APPELLANT v. AND APPELLEES

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Court of Appeals of Kentucky.

R.C.C. APPELLANT v. L.H., J.H., AND M.H. APPELLEES

NO. 2011–CA–000662–ME

Decided: March 09, 2012

BEFORE:  COMBS, KELLER AND STUMBO, JUDGES. BRIEF FOR APPELLANT:  Roger D. Varney, II Pikeville, Kentucky BRIEF FOR APPELLEE:  Tammy C. Skeens Pikeville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

R.C.C. appeals from an order which terminated his parental rights to his minor child, M.H., and a judgment which finalized the adoption of the child by J.H., the husband of the child's biological mother, L.H. For the following reasons, we affirm.

The child was born to R.C.C. and L.H. on October 19, 2004.   The couple was never married, and they separated during L.H.'s pregnancy.   Since his birth, the child has always resided with his mother.   In April 2006, R.C.C. was granted supervised visitation with the child.   Shortly thereafter, his visitation was temporarily suspended;  on July 5, 2006, following a hearing, visitation was suspended until further order of the court due to R.C.C.'s continued drug use and failure to produce clean drug tests.

On December 20, 2007, R.C.C. was arrested for first-degree trafficking in a controlled substance and being a persistent felony offender in the second degree.   On April 15, 2008, after pleading guilty to the charges, he was sentenced to serve a total of fifteen years.

On April 2, 2010, L.H. married J.H. They filed a petition to terminate R.C.C.'s parental rights and a petition for J.H. to adopt M.H. on May 4, 2010.   Following a hearing, the trial court entered findings of fact, conclusions of law and an order terminating R.C.C's parental rights.   The trial court also entered a judgment finalizing the adoption of the child by J.H. The trial court denied R.C.C.'s motion to alter, amend or vacate, and this appeal by R.C.C. followed.

Parental rights “can be involuntarily terminated only if there is clear and convincing evidence that the child has been abandoned, neglected, or abused by the parent whose rights are to be terminated, and that it would be in the best interest of the child to do so.”  Cabinet for Health and Family Services v. A.G.G., 190 S.W.3d 338, 342 (Ky.2006).   An appellate court accords the trial court much discretion and applies the clearly erroneous standard of review under Kentucky Rule of Civil Procedure (CR) 52.01.  M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998).   If the record contains substantial evidence to support the trial court's findings, we may not set them aside.  Id.

The trial court found that neglect was established pursuant to Kentucky Revised Statute (KRS) 600.020(1)(c), in that R.C.C. engaged in a pattern of conduct that rendered him incapable of caring for the immediate and ongoing needs of the child and that this pattern of conduct included parental incapacity due to abuse of alcohol and other drugs.   The court also found, under KRS 625.090(2)(a), that R.C.C. had abandoned the child for a period of at least ninety days and that in fact he had had no contact with the child since June 2006.   The court also found under KRS 625.090(2)(e), that R.C.C. had continuously failed to provide essential care and protection for the child and that there was no reasonable expectation he would do so in the future.   Finally, the court found clear and convincing evidence under KRS 600.020 that R.C.C. had neglected the child, and that it was in the child's best interest for R.C.C.'s parental rights to be terminated.

R.C.C. disputes the trial court's finding that he had abandoned the child, failed to provide for him and would not be able to provide for him in the foreseeable future.   R.C.C. and his mother testified at the termination hearing that they had kept up contact with and supported the child, even though R.C.C. was incarcerated and L.H. attempted to thwart their efforts.   It is undisputed that R.C.C.'s mother paid child support steadily through the county attorney's office.   R.C.C. and his mother testified that they also sent cards and gifts to the child, although L.H. testified that the gifts and cards arrived only after the petition for termination of parental rights was filed.   R.C.C. admitted that he made absolutely no effort to restore visitation with the child after it was suspended by the court in July 2006.   Instead, in July 2007, he was charged with felony drug trafficking which ultimately led to his incarceration.   He testified that he had not seen the child for five years and eight months.   L.H. testified that the child did not recognize photographs of his father, and that R.C.C. had never contacted her to bring the child to the Kentucky State Penitentiary, where he was serving his sentence at the time of the hearing.   Although R.C.C.'s mother paid child support on his behalf, there is no evidence that R.C.C. made any independent efforts to assist his child financially.   In light of these facts, the trial court did not err in finding that R.C.C. had abandoned the child and had failed to provide for him.

R.C.C. further argues, relying on Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660 (Ky.1995), that the trial court unfairly used his incarceration as the basis for the termination of his parental rights.  “Although incarceration for an isolated criminal offense may not constitute abandonment justifying termination of parental rights, incarceration is a factor to be considered[.]”  Rogeski, 909 S.W.2d at 661.   The trial court did not err because it did not rely solely on R.C.C.'s incarceration to justify termination, although it was a factor in the trial court's decision.   As evidence of abandonment, it is undisputed that R.C.C. made no effort to lift the suspension of visitation during the year between the entry of the order of suspension and his arrest and incarceration.   Evidence was offered that he was jailed for part of that time on a burglary charge of which he was later found not guilty.   Nonetheless, he also made no effort to reinstate visitation during the course of his incarceration, a period well beyond the ninety days specified by KRS 625.090(2)(a).

Moreover, the trial court did not rely on an “isolated criminal offense” to justify terminating R.C.C.'s parental rights.   R.C.C. testified that, since 1998, he has been convicted from twenty to twenty-two times on drug charges and four DUIs. The trial court also gave weight to R.C.C.'s ongoing problems with alcohol and drug abuse, which led to his incarceration and which the court found rendered him ultimately incapable of caring for the needs of the child.   This pattern of behavior constitutes clear and convincing evidence supporting the trial court's finding of abandonment and neglect, and further supporting its determination that it was in the child's best interest to terminate R.C.C.'s parental rights.

For the foregoing reasons, the orders of the Pike Circuit Court terminating R.C.C.'s parental rights and finalizing the adoption of the child by J.H. are affirmed.

All Concur.

KELLER, JUDGE: