RENDERED: NOVEMBER 1, 2018 TO BE PUBLISHED
2018-SC-000011-DGE
SALLY A. MAY APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-001476-ME JESSAMINE CIRCUIT COURT NO. 05-CI-00972
DONNIE J. HARRISON APPELLEE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM
AFFIRMING
Appellant, Sally A. May (“Ms. May”), and Appellee, Donnie J. Harrison
(“Mr. Harrison”), never married but had two sons, now 15-year-old Elliot and
now 13-year-old Zane.1 The boys resided with both parents until August 2005.
Thereafter, Elliot and Zane resided with Ms. May in Plain City, Ohio. During
this time, Ms. May married Joseph Yruegas and gave birth to two daughters.
Sometime thereafter, Ohio Child Protective Services removed Ms. May and all of
the children from the home due to Yruegas’ drug addiction. Ms. May divorced
Yruegas and was awarded full custody of their daughters. In 2010, Mr.
1 Pseudonyms are being used to protect the anonymity of all the child victims. Harrison gained physical custody of the boys and brought them to
Nicholasville, Kentucky.
When Ms. May subsequently pursued timesharing with Elliot and Zane,
Mr. Harrison moved to suspend her visitation/timesharing rights based upon
allegations from the two boys that Yruegas had sexually abused them. Elliot
and Zane also alleged that Ms. May was involved in the sexual abuse. The
Ohio police investigated but perceived no grounds for charges against Ms. May.
Being unable to resolve the evidentiary conflict which included Ms. May’s
denial of any sexual abuse of her boys, the trial court decided to conduct an in
camera interview in chambers with then-13-year-old Elliot. The interview
lasted over forty minutes during which Ms. May and her counsel were able to
view the exchange through closed circuit video. The trial court subsequently
ordered “that there be no contact between [Ms. May] and the two boys until
either of their qualified mental health professionals believe it would be
appropriate . . . .” In affirming the trial court, the Court of Appeals held that
although the judge’s questioning exceeded the bounds of KRS 403.290(1), the
error was harmless. We granted discretionary review.
Analysis
KRS 403.290(1) authorizes trial judges to conduct an in camera interview
with children for purposes of custody and visitation determinations. It
specifically provides as follows:
The court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be part of the record in the case.
When determining custodial issues, courts must consider the best interest of
the child. KRS 403.270. We review custody, visitation, and timesharing
determinations for an abuse of discretion. Pennington v. Marcum, 266 S.W.3d.
759 (Ky. 2008).
In the present case, the court appropriately sought to ascertain Elliot’s
wishes concerning visitation. The court also engaged in an extensive fact
finding mission as to the sexual abuse allegations. After asking Elliot why he
thought they were talking, he responded that he was there to assure the judge
that he would never have to visit his mother again. He was then asked
whether Ms. May engaged in sexual activity with him. Elliot reported that she
raped him in their basement in Plain City when he was around five or six years
old. He specifically stated that “she made me stick my penis into her area.”
The judge clarified that “area” meant “female parts.” Elliot also discussed other
instances where he and his brother Zane were sexually abused by Joseph
Yruegas while Ms. May watched.
Ms. May argues that the court’s in camera questioning exceeded the
bounds of KRS 403.290(1), which she claims is limited to discerning a child’s
wishes as to custody or visitation. We disagree.
There is no heavier responsibility for a trial judge than the interest of
children. Child custody decisions are a huge part of this awesome burden.
KRS 403.270 gives the judge direction to make these critical determinations for
the best interest of the child. That statute enumerates several broad and 3 encompassing factors to be considered in that decision making. KRS
403.270(2). This gives the judge wide fact-finding responsibility. Inherent with
that statutory mandate is the authorization to seek out testimony from the
child involved, as need be.
It is counterintuitive to think that a judge can interview a child for the
much less important question of where the child wants to live and not be able
to ask the child about serious allegations of sexual abuse. An obvious corollary
to a child’s wishes concerning visitation or custody is why the child harbors
such wishes. Moreover, the Court of Appeals correctly noted that our rules of
evidence place the court in control of evidence and permit the court to
interrogate witnesses. KRE 611, 614. These rules cannot be superseded by
statute. Therefore, it is appropriate for the court to make detailed inquires
especially when allegations of sexual abuse are at issue.
Ms. May also alleges that her right to due process and her right to cross-
examine Elliot were violated here. However, she concedes that the judge
returned to the courtroom during the in camera interview and permitted her
counsel to submit questions for Elliot on two separate occasions. Therefore,
Ms. May was permitted an opportunity to question the witness. See also,
Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 344-45 (Ky.
2006) (holding that confrontation clause does not apply in civil cases).
