IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JUNE 15, 2023 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2022-SC-0421-DGE
JULINA M. WINLAND AND APPELLANTS KEVIN LUCAS
ON REVIEW FROM COURT OF APPEALS V. NOS. 2021-CA-1153 & 2021-CA-1154 HARLAN CIRCUIT COURT NOS. 21-D-00147-001 & 21-D-00148-001
MYKAL L. RINGSTAFF APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Mykal Ringstaff (Mykal) filed petitions for emergency protective orders
against Kevin Lucas (Kevin) and Julina Winland (Julina) on behalf of Julina’s
five children. Following hearings on the respective petitions, the Harlan Circuit
Court entered domestic violence orders (DVOs) against Kevin and Julina,
respectively. Kevin and Julina challenged the DVOs before the Court of
Appeals, which affirmed. After thorough review, this Court also affirms. I. FACTS AND PROCEDURAL BACKGROUND
The Appellee, Mykal, is Julina’s father and the grandfather of Julina’s
five children: Alex (15), Beth (14), Casey (11), Diane (9), and Ethan (7).1 Until
sometime around 2019, Julina lived in a home in Harlan County, Kentucky
with her children and her now estranged husband, Edwin “Alan” Winland, Jr.
(Alan), who is not a party to these proceedings.
Numerous photographs entered into evidence during the DVO hearings
discussed below demonstrated that Julina’s marital home was unfit for human
habitation. One of the children’s bedrooms had trash, clothing, and other
debris covering every inch of the floor, and several piles of dog feces were
plainly visible on top of the trash. According to the oldest child, the trash in
that bedroom was “about two feet deep,” and beneath that there would be
roaches and fleas in the spring and summer. The kitchen was in the same
state: every available inch of space on the counters and floor was covered with
trash and miscellanea. The trash pile in the living room covered the entirety of
the floor and was at least three to four feet tall. In addition, a large portion of
the ceiling in the living room had peeled off, exposing rafters and wiring. There
was another large hole in the ceiling of Julina’s bedroom which was also filled
with clutter. The photographs were taken by Mykal in August 2021.
1 Each of the children are identified using a pseudonym to protect their privacy. The ages provided were the children’s ages on the date the petitions for protective orders were filed.
2 Due to the state of Julina’s marital home Julina’s mother, Mykal’s ex-
wife, threatened to contact child protective services. In response, Julina and
the children stopped living in the marital home full time and began living a
nomadic, and essentially homeless, lifestyle. She and the children would stay
in the marital home one night a week, and other nights they would sleep in
Julina’s vehicle in various parking lots, or they would sleep in the basement of
the church where Mykal was a pastor. This went on for about two years until
January 2021 when Kevin came to Harlan to advise Julina’s sister on a
construction matter. Kevin and Julina had known each other as children
through their parents but had only spoken twice over the last twenty years
through Facebook. Nevertheless, upon learning that Julina and her children
were homeless, he offered to let them stay at his home in Tennessee.
After staying at Kevin’s home for approximately a week, Julina and the
children left and stayed at Julina’s mother’s home in Georgia from January to
about the middle of May. They then went back to Kevin’s home at the end of
May. The children went to a summer camp in Tennessee during June and
July, and towards the end of July, the children went to stay with Mykal for a
few weeks. For reasons discussed in more detail below, Mykal feared for the
children’s safety when the time came for them to be returned to Julina. Mykal
tried to get the Cabinet for Health and Family Services (the Cabinet) involved to
protect the children, but the Cabinet refused his pleas for help. Therefore, on
August 6, 2021, after consulting with the county attorney, Mykal filed petitions
for orders of protection in Harlan District Court against Kevin and Julina on
3 behalf of Julina’s children. Mykal’s petition concerning Kevin alleged the
following:
Kevin is an extreme danger to my grandkids. He is extremely short-tempered and states that he is not responsible for his actions if he gets upset. He carries a gun and does a countdown when he’s angry saying “I could just kill someone.” He forced my grandkids to clean up his dogs’ feces in apt. and got upset at my oldest grandson [Alex] and threatened him because he was guarding [the] bathroom door to keep Kevin from going in on his sister [Beth]. [Alex] has recordings if needed of Kevin making threats to him. [The] children are afraid and do not want to be around Kevin. I need to protect my grandkids from further abuse from Kevin.
Mykal’s petition requested that the court grant Mykal temporary custody of all
five of the children. Mykal’s petition against Julina stated:
Julina moved to Ooltewah, TN [with] live in boyfriend [apartment] covered [with] dog feces that grandchildren were forced to clean by Kevin Lucas (boyfriend). Kevin is angry and violent towards grandchildren. My failing to keep them safe from Kevin. Most of time they are living in vehicle homeless. Kevin carries firearm on person and states he is not responsible for his actions if he gets angry. My grandkids are unsafe in Julina’s [and] Kevin’s care. They are behind in school [and] in medical care. They need attention. I need protection for my grandchildren. They are unsafe in Kevin’s [and] Julina’s care. Please help me keep my grandchildren SAFE!
