Hoppe v. Tallent, __ S.W.3d __ (Ky. App. 2008), 2007-CA-000104-MR
Father appealed the TC’s denial of his motion for immediate reinstatement of visitation with his daughter, K.H.
During the parties’ divorce settlement negotiations in 1997, the mother alleged that the father sexually abused K.H. The record is silent as to the nature of the allegations and whether the allegations were substantiated. The separation agreement granted joint custody to the parties, with the mother being appointed primary residential custodian. The father then had visitation with K.H. every other weekend and two hours on every other Wednesday until 2004.
Without the father’s knowledge, the mother had K.H. see therapists, the Sensings, in 1998. The Sensings noted that K.H. may have been traumatized by a male. They did not observe any obvious signs of sexual abuse, but could not rule out the possibility. Their recommendation was for K.H. to continue visitation with her father, but suggested that a female relative be present and that the visits increase as K.H. grew more comfortable with her father.
In 2003 the mother alleged that K.H. became anxious before visits with her father. Her pediatrician found no physical explanation for the anxiety. In 2004, Sally Sensing met with K.H. again. K.H., eight years old at this time, told the therapist that her father made her uncomfortable and she became physically ill before each visit. K.H. also alleged that her father embarrassed her, slept in bed with her, and took pictures of her naked in the shower (court noted that child was standing in the shower behind the curtain, modeling a shower cap, with a wide smile on her face), washed her inappropriately during baths, would drink and drive with her in the car, and left her in the car alone for 25 minutes while he shopped for a television. Sensing recommended that the visitation continue, but with professional supervision until the causes of K.H.’s anxiety could be fully assessed. Sensing did not report any abuse to authorities.
That same month, the mother motioned for the court to suspend or alter the father’s visitation. The father objected, and the mother stopped the visitation on her own. As a result, the father asked that the mother he held in contempt of court.
The DRC held a hearing in February 2004. After hearing testimony from the Sensings, Dr. Fane, a clinical psychologist who evaluated the father, both parties, maternal and paternal grandmothers, K.H.’s teacher, and the father’s ex-wife, the DRC recommended that visitation be suspended until the mother, father, and K.H. could be evaluated by one professional.
The evaluation by Feinberg & Associates revealed assets and deficits in the parenting of both parties. No allegations of sexual abuse were revealed, and Feinberg recommended that the visitation resume. As a result the TC ordered both parents and K.H. to begin counseling with Ruth Sutton, another therapist. When K.H. learned that she was to see Sutton to facilitate visitation with her father she became upset and claimed that her father had sexually abused her. Sutton reported the allegations of abuse to authorities.
K.H. told the CPS worker, Guffy, of the incidents of sexual abuse. The mother confirmed to Guffy that K.H. had told her of the incidents. The maternal grandparents also confirmed that K.H. had told them of incidents of abuse by her father. Since the father was living in Tennessee and that is where the abuse allegedly took place, Guffy filed a report with the police in TN.
In December of 2004, K.H. underwent a medical exam, however during the exam neither K.H. or her mother alleged that any inappropriate physical contact had occurred. The results of the exam revealed no abnormalities, but could not rule out the possibility of abuse.
Sutton continued to see K.H. until January 2006. The father had not heard from Sutton by December 2004, so he moved the court to reinstate visitation. The court set a hearing for January 2005, and planned on interviewing the child. In January 2005, the TN authorities wrote the TC a letter informing the judge of their open investigation and stated that if the father was granted access to the child, the authorities would take the child into state custody. The TC cancelled the interview of the child as to not become a witness in the TN criminal investigation. The record is silent as to whether criminal charges were ever filed or pursued against the father in KY or TN.
In December 2006, a hearing was held at which the father testified and denied the abuse allegations. Sutton also testified. She stated that she believed K.H. and adamantly opposed any contact between K.H. and her father. The TC concluded that it was not in K.H.’s best interests to see her father, since it would endanger her physical, mental, and emotional health.
COA affirmed. TC’s findings were supported by substantial evidence and did not abuse its discretion. However, COA noted that six mental health professionals reviewed the case, and only one of them, Sutton, testified at the hearing. Sutton, who stumbled on cross-examination regarding her own qualifications, was the only one of the six that thought visitation should be stopped. COA also noted that its opinion does not prohibit the father from pursuing future visitation with his daughter.