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K.S. v. B.S.

Court of Appeals of Kentucky

October 19, 2018

K.S. APPELLANT
v.
B.S. APPELLEE

          APPEAL FROM CARTER FAMILY COURT HONORABLE DAVID D. FLATT, JUDGE ACTION NO. 15-CI-00184

          BRIEFS FOR APPELLANT: Tracy D. Frye Russell, Kentucky

          BRIEF FOR APPELLEE: W. Jeffrey Scott Whitley Hill Bailey Grayson, Kentucky

          BEFORE: COMBS, J. LAMBERT, AND THOMPSON, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         K.S. 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.

         K.S. (the Mother) and B.S. (the Father) are the biological parents of K.S. (the Child), who was born in August 2011.[1] 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[2] 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.

         In the 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.

         By agreed order entered January 15, 2016, the family court dissolved the parties' marriage via a Putnam v. Fanning[3] 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.

         In 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, 2017.

         This 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.[4] In its findings, the court specifically stated:

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[.]"

         The court went on to discuss the witnesses who testified at the hearing:

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 years.
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 father.
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 ...

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