FROM CARTER FAMILY COURT HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 15-CI-00184
FOR APPELLANT: Tracy D. Frye Russell, Kentucky
FOR APPELLEE: W. Jeffrey Scott Whitley Hill Bailey Grayson,
BEFORE: COMBS, J. LAMBERT, AND THOMPSON, JUDGES.
LAMBERT, J., JUDGE.
has appealed from the Carter Family Court's findings of
fact, conclusions of law, and order entered December 14,
2017, granting B.S.'s motion to reestablish visitation
with their minor daughter as well as from the January 10,
2018, order denying her motion to alter, amend, or vacate
that order. We vacate and remand.
(the Mother) and B.S. (the Father) are the biological parents
of K.S. (the Child), who was born in August
2011. The Mother and the Father were married in
2011 in Grayson, Kentucky, and they separated in late May of
2015. The Mother filed a petition to dissolve the marriage on
June 10, 2015, in which she sought sole custody of the Child
and child support. Simultaneously, she filed a verified
motion for temporary relief seeking sole custody, child
support, and possession of the marital residence. She stated
that the Father was under investigation by the Cabinet for
Health and Family Services (the Cabinet) for sexually abusing
the Child. An agreed order was entered in July 2015 stating
that the Mother would have temporary custody of the Child and
that no visitation would take place pending further order of
the court, among other rulings. Two weeks later, the Father
filed a motion for visitation, stating that the May 27, 2015,
prevention plan by the Cabinet's Department for Community
Based Services (DCBS) worker specifically stated he could
visit the child at the DCBS office. At the time of the filing
of the motion, the Cabinet had not yet filed a petition
related to the abuse allegation. In response, the Mother
stated that the Cabinet filed a Dependency, Neglect, or Abuse
(DNA) Petition against the Father seeking removal of the
Child on July 15, 2015, making his motion moot. The family
court denied the Father's motion by order entered later
that month and took judicial notice of the juvenile action.
We note that the same judge presided over both the underlying
dissolution action and the juvenile action.
juvenile action, the family court entered an amended
adjudication order on November 16, 2015, addressing the abuse
allegations against the Father. The court found as follows:
"The Court finds the petition as true as the child
disclosed that her father 'spanked' her vagina; the
child exhibited fear of the father, the physical exam reveals
non-specific notch in child's hymen; and the Court finds
a risk of harm to the child if returned to the care of the
father." The court found that the Child had been abused
or neglected by the Father pursuant to Kentucky Revised
Statutes (KRS) 600.020(1), that the father "[c]reated or
allowed to be created a risk that an act of sexual abuse,
sexual exploitation, or prostitution will be committed upon
the child[, ]" and that there was "a continuing
risk of harm of sexual abuse if returned to the father."
And while reasonable efforts were being made to reunify the
family, it was in the best interests of the Child to change
custody. The Father appealed this ruling, which this Court
affirmed in an opinion rendered September 30, 2016.
agreed order entered January 15, 2016, the family court
dissolved the parties' marriage via a Putnam v.
Fanning decree. The court granted the Mother
sole legal custody of the Child, noting that this was in the
Child's best interests but permitting the Father to file
a motion if he were to be successful on his appeal of the
companion juvenile action. Likewise, no visitation would be
permitted pending a ruling in the juvenile action. The
parties negotiated a resolution of the remaining issues prior
to a final hearing and moved to enter an agreed order to that
effect. The court entered the agreed order on March 30, 2016,
which concluded the dissolution proceedings.
December 2016, the Father moved the court to order visitation
with the Child, stating it would be in her best interests and
that the agreed order related to temporary custody was
unconscionable. The Mother objected to the motion, stating
that the Child's therapist stated that such would be
harmful to the Child. She asserted that it would not be in
the Child's best interests to either reestablish
visitation or subject the Child to another therapist. The
court scheduled a final hearing on the motion for October 20,
Court has reviewed the entirety of the final hearing,
including the testimony of the Child's therapist,
Jennifer Williams, concerning the harm reintroducing the
Child to the Father would have on her well-being, as well as
the deposition testimony of Dr. Edward Connor. On December
14, 2017, the family court entered its amended findings of
fact, conclusions of law, and order granting the motion to
reestablish visitation. In its findings, the court specifically
The Court did not find that sexual abuse
occurred in Case No. 15-J-00131-001. The final order in that
action resulted in an order stating "The Court finds the
petition as true as the child disclosed that her father
'spanked' her vagina; the child exhibited fear of the
father, the physical exam reveals non-specific notch in
child's hymen; and the Court finds a risk of harm to the
child if returned to the care of the father[.]"
court went on to discuss the witnesses who testified at the
13. The child's therapist [at Hope's Place], Jennifer
Williams, fears that generalized harm or re-traumatization of
the child may occur if the father is reintroduced into the
child's life. Ms. Williams believes that the child should
not see her father until such time [as] she can make an
informed decision on her own sometime in or after her teenage
14. The child does not associate the absence of her father
with the abuse that this Court found to have occurred.
Instead, the child is of the understanding that her father
went to work one day and never returned.
15. The child has, according to notes of the session of Ms.
Williams with the child, expressed a desire to see her
16. Dr. Edward Connor is a licensed psychologist. He
recommended a generalized reunification plan to implement
between the parties, a reunification therapist, the
child's therapist, and a number of other individuals.
17. Dr. Connor states that, based upon development theory,
children without both a mother and father can have
psychological difficulties, gender identification issues,
attachment issues, and relationship issues including their
relationship with the present parent.
18. [The Father] has a number of healthy relationships with
minor children including his girlfriend's fourteen year
old daughter and his infant niece. [The Father] routinely
cares for children without supervision and there have been no