Considering the unique context of domestic relation cases and the in camera
testimony of minors, Ms. May received the process that is due. Due to the seriousness of the allegations and the persuasiveness of
Elliot’s testimony, we cannot say the trial court abused its discretion by
suspending Ms. May’s visitation rights.
Conclusion
We hereby affirm the Court of Appeals’ decision.
All sitting. Minton, C.J.; Hughes, VanMeter, and Wright, JJ., concur.
Keller, J., concurs in result only by separate opinion in which Venters, J.,
joins.
KELLER, J., CONCURRING IN RESULT ONLY: I must respectfully
concur in result only with the majority opinion. Although I agree with the
majority’s holding as to the in camera interview of Elliott2, I believe further
development of the facts and issues is warranted.
Sally May, f/k/a Sally Yruegas, (“Sally”) initiated this case in 2005 in
Jessamine County Family Court, seeking child support for her two minor
children, Elliott (b. 2003) and Zane (b. 2004).3 Donnie J. Harrison (“Donnie”)
admitted paternity in 2006 to both boys. An order of support was entered in
August 2006. For several years, Elliott and Zane lived with Sally and the only
issues before the court involved support payment. However, in August 2010,
Donnie filed a motion to stop child support, stating that the children were now
2 In accordance with this Court’s practice, and to protect the minor children’s anonymity, I shall refer to the minor children by pseudonyms. For clarity, I shall utilize any pseudonyms referenced in the majority opinion. 3 See footnote 1. living with him. The exact timeline is unknown, but somewhere from 2006-
2010, Sally married Joseph Yruegas and had two more children, Maizie (b.
2008) and Penelope (b. 2009).4 In June 2011, the court’s docket sheet noted
that mother was to have timesharing with the boys one weekend each month,
along with a few other specific periods and holidays.
On June 1, 2016, Sally’s attorney filed a motion to hold Donnie in
contempt for interfering with Sally’s timesharing with the boys. On July 27,
2016, Donnie filed a renewed motion to suspend visitation, or in the
alternative, to modify visitation. As grounds, Donnie stated that there was a
criminal investigation concerning incest and sexual abuse perpetrated on the
children by Sally and Yruegas. Both these motions were brought to the court
in a hearing held on August 1, 2016 that continued, and concluded, on August
24, 2016.
At the hearing, more of the timeline was developed. Sally testified that
she was living in Ohio with Yruegas, Elliott, Zane, Maizie, and Penelope.
Sometime in 2010, Elliott and Zane moved to Kentucky with Donnie,
presumably upon Donnie’s motion. Ohio family services became involved in
Sally and Yruegas’s home due to Yruegas’s drug addiction, according to Sally.
Ohio removed Maizie and Penelope from the home in July 2013. Sally
separated from Yruegas in August 2013 and their divorce became final in
March 2014.
See footnote 1.
6 Sally testified that, in July 2013, Elliott and Zane alleged that Yruegas
and Sally had sexually abused both of them. At the hearing, she denied ever
being involved in any abuse and stated she had no firsthand knowledge of any
abuse by Yruegas. Sharon Cecil, a social worker with the Cabinet for Health
and Family Services (“CHFS”) in Kentucky, testified that they had
substantiated sexual abuse by mom in 2013. Sally was living out of state at
the time so they referred the case to Ohio for one of their corollary CHFS
workers to speak to Sally. Kentucky CHFS recommendations included no
contact with Sally. The case was also reported to law enforcement in Ohio.5
However, it is undisputed by all parties that Sally continued to have visitation
with the children as ordered and the no contact recommendation was never
brought before the court or utilized by Donnie to stop Sally from seeing Elliott
or Zane.
Bethany Outland, a social services clinician, also testified. Elliott had
disclosed the sexual abuse to her in 2013; she referred the case to Ohio and
arranged an interview for both Elliott and Zane with the Children’s Advocacy
Center (“CAC”). Elliott was also referred for medical evaluation because he
reported penetration as part of the abuse; Outland also testified to Donnie’s
difficulty with the children because they had been perpetrating against each
5 It is unclear from the record why there was no subsequent prosecution against Sally or if there ever was a prosecution against Yruegas. The attorneys referenced some discussions with Ohio law enforcement, stating that Sally had claimed duress and was forced to abuse the boys by Yruegas. The GAL concurred in these statements but there was no substantive proof offered as to these allegations. Thus, there was no actual evidence in the record as to what happened to these potential prosecutions.
7 other and acting out. Kristen Jenkins conducted the forensic interviews of
both Elliott and Zane at the CAC. She testified that she was not concerned
about coaching or any “alternative hypothesis” for the disclosures made by the
boys.
At issue for the attorneys was whether the family court judge could
review the CAC interview videos as evidence for the motion to suspend
timesharing. If he ruled the videos were inadmissible, then the guardian ad
litem (“GAL”) for Elliott and Zane stated that Elliott wished to testify. The court
ruled the videos were inadmissible and told the attorneys he would speak to
Elliott in camera and would take a break to ask if the attorneys had any
questions for Elliott. At the time of the hearing, Elliott was 13 years old.
