D.R. v. S.J.; H.A.J., a minor by and through his Guardian Ad Litem
Annotate this Case
Download PDF
RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002600-MR
D.R.
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 94-AD-00006
S.J.; H.A.J., a minor by and through his
mother, S.J.; and EDWIN EVANS TAYLOR,
Guardian Ad Litem
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, MILLER, AND TACKETT, JUDGES.
McANULTY, JUDGE: This is an appeal from a judgment of the Daviess
County Circuit Court involuntarily terminating Appellant’s
parental rights to his child, H.A.J.
We affirm.
Appellant and Appellee (S.J.) were married in 1988, and
their only child, H.A.J., was born in 1991.
In November of that
year, Appellant reportedly left the marital home, and
subsequently, he was hospitalized twice for depression and
alcohol and drug addiction.
In 1992, the couple divorced.
At
the time of the divorce, Appellant was not ordered to pay child
support.
After the divorce, Appellant moved to Florida, living
and working there for about a year.
Then, in 1993, Appellant
returned to Kentucky and entered the hospital for a third time,
again for treatment of his depression and substance abuse.
After
his release, Appellant took a job at the Oneida Baptist Institute
in Oneida, Kentucky.
Appellee claims that Appellant made no
effort to see, contact or support his child during this entire
period.
In January of 1994, Appellee filed a motion to
involuntarily terminate Appellant’s parental rights to H.A.J.,
claiming Appellant had neglected and abandoned his child.
Several months later, she filed a second motion seeking child
support.
According to the trial court, it was during a June 1994
support hearing that Appellant evidenced a desire to visit his
child for the first time since he had left the marital household
in 1991.
This is the third time this case has come before the
Court of Appeals.
In 1996, we reversed and remanded the decision
of the trial court terminating Appellant’s rights because the
child had not been joined as a necessary party to the litigation.
D.R. v. S.R., No. 1995-CA-1643-MR.
On remand, the trial court
decided not to terminate Appellant’s parental rights, based on
comments made in the previous Court of Appeals opinion, believing
them to be the law of the case.
However, on appeal, this court
declared those comments to be dicta, sending the case back to the
trial court again.
H.R. v. Revlett, Ky. App., 998 S.W.2d 778
-2-
(1999).
On remand, the trial court decided once again to
terminate Appellant’s parental rights.
This appeal followed.
The trial court has broad discretion in determining
whether a child is abused or neglected and whether that abuse of
neglect warrants termination of parental rights.
Our review of
such an action must be confined to a clearly erroneous standard
based on clear and convincing evidence.
Such clear and
convincing evidence is sufficient if there is proof of a
probative and substantial nature carrying the weight of evidence
sufficient to convince ordinarily prudent-minded people.
The
findings of the trial court will not be disturbed unless no
substantial evidence exists in the record to support such
findings.
R.C.R. v. Commonwealth, Ky. App., 988 S.W.2d 36, 38
(1998).
KRS 625.090 sets out the requirements for involuntarily
terminating a parent’s rights.
According to the statute, rights
may be terminated only if a court finds by clear and convincing
evidence that a child has been abused or neglected and that
termination would be in the child’s best interest.
(1).
KRS 625.090
A court must also consider, however, a group of secondary
factors listed in KRS 625.090(2).
Without the occurrence of one
of these factors, such as abandonment of the child by the parent
or repeated and continuing inability to provide the child with
necessities like food and clothing, termination will not be
granted.
To determine that Appellant has abandoned his child,
the court must find by clear and convincing proof that he
“evidenced a settled purpose to forego all his parental duties
-3-
and all parental claims” to the child.
Wright v. Howard, Ky.
App., 711 S.W.2d 492, 497 (1986).
In the case at bar, two different judges on the trial
court level found on two separate occasions that the rights of
Appellant with regard to his child should be terminated.
Most
recently, in 1999, the trial court wrote in its opinion that
Appellant’s child was harmed or threatened by Appellant’s
abandonment and that Appellant had made no effort to provide or
help provide his child with care, food, clothing, shelter,
education or medical care.
The court also wrote that the
evidence was clear and convincing that Appellant had repeatedly
and continually failed to provide essential care and protection
for his child and saw no expectation of improvement in the
future.
Opinion of Daviess Circuit Court, No. 94-AD-00006,
September 28, 1999.
In addition, the child’s current Guardian Ad
Litem has recommended termination of Appellant’s rights.
Upon
review of the facts in this case, we agree.
The trial court did not err when it found that H.A.J.
was an abused or neglected child as is required for termination
under KRS 625.090.
As defined in KRS 600.020(1), a child may be
abused or neglected if his/her welfare is harmed or threatened
with harm by a parent who engages in a pattern of conduct (such
as alcohol or drug abuse) that renders that parent incapable of
meeting the child’s immediate and ongoing needs.
600.020(1)(c).
abandoned.
KRS
Also, a child may be neglected if the child is
KRS 600.020(1)(g).
-4-
Both parties have stipulated that Appellant voluntarily
left the marital home in 1991 and made no effort to have
sustained contact with his child from that point in time until
the commencement of this action.
Appellant has also shown a
pattern of substance abuse, and even now that he has completed
several rehabilitation programs, according to the record he is
not and has not been enrolled in any recognized support groups
like Alcoholics Anonymous.
He has also resumed social drinking.
Based on these facts, we feel the court did not err when it found
this behavior fit the definition of neglect set out in KRS
600.020(1)(c) and (g).
Likewise, we agree the court did not err in deciding
that termination would be in the child’s best interests.
In
assessing whether termination is in a child’s best interest, the
court must consider a number of factors spelled out in KRS
625.090(3)(a)-(f).
These factors include acts of abuse or
neglect by the parent, the physical, emotional and mental health
of the child, and the parent’s failure to pay a reasonable amount
for care and maintenance of the child if financially able to do
so.
KRS 625.090(b), (e) and (f).
The trial court decided based on Appellant’s behavior
during and after the marriage that H.A.J. was a neglected child
as defined in KRS 600.020(1).
As well, the record shows the
court, with the help of the Guardian Ad Litem, had consistently
considered the child’s emotional and mental well-being during the
proceedings.
Finally, Appellant testified in court that he would
have been financially able to provide support to Appellees, but
-5-
did not do so, another factor for consideration under KRS
625.090.
In fact, Appellee testified that Appellant’s only
efforts to support H.A.J. came in the form of a single birthday
gift and a valentine card containing $20 sent after this action
commenced.
And while Appellant has seemingly made improvements
in his living situation according to the record, another factor
for consideration under KRS 625.090(3), we find those
improvements do not compel us to disregard the trial court’s
well-reasoned findings and conclusions.
Finally, KRS 625.090(2) requires the occurrence of at
least one of several additional factors before a termination may
be ordered, such as abandonment of the child for a statutory
period (at the time of this case the period was six months;
currently it is 90 days) or inability to provide for the child
for a period of more than six months.
In this case, we find the
court did not clearly err under this provision by finding
Appellant had abandoned the child for the statutory period as
enumerated in KRS 625.090(2)(a) or that Appellant had failed to
provide care and protection for the child for the statutory
period with no reasonable expectation of improvement under KRS
625.090(2)(e).
The decision of the trial court terminating Appellant’s
parental rights was not clearly erroneous under KRS 625.090.
affirm.
ALL CONCUR.
-6-
We
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE S.J.:
Richard T. Ford
Owensboro, Kentucky
William G. Craig, Jr.
Owensboro, Kentucky
BRIEF FOR APPELLEE H.R.:
Evan Taylor
Owensboro, Kentucky
-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.
