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Morton v. Tipton

Court of Appeals of Kentucky

June 22, 2018



          BRIEF FOR APPELLANT: John M. Hendricks Winchester, Kentucky

          BRIEF FOR APPELLEE: No brief filed



          THOMPSON, JUDGE.

         David 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.

         C.T. 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.

         At some 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 Court.

         Following 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 Darlene Morton.

         On May 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.

         The 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.

         In 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).

         The 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.

         As the 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.

         At the 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.

         Bruce 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 grandchildren.

         Kristy Smith, Bruce's daughter, testified that Bruce is a wonderful grandfather to her twin daughters and she allows him to visit with them when ...

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