Importantly, none of the attorneys objected to Elliott being interviewed in
camera by the judge.
The judge’s interview of Elliott was broadcast to the parties in the
courtroom while it occurred in camera. The judge did not place Elliott under
oath but did spend some time explaining the difference between truth and lies
and how important it was to tell the truth. The judge also indicated it was
acceptable for Elliott to explain if he could not remember the answer to a
question. Elliott gave a lengthy testimony about his experiences, describing
acts of sexual abuse by both Sally and Yruegas and being forced to engage in
abuse along with his brother. Elliott unequivocally stated that he did not want
to talk to or see his mom at all. When prompted why, Elliott explained the
abuse to both him and Zane. The details of this abuse are not germane to this
8 appeal but suffice to say that, although some details were inconsistent, Elliott’s
explanation of abuse was detailed and thorough. Elliott explained that he
disclosed the abuse to Donnie after he and Zane moved to Kentucky. Zane did
not appear or speak to the court as he was currently housed in a residential
facility for treatment. 6
After Elliott’s in camera interview, attorneys made arguments to the court
on both the contempt and timesharing suspension issues. The judge ordered
timesharing suspended, not permanently, but until such time as Elliott’s and
Zane’s individual counselors deemed it advisable for therapeutic contact with
Sally to begin. The judge also determined Donnie had committed contempt by
interfering with Sally’s visitation and would determine appropriate costs and
sanction after Sally’s attorney submitted an affidavit as to fees. The judge
stated he would draft a final order and circulate it to the parties. I must point
out that Donnie had failed to ever bring the sexual abuse allegations to the
court’s attention until Sally made the motion for contempt and sanction. Elliott
and Zane had continued to see Sally for over three years after the CAC
interviews in which they alleged abuse. It is also unclear from the record
before this Court why CHFS never filed a petition for dependency, neglect, or
abuse against Donnie, who was within Kentucky CHFS jurisdiction, for
6 From the testimony at the hearing and earlier affidavits from the parties in the record, it seems that Zane had begun exhibiting serious signs of trauma and acting out against his sibling and family. According to counsel, he was involved in a criminal case with the Department of Juvenile Justice (“DJJ”) and had been ordered to undergo a competency evaluation. After the evaluation, he was referred to a facility for long term treatment. allowing the contact with Sally to continue, despite the no contact
recommendation.
The in camera interview here was not an abuse of discretion, as the
majority so holds. Kentucky Revised Statute (KRS) 403.290(1) specifically
provides that “[t]he court may interview the child in chambers to ascertain the
child’s wishes as to his custodian and as to visitation.” Sally now claims
several errors in the in camera interview, despite raising no objection before,
during, or after the interview itself. She claims that the interview exceeded the
permissible statutory scope; the interview violated Sally’s due process rights to
cross-examine the witness and challenge the testimony; and the judge
impermissibly utilized the interview to elicit unsworn testimony and gather
evidence.
The statute allowing in camera interviews is highly discretionary and our
precedent evinces the great latitude we provide to trial court judges in utilizing
the statute. “The General Assembly wisely left the decision to interview a child
in chambers to the sound discretion of the trial court.” Addison v. Addison,
463 S.W.3d 755, 764 (Ky. 2015). “The elementary principles of
humanitarianism are so strongly against the placing of a child between its
parents that we feel a trial court should have a wide latitude in protecting the
child.” Id. (quoting Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971)). As in
many matters, a family court judge is vested with great discretion in
conducting these kinds of proceedings. See Seeger v. Lanham, 542 S.W.3d
286, 297 (Ky. 2018) (quoting Commonwealth ex rel. Marshall v. Marshall, 15
10 S.W.3d 396, 400 (Ky. App. 2000)) (“There are few matters over which the trial
court has more discretion than cases involving domestic relations issues.”). We
continue to respect that discretion and trust the family courts to conduct these
proceedings in a careful and cautious approach.
The crux of Sally’s argument is that the scope of the in camera interview
is statutorily limited to “ascertain the child’s wishes as to his custodian and as
to visitation.” KRS 403.290(1). However, Sally’s interpretation, limiting the
questioning to this desire alone rather than substantiated reasoning for any
such desire, defeats the purpose of the statute. How can a judge make a
meaningful decision as to custody and visitation if he or she is denied the
opportunity to explore the reasons for the child’s wishes? Here, Elliott clearly
wanted to discontinue any contact with Sally. It was incumbent upon the
judge to understand why he felt that way in order to determine, per the
directives of KRS 403.320(3), whether Elliott’s health or welfare was
endangered by continued visitation with Sally.7 Our courts have clearly stated
that “a presumption for visitation exists for a parent unless a family court
determines that visitation would seriously endanger the child.” Baldwin v.
