FROM MONTGOMERY CIRCUIT COURT HONORABLE BETH LEWIS MAZE,
JUDGE ACTION NO. 12-CI-00170
FOR APPELLANT: John M. Hendricks Winchester, Kentucky
FOR APPELLEE: No brief filed
BEFORE: DIXON, NICKELL AND THOMPSON, JUDGES.
and Darlene Morton, the maternal grandparents of C.T. and
K.T., appeal from the Montgomery Circuit Court's findings
of fact, conclusions of law and decree awarding grandparent
visitation to Bruce Tipton, the children's paternal
grandparent. The issues on appeal are whether the trial court
properly applied the preponderance of the evidence standard
when deciding to grant Bruce visitation and, if so, whether
it abused its discretion. We conclude that the preponderance
of the evidence standard is proper when grandparent
visitation is sought with a child in the custody of a
nonparent and the trial court did not abuse its discretion.
was born in 2007 and K.T. was born in 2009. The Mortons were
awarded permanent custody of the children on March 7, 2011,
in a neglect proceeding initiated by the Cabinet for Health
and Family Services against the children's biological
parents, Brian Tipton and Roxanna (then Combs) Swartz. Bruce
was granted supervised visitation at the Mortons's
discretion. After the Mortons moved to Montgomery County, the
Powell Circuit Family Court transferred the juvenile actions
to the Montgomery District Court. Bruce visited with children
one hour per week at a McDonald's in Montgomery County, a
park or at the Mortons's home.
point, Bruce asked the Mortons for increased visitation.
Animosity had grown between Bruce and the Mortons and the
request was denied. On October 23, 2012, Tipton filed a
grandparent visitation petition in the Montgomery Circuit
the initial pleadings, Bruce sought a temporary specific
timesharing schedule. The Mortons objected noting an incident
where Bruce showed the children a slaughtered hog carcass in
the back of his truck, which they alleged caused the children
trauma and to fear Bruce. The trial court ordered a home
evaluation be performed on Bruce's home and that Bruce
continue to have visitation every other Thursday for one hour
at a McDonald's in Stanton, Kentucky, supervised by
14, 2013, the trial court received the home evaluation
conducted by the Cabinet on Bruce's home. The evaluation
revealed that the children's father, Brian, who had an
extensive criminal history, resided in the home. In addition
to its concern about Brian's presence in the home, the
Cabinet listed additional concerns about exposed wiring in
the home and that its registry contained three incidences of
substantiated physical abuse against Bruce, one in 1990 and
two in 1995, against children belonging to his then
girlfriend. The evaluation also disclosed that Bruce takes
multiple medications for health conditions including
hydrocodone, lorazepam, and hydroxyzine. The Cabinet reported
that Bruce appears to love C.T. and K.T. and had ongoing
contact with them.
guardian ad litem (GAL) filed a report stating that she met
with Bruce, Brian and Darlene Morton and observed Bruce with
the children during a scheduled visitation. The GAL stated
that she received a phone call from Darlene, who told her
that the children did not want to visit with Bruce. The GAL
stated that the visitation she observed was not productive
and dysfunctional and that the children attempted to avoid
contact with Bruce. Although the GAL believed Bruce wanted a
relationship with the children, he is unable to communicate
with them in a manner that is nonthreatening and age
appropriate. However, the GAL also believed that the
uneasiness the children have with Bruce is due, in part, to
the tension between Bruce and Darlene. The GAL recommended
that Bruce not have unsupervised visitation and that the
children undergo counseling.
November 2014, C.T. disclosed to her therapist, Amy Smith,
that when she was approximately four years old, Bruce touched
her vaginal area inappropriately while wiping her after she
used the bathroom. Based on this disclosure, Darlene filed
for and received an emergency protective order (EPO).
trial court ordered that the children undergo a trauma
assessment with the University of Kentucky Child and
Adolescent Trauma Treatment and Training Institute (CATTI).
The report, submitted to the trial court on December 22,
2014, noted that K.T. experiences high levels of fear and
anxiety connected to domestic violence between her parents
and her parents' drug use. The evaluator concluded that
C.T. has clinically elevated trauma-related symptoms,
particularly anxiety, depression, intrusive thoughts and
behavior difficulties. The evaluator diagnosed post-traumatic
stress syndrome connected to C.T. having witnessed domestic
violence. Also noted was C.T.'s report of inappropriate
sexual contact by Bruce. The evaluator recommended that there
be no contact between C.T. and Bruce until that sexual abuse
investigation is resolved.
trial court noted, Montgomery Circuit Court does not have a
family court division. Because other matters were scheduled
and other reasons for continuing the case occurred, the
hearing was not held until November 30, 2015.
hearing, Bruce testified that Brian, Roxanna and the children
lived in his home on and off from the time of the
children's birth until the children were removed from
their parents' custody and he saw the children almost
daily. Bruce testified there was domestic violence between
Brian and Roxanna but that he tried to stop the violence. He
further testified that when Brian was living in his home, he
had his son arrested for using drugs.
believed the children's fear of him was caused by
Darlene. Although he admitted he spanked his girlfriend's
children in 1990 and 1995, he testified he no longer uses
physical discipline. He denied that he sexually abused C.T.
and that he simply wiped her after she used the bathroom.
Bruce testified that he spends time with his other two
Smith, Bruce's daughter, testified that Bruce is a
wonderful grandfather to her twin daughters and she allows
him to visit with them when ...