T.E.E.V. AND J.W.C. v. CABINET FOR FAMILIES AND CHILDREN AND CABINET FOR FAMILIES AND CHILDREN AS NEXT OF FRIEND FOR P.L.C.
Annotate this Case
Download PDF
RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001160-MR
T.E.E.V. AND J.W.C.
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS STEPHENS, JUDGE
ACTION NO. 97-AD-00030
v.
CABINET FOR FAMILIES AND CHILDREN
AND CABINET FOR FAMILIES AND CHILDREN AS
NEXT OF FRIEND FOR P.L.C.
APPELLEES
OPINION AFFIRMING AS TO J.W.C.
AND ORDER DISMISSING
AS TO T.E.E.V.
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge.
This is an appeal by J.W.C. from an order of
the Kenton Circuit Court entered on April 8, 1998, which terminated
his parental rights to P.L.C.1
J.W.C. and T.E.E.V. are the biological parents of P.L.C.,
born on May 17, 1984, and J.C., born on September 21, 1985.
On
April 22, 1997, the Cabinet for Families and Children filed a
petition for involuntary termination of parental rights of J.W.C.
and T.E.E.V.
On December 9, 1997, the circuit court granted the
Cabinet’s motion for continuance and rescheduled the termination
1
T.E.E.V. filed a notice of appeal but has not filed
a brief on appeal.
hearing for April 2, 1998.
After being granted furlough from
incarceration on March 1, 1998, J.W.C. requested a continuance in
order to secure his attendance at the hearing.
The circuit court
denied the request and held the termination hearing on April 2,
1998. The court terminated T.E.E.V.’s and J.W.C.’s parental rights
to P.L.C., but dismissed the petition for involuntary termination
as to J.C.
This appeal followed.
On appeal, J.W.C. argues that the circuit court erred (1)
in denying him a continuance to secure his attendance at the
hearing, (2) in terminating his parental rights when the Cabinet
failed to meet its statutory burden, (3) in finding that it was in
the best interest of the child to terminate parental rights, and
(4) by interviewing the children in chambers in the absence of
counsel.
"The decision whether to grant or to deny a motion for
continuance lies within the sound discretion of the trial court."
Kentucky Farm Bureau Mutual Ins. Co. v. Burton, Ky. App., 922
S.W.2d 385, 388 (1996).
The record establishes that at the time of
the hearing, the circuit court considered the fact that it was
uncertain when J.W.C.’s transfer to a facility near Cincinnati
would occur; and even if it did, whether he would have the
necessary
permission
to
enter
Kentucky
for
the
hearing.
Considering the best interest of the children and the uncertainty
surrounding J.W.C.’s release, the circuit court did not abuse its
discretion by denying his motion for continuance.
J.W.C. also argues that he was denied the opportunity to
confront and cross-examine witnesses and to respond to evidence
-2-
against him in violation of his due process rights.
This argument
is without merit. J.W.C. was adequately represented at the hearing
by counsel, and the circuit court received into evidence and
reviewed J.W.C.’s deposition taken on February 25, 1997.
J.W.C.’s
counsel also properly cross-examined all of the witnesses presented
by the Cabinet.
Next, J.W.C. argues that the Cabinet failed to meet its
statutory
burden
pursuant
to
Kentucky
Revised
Statute
(KRS)
625.090.
The parental rights termination statute, KRS 625.090,
provides, in pertinent part, that:
(1) 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:
* * *
(a)
2. The child is found to be an abused or neglected
child, as defined in KRS 600.020(1), by the Circuit Court
in this proceeding;
* * *
(2) 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;
* * *
-3-
(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;
In summary, the statute requires a finding by clear and
convincing evidence that:
(1) the child is an abused or neglected
child; (2) one or more of the factors set out in KRS 625.090
(2)(a)-(j) are present; and (3) the termination would be in the
best interest of the child.
The trial court has broad discretion in determining
whether the 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).
This Court's standard of review in a termination of parental rights
action is confined to the "clearly erroneous" standard set forth in
-4-
Kentucky Rules of Civil Procedure (CR) 52.01.
The record reflects
that the children were repeatedly left at home alone while T.E.E.V.
went out to feed her alcohol and drug addiction. Consequently, the
children were taken from the home.
T.E.E.V. also testified that
P.L.C. had suffered sexual abuse from a family acquaintance while
the family lived in Ohio.
The record and T.E.E.V.’s testimony
convinces us that the trial court did not err in finding that
P.L.C. was abused and neglected.
The second 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)-(j).
In this case, the circuit court found that
the grounds set forth in (a), (e) and (g) were present.
There was
ample evidence produced at the hearing regarding J.W.C.’s abuse of
alcohol, drugs, and T.L.E.V.
After separating from T.E.E.V.,
J.W.C. did attempt to take care of the children but each time he
failed and returned them to T.E.E.V. knowing that they would be
neglected by her.
J.W.C.’s involvement with the children has
always been determined by his own needs and not those of the
children.
court's
There is substantial evidence to support the trial
determinations,
so
that
we
cannot
conclude
that
its
findings are clearly erroneous.
The final prong of KRS 625.090 requires a determination
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 existence of a ground for termination, the circuit
court
is
required
625.090(3).
to
consider
the
factors
set
forth
in
KRS
J.W.C. argues that the circuit court erred in finding
-5-
that termination was in P.L.C.’s best interest because termination
could result in discontinued visitation between P.L.C. and J.C. It
is clear that P.L.C. has made tremendous improvements in her
physical and emotional well being since being placed in foster care
by the Cabinet.
Her continued progress relies, in part, on
remaining in contact with J.C.
With this concern in mind, the
circuit court sought a commitment from the Cabinet to ensure
continued visitation between the children regardless of their legal
status.
The circuit court’s finding that termination was in
P.L.C.’s best interest was not clearly erroneous.
CR 52.01;
Stafford v. Stafford, Ky. App., 618 S.W.2d 578 (1981).
Finally, J.W.C. argues that the circuit court erred by
interviewing the children in chambers in the absence of counsel.
KRS 625.080(2) provides that the circuit court, in its discretion,
"may interview the child in private, but a record of the interview
shall be made, which, in the discretion of the court, may be sealed
to be used only by an appellate court[.]"
The circuit court did
not abuse its discretion by interviewing the children in the
absence of counsel.
For the reasons stated above, the judgment terminating
the rights of J.W.C. to P.L.C. is hereby affirmed.
The appeal
filed by T.E.E.V. is dismissed for failure to file a brief.
CR76.12(8)(b).
ALL CONCUR.
Entered: August 13, 1999
/s/ Joseph R. Huddleston
Judge, Court of Appeals
-6-
BRIEF FOR APPELLANT J.W.C.:
BRIEF FOR APPELLEE:
Laurie B. Dowell
Newport, Kentucky
Terry L. Morrison
Frankfort, Kentucky
NO BRIEF FOR T.E.E.V.
-7-
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.