The petition against Julina also requested that temporary custody of the
children be awarded to Mykal.
The district court did not issue an emergency protective order (EPO)
against Julina; however, it did issue an EPO against Kevin. Under the terms of
Kevin’s EPO, Mykal was granted temporary custody of the children. DVO
hearings for Kevin and Julina were set for August 19, 2021. During the
August 19 appearance, on Mykal’s motion, the district court ordered that an
investigator for the Cabinet, Tommy Key (Investigator Key), investigate in both 4 matters by interviewing the children, Kevin, and Julina. The hearings were
continued until September 9.
On September 9, Mykal’s counsel informed the court that, as he was the
children’s temporary custodian, he had filed a motion to intervene in Julina’s
and Alan’s divorce case2 which was then pending in Harlan Circuit Court.
Mykal accordingly moved to have the DVO cases transferred to the circuit
court, and the district court granted the motion.
On September 20, the circuit court held a DVO hearing in Kevin’s case.
The court heard testimony from Mykal, Investigator Key, Julina’s three oldest
children, and Kevin.
Mykal testified that he was seeking a DVO against Kevin because he was
greatly concerned for the children’s safety. Mykal alleged that although Kevin
has never physically injured any of the children, he has “tremendous anger
management issues,” behaves erratically, and carries a firearm. Mykal gave
the example of Kevin previously stating that someone has two minutes to
respond, or he is not responsible for his actions, and that he has had a stroke
and cannot be held responsible for losing his temper. Mykal also noted that
Kevin took Alex (15) to shoot guns and gave him a beer; that Kevin posted a
Facebook video of Ethan (7) on “heavy equipment” with “no protective gear”
while it was running; and that Alex called Mykal and told him he was blocking
2 Harlan Circuit Court Case No. 21-CI-0132.
5 the bathroom door to prevent Kevin from walking in on Beth (14) because Alex
was afraid Kevin would molest her.
Mykal was also greatly concerned about Kevin’s habit of carrying a
firearm. While the children were at summer camp in Tennessee in June and
July 2021, Kevin came to the camp with a firearm which Mykal contended was
“strictly forbidden” at the camp. However, there was no evidence that Kevin
threatened anyone with the gun, waived it around, or even removed it from its
holster. In addition, the state of Kevin’s home was not much better than
Julina’s marital home in Harlan: it was poorly maintained and “covered” in dog
urine and feces which Mykal claimed Kevin forced the children to clean.
The imminent threat Mykal perceived to the children when he filed for
the protective orders was Julina and Kevin attempting to take the children
back to Kevin’s home in Tennessee. The children told him that they did not
want to go back, that they were afraid of Kevin, and that they did not want to
be around Kevin. And it was an unstable environment: the youngest children
told him they slept on half-inflated air mattresses on a floor that had dog feces
on it, while Beth (14) refused to sleep in Kevin’s house and instead slept in a
car. Mykal filed the protective orders to keep the children away from Kevin, not
Julina, but he nonetheless believed Julina was unstable and unable to take
care of the children at that time.
Mykal testified that he reported his concerns to the Cabinet in Harlan
County in August 2021 while the children were staying with him, but the
6 Cabinet told him there was nothing it could do because Kentucky was not their
home state.
Cabinet Investigator Key testified that he interviewed each of the children
and that they appeared to be apprehensive to talk to him about Kevin and
Julina. The children expressed environmental fear and that they were afraid of
Kevin, that Kevin loses his temper, and that he carries a gun. Investigator Key
said that he did not uncover any evidence that Kevin physically harmed any of
the children or threatened any of the children with physical violence. However,
Alex reported that he and Kevin got into a verbal altercation on three separate
occasions. Investigator Key uncovered no reason why Kevin would be legally
prohibited from carrying a firearm.
The children also described the conditions they had been living in while
they stayed on Kevin’s property to Investigator Key. Each child described dog
feces and trash in every room of the home and stated that they would
sometimes instead stay in a semi-tractor trailer container on the property that
Julina would run an extension cord to for electricity. The children reported
that usually, Kevin and Julina would sleep in the home and would sometimes
lock the children out so that they would have to sleep in a car or in the tractor
trailer container. The children also confirmed that the marital home was in the
condition depicted in the aforementioned photographs while they were living
there. We note here that Kevin’s counsel objected to any line of questioning
about the children’s living conditions on the grounds that the statutory
definition of domestic violence does not include poor living conditions. The
7 court overruled the objection and stated that “physical injury can be
environmental . . . a bad environment can effect someone’s health, of course it
can.” Investigator Key contacted authorities in Tennessee in an attempt to get
pictures of Kevin’s home and property. Tennessee authorities went to the
home three separate times, but no one would answer the door.
