RENDERED: NOVEMBER 1, 2018

TO BE PUBLISHED

2018-SC-000011-DGE

SALLY A. MAY

V. ON REVIEW FROM COURT OF APPEALS

CASE NO. 2016-CA-001476-ME

JESSAMINE CIRCUIT COURT NO. 05-CI-00972

DONNIE J. HARRISON APPELLANT

APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

Appellant, Sally A. May ( “ Ms. May ” ), and Appellee, Donnie J. Harrison

( “ Mr. Harrison ” ), never married but had two sons, now 15-year-old Elliot and

now 13-year-old Zane. 1 The boys resided with both parents until August 2005.

Thereafter, Elliot and Zane resided with Ms. May in Plain City, Ohio. During

this time, Ms. May married Joseph Yruegas and gave birth to two daughters.

Sometime thereafter, Ohio Child Protective Services removed Ms. May and all of

the children from the home due to Yruegas ’ drug addiction. Ms. May divorced

Yruegas and was awarded full custody of their daughters. In 2010, Mr.

1 Pseudonyms are being used to protect the anonymity of all the child victims.Harrison gained physical custody of the boys and brought them to

Nicholasville, Kentucky.

When Ms. May subsequently pursued timesharing with Elliot and Zane,

Mr. Harrison moved to suspend her visitation/timesharing rights based upon

allegations from the two boys that Yruegas had sexually abused them. Elliot

and Zane also alleged that Ms. May was involved in the sexual abuse. The

Ohio police investigated but perceived no grounds for charges against Ms. May.

Being unable to resolve the evidentiary conflict which included Ms. May ’ s

denial of any sexual abuse of her boys, the trial court decided to conduct an in

camera interview in chambers with then-13-year-old Elliot. The interview

lasted over forty minutes during which Ms. May and her counsel were able to

view the exchange through closed circuit video. The trial court subsequently

ordered “ that there be no contact between [Ms. May] and the two boys until

either of their qualified mental health professionals believe it would be

appropriate

. . . . ” In affirming the trial court, the Court of Appeals held that

although the judge ’ s questioning exceeded the bounds of KRS 403.290(1), the

error was harmless. We granted discretionary review.

Analysis

KRS 403.290(1) authorizes trial judges to conduct an in camera interview

with children for purposes of custody and visitation determinations. It

specifically provides as follows:

The court may interview the child in chambers to ascertain the

child ’ s wishes as to his custodian and as to visitation. The court

may permit counsel to be present at the interview. The court shallcause a record of the interview to be made and to be part of the

record in the case.

When determining custodial issues, courts must consider the best interest of

the child. KRS 403.270. We review custody, visitation, and timesharing

determinations for an abuse of discretion. Pennington v. Marcum, 266 S.W.3d.

759 (Ky. 2008).

In the present case, the court appropriately sought to ascertain Elliot ’ s

wishes concerning visitation. The court also engaged in an extensive fact

finding mission as to the sexual abuse allegations. After asking Elliot why he

thought they were talking, he responded that he was there to assure the judge

that he would never have to visit his mother again. He was then asked

whether Ms. May engaged in sexual activity with him. Elliot reported that she

raped him in their basement in Plain City when he was around five or six years

old. He specifically stated that “ she made me stick my penis into her area. ”

The judge clarified that “ area ” meant “ female parts. ” Elliot also discussed other

instances where he and his brother Zane were sexually abused by Joseph

Yruegas while Ms. May watched.

Ms. May argues that the court ’ s in camera questioning exceeded the

bounds of KRS 403.290(1), which she claims is limited to discerning a child ’ s

wishes as to custody or visitation. We disagree.

There is no heavier responsibility for a trial judge than the interest of

children. Child custody decisions are a huge part of this awesome burden.

KRS 403.270 gives the judge direction to make these critical determinations for

the best interest of the child. That statute enumerates several broad and

3encompassing factors to be considered in that decision making. KRS

403.270(2). This gives the judge wide fact-finding responsibility. Inherent with

that statutory mandate is the authorization to seek out testimony from the

child involved, as need be.

