual abuse to the child, modification of visitation to require

contact with the father promotes the best interests of the child.

COUNSEL FOR APPELLANT:

W. Jeffrey Scott Whitley Hill Bailey W. Jeffrey Scott, P.S.C.

COUNSEL FOR APPELLEE:

Tracy Denise Frye Marie Elizabeth Troxler Fry Law Offices, P.S.C.