DNA and Custody Actions Separate for Law of Case Doctrine; DNA Adjudication Orders Not Final Orders; Court Did Not Abuse Discretion in Custody Action Granting Visitation With No Finding of Sexual Abuse in DNA Action – Published Opinion from Kentucky Supreme Court


B.S.S. v. K.S.


Child was born to Mother and Father while Mother and Father were married. Later, Mother and Father separated, and Mother petitioned for dissolution of marriage and moved for temporary sole custody of Child. In her motion, she alleged that Father was under investigation by the Cabinet for Health and Family Services for sexually abusing Child. Family Court entered an agreed order granting Mother temporary sole custody of child. Two weeks later, Father moved for visitation. The day after Father moved for visitation, a Dependency, Neglect, and Abuse petition was filed, alleging that Father sexually abused Child and sought removal of Child from Father’s care. Family Court denied Father’s motion for visitation in the dissolution action, taking judicial notice of the pending DNA action.


Family Court entered an adjudication order, finding that “[F]ather ‘spanked’ [Child’s] vagina; [Child] exhibited fear of [Father]; [a] physical exam reveal[ed] non-specific notch in [C]hild’s hymen; and . . .  a risk of harm to [Child] if returned to the care of [Father].” A disposition hearing was scheduled, but Father appealed before it could take place. The Court of Appeals affirmed the adjudication order.


Later, in the dissolution action, Father moved to modify the agreed order. After a hearing, Family Court entered an order granting Father’s motion to establish gradual visitation and finding that Family Court did not find that sexual abuse occurred in the DNA case; that Child expressed a desire to see her Father; that Child did not associate the absence of Father with sexual abuse; and that Child believed Father went to work one day and never returned. Mother moved to alter, amend, or vacate the order, and when that motion was denied, she appealed to the Court of Appeals.


In the Court of Appeals, Mother argued that (1) because the prior panel of the Court of Appeals previously affirmed the finding of sexual abuse in the DNA action, the doctrine of law of the case precluded Family Court from disregarding that finding in the dissolution action, and (2) Family Court abused its discretion by disregarding its own previous finding of sexual abuse and granting Father visitation. The Court of Appeals reversed Family Court, holding “[w]hether or not the law of the case doctrine applies in this case, we hold that [Family Court]’s finding in the [dissolution] action that it did not make a finding of sexual abuse in the [DNA] action is clear error.”


The Supreme Court first addressed the law of the case doctrine and held that “for law of the case purposes DNA and custody actions are separate and distinct, notwithstanding that the same child is involved, or that the actions are before the same judge in the same family court.” It reasoned that the purpose of the DNA statutes is to provide for the health, safety, and overall wellbeing of the child—not to determine the custody rights which belong to the parents. Inversely, the purpose of a custody and visitation proceeding is to determine the right of individuals with standing to seek custody or visitation—not to determine whether a child is dependent, neglected, or abused.


Furthermore, the Supreme Court held that the Court of Appeals’ ruling in the DNA action was entitled to no weight by Family Court when Family Court made its subsequent visitation determination. It reasoned that the Court of Appeals was acting outside its jurisdiction, because disposition orders—not adjudication orders—are the final and appealable orders with regard to a decision of whether a child is dependent, neglected, or abused.


Finally, the Supreme Court held that Family Court did not abuse its discretion by finding that an incremental visitation and reunification plan between Father and Child was in Child’s best interest. It reasoned that Family Court did not find that Father sexually abused Child, because in the adjudication order, Family Court found a risk of harm to Child if returned to her father’s care; Family Court specifically did not check a box on the adjudication order, reading “[c]omitted or allowed to be committed an act of sexual abuse” upon Child; and in the hearing on the motion to modify the agreed order, the judge stated, “The Court did find a risk of sexual abuse. The Court did not find in [the DNA] case that sexual abuse had occurred.” Thus, the Supreme Court reversed the Court of Appeals’ holding that Family Court abused its discretion in the dissolution action when it did not find that sexual abuse occurred in the DNA action. It held that the remainder of Family Court’s findings of fact were supported by substantial evidence.


Digested by Nathan R. Hardymon

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