It is counterintuitive to think that a judge can interview a child for the

much less important question of where the child wants to live and not be able

to ask the child about serious allegations of sexual abuse. An obvious corollary

to a child ’ s wishes concerning visitation or custody is why the child harbors

such wishes. Moreover, the Court of Appeals correctly noted that our rules of

evidence place the court in control of evidence and permit the court to

interrogate witnesses. KRE 611, 614. These rules cannot be superseded by

statute. Therefore, it is appropriate for the court to make detailed inquires

especially when allegations of sexual abuse are at issue.

Ms. May also alleges that her right to due process and her right to crossexamine Elliot were violated here. However, she concedes that the judge

returned to the courtroom during the in camera interview and permitted her

counsel to submit questions for Elliot on two separate occasions. Therefore,

Ms. May was permitted an opportunity to question the witness. See also,

Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 344-45 (Ky.

2006) (holding that confrontation clause does not apply in civil cases).

Considering the unique context of domestic relation cases and the in camera

testimony of minors, Ms. May received the process that is due.Due to the seriousness of the allegations and the persuasiveness of

Elliot ’ s testimony, we cannot say the trial court abused its discretion by

suspending Ms. May ’ s visitation rights.

Conclusion

We hereby affirm the Court of Appeals ’ decision.

All sitting. Minton, C.J.; Hughes, VanMeter, and Wright, JJ., concur.

Keller, J., concurs in result only by separate opinion in which Venters, J.,

joins.

KELLER, J., CONCURRING IN RESULT ONLY: I must respectfully

concur in result only with the majority opinion. Although I agree with the

majority ’ s holding as to the in camera interview of Elliott 2

, I believe further

development of the facts and issues is warranted.

Sally May, f/k/a Sally Yruegas, ( “ Sally ” ) initiated this case in 2005 in

Jessamine County Family Court, seeking child support for her two minor

children, Elliott (b. 2003) and Zane (b. 2004).3 Donnie J. Harrison ( “ Donnie ” )

admitted paternity in 2006 to both boys. An order of support was entered in

August 2006. For several years, Elliott and Zane lived with Sally and the only

issues before the court involved support payment. However, in August 2010,

Donnie filed a motion to stop child support, stating that the children were now

2 In accordance with this Court ’ s practice, and to protect the minor children ’ s

anonymity, I shall refer to the minor children by pseudonyms. For clarity, I shall

utilize any pseudonyms referenced in the majority opinion.

3 See footnote 1.living with him. The exact timeline is unknown, but somewhere from 2006-

2010, Sally married Joseph Yruegas and had two more children, Maizie (b.

2008) and Penelope (b. 2009). 4 In June 2011, the court ’ s docket sheet noted

that mother was to have timesharing with the boys one weekend each month,

along with a few other specific periods and holidays.

On June 1, 2016, Sally ’ s attorney filed a motion to hold Donnie in

contempt for interfering with Sally ’ s timesharing with the boys. On July 27,

2016, Donnie filed a renewed motion to suspend visitation, or in the

alternative, to modify visitation. As grounds, Donnie stated that there was a

criminal investigation concerning incest and sexual abuse perpetrated on the

children by Sally and Yruegas. Both these motions were brought to the court

in a hearing held on August 1, 2016 that continued, and concluded, on August

24, 2016.

At the hearing, more of the timeline was developed. Sally testified that

she was living in Ohio with Yruegas, Elliott, Zane, Maizie, and Penelope.

Sometime in 2010, Elliott and Zane moved to Kentucky with Donnie,

presumably upon Donnie ’ s motion. Ohio family services became involved in

Sally and Yruegas ’ s home due to Yruegas ’ s drug addiction, according to Sally.

Ohio removed Maizie and Penelope from the home in July 2013. Sally

separated from Yruegas in August 2013 and their divorce became final in

March 2014.

See footnote 1.