Investigator Key also felt that he could substantiate medical and
educational neglect against Julina, although he acknowledged such allegations
would have no bearing on Kevin. He explained that the children were not up to
date on the vaccinations required for public school and had a lot of dental
issues. The children had not been in school for at least two years, and
Investigator Key was trying to get records from Tennessee to verify their reports
of being homeschooled. The Harlan Independent School System was in the
process of testing the children to determine how far behind they were
educationally.
The court then interviewed the three oldest Winland children—Alex,
Beth, and Casey—individually and outside the presence of the parties and their
respective counsel. The oldest, Alex, confirmed that the photographs of the
marital home depicted its condition while they were living in it. He further
stated that they stopped living in the marital home because Julina was afraid
the children would be taken from her “because she was neglecting [them].”
Alex stated that was when they started staying in the marital home only one
night per week and would either sleep in the car or in the basement of Mykal’s
8 church every other night. Then, in January 2021, they went to stay with
Kevin.
Alex described Kevin as “a person who came into [his] life about nine
months ago.” Alex believed Kevin was his mother’s boyfriend, but that she
would not acknowledge that he was due to her pending divorce. He said that
Kevin’s home was just as bad as the marital home, and described it as follows:
The house is dirty, messy. He used to have kids living there, his own, they don’t live there anymore, but there was a bunch of their stuff. Their rooms were trashed, the whole thing was trashed, there was dog feces everywhere, the whole thing smelled like there was some kind of mold or something going around, it smelled musty. I could maybe be in there for 5 minutes before I could barely breathe.
Because of the state of the house, Alex would sleep in the car. Alex verified
that the children would also stay in an insulated tractor trailer container on
Kevin’s property and explained that Kevin was living in a “somewhat
dismantled” RV next to the house.
Alex confirmed that Kevin had never physically injured him, but told the
court that Kevin had “verbally abused” him and used “strong language” in front
of him and his siblings. Kevin told Alex that he would end up in a juvenile
detention center and would not be a success in life because Alex acted just like
his father Alan. More troubling, Alex said that Kevin told him, “That I have to
live with him until I’m eighteen and if I didn’t straighten up, he would make my
life miserable.” In response, the court asked, “And your mother, how does she,
she allows all this to go on?” Alex responded, “Yes, she allows it. She says I
must behave; Kevin is doing what’s right for me.” Finally, Alex told the court
9 that he had always been homeschooled by Julina, but she only taught him
math and language. He said the last time he had been to the doctor was in
either 2015 or 2016.
Beth and Casey were much shier than Alex and their respective
testimonies were much shorter. Beth stated that she did not really get along
with Kevin. Both girls confirmed that the photographic evidence depicted the
state of the marital home while they lived there, that Kevin’s home was not
clean, and that they stayed in a tractor trailer container on his property.
Kevin testified on his own behalf that he had never threatened the
children with physical harm, and that the verbal altercations he got into with
Alex were the result of Alex harassing him and calling him names. He
acknowledged his home was littered with dog feces and that he had been
unable to clean it because he had a medical injury. He denied making the
children clean the home and asserted that the rooms the children stayed in did
not have dog feces in them. He also stated that the two older children slept in
the car because that is what they chose to do. He offered to let Julina and the
children stay with him because they were homeless, but he does not want
custody of the children, as he has seven of his own. At some point, he got into
an altercation with Julina’s children’s father Alan and was charged with
assault, but it was later dismissed.
Regarding his firearm, Kevin agreed that he does generally carry it, but
asserted that he is licensed to do so in Tennessee, and that he is not a
convicted felon. He further acknowledged that he had his firearm when he
10 went to the children’s summer camp, but no one said anything to him about it
while he was there. He had never threatened anyone with his gun.
Following the hearing, the circuit court found on a standard AOC-275.3
Form that Mykal had established “by a preponderance of the evidence, that an
act(s) of domestic violence and abuse . . . has occurred and may again occur[.]”
Kevin was ordered to stay 500 feet away from Mykal and the children for three
years. Following the court’s ruling concerning Kevin, Mykal’s counsel
requested that Julina’s hearing be continued for one week until September 27,
2021, so that they could attempt to reach an agreement with Julina for
supervised visitation at Mykal’s home in lieu of pursuing the DVO. The court
agreed to keep the temporary custody order in place until the parties
reconvened on September 27 on the condition that any visit with Julina and
the children be supervised.
On September 27, the parties reported that they could not reach an
agreement and requested that the court proceed with a DVO hearing. During
that hearing the court heard testimony from Mykal, Investigator Key, and Alex.
Julina chose not to testify.
