RENDERED: OCTOBER 9, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1647-MR
FRANCES J. ROBLES APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 18-CI-00173
GARRY W. SIMMS APPELLEE
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
CLAYTON, CHIEF JUDGE: Frances J. Robles (“Frances”), the mother of A.R.
(“Child”), appeals the Shelby Circuit Court’s grant of sole custody to Child’s
father, Garry Simms (“Garry”). Upon careful review of the record and applicable
law, we affirm.
BACKGROUND
Child was born to Frances and Garry in June of 2017. The parties
never married and, prior to the immediate custody action, they had no formal
custody or timesharing arrangement. Child resided primarily with Frances, with
Garry seeing Child as agreed upon by the parties.
The current custody and timesharing arrangement came about because
of an incident which took place in January of 2018 when Child was approximately
seven months old. Specifically, Frances presented Child for emergency care with
significant amounts of bruising around Child’s feet and ankles. Upon further
examination, hospital staff discovered that Child had suffered a spiral fracture to
her right tibia and buckle fractures to her left tibia and fibula, directly above her
ankles. Frances told the health care workers that the only thing she knew of that
could have caused the injuries was that her other child, the three-year-old half-
sister of Child, had jumped on Child. Frances further told the health care workers
that no one else had been present in the home in the time period during which the
injuries most likely occurred.
As a result of the injury, the Cabinet for Health and Family Services,
Department for Community Based Services (the “Cabinet”) removed Child from
Frances’s custody and placed her in Garry’s custody. Frances was granted
supervised visitation. Additionally, the Cabinet initiated a dependency, neglect,
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and abuse (“DNA”) action against Frances, with Frances continuing to maintain
throughout the initial phases of the DNA action that she had been alone with the
two children on the night in question. Moreover, Garry filed a custody action on
April 6, 2018, requesting sole custody of Child.
Although we do not have a full record of what transpired in the DNA
action, the record indicates that the trial court held an adjudication hearing on
January 31, 2019. At such hearing, certain facts were presented to the trial court
that Frances’s boyfriend was present at her house on the night prior to the night
that Child’s injuries were discovered. While Frances claimed that she did not
reveal the fact that her boyfriend was present because she and Garry had an
agreement to not bring significant others around Child, Frances ultimately
stipulated at the adjudication hearing to risk of harm regarding both Child and
Child’s sibling and stipulated to physical abuse of Child.
At the disposition hearing in the DNA case, the Cabinet reported that
it was still unknown exactly what or who caused Child’s injuries. Furthermore, the
Cabinet did confirm that Frances had completed a case plan with the Cabinet while
awaiting disposition of the DNA allegations. Specifically, Frances completed
parenting courses and participated and complied with supervised timesharing
during the pendency of the DNA action. In addition, Frances completed a mental
health assessment requested by the Cabinet – which indicated no mental health
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issues – and had ended her relationship with her boyfriend, Bradley King.
However, the disposition report dated February 20, 2019 noted that Frances only
ended her relationship with Bradley after the adjudication hearing and the court’s
discovery that Bradley was present at the home during the time period of Child’s
injuries. Specifically, the disposition report indicated:
[Frances] stated that she ended [her relationship with
Bradley] because her attorney advised her to. Despite
[Frances] completing case planned tasks, concerns
remain that she has not accepted responsibility for
[Child’s] severe injuries, nor provided an explanation for
them in over a year. Additionally, [Frances] has
continued to maintain a relationship with [Bradley] and
protect him and/or his role in [Child’s] injuries.
The trial court thereafter held a hearing on Garry’s motion for sole
custody on October 3, 2019. At this hearing, Frances requested that she be granted
joint custody with equal timesharing of Child based on the Cabinet’s determination
that the perpetrator of Child’s leg injuries was still unknown, as well as the fact
that Frances had fully completed her case plan during the pendency of the DNA
action. Furthermore, with Garry’s permission, Frances had exercised consistent
unsupervised timesharing with Child, including overnight visits, during the
pendency of the DNA matter with no issues. Frances did testify at the hearing that
her boyfriend was present the night before Child’s injuries were discovered and
further admitted that she had argued with her boyfriend on the evening before the
discovery of Child’s injuries.