6Sally testified that, in July 2013, Elliott and Zane alleged that Yruegas

and Sally had sexually abused both of them. At the hearing, she denied ever

being involved in any abuse and stated she had no firsthand knowledge of any

abuse by Yruegas. Sharon Cecil, a social worker with the Cabinet for Health

and Family Services ( “ CHFS ” ) in Kentucky, testified that they had

substantiated sexual abuse by mom in 2013. Sally was living out of state at

the time so they referred the case to Ohio for one of their corollary CHFS

workers to speak to Sally. Kentucky CHFS recommendations included no

contact with Sally. The case was also reported to law enforcement in Ohio. 5

However, it is undisputed by all parties that Sally continued to have visitation

with the children as ordered and the no contact recommendation was never

brought before the court or utilized by Donnie to stop Sally from seeing Elliott

or Zane.

Bethany Outland, a social services clinician, also testified. Elliott had

disclosed the sexual abuse to her in 2013; she referred the case to Ohio and

arranged an interview for both Elliott and Zane with the Children ’ s Advocacy

Center ( “ CAC ” ). Elliott was also referred for medical evaluation because he

reported penetration as part of the abuse; Outland also testified to Donnie ’ s

difficulty with the children because they had been perpetrating against each

5 It is unclear from the record why there was no subsequent prosecution

against Sally or if there ever was a prosecution against Yruegas. The attorneys

referenced some discussions with Ohio law enforcement, stating that Sally had

claimed duress and was forced to abuse the boys by Yruegas. The GAL concurred in

these statements but there was no substantive proof offered as to these allegations.

Thus, there was no actual evidence in the record as to what happened to these

potential prosecutions.

7other and acting out. Kristen Jenkins conducted the forensic interviews of

both Elliott and Zane at the CAC. She testified that she was not concerned

about coaching or any “ alternative hypothesis ” for the disclosures made by the

boys.

At issue for the attorneys was whether the family court judge could

review the CAC interview videos as evidence for the motion to suspend

timesharing. If he ruled the videos were inadmissible, then the guardian ad

litem ( “ GAL ” ) for Elliott and Zane stated that Elliott wished to testify. The court

ruled the videos were inadmissible and told the attorneys he would speak to

Elliott in camera and would take a break to ask if the attorneys had any

questions for Elliott. At the time of the hearing, Elliott was 13 years old.

Importantly, none of the attorneys objected to Elliott being interviewed in

camera by the judge.

The judge ’ s interview of Elliott was broadcast to the parties in the

courtroom while it occurred in camera. The judge did not place Elliott under

oath but did spend some time explaining the difference between truth and lies

and how important it was to tell the truth. The judge also indicated it was

acceptable for Elliott to explain if he could not remember the answer to a

question. Elliott gave a lengthy testimony about his experiences, describing

acts of sexual abuse by both Sally and Yruegas and being forced to engage in

abuse along with his brother. Elliott unequivocally stated that he did not want

to talk to or see his mom at all. When prompted why, Elliott explained the

abuse to both him and Zane. The details of this abuse are not germane to this

8appeal but suffice to say that, although some details were inconsistent, Elliott ’ s

explanation of abuse was detailed and thorough. Elliott explained that he

disclosed the abuse to Donnie after he and Zane moved to Kentucky. Zane did

not appear or speak to the court as he was currently housed in a residential

facility for treatment. 6

After Elliott ’ s in camera interview, attorneys made arguments to the court

on both the contempt and timesharing suspension issues. The judge ordered

timesharing suspended, not permanently, but until such time as Elliott ’ s and

Zane ’ s individual counselors deemed it advisable for therapeutic contact with

Sally to begin. The judge also determined Donnie had committed contempt by

interfering with Sally ’ s visitation and would determine appropriate costs and

sanction after Sally ’ s attorney submitted an affidavit as to fees. The judge

stated he would draft a final order and circulate it to the parties. I must point

out that Donnie had failed to ever bring the sexual abuse allegations to the

court ’ s attention until Sally made the motion for contempt and sanction. Elliott

and Zane had continued to see Sally for over three years after the CAC

interviews in which they alleged abuse. It is also unclear from the record

before this Court why CHFS never filed a petition for dependency, neglect, or

abuse against Donnie, who was within Kentucky CHFS jurisdiction, for

6 From the testimony at the hearing and earlier affidavits from the parties in the

record, it seems that Zane had begun exhibiting serious signs of trauma and acting

out against his sibling and family. According to counsel, he was involved in a criminal

case with the Department of Juvenile Justice ( “ DJJ ” ) and had been ordered to undergo

a competency evaluation. After the evaluation, he was referred to a facility for long

term treatment.allowing the contact with Sally to continue, despite the no contact

recommendation

.