Mykal reported to the court that the children’s father Alan had submitted
a document in the divorce proceedings requesting that the court grant custody
of the children to Mykal.3 Mykal also told the court that even after the DVO
3 That document as read into the record during the DVO hearing stated:
“Comes now the Respondent Edwin Alan Winland does hereby enter his appearance and request that the court grant custody of the children to the Intervening Respondent Mykal Ringstaff. That Mykal Ringstaff is the maternal grandparent of the children and 11 was entered against Kevin, Julina continued to stay with him. Additionally,
Mykal conveyed that after Kevin’s DVO hearing Mykal allowed Julina to come
to his home to visit the children. The visit went well at first but deteriorated
into an altercation between Julina and Alan over a trailer hitch that resulted in
Alan going to jail and Julina filing a petition for a DVO against Alan, which was
denied.4 Mykal said that Alex became so upset following the visit that he
considered placing him in a 72-hour psychiatric hold.
Apart from the foregoing, Mykal’s testimony was for the most part
repetitive of what he previously stated during Kevin’s hearing. He again
testified that he sought the DVO because the children were not in a safe
environment with Julina and Kevin, and he feared for their safety. Each of the
children told him that they did not want to be around Kevin, that Kevin has
anger issues and loses his temper frequently, and that Kevin carries a firearm.
Mykal claimed that on one occasion Beth became upset about something and
stated to Mykal, “I wish Kevin would have just shot me when he had the
chance.” Beth was not forthcoming when Mykal asked her follow up questions
about that statement.
Photographs depicting the state of Julina’s marital home were again
introduced. As with Kevin’s hearing, Julina’s counsel objected to the
admission of the photographs and argued that environmental neglect does not
that [inaudible] children in this matter. That the Respondent states that the Petitioner Julina Winland is unfit to raise the children.” 4 See Winland v. Winland, 2021-CA-1319-ME, 2022 WL 2182907 (Ky. App.
June 17, 2022).
12 constitute domestic violence. The court overruled the objection, stating that
environmental harm could be domestic violence “because it’s just unhealthy,
and it can certainly harm children. Emotionally, mentally, physically, in all
kinds of ways.” Mykal reiterated that for two years the children and Julina
would either stay in the martial home, in a car, or in the basement of his
church. He claimed that he did not know that Julina and the children had
been homeless because the children were forbidden from telling him. And, that
he was unaware that they were staying in his church because Julina had a
key. He again stated that the children were behind on their vaccinations and
that they were behind educationally notwithstanding that Julina had
homeschooled them.
Mykal testified that prior to filing his petitions for a protective order, he
attempted to get the Cabinet involved by complaining to them about the
condition of the marital home. The Cabinet told him they could not open a
case, gave him an 800 number to call, and told him they would call him back if
they deemed it necessary. That was the last he heard from them. He felt the
children could not wait that long, so he visited the county attorney who advised
him to file a petition for a protective order. Mykal was adamant that he only
wanted custody of the children until Julina established a stable and suitable
home for her children.
Next, Investigator Key testified that during his interviews with the
children they expressed fear of Kevin’s anger issues and that he carried a
firearm. They told him that they were living in the conditions depicted in the
13 photographs of the marital home, that it was “nasty,” and that it had trash and
dog feces and urine throughout it. In addition to the marital home, the
children had also lived in vehicles in various places such as local parks and a
Walmart parking lot. When the children were on Kevin’s property, they stayed
in a tractor trailer container with an extension cord running to it. During
cross-examination he conceded that the vaccinations the children were behind
on were not required for homeschooled children, and that the children did not
claim that Kevin had ever threatened them with his gun. Investigator Key told
the court that the Cabinet was still not investigating and that it would be up to
Mykal to formally request its involvement, again.
The court then allowed Alex to testify upon a sua sponte finding that he
was capable of doing so based on its interview of him during Kevin’s hearing.
Alex testified that during Julina’s visit with the children at Mykal’s home she
told them that “if and when” she got custody back, they would never see their
family or Mykal again. Alex understood her statement to mean that the
children would go back to living the way they were before Mykal got custody of
them. This upset him because neither he nor his siblings want to live that way
again. Alex and his siblings wanted to continue living with Mykal where they
had a stable lifestyle and a regular schedule. He further said that he felt
Julina would take them out of school again and that he and his siblings did
not want that; they liked being in school and they were making friends. Alex
was also very upset by the incident that occurred between Julina and Alan.
Julina was trying to get a trailer hitch from Alex that she believed belonged to
14 Kevin. Alex refused to give it to her and instead put it in Alan’s car. Alex said
that Julina “dove headfirst” into Alan’s car as he was leaving.