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Garry testified at the custody hearing that he intended to continue
Frances’s involvement in major life decisions concerning Child. Garry further
testified that his request for continued sole custody of Child was based on the fact
that he still did not know what had happened to cause Child’s injuries and that he
had continued concerns regarding Frances’s significant other.
The trial court entered an order on October 3, 2019, the same day
upon which the hearing occurred, ordering that Garry would retain sole custody.
Moreover, the trial court required Frances’s timesharing with Child to be
supervised. Specifically, the trial court found that:
[Child] was injured severely during [Frances’s] time with
[Child], without explanation. The Court only learns of
events of the night in question when [Frances] is called to
testify . . . [Frances] is not candid with anyone about the
events that surround [Child’s] abuse, and therefore, the
Court concludes that unsupervised visitation with
[Frances] poses a significant risk of harm to [Child].
Frances timely appealed the trial court’s order as a matter of right.
ANALYSIS
a. Standard of Review
It is well-settled that an appellate court may set aside a lower court’s
findings “only if those findings are clearly erroneous.” Moore v. Asente, 110
S.W.3d 336, 354 (Ky. 2003) (citation omitted). A finding is not clearly erroneous
if it is supported by substantial evidence. Id. “Substantial evidence” has been
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defined by Kentucky courts as “evidence that, when taken alone or in the light of
all the evidence, . . . has sufficient probative value to induce conviction in the
minds of reasonable men.” Id. (citation and internal quotation marks omitted).
Moreover:
[r]egardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, due regard shall be given to
the opportunity of the trial court to judge the credibility
of the witnesses because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, mere doubt as
to the correctness of a finding will not justify its reversal,
and appellate courts should not disturb trial court
findings that are supported by substantial evidence.
Id. (citations, internal quotation marks, and brackets omitted).
Additionally, trial courts are granted significant discretion overall in
determining the best interests of a child when making a custody determination.
Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983). Consequently, custody
determinations will not be disturbed in the absence of an abuse of such discretion.
Allen v. Devine, 178 S.W.3d 517, 524 (Ky. App. 2005). An abuse of discretion
occurs when a court’s judgment is “arbitrary, unreasonable, unfair, or unsupported
by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999) (citations omitted). With the foregoing standards in mind, we turn to
Frances’s various assignments of error.
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b. Discussion
Frances contends that the evidence upon which the trial court based its
decision to award sole custody of Child to Garry did not constitute substantial
evidence, and that the trial court’s decision failed to take all the evidence into
account. Frances further argues that the trial court abused its discretion in deciding
the best interest of Child since its decision was based upon flawed factual findings.
When determining an award of child custody, Kentucky Revised
Statutes (KRS) 403.270(2) instructs the court to give equal consideration to both
parents and to award custody in accordance with the best interests of the child. In
so doing, the court shall “consider all relevant factors” and shall specifically
consider:
(a) The wishes of the child’s parent or parents, . . . as to
his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with
his parent or parents, his siblings, and any other person
who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and
community;
(e) The mental and physical health of all individuals
involved;
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720.
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(g) A finding by the court that domestic violence and
abuse, as defined in KRS 403.720, has been committed
by one (1) of the parties against a child of the parties or
against another party. The court shall determine the
extent to which the domestic violence and abuse has
affected the child and the child’s relationship to each
party, with due consideration given to efforts made by a
party toward the completion of any domestic violence
treatment, counseling, or program;
...
(k) The likelihood a party will allow the child frequent,
meaningful, and continuing contact with the other parent
. . . , except that the court shall not consider this
likelihood if there is a finding that the other parent . . .
engaged in domestic violence and abuse, as defined in
KRS 403.720, against the party or a child and that a
continuing relationship with the other parent will
endanger the health or safety of either that party or the
child.