The in camera interview here was not an abuse of discretion, as the

majority so holds. Kentucky Revised Statute (KRS) 403.290(1) specifically

provides that “ [t]he court may interview the child in chambers to ascertain the

child ’ s wishes as to his custodian and as to visitation. ” Sally now claims

several errors in the in camera interview, despite raising no objection before,

during, or after the interview itself. She claims that the interview exceeded the

permissible statutory scope; the interview violated Sally ’ s due process rights to

cross-examine the witness and challenge the testimony; and the judge

impermissibly utilized the interview to elicit unsworn testimony and gather

evidence.

The statute allowing in camera interviews is highly discretionary and our

precedent evinces the great latitude we provide to trial court judges in utilizing

the statute. “ The General Assembly wisely left the decision to interview a child

in chambers to the sound discretion of the trial court. ” Addison v. Addison,

463 S.W.3d 755, 764 (Ky. 2015). “ The elementary principles of

humanitarianism are so strongly against the placing of a child between its

parents that we feel a trial court should have a wide latitude in protecting the

child. ” Id. (quoting Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971)). As in

many matters, a family court judge is vested with great discretion in

conducting these kinds of proceedings. See Seeger v. Lanham, 542 S.W.3d

286, 297 (Ky. 2018) (quoting Commonwealth ex rel. Marshall v. Marshall, 15

10S.W.3d 396, 400 (Ky. App. 2000)) ( “ There are few matters over which the trial

court has more discretion than cases involving domestic relations issues. ” ). We

continue to respect that discretion and trust the family courts to conduct these

proceedings in a careful and cautious approach.

The crux of Sally ’ s argument is that the scope of the in camera interview

is statutorily limited to “ ascertain the child ’ s wishes as to his custodian and as

to visitation. ” KRS 403.290(1). However, Sally ’ s interpretation, limiting the

questioning to this desire alone rather than substantiated reasoning for any

such desire, defeats the purpose of the statute. How can a judge make a

meaningful decision as to custody and visitation if he or she is denied the

opportunity to explore the reasons for the child ’ s wishes? Here, Elliott clearly

wanted to discontinue any contact with Sally. It was incumbent upon the

judge to understand why he felt that way in order to determine, per the

directives of KRS 403.320(3), whether Elliott ’ s health or welfare was

endangered by continued visitation with Sally. 7 Our courts have clearly stated

that “ a presumption for visitation exists for a parent unless a family court

determines that visitation would seriously endanger the child. ” Baldwin v.

Mollette, 527 S.W.3d 830, 834 (Ky. App. 2017). The burden of overcoming that

presumption is on the party wishing to deny visitation. Id. (citing Smith v.

Smith, 869 S.W.2d 55, 56 (Ky. App. 1994)). The GAL here, in representing

7 “ The court may modify an order granting or denying visitation rights whenever

modification would serve the best interests of the child; but the court shall not restrict

a parent ’ s visitation rights unless it finds that the visitation would endanger seriously

the child ’ s physical, mental, moral, or emotional health. ” KRS 403.320(3).

11Elliott ’ s interests, opposed visitation with Sally. Elliott expressed those wishes

to the judge through the in camera interview. If the judge was restricted in

exploring that desire and any permissible reasoning for that desire, then that

party would be essentially estopped from presenting the very proof case law

requires. Such a decision would eviscerate the meaning of imbuing these

courts with discretion to make such important decisions and the permission

granted by the General Assembly to conduct such in camera interviews.