Alex again testified that the photographs of the marital home accurately
depicted the way it looked when they lived there, and that after they stopped
staying in the marital home full-time, they stayed in a car or in the basement of
Mykal’s church. Alex considered them to be homeless because they did not
have a proper place to live. He was unsure of whether Mykal knew they were
homeless; Julina was “very discreet” and had a key to the church. Julina
homeschooled the children, though “not very well,” through a company called
Christian Light Publications. Julina would sometimes help them, but they
were usually “on their own.” Alex said he had not had a proper checkup in
four or five years and that Julina is very against immunization and prefers
herbal healing.
Alex further testified that he is afraid of Kevin and that Kevin carries a
gun and has anger management issues. Kevin once told Alex that he has a
“short fuse” and that when he loses his temper he can “commit atrocities.”
Kevin’s home had dog feces all over it and smelled like must and mold.
Whenever the children were there, they would either sleep in the house, the
car, or in the tractor trailer container.
After the hearing, the circuit court found on an AOC-275.3 Form that
Mykal had established “by a preponderance of the evidence, that an act(s) of
domestic violence and abuse . . . has occurred and may again occur[.]” Under
the terms of the order Mykal was granted temporary custody of the children,
15 but Julina was given “supervised visitation by Petitioner, Mykal Ringstaff, in
Mr. Ringstaff’s home, at his discretion, and as he permits.” The terms of the
order were to remain in effect for one year.5
Kevin and Julina both appealed, and the the Court of Appeals addressed
their appeals in a consolidated opinion.6 Relying primarily on Collett v. Dailey,7
which we will discuss in more detail below, the Court of Appeals affirmed.8 The
court reasoned that substantial evidence supported the circuit court’s finding
that the children were at a risk of imminent danger from Kevin and Julina
based on “the specific circumstances of this case.”9 In particular, the court
took note of: the filthy and unsafe state of the marital home, the nomadic
existence the children were forced to live before they began staying at Kevin’s
home, the unsafe conditions they were forced to live in at Kevin’s home, the
children’s consistent statements that they were afraid of Kevin and were afraid
of living in that environment, Kevin’s anger management issues, and Julina’s
choice to continue seeing Kevin after a DVO was entered against him.10
5 Julina’s appeal is not moot even though her DVO is no longer in effect. See Caudill v. Caudill, 318 S.W.3d 112, 114 (Ky.App.2010) (holding that the expiration of a DVO did not moot the appeal due to the continuing consequences from having a DVO on the respondent’s criminal record). 6 Winland v. Ringstaff, 2021-CA-1153-ME, 2022 WL 2182918 (Ky. App. June
17, 2022). 7 371 S.W.3d 777 (Ky. App. 2011). 8 Ringstaff, 2022 WL 2182918, at *9. 9 Id. 10 Id.
16 The court held the foregoing evidence established that Kevin and Julina
had inflicted fear of imminent physical injury upon the children, and that the
risk of harm escalated when it was time for them to leave Mykal’s residence
and return to Kevin’s residence.11 The court accordingly held that, although
this case would have been better addressed as a dependency, neglect, and
abuse (DNA) action, the circuit court did not abuse its discretion by issuing the
DVOs in order to protect the children from being further subjected to the risk
of harm posed to them by being in Julina’s and Kevin’s care.12 Kevin and
Julina now appeal the Court of Appeals’ ruling to this Court.
Additional facts are discussed below as necessary.
II. ANALYSIS
Preliminarily, this Court is compelled to note its agreement with
statements made by both the circuit court and the Court of Appeals that this
situation could have been better addressed under a DNA petition.13 However,
the particular circumstances of this case made that option an impossibility:
Mykal sought the Cabinet’s intervention on behalf of these children, and it
declined.14 If the Cabinet is unable or unwilling to intervene on behalf of these
11 Id. 12 Id. 13 See KRS Chapter 620. 14 We acknowledge that KRS 620.070(1) states that “[a] dependency, neglect, or abuse action may be commenced by the filing of a petition by any interested person in the juvenile session of the District Court.” Thus, Mykal could have chosen to file a dependency, neglect, and abuse action in this matter instead of, or in addition to, the domestic violence petition.
17 children, that does not mean that they should be left to suffer under the
horrific conditions they have been subjected to with no legal remedy to escape
it. The General Assembly has provided by statute that the domestic violence
and abuse statutes “shall be interpreted to [a]llow victims to obtain effective,
short-term protection against further wrongful conduct in order that their lives
may be as secure and as uninterrupted as possible[.]”15 Additionally, this
Court has held that, although the construction of the domestic violence and
abuse statutes should not be unreasonable, the statutes “should be construed
liberally in favor of protecting victims from domestic violence and preventing
future acts of domestic violence[.]”16
Accordingly, the issue now before us is straightforward: whether there
was sufficient evidence against Kevin and Julina, respectively, for the circuit
court to issue domestic violence orders against them. For the reasons that
follow, we hold that there was.