In this case, the trial court properly recited the evidence it relied upon
in making its findings of fact, analyzed the factors set forth in KRS 403.270(2),
and determined under the totality of the circumstances that they weighed in favor
of awarding Garry sole custody. With regard to Child’s interaction and
interrelationship with Frances, the court based its conclusions of law on the
testimony of both Frances and Garry, as well as other information contained in the
record, stating:
[Child’s] interaction and interrelationship with [Frances]
is troubling due to the fact that [Child] suffered abuse
while in the care of [Frances], and [Frances] continues to
have no explanation whatsoever for [Child’s] broken
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legs. It is unfathomable to this Court that [Child]
suffered such severe injuries and [Frances] did not know
how or when it occurred. [Frances] apparently expects
the Court to believe that the injuries occurred while in the
sitter’s care. However, it does not seem plausible that
injuries so severe would not have been discovered by
[Frances] for more than 24 hours after she picked [Child]
up from the sitter. While the Court believes that
[Frances] loves [Child], the Court concludes that
[Frances’s] protective capacity of [Child] is frighteningly
diminished.
Further, the court based its conclusions that Garry was motivated in seeking sole
custody based on his overall concern for Child’s welfare and Frances’s lack of
protectiveness on Garry’s testimony at the hearing. We cannot conclude that the
findings made by the trial court were clearly erroneous, as the testimony of both
Garry and Frances presented at the custody hearing constituted substantial
evidence to support the trial court’s findings.
Indeed, while Frances argues that she provided evidence sufficient to
support a decision to grant her joint custody of Child, where there is conflicting
evidence, it is the role of the fact-finder to identify and resolve such conflicts, as
well as matters affecting the credibility of the witnesses. Bierman v. Klapheke,
967 S.W.2d 16, 19 (Ky. 1998). The finder of fact may believe any part or all of the
testimony of any of the witnesses or may disbelieve all of it. Gillispie v.
Commonwealth, 212 Ky. 472, 279 S.W. 671, 672 (1926). Therefore, it is simply
not enough for Frances to argue that the evidence could have supported the
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outcome she desired. The court’s findings were supported by the evidence of
record and we are unable to say the trial court’s decision was arbitrary, capricious,
unreasonable, or unfair under the circumstances.
Frances next argues that the trial court erred in requiring her
timesharing with Child to be supervised. “[T]his Court will only reverse a trial
court’s determinations as to visitation if they constitute a manifest abuse of
discretion, or were clearly erroneous in light of the facts and circumstances of the
case.” Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000) (citation omitted).
KRS 403.320(1) provides that “[a] parent not granted custody of the
child and not awarded shared parenting time under the presumption specified in
KRS 403.270(2), 403.280(2), or 403.340(6) is entitled to reasonable visitation
rights unless the court finds, after a hearing, that visitation would endanger
seriously the child’s physical, mental, moral, or emotional health.” (Emphasis
added). “Reasonable visitation is decided based upon the circumstances of each
parent and child, with the best interests of the child in mind. The trial court has
considerable discretion in determining which living arrangements will best serve
the interests of the child.” Hudson v. Cole, 463 S.W.3d 346, 351 (Ky. App. 2015)
(citations omitted).
Here, the trial court considered the testimony of the witnesses and
concluded that supervised visitation was necessary because Frances did not appear
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to be revealing to the court the entire truth about how Child sustained such serious
injuries. The mandated supervised visitation was a reasonable outcome designed
to protect Child’s welfare, and, under these circumstances, we cannot say that the
trial court did not look at Child’s best interests in requiring supervised visitation
with Frances.
Moreover, as there was no denial of visitation, the trial court was not
required to make findings of fact or conclusions of law that visitation with Frances
would seriously endanger Child’s physical, mental, moral, or emotional health.
We find the trial court’s order to be in Child’s best interests, and therefore it is not
an abuse of the discretion afforded to circuit courts in this context.
CONCLUSION
Based on the foregoing, we affirm the Shelby Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Whitney True Lawson Richard J. Head
Frankfort, Kentucky Louisville, Kentucky
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