Sally emphasizes an unreported case from the Court of Appeals, Karnes

V. Head, No. 201 1-CA-002054-ME, 2012 WL 5042710 (Ky. App. Oct. 19, 2012).

In that case, the family court referenced an in camera interview of the child and

determined that bruises on the child were caused by the mother ’ s paramour.

Id. at *2. The Court of Appeals specifically stated, however, that “ [t]he best

interest of the child may be different in each case; therefore, that determination

is left within the sound discretion of the family court. ” Id. (citing Pennington v.

Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008)). The child here stated in the

interview that the paramour had punched him several times and those

statements “ supported the trial court ’ s decision. ” Id. Given this support,

“ there was no clear error or abuse of discretion. ” Id. Judge Caperton dissented

and stated that the child ’ s testimony “ should have been excluded on all issues

other than [the child ’ s] desires and wishes as to custody and visitation. ” Id. at

*7. Judge Caperton stated that “ while it may be in the discretion of the court

to control the mode of cross-examination, there must be procedures available

to the parties whereby they can review the evidence considered by the court

12and present rebuttal evidence which will assure that the demands of due

process are met. ” Id.

The Court of Appeals determined, as we determine in this case, that the

in camera interview appropriately delved into the underlying issues of abuse. If

the court cannot determine the validity of these underlying allegations from the

child ’ s testimony, then the court would be obstructed from making a

meaningful determination as to custody or visitation. It is imperative that the

court be permitted, within its discretion, to determine whether the child ’ s

wishes are sound, based upon fact, and persuasive as to its decision on

custody or visitation. But, as the dissent noted, I believe there can be due

process concerns. However, those concerns are not present here.

Sally ’ s arguments that she had no opportunity to cross-examine or rebut

testimony are illusory. It is true that if the trial court conducts an in camera

interview, “ a record of such interview must be made so that the parties are

afforded the subsequent opportunity to determine and contradict the accuracy

of statements and facts given during the interview. ” Couch v. Couch, 146

S.W.3d 923, 925-26 (Ky.2004). However, Sally was given an opportunity to

present questions for Elliott to the judge. She also raised no objection to such

a manner of cross-examination. A “ party [does have a] due process right to

confront the evidence against him or her. ” Morgan v. Getter, 441 S.W.3d 94,

111 (Ky. 2014). However, unlike in Couch, Sally and her attorney were

watching the entire interview with Elliott as it occurred. The judge paused on

two occasions to ask if the parties had any questions for him to ask Elliott

13during the interview. Sally did not object to this manner of cross-examination

at the time of the hearing. It was only after the court ’ s decision, adverse to her

wishes, that she raised the issue in her appeal.

Additionally, the judge gave all parties an opportunity to present further

witnesses after Elliott ’ s interview and all parties declined. Sally had a

meaningful opportunity to respond to Elliott ’ s interview; simply because she

chose not to utilize that opportunity does not mean her due process rights were

violated. The manner in which the judge conducted this interview seems to be

perfectly 

### in accord with the intent of the legislature in crafting the statute. The

General Assembly specifically stated that “ [t]he court may permit counsel to be

present at the interview. ” KRS 403.290(1) (emphasis added). The court did not

permit counsel to be present in the confines of the room for the interview, as

seems to be permitted by the statute, yet still protected the due process rights

of the parties to submit questions for the child. As stated in Couch, due

process requires that “ [t]he parties are entitled to know what evidence is used

or relied upon by the trial court, and have the right generally to present

rebutting evidence or to cross-examine, unless such right is waived. ” Couch,

146 S.W.3d at 925. Sally knew the evidence against her; she was given an

opportunity to question and rebut that evidence. Her due process rights

remained unviolated.

For the foregoing reasons, I concur in the result of the majority opinion.

14I believe the proper result was reached and affirming both the trial court and

Court of Appeals is appropriate.

Venters, J., joins.

COUNSEL FOR APPELLANT:

Michael Robey

COOLEY I ULIANO ROBEY, PLLC

APPELLEE:

Donnie J. Harrison

15