FROM MCCRACKEN FAMILY COURT HONORABLE DEANNA WISE HENSCHEL,
JUDGE ACTION NO. 14-CI-01048
FOR APPELLANT: Ashley W. White Paducah, Kentucky.
BRIEF: Grace E. Stewart Paducah, Kentucky.
BEFORE: ACREE, COMBS AND D. LAMBERT, JUDGES.
determine whether the McCracken Family Court abused its
discretion when it denied Appellant Randy Williams'
motion to modify visitation. We find no abuse, and affirm.
and Mellany married in 1999. Two children were born of the
marriage, daughters A.W. and H.W. Both are still minors.
2011, Mellany contacted the Cabinet for Health and Family
Services and alleged that Randy had sexually abused A.W. The
Cabinet was unable to substantiate the claim. Not long after,
Mellany reported a second similar incident to the Cabinet
that was substantiated. Randy was charged with three counts
of first-degree sexual abuse, victim under 12 years of age.
Commonwealth v. Randy Williams, 12-CR-00070
(McCracken Cir. Ct., February 24, 2012). Around this same
time, both A.W. and H.W. began receiving counseling and
therapy services from the Purchase Area Sexual Assault Center
of his defense in the criminal prosecution, Randy sought to
access the children's therapy records. PASAC moved to
quash the discovery pursuant to KRE 507's psychotherapy-patient
privilege. The court in the criminal
matter applied the standards and procedure set out in
Commonwealth v. Barroso, 122 S.W.3d 554 (Ky. 2003),
and reviewed the therapy records in camera before
producing very limited, possibly exculpatory, portions to
Randy under seal.
subsequently pleaded guilty to one count of first-degree
wanton endangerment, and the sexual-abuse charges were
amended and dismissed. He admitted as part of his plea that
he "subjected a child A.W. to physical contact of an
inappropriate nature which subjected A.W. to a substantial
danger of physical injury." He was sentenced to three
years' imprisonment, but was released shortly thereafter
for time served.
Randy was addressing his criminal charges, Mellany pursued
divorce. She filed a dissolution petition, Randy was properly
served, and the divorce proceeded. The family court held a
final hearing and awarded Mellany sole custody of the
children. It awarded Randy no visitation. In formulating its
no-visitation decision, the court stated:
The Respondent (hereinafter Father) has been found guilty of
sexual abuse of the minor children and served 3 years for
said offense. The children have been receiving counseling
through PASAC for the past several years. The counselor for
one of the children was present in Court, the counselor for
the other child provided a letter to the Court stating that
Father should have no contact with the children.
Due to the history of sexual abuse, the substantiated
allegations of sexual abuse with the Cabinet, and the
recommendation of the counselors from PASAC, the Court finds
that it is in the best interest of the minor children for
Petitioner (hereinafter Mother) shall [sic] receive sole
custody of the two children. Therefore, she shall have sole
decision making regarding their health, welfare and religious
upbringing. Father shall have NO visitation with the minor
children at this time and until further orders of this court.
(R. 31-32). Randy did not appeal this final order.
in October 2015, he filed a motion to modify
visitation. He said it was in his
daughters' best interests to have contact with him,
noting he had not seen or spoken to them in over three years.
He also notified the court that he intended to seek access to
the children's PASAC therapy records as evidence in the
visitation hearing. The family court ordered Randy's
counsel to submit a memorandum to the court outlining the
basis upon which the family court could order PASAC to
release those records. Randy's counsel complied and, on
February 17, 2016, the family court entered an order
directing PASAC to release the children's mental health
records to the court, the parties, and counsel.
moved the court to reconsider its decision. It argued the
records are protected by KRE 507's
psychotherapist-patient privilege, asserting that it is an
absolute privilege subject to the two-prong test established
by the Kentucky Supreme Court in Barroso,
supra. Randy opposed the motion.
hearing in March 2016, the parties asked the family court to
delay ruling on PASAC's reconsideration motion because
they anticipated resolving the issue by agreement. Soon
thereafter, the parties submitted to the court an agreed
order that included the following provisions:
PASAC's records involving the two (2) minor children
shall be released to the Court by May 5, 2016. The Court
shall review the records in camera and shall
determine what information in the records is relevant to the
[visitation] . . . decision before the Court. By May 25,
2016, the Court shall release to counsel only portions of the
records that it determines are relevant. The records shall
only be viewed by counsel (not the parties), . . . . Both
parties will then have until June 8, 2016, to submit
questions to the Court for it to use in interviewing the
children. . . . The Court will interview the two (2) children
separately . . . . Neither counsel nor the parties shall be
present for the interview (except that [Mellany] may wait
outside for the children while the interview is being
conducted). The Court exercises full discretion in what
questions are asked during the interviews and how the
interviews are conducted.
(R. 98-99). The family court adopted and entered the order on
April 25, 2016.
the agreed order and somewhat inexplicably, the court
conducted a hearing just two days later at which PASAC's
reconsideration motion was heard and the issue of the agreed
order discussed. The family court
took the matter under advisement and, on June 3, 2016, issued
an order declaring Commonwealth v. Barroso to be
to Barroso, the family court concluded it:
"must first receive evidence to determine if the records
should be reviewed in camera, then review the
records in camera and then disclose only those
records favorable [to] the requiring [requesting] party that
cannot be elicited from another source." Having
considered the parties' briefs, the family court found
in camera review would likely assist it in making a
determination as to Randy's request to resume visitation
with the children. It ordered PASAC to release the records to
the family court only.
29, 2016, after conducting its in camera review, the
court informed the parties that it had "reviewed the
entire PASAC records and does not feel as though there is
information in the records that is relevant to the
[visitation]. . . decision and therefore will not be
releasing any records to counsel." (R. 120).
family court then interviewed the children individually, in
chambers, on July 6, 2016. At that time, H.W. was a month
short of her twelfth birthday and A.W. was sixteen and a half
years old. Randy was not present at the courthouse; Mellany
was present, but waited outside the family judge's
chambers. Grace Stewart, a therapist and attorney for PASAC,
attended each interview. She did not question the children or
involve herself in the process.
told the judge, "I have decided I do not want any
contact whatsoever [with Randy]. No phone calls, no
visitation, no public visitation . . . . I just don't
want anything to do with him." She said she had never
felt safe around Randy, clarifying that she missed having a
father figure, but did not miss Randy.
offered similar sentiments. She stated "I really
don't want to see him. I don't want to have him in my
life whatsoever. I don't want to talk to him. I don't
want to see him. But if I had to I wouldn't really mind,
but I just, I really don't [want to]." H.W. denied
being coached and stated she feared Randy. The judge informed
both children she would not force them to visit with Randy.
conclusion of the interviews, the judge asked if Mellany was
in the courthouse and stated, "I'll go tell her what
we are going to do, too." The judge's conversation
with Mellany is not contained in the record.
18, 2016, following the children's interviews, the family
court entered an order denying Randy's request for
visitation. It stated:
The Court finds both girls to be very articulate and
passionate young women. They are smart and have a pleasant
demeanor. Both girls appear to be level headed and were
thoughtful in their responses and statements to the Court.
The Court does not find it to be in the children's best
interest for them to be forced into communicating or seeing
their father. The Court notes that the girls have received
extensive counseling and may come to a point in their lives
when they are ready to reconnect with their father, however
neither child is at that place at ...