A. Standard of Review
A trial court may issue a domestic violence order if it “finds by a
preponderance of the evidence that domestic violence and abuse has occurred
and may again occur[.]”17 The preponderance of the evidence standard is met
when the evidence establishes that the alleged victim was more likely than not
15 KRS 403.715(1). 16 Caudill, 318 S.W.3d at 115. 17 KRS 403.740(1).
18 a victim of domestic violence.18 A trial court’s finding of fact cannot be set
aside unless it is clearly erroneous,19 i.e., unsupported by substantial
evidence,20 and “due regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses.”21 An appellate court reviews a trial
court’s entry of a DVO by determining whether the court’s finding of domestic
violence was an abuse of discretion.22 “The test for abuse of discretion is
whether the trial judge's decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.”23
B. The circuit court did not abuse its discretion by entering domestic violence orders against Kevin and Julina.
“Domestic violence and abuse” is defined by statute as “[p]hysical injury,
serious physical injury, stalking, sexual abuse, strangulation, assault, or the
infliction of fear of imminent physical injury, serious physical injury, sexual
abuse, strangulation, or assault between family members24 or members of an
unmarried couple[.]”25 Under the facts of this case, the definition of domestic
violence and abuse that is at issue is whether Kevin and Julina inflicted “fear
of imminent physical injury.”
18 See, e.g., Caudill, 318 S.W.3d at 114. 19 Kentucky Rule of Civil Procedure (CR) 50.01. 20 Caudill, 318 S.W.3d at 114-15. 21 CR 50.01. 22 Johnston v. Johnston, 639 S.W.3d 428, 431 (Ky. App. 2021). 23 Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). 24“Family member” is defined broadly to encompass “any other person living in the same household as a child if the child is the alleged victim[.]” KRS 403.720(3). 25 KRS 403.720(2)(a).
19 Kevin and Julina argue before this Court that there was no evidence that
either of them inflicted fear of imminent physical injury, and that the trial
court’s finding that environmental neglect can constitute domestic violence was
an abuse of discretion. As part and parcel to their latter argument, they assert
that this Court should overrule Collett v. Dailey, the case primarily relied upon
by the Court of Appeals in its decision to affirm.
The petitioner in Collett, Oneeta Dailey, was the legal guardian of her
elderly mother, Hazel Collett.26 Oneeta filed a petition for a domestic violence
order against her brother, James Collett, on Hazel’s behalf.27 Oneeta’s petition
alleged that James “committed numerous acts of verbal abuse, harassment,
and interference with caregivers who were providing nutritional, medical, and
physical care to Hazel.”28 During the hearing that followed, the evidence was
that Hazel was eighty-three years old, had recently broken her hip, used a
walker, was at a high risk of falling, and needed assisted care.29 James
“prevented caregivers from attending to his mother; from giving Hazel her
medications and food; and, from providing physical support and assistance to
her.”30 He would also remove night lights and place throw rugs in areas where
Hazel needed to walk, which impeded her ability to safely walk in her home.31
26 Collett, 371 S.W.3d at 778. 27 Id. 28 Id. 29 Id. 30 Id. 31 Id.
20 The Court of Appeals upheld the trial court’s finding of domestic violence,
holding that “because of Hazel’s fragile condition, these actions by James met
the statutory definition of domestic violence.”32 The court reasoned that,
“James put [Hazel] (or, in this case, her guardian) in fear of imminent physical
injury and serious physical injury as contained in the definition of domestic
violence found in KRS 403.720[(2)(a)],” and that
[t]he trial court could certainly find that James's actions were not mere interference or harassment but were actions that could have left his mother without medically required care and that created dangerous conditions within the home. Oneeta and the representative of Adult Protective Services testified that they were afraid that James's actions would result in physical injury to Hazel since James engaged in a pattern of conduct that continuously placed his mother at risk.33
The evidence therefore supported the issuance of a protective order.34
Judge Taylor dissented, arguing that that James’ actions did not meet
the statutory definition of domestic violence and abuse.35 He further noted
that Oneeta could have instead sought a temporary or permanent injunction
against James under CR 65.01 for interference in the performance of her
statutory duties.36
To begin, this Court does not believe there is any reason to overrule
Collett. Even in the face of Judge Taylor’s dissent, this Court denied
32 Id. 33 Id. at 779 (emphasis added). 34 Id. (emphasis added). 35 Id. at 779-80. 36 Id. at 780.
21 discretionary review in that case, and although Collett was rendered over a
decade ago, the General Assembly has not altered the definition of domestic
violence in response to it.37 However we do acknowledge that Collett is clearly a
very different factual scenario from the case now before us, and the case itself
provides that it is based on its own particular facts and circumstances.38 But,
for the purposes of this case, we believe Collett stands for the proposition that
under the appropriate circumstances a respondent that intentionally subjects a
vulnerable individual—for example, someone who is elderly and infirm, a child,
or a dependent adult with intellectual disabilities—to dangerous environmental
conditions within the home can be found to have committed domestic violence.
