Y.R.D. v. J.L.

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Court of Appeals of Kentucky.

Y.R.D. v. v. J.L.

NO. 2011–CA–000974–ME

Decided: March 30, 2012

BEFORE:  DIXON, KELLER AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  James Robert Norris Glasgow, Kentucky BRIEF FOR APPELLEE:  Robert E. Harrison Scottsville, Kentucky

Appellant, Y.R.D., appeals from orders of the Allen Circuit Court terminating his parental rights to his two biological children.   Finding no error, we affirm.

Appellant and Appellee, V.J.L., are the biological parents of two minor children.   The parties divorced in 2001 and, pursuant to the decree, the parties were awarded joint custody with Appellee being designated as the primary residential parent.   In August 2008, Appellant stopped exercising regular visitation with the children, only seeing them for one hour at Thanksgiving and three hours on Christmas Day. Thereafter in April 2009, Appellant moved to Canada and has not seen the children since.   Further, the record indicates that Appellant has paid no child support since March 2009, and was at the time of the trial court hearing over $10,000 in arrears.

On July 12, 2010, Appellee filed a petition to terminate Appellant's parental rights in the Allen Circuit Court.   The Cabinet for Health and Family Services was subsequently joined as a party.   The trial court conducted a bench trial in January 2011, during which Appellant appeared by telephone only.   The court thereafter entered findings of fact and conclusions of law terminating Appellant's parental rights pursuant to Kentucky Revised Statutes (KRS) 625.050.   In so doing, the trial court found that both children fell within the definition of a “neglected child” as defined in KRS 600.020(1) and that termination of parental rights was in each child's best interest.   Specifically, the court determined that:

8. [Appellant], for a period of not less than six (6) months, has continuously or repeatedly failed or

refused to provide or has been substantially incapable

of providing essential parental care and protection for

the child and there is no reasonable expectation of improvements in parental care and protection, considering the age of the child.

9. [Appellant], for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care or education reasonably necessary and available for the child's well-being and there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child.

10. [Appellant] has exercised no regular visitation with the subject child since August, 2008.   He saw the child briefly for one hour during Thanksgiving in 2008, and for three to four hours on December 25, 2008.   He has had no contact with the child since, other than infrequent and minimal telephone calls.   He moved to Canada in April 2009 and has not returned.   He did send the child $200 cash as a Christmas gift in 2009 and 2010, but has paid no child support to [Appellee] since March 2009 despite having earned income to do so.   He is more than $10,000 in arrears in child support.   His testimony was essentially that he had left it up to the mother to provide for the children.

11. It is in the best interest of [the child] that termination of ․ parental rights be ordered because the child is in need of the stability provided by the home of the mother, who has now remarried․

In a subsequent order, the trial court amended its findings of fact to include, “the child had adequate food, clothing, shelter, medical care, and education during the relevant interval of time, with resources for same being provided entirely by [Appellee] and none of the resources for same being responded by [Appellant].”   Appellant thereafter appealed to this Court as a matter of right.

The trial court is afforded a great deal of discretion in determining whether the child fits within the abused or neglected category, and whether the abuse or neglect warrants termination.  M.P.S. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998);  Department for Human Resources v. Moore, 552 S.W.2d 672, 675 (Ky.App.1977).   This Court's standard of review in a termination of parental rights action is confined to the clearly erroneous standard in Kentucky Rules of Civil Procedure (CR) 52.01, based upon clear and convincing evidence.   Clear and convincing evidence need not be uncontradicted.  “It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people.”  V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky.App.1986) (quoting Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934)).   Thus, the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings.  V.S., 706 S.W.2d at 424.

On appeal, Appellant first argues that the trial court erred in finding that he had neglected his children in light of the court's amended finding that they were not neglected as defined in KRS 600.020(1).   In other words, Appellant contends that whether or not he would have neglected his children in the absence of Appellee providing for them is purely speculative.   Appellant also argues that even if he did neglect his children, the trial court erred in terminating his parental rights without first affording him the opportunity to work with the Cabinet to remediate any such neglect.   We find both arguments to be without merit.

KRS 625.090(1) provides that a circuit court may involuntarily terminate parental rights only if it finds by clear and convincing evidence that the child is abused and neglected as defined in KRS 600.020(1), and that termination would be in the child's best interests.   Further, parental rights may not be involuntarily terminated unless the court also finds by clear and convincing evidence that one or more of the grounds set out in KRS 625.090(2) exist, including:

(a) That the parent has abandoned the child for a period of not less than ninety (90) days;

(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;

(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child[.]

KRS 600.020(1) defines an abused or neglected child as including one whose “health or welfare is harmed or threatened with harm when his parent”

(d) Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child;

(g) Abandons or exploits the child;  or

(h) Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being.

The trial court herein found that Appellant had voluntarily abandoned his children for over a two-year period prior to Appellee filing this action.   Appellant provided no funds, failed to pay court-ordered child support despite having the income to do so, and simply chose not to contact his children by visitation, phone or otherwise.   Appellant even testified during the hearing that he left it up to Appellee to provide for the children.

The undisputed evidence that Appellant did not support or maintain contact with his children after moving to Canada in April 2009 constitutes clear and convincing evidence of neglect as defined in KRS 600.020(1).   Likewise, those same facts constituted clear and convincing evidence to support the trial court's findings that Appellant abandoned and neglected the children for at least ninety days, and that he continuously and repeatedly failed or refused to provide essential care for them.  KRS 625.090(2)(a), (e) and (g).

We similarly find no merit in Appellant's claim that M.E.C. v. Commonwealth of Kentucky, Cabinet for Health and Family Services, 254 S.W.3d 846 (Ky.App.2008), required the trial court to afford him the opportunity to work with the Cabinet before terminating his parental rights.   In M.E.C., the trial court granted the Cabinet's petition for the involuntary termination of a mother's parental rights eight months after her children had been removed from her care and placed in the Cabinet's custody.   On appeal, a panel of this Court vacated the trial court's order and remanded the matter for further proceedings based, in part, upon the determination that the Cabinet failed to comply with KRS 625.090(3)(c), which provides that if a child has been placed with the Cabinet, it is required to make reasonable efforts as defined in KRS 620.020 to reunite the child with the parents prior to filing a petition to terminate parental rights.  M.E.C., 254 S.W.3d at 854.

Herein, the parties' children have remained in Appellee's care and have never been subject to placement by the Cabinet.   As such, KRS 625.090(3)(c) has no application to this case.   Further, as Appellee points out in her brief, Appellant does not contend that he ever contacted the Cabinet for assistance or services.   Accordingly, the trial court was not required to provide the Cabinet's services prior to terminating Appellant's parental rights.

We conclude that the trial court's orders are based upon substantial evidence in the record.  V.S., 706 S.W.2d at 424.   Therefore, the orders of the Allen Circuit Court terminating Appellant's parental rights to his two minor children are affirmed.

ALL CONCUR.

DIXON, JUDGE:

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