W.D.J. v. J.S., D.S., L.J., L.H.J., G.J. and J.J.
Annotate this Case
Download PDF
RENDERED:
October 9, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No. 1997-CA-001698-MR
NO. 1997-CA-001827-MR
NO. 1997-CA-001828-MR
W.D.J.
v.
APPELLANT
APPEALS FROM UNION CIRCUIT COURT
HONORABLE TOMMY CHANDLER, JUDGE
ACTIONS NO. 94-AD-0009 AND 95-AD-0008
J.S., D.S., L.J., L.H.J.,
G.J. and J.J.
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
GARDNER, HUDDLESTON and KNOX, Judges.
HUDDLESTON, JUDGE.
Before the Court are three appeals by W.D.J.
from judgments of the Union Circuit Court (1) terminating his
parental rights to his twin sons G.J. and J.J.; (2) terminating his
parental rights to his daughter L.H.J.; and (3) approving the
adoption of the three children by the appellees J.S. and D.S., the
maternal great-uncle and great-aunt of the children.
Twins
G.J.
and
J.J.
were
born
June
22,
We affirm.
1993.
In
September 1993, the twins were placed in the home of the J.S. and
D.S. with the consent of L.J., the children’s mother.
Shortly
thereafter, pursuant to a Marshall District Court order, J.S. and
D.S. were appointed custodians of the twins, and the two boys have
resided with the appellees continually since that time. L.H.J. was
born October 17, 1994.
L.H.J. was born in the back seat of a car
suffering from the side effects of L.J.’s use of crack cocaine
during her pregnancy.
Shortly after her birth, L.H.J. was placed
in the home of J.S. and D.S. by the Cabinet for Human Resources
(now Cabinet for Families and Children).
J.S. and D.S. continually since
L.H.J. has lived with
October 25, 1994.
On August 11, 1994, in case No. 94-AD-0009, J.S. and D.S.
filed a petition seeking the adoption of the twins.
On June 23,
1995, in case No. 95-AD-00008, J.S. and D.S. filed a petition
seeking adoption of L.H.J.
CI-00185,
J.S.
and
D.S.
On November 11, 1996, in case No. 96filed
a
permanent custody of the children.
petition
for
temporary
and
The latter action was a
precautionary filing in the event the adoption proceedings were
unsuccessful. Following a hearing on the matter, on June 10, 1997,
the trial court entered an order terminating the parental rights of
W.D.J. to his three children1 and granting adoption of the children
1
The order also terminated the parental rights of the
children’s mother, L.S. L.S. did not appeal the June 10, 1997,
orders terminating her parental rights or the July 9, 1997,
orders granting the petitions of J.S. and D.S. for adoption. On
April 29, 1997, the trial court ruled in case No. 96-CI-00185 and
granted the motion of J.S. and D.S. to be awarded permanent
custody of the children. L.S. timely filed an appeal of this
order in action No. 97-CA-1303. W.D.J. did not appeal the April
29, 1997, judgment granting J.S. and D.S. permanent custody of
the children.
-2-
to J.S. and D.S.
W.D.J. timely filed an appeal of the June 10
order in action No. 97-CA-001698.
On July 9, 1997, an order and
judgment of adoption approving the adoption of the three children
by J.S. and D.S. was entered.
July 9, 1997, judgment.
W.D.J. filed timely appeals of the
The action concerning the twins is case
No. 97-CA-001827 and the action concerning L.H.J. is case No. 97CA-001828.
The three appeals were subsequently consolidated.
W.D.J. argues that the trial court placed too much
reliance on his incarceration and gave no weight to the fact that
he may have been rehabilitated as a result of his incarceration;
that the best interests of the children have and can continue to be
protected without terminating his parental rights; and that he
should be given an opportunity to obtain his release on parole and
a period of time thereafter before a final determination regarding
his parental rights should be made.
The parental rights termination statute, Ky. Rev. Stat.
(KRS) 625.090, provides, in pertinent part, that:
The
circuit
court
may
involuntarily
terminate
all
parental rights of a parent of a named child, if the
circuit court finds from the pleadings and by clear and
convincing evidence that the child has been adjudged to
be an abused or neglected child by a court of competent
jurisdiction or is found to be an abused or neglected
child by the circuit court in this proceeding and that
-3-
termination would be in the best interest of the child.
No termination of parental rights shall be ordered unless
the circuit court also finds by clear and convincing
evidence
the
existence
of
one
(1)
or
more
of
the
following grounds:
. . . . .
(a) That the parent has abandoned the child for a period
of not less than ninety (90) days;
. . . . .
(d)
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;
. . . . .; or
(f)
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.
In summary, the statute requires a finding, supported by clear and
-4-
convincing evidence, (1) that the child is an abused or neglected
child;2
(2) that the termination would be in the best interest of
the child; and (3) that one or more of the factors set out in
subsection (1)(a)-(f) are present.
The trial court determined that the children were abused
or neglected children with its finding that their parents had
failed to provide them with essential food, clothing, shelter,
medical care and education.3
Both parents admit to a long history
of drug and alcohol abuse, violence, and criminal behavior.
While
L.J. was pregnant with the twins, she and W.D.J. experienced
episodes of domestic violence, including an occasion when W.D.J.
attacked L.J. by driving his car into her and breaking her leg.
Four months after the twins were born W.D.J. left the family and
moved in with another woman.
L.J., with W.D.J.’s knowledge, used
crack cocaine during her pregnancy with L.H.J., and L.H.J. was born
addicted to crack cocaine.