Mollette, 527 S.W.3d 830, 834 (Ky. App. 2017). The burden of overcoming that
presumption is on the party wishing to deny visitation. Id. (citing Smith v.
Smith, 869 S.W.2d 55, 56 (Ky. App. 1994)). The GAL here, in representing
7 “The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the 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.” KRS 403.320(3).
11 Elliott’s interests, opposed visitation with Sally. Elliott expressed those wishes
to the judge through the in camera interview. If the judge was restricted in
exploring that desire and any permissible reasoning for that desire, then that
party would be essentially estopped from presenting the very proof case law
requires. Such a decision would eviscerate the meaning of imbuing these
courts with discretion to make such important decisions and the permission
granted by the General Assembly to conduct such in camera interviews.
Sally emphasizes an unreported case from the Court of Appeals, Karnes
V. Head, No. 2011-CA-002054-ME, 2012 WL 5042710 (Ky. App. Oct. 19, 2012).
In that case, the family court referenced an in camera interview of the child and
determined that bruises on the child were caused by the mother’s paramour.
Id. at *2. The Court of Appeals specifically stated, however, that “[t]he best
interest of the child may be different in each case; therefore, that determination
is left within the sound discretion of the family court.” Id. (citing Pennington v.
Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008)). The child here stated in the
interview that the paramour had punched him several times and those
statements “supported the trial court’s decision.” Id. Given this support,
“there was no clear error or abuse of discretion.” Id. Judge Caperton dissented
and stated that the child’s testimony “should have been excluded on all issues
other than [the child’s] desires and wishes as to custody and visitation.” Id. at
*7. Judge Caperton stated that “while it may be in the discretion of the court
to control the mode of cross-examination, there must be procedures available
to the parties whereby they can review the evidence considered by the court
12 and present rebuttal evidence which will assure that the demands of due
process are met.” Id.
The Court of Appeals determined, as we determine in this case, that the
in camera interview appropriately delved into the underlying issues of abuse. If
the court cannot determine the validity of these underlying allegations from the
child’s testimony, then the court would be obstructed from making a
meaningful determination as to custody or visitation. It is imperative that the
court be permitted, within its discretion, to determine whether the child’s
wishes are sound, based upon fact, and persuasive as to its decision on
custody or visitation. But, as the dissent noted, I believe there can be due
process concerns. However, those concerns are not present here.
Sally’s arguments that she had no opportunity to cross-examine or rebut
testimony are illusory. It is true that if the trial court conducts an in camera
interview, “a record of such interview must be made so that the parties are
afforded the subsequent opportunity to determine and contradict the accuracy
of statements and facts given during the interview.” Couch v. Couch, 146
S.W.3d 923, 925-26 (Ky.2004). However, Sally was given an opportunity to
present questions for Elliott to the judge. She also raised no objection to such
a manner of cross-examination. A “party [does have a] due process right to
confront the evidence against him or her.” Morgan v. Getter, 441 S.W.3d 94,
111 (Ky. 2014). However, unlike in Couch, Sally and her attorney were
watching the entire interview with Elliott as it occurred. The judge paused on
two occasions to ask if the parties had any questions for him to ask Elliott
13 during the interview. Sally did not object to this manner of cross-examination
at the time of the hearing. It was only after the court’s decision, adverse to her
wishes, that she raised the issue in her appeal.
Additionally, the judge gave all parties an opportunity to present further
witnesses after Elliott’s interview and all parties declined. Sally had a
meaningful opportunity to respond to Elliott’s interview; simply because she
chose not to utilize that opportunity does not mean her due process rights were
violated. The manner in which the judge conducted this interview seems to be
perfectly in accord with the intent of the legislature in crafting the statute. The
General Assembly specifically stated that “[t]he court may permit counsel to be
present at the interview.” KRS 403.290(1) (emphasis added). The court did not
permit counsel to be present in the confines of the room for the interview, as
seems to be permitted by the statute, yet still protected the due process rights
of the parties to submit questions for the child. As stated in Couch, due
process requires that “[t]he parties are entitled to know what evidence is used
or relied upon by the trial court, and have the right generally to present
rebutting evidence or to cross-examine, unless such right is waived.” Couch,
146 S.W.3d at 925. Sally knew the evidence against her; she was given an
opportunity to question and rebut that evidence. Her due process rights
remained unviolated.
For the foregoing reasons, I concur in the result of the majority opinion.
14 I believe the proper result was reached and affirming both the trial court and
Court of Appeals is appropriate.
Venters, J., joins.
COUNSEL FOR APPELLANT:
Michael Robey COOLEY IULIANO ROBEY, PLLC
APPELLEE:
Donnie J. Harrison