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Williams v. Williams

Court of Appeals of Kentucky

July 28, 2017



          BRIEF FOR APPELLANT: Ashley W. White Paducah, Kentucky.

          AMICUS BRIEF: Grace E. Stewart Paducah, Kentucky.



          ACREE, JUDGE.

         We must 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.


         Randy and Mellany married in 1999. Two children were born of the marriage, daughters A.W. and H.W. Both are still minors.

         In late 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 (PASAC).[1]

         As part 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[2] 507's psychotherapy-patient privilege.[3] 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.

         Randy 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.

         While 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.

         Instead, in October 2015, he filed a motion to modify visitation.[4] 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.

         PASAC 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.

         At a 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.

         Notwithstanding 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.[5] The family court took the matter under advisement and, on June 3, 2016, issued an order declaring Commonwealth v. Barroso to be controlling.

         Pursuant 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.

         On June 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).

         The 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.[6] She did not question the children or involve herself in the process.

         A.W. 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.

         H.W. 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.

         At the 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.

         On July 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 ...

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