With this in mind, we will now address the appellants’ argument that the trial
court erred by entering DVOs against them.
First, regarding Kevin, Mykal testified that he was greatly concerned for
the children’s safety around Kevin because he has severe anger management
issues, behaves erratically, and carries a firearm. Investigator Key testified
that the children appeared to be apprehensive to talk to him about Kevin, and
that the children told him they were afraid of Kevin because he loses his
temper and carries a gun. The children also told him that Kevin and Alex had
37See, e.g., Toyota Motor Mfg., Kentucky, Inc. v. Prichard, 532 S.W.3d 633, 636 (Ky. 2017) (“[T]he failure of the legislature to change a known judicial interpretation of a statute [is] extremely persuasive evidence of the true legislative intent. There is a strong implication that the legislature agrees with a prior court interpretation of its statute when it does not amend the statute interpreted.” (quoting Rye v. Weasel, 934 S.W.2d 257, 262 (Ky. 1996))). 38 Collett, 371 S.W.3d at 779 (“Based upon the particular facts and
circumstances of this case, the trial court's findings were not erroneous[.]”).
22 gotten into verbal altercations three separate times. Additionally, Investigator
Key stated that the children expressed environmental fear, and Alex told the
court that while staying on Kevin’s property, the children were required to sleep
in either a home that was “trashed” and covered in dog feces, or outside in a
car or tractor trailer container. Based on this evidence, we hold that the trial
court could have reasonably inferred that both Kevin’s conduct and the
environment they were forced to live in placed the children in fear imminent
physical injury.39 We therefore cannot hold that the trial court’s entry of a
DVO against Kevin was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.
Next, concerning Julina, we first highlight that as the children’s parent
she had an affirmative legal duty to protect and prevent harm to her children.
“At common law. . . parents, concomitant with their fundamental right to raise
their children and to have the benefit of the children's services, had a duty to
protect, maintain, and educate them.”40 These common law duties have been
codified in this Commonwealth in a number of civil and criminal statutes. For
example, in the criminal context, this Court has previously stated that under
our “Penal Code and other statutory provisions enacted for the protection of
39 See Hohman v. Dery, 371 S.W.3d 780, 783 (Ky. App. 2012) (holding that trial court did not err by entering DVO based on petitioner’s testimony that respondent was aggressive, behaved erratically, was unable to control his emotions, and that she feared his conduct would escalate). 40 Bartley v. Commonwealth, 400 S.W.3d 714, 728 (Ky. 2013). See also Cashen v. Riney, 40 S.W.2d 339, 341 (Ky. 1931) (“It is the legal, as well as the natural, duty of parents not only to educate, maintain, and support their infant children, but also to shield and protect them from evil and injury.”).
23 children, particularly the criminal abuse statutes, a parent's duty to protect his
or her child from harm . . . includes the duty to protect the child from abuse by
the parent's spouse or domestic companion.”41 Parents can accordingly be
subject to criminal penalties for failing to protect their children from harm
inflicted by a non-parent.42 In addition, KRS 620.010 from our dependency,
neglect, and abuse statutes “creates an affirmative duty for the parent of a
child to prevent such physical injury which would result in an assault on that
child.”43
Relevant to this case, the natural and legal parental duty to protect has
also been extended into the realm of DVO cases. In Dunn v. Thacker, a father
filed a petition for a DVO against his child’s mother on the child’s behalf.44 The
father alleged that the mother’s live-in boyfriend had exhibited abusive
behavior towards the child of which the mother had knowledge.45 The father
presented text messages from the mother discussing the boyfriend’s abusive
behavior as evidence of her knowledge that the abuse was occurring.46 The
trial court issued a DVO against the mother, finding that “[mother] knew or
41 Staples v. Commonwealth, 454 S.W.3d 803, 813 (Ky. 2014). 42 Tharp v. Commonwealth, 40 S.W.3d 356 (Ky. 2000) (upholding mother’s conviction for complicity to wanton murder based on the violation of her legal duty to protect her child from physical assaults by the child’s stepfather); Lane v. Commonwealth, 956 S.W.2d 874 (Ky. 1997) (upholding mother’s conviction for complicity to first-degree assault based on her failure to protect her child from physical injuries inflicted by her domestic companion). 43 Lane, 956 S.W.2d at 875. 44 546 S.W.3d 576, 577 (Ky. App. 2018). 45 Id. 46 Id.