L.J. testified that only days before
2
Ky. Rev. Stat. (KRS) 600.020(1) defines "abused or
neglected child" as: "a child whose health or welfare is harmed
or threatened with harm when his parent, guardian or other person
exercising custodial control or supervision of the child:
inflicts or allows to be inflicted upon the child physical or
emotional injury by other than accidental means; creates or
allows to be created a risk of physical or emotional injury to
the child by other than accidental means;...does not provide the
child with adequate care, supervision, food, clothing, shelter
and education or medical care necessary for the child's
well-being."
3
The trial court did not specifically find that the
children were abused and neglected children; however, the
foregoing finding meets the definitional standard for abused or
neglected child pursuant to KRS 600.020(1).
-5-
L.H.J. was delivered, she and W.D.J. used crack cocaine.
The
trial
court
has
considerable
discretion
in
determining whether a child fits within the abused or neglected
category and whether the abuse or neglect warrants termination.
Department for Human Resources v. Moore, Ky. App., 552 S.W.2d 672,
675 (1977).
parental
This Court's standard of review in a termination of
rights
action
is
confined
to
the
clearly
erroneous
standard in Ky. R. Civ. Proc. (CR) 52.01 based upon clear and
convincing evidence, and the findings of the trial court will not
be disturbed unless there is no substantial evidence in the record
to
support
them.
V.S.
v.
Commonwealth,
Cabinet
Resources, Ky. App., 706 S.W.2d 420, 424 (1986).
for
Human
"Clear and
convincing proof does not necessarily mean uncontradicted proof.
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." Rowland v. Holt, Ky., 70 S.W.2d
5, 9 (1934).
The record contains substantial evidence to support
the findings of the trial court that the three children are abused
or
neglected
children.
The
specific
instances
of
deficient
parental care identified by the trial court, and otherwise revealed
in the record, convince us that the trial court did not clearly err
in its determination that the children are abused and neglected
within the meaning of KRS 600.020(1).
The second prong of KRS 625.090 requires a finding that
the termination of parental rights would be in the best interest of
the child.
In determining the best interest of the child and the
-6-
existence
of
a
ground
for
termination,
the
circuit
court
is
required to consider the factors set forth in KRS 625.090(2):
(a)
Emotional
illness,
mental
illness
or
mental
deficiency of the parent as certified by a qualified
mental health professional, which renders the parent
consistently unable to care for the immediate and ongoing
physical or psychological needs of the child for extended
periods of time;
(b) Acts of abuse or neglect toward any child in the
family;
(c) If the child has been placed with the cabinet or a
child-placing agency or child-caring facility, whether
the cabinet has rendered or attempted to render all
reasonable services to the parent which reasonably might
be expected to bring about a reunion of the family,
including the parent's testimony concerning such services
and whether additional services would be likely to bring
about lasting parental adjustment enabling a return of
the child to the parent within a reasonable period of
time, considering the age of the child;
(d) The efforts and adjustments the parent has made in
his circumstances, conduct or conditions to make it in
the child's best interest to return him to his home
within a reasonable period of time, considering the age
of the child;
(e) The physical, emotional and mental health of the
-7-
child and the prospects for the improvement of the
child's welfare if termination is ordered; and
(f) The payment or the failure to pay a reasonable
portion of substitute physical care and maintenance if
financially able to do so.
Among the factors identified by the trial court relating
to the children’s best interest were:
(1) both parents are now in
prison for felony convictions and have had previous incarcerations
for various crimes and misdemeanors; (2) neither expects to be
released from prison in the near future; (3) both parents admit to
a long history of drug and alcohol abuse, violence and criminal
behavior; (4) rehabilitation of the parents is unconvincing in
light of their past records and conduct; and (5) there is no
reasonable expectation of significant improvement in their conduct
in the immediate foreseeable future.
The
findings
of
the
trial
court,
if
supported
by
sufficient evidence, cannot be set aside unless they are found to
be "clearly erroneous."
CR 52.01; Stafford v. Stafford, Ky. App.,
618 S.W.2d 578 (1981).
This principle recognizes that the trial
court
opportunity
alone
credibility.
appeal.
had
the
to
judge
the
witnesses'
Without the rule, actions would be tried anew upon
Id. at 579.
While W.D.J. may disagree with the trial
court's findings, when the evidence is conflicting, we cannot and
will not substitute our judgment for that of the trial court.
Wells v. Wells, Ky., 412 S.W.2d 568, 571 (1967).
-8-
The record
clearly and convincingly reveals that the trial court did not err
in its determination that it was in the children’s best interest
that W.D.J.’s parental rights be terminated.
The final prong of KRS 625.090 requires a finding by
clear and convincing evidence of one of the factors set forth in
KRS 625.090(1)(a)-(f).
In this case, the trial court specifically
found that the grounds set forth in (a), (d) and (f) were present.
As clearly and convincingly demonstrated by the factors identified
in previous sections of this opinion, there is substantial evidence
to support the trial court's determination.
The Cabinet has met
its burden to establish grounds for termination by clear and
convincing evidence as required by KRS 625.090.
Santosky v.
Kramer, 455 U.S. 745 (1982); O. B. C. and F. D. C. v. Cabinet for
Human Resources, Ky. App., 705 S.W.2d 954 (1986); and V. S. and
H. S. v. Commonwealth Cabinet for Human Resources, Ky. App., 706
S.W.2d 420 (1986).
For the foregoing reasons, the orders and judgments of
the trial court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT, W.D.J.:
BRIEF FOR APPELLEES, J.S.
and D.S.
C. Michael Williamson
Morganfield, Kentucky
Bruce W. Moore
Morganfield, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