24 should have known or allowed or permitted [boyfriend] to be a threat of
physical injury to [child] as evidenced by the texts she sent to [father].”47
On appeal, the mother argued that the DVO could not stand because it
improperly named her as the respondent instead of her boyfriend and that
there was a lack of substantial evidence against her.48 The Court of Appeals
disagreed and upheld the DVO.49 The court reasoned that “[mother’s] very
inaction in the face of harm inflicted on her child—or upon any child under her
care—is tantamount to abuse.”50 In reaching its holding, the court discussed
both Lane, supra, which established that a parent may be held criminally liable
for failing to protect a child against the criminal acts of another, as well as the
statutory duties imposed under KRS Chapter 620.51 On those bases, the court
held:
In the case before us, we are persuaded that the DVO was properly entered as to [mother]—even though she may not have been the individual directly responsible for the abuse. She was aware of the abuse, and under the statutory law and case law that we have reviewed, we believe that this is a wholly appropriate case in which to expand the scope of the protection of our domestic violence statutes. The trial court exercised sound discretion in its entry of a DVO against [mother].52
47 Id. 48 Id. at 578. 49 Id. 50 Id. 51 Id. at 578-80. 52 Id. at 580.
25 In the case now before us, despite Kevin’s verbal abuse of Alex and his
anger issues that clearly made her children fearful of him, Julina continued to
allow Kevin to be around her children, and even sanctioned Kevin’s behavior by
telling Alex that he “must obey” Kevin. In addition, she continued to see Kevin
after the circuit court entered a DVO against him.
Furthermore, over a period of several years she intentionally engaged in a
pattern of conduct that continually placed her children at risk. Beginning with
the marital home, she allowed her children to live in an environment that had
piles of trash and debris in every room, was infested with roaches and fleas,
had several piles of dog feces in at least one of the children’s bedrooms, and
had at least two large holes in the ceiling. There is no doubt that the marital
home was unsanitary enough to cause Mykal to fear that the children were in
danger of imminent physical harm.
Then, when Mykal’s ex-wife threatened to report Julina to the Cabinet,
she began constantly moving the children and forcing them to live homeless
presumably to prevent anyone from intervening to help the children. Alex
testified this was because Julina knew she was neglecting them and feared
they would be taken away from her. In addition, she was not ensuring that
their medical needs were met. Regardless of Julina’s stance on vaccinations,
children need regular medical and dental checkups to ensure they are healthy
and developing normally. Yet according to Alex, she allowed the children to go
26 five to six years without proper medical care. This too subjected them to a risk
of physical harm.
Finally, in addition to subjecting the children to Kevin’s angry outbursts
and erratic behavior, she allowed them to stay on his property. The testimony
was consistent that Kevin’s home was just as deplorable as the martial home:
trash and dog feces in every room and smelled so horrible that it was difficult
to breathe in. And if the children understandably did not want to sleep in
Kevin’s home, they were forced to either sleep in a car or in a tractor trailer
container with an extension cord running to it for electricity.
Therefore, this Court identifies at least two bases upon which the circuit
court could have properly based its entry of a DVO against Julina. The first is
her failure to protect her children against Kevin’s mistreatment despite her
knowledge that it was occurring. The second is her own actions in
intentionally subjecting her children to dangerous and unacceptable living
conditions. We accordingly hold that the trial court’s entry of a DVO against
her was not arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.
C. The Appellants’ arguments that Mykal lacked standing to seek custody of the children and that the visitation ordered by the circuit court was unreasonable are not properly before this Court.
Julina’s and Kevin’s final arguments are that the circuit court erred by
awarding Mykal custody of the children because Mykal failed to prove he had
standing to pursue custody, and that Julina’s supervised visitation ordered by
the court was not reasonable. However, neither of these arguments were
27 asserted before the trial court or the Court of Appeals, and they were not
argued in the parties’ joint motion for discretionary review submitted to this
Court. Unlike a trial court’s subject matter jurisdiction, “[t]he issue of standing
is a defense that may be waived” if it is not timely pled.53 Here, because
neither Julina nor Kevin asserted before the trial court that Mykal did not have
standing to pursue custody, the issue is waived and we will not address it.
Moreover, “a party may not raise an issue for the first time on appeal”54 and
“issues not raised in the Motion for Discretionary Review will not be addressed
by this Court despite being briefed before us and addressed at oral
argument.”55 We consequently also decline to address the reasonableness of
the supervised visitation ordered by the court under Julina’s DVO.
III. CONCLUSION
Based on the foregoing, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Danny Lee Lunsford, Jr. Howard Law Firm
COUNSEL FOR APPELLEE:
Otis Doan, Jr. Doan Law Office
53 Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010). 54See, e.g., Taylor v. Kentucky Unemployment Ins. Com'n, 382 S.W.3d 826, 835 (Ky. 2012) 55 Wells v. Commonwealth, 206 S.W.3d 332, 335 (Ky. 2006).