D.R., BY AND THROUGH V.L.C. v. J.W.R.
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RENDERED:
NOVEMBER 30, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002791-MR
D.R., BY AND THROUGH V.L.C.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NO. 99-FC-000441
v.
J.W.R.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND KNOPF, JUDGES.
KNOPF, JUDGE:
V.L.C., mother of D.R., filed, on behalf of D.R.,
a complaint, in the Jefferson Family Court, for the involuntary
termination of J.W.R.’s parental rights.
biological father of D.R.
J.W.R. is the
V.L.C. appeals from an October 25,
2000 final judgment of the Jefferson Family Court that dismissed
her petition for termination of J.W.R.’s parental rights.
The
Jefferson Family Court held that, while J.W.R. had neglected and
abandoned D.R., it was not in the best interest of D.R. to
terminate the father’s parental rights.
We affirm.
J.W.R. and V.L.C. are the parents of D.R., who was born
on June 11, 1996.
J.W.R. and V.L.C. were not married, and before
D.R. was born, they had ended their relationship with one
another.
V.L.C. claimed that she ended the relationship due to
domestic violence.
On March 13, 1996, V.L.C. filed a domestic
violence petition that resulted in an emergency protective order
(EPO) being issued against J.W.R.
V.L.C. never substantiated her
claims of domestic violence since she failed to appear at a
hearing scheduled for March 25, 1996.
and EPO against J.W.R. were dismissed.
As a result, the petition
J.W.R. claimed the
relationship ended because he started dating another woman.
On July 26, 1996, V.L.C. filed a paternity suit naming
J.W.R. as D.R.’s father.
J.W.R. requested a DNA test to
establish his paternity.
The test proved that J.W.R. was in fact
D.R.’s father and the Jefferson Family Court entered a summary
judgment to that effect.
On August 14, 2000, the family court
ordered J.W.R., who was not present, to pay $51.16 per week in
current child support and to pay $13.84 per week towards child
support past due.
On January 21, 1999, V.L.C. filed, on behalf of D.R.,
the petition to terminate, involuntarily, J.W.R.’s parental
rights.
V.L.C. alleged that J.W.R. had failed to pay child
support; had denied paternity; had abandoned their daughter for
more than six months; had attempted to physically harm V.L.C.;
had failed to provide parental care and protection to D.R.; and
had repeatedly and continuously failed to provide food, clothes,
shelter, medical care, and educational opportunities for D.R.
with no reasonable expectation that he would improve his parental
skills.
On October 20, 2000, the parties tried the case before
the bench.
On October 25, 2000, the Jefferson Family Court
handed down its final judgment, findings of fact and conclusions
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of law.
Pursuant to Ky. Rev. Stat. (KRS) 625.090(1), the
Jefferson Family Court found by clear and convincing evidence
that J.W.R. had neglected and abandoned D.R., as defined by KRS
600.020(1).
However, the family court found by clear and
convincing evidence that it was not in D.R.’s best interest that
J.W.R.’s parental rights be terminated; thus, it dismissed
V.L.C.’s petition.
V.L.C. appeals.
On appeal, V.L.C. raises only one assignment of error,
that the Jefferson Family Court abused its discretion when it
found by clear and convincing evidence that J.W.R.’s parental
rights should not be terminated.
V.L.C. argues that the family court’s finding that it
was in D.R.’s best interest not to terminate J.W.R.’s parental
rights was not supported by clear and convincing evidence as
required by M.P.S. v. Cabinet for Human Resources, Ky. App., 979
S.W.2d 114 (1998) and Rowan v. Holt, 253 Ky. 718, 70 S.W.2d 5
(1934).
V.L.C. argues that KRS 625.090(3)(d), which states the
court shall consider, “the efforts and adjustments the parent has
made in his circumstances, conduct or condition, 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,”
does not apply because D.R. never lived with J.W.R. and would not
be returning to his home even if the family court did not
terminate his parental rights; therefore, the family court should
not have considered KRS 625.090(3)(d) in determining whether or
not to terminate.
V.L.C. argues that, because J.W.R. had not by
then made the effort to have a relationship with D.R., the family
court’s conclusion that he should have a further opportunity to
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develop one was not based on clear and convincing evidence.
V.L.C. argues that, since J.W.R. did not have an existing
relationship with D.R., D.R. would suffer no harm by continuing
not to have a relationship with him.
V.L.C. argues that the
family court’s conclusion that D.R. would benefit from a loving
relationship with J.W.R. and his family was not supported by
clear and convincing evidence.
V.L.C. argues that all the
evidence points, by clear and convincing evidence, to the
conclusion that J.W.R. will not improve his parental skills and
that D.R. will be harmed by having a relationship with J.W.R.
because D.R. now refers to V.L.C.’s current husband as father.
With all of these arguments we disagree.
Briefly, to terminate an individual’s parental rights
regarding a named child, the circuit court must make a two
pronged determination.
First, it must find that, “[t]he child
has been adjudged to be an abused or neglected child, as defined
in KRS 600.020(1), by a court of competent jurisdiction”; or,
“[t]he child is found to be abused or neglected, as defined in
KRS 600.020(1), by the Circuit Court,” in a parental termination
action; or, “[t]he parent has been convicted of a criminal charge
relating to the physical or sexual abuse or neglect of any
child.”
KRS 625.090(1)(a)(1-3).
Second, the circuit court must
also find that termination is in the best interest of the child.
KRS 625.090(1)(b).
The circuit court must make these two
findings by clear and convincing evidence. KRS 625.090(1).
A circuit court has great discretion in making each of
these determinations.
R.C.R. v. Commonwealth, Cabinet for Human
Resources, Ky. App., 988 S.W.2d 36, 38 (1998), quoting Department
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for Human Resources v. Moore, Ky. App., 552 S.W.2d 672, 675
(1977).
“This Court’s review in a termination of parental rights
action is confined to the clearly erroneous standard in CR 52.01
based upon clear and convincing evidence, and the findings of the
trial court will not be disturbed unless there exists no
substantial evidence in the record to support its findings.”
R.C.R. v. Commonwealth, Cabinet for Human Resources, supra,
quoting V.S. v. Commonwealth, Cabinet for Human Resources, Ky.
App., 706 S.W.2d 420, 424 (1986). See also M.P.S. v. Cabinet For
Human Resources, Ky. App., 979 S.W.2d 114 (1998).
After reviewing the record, we find that the family
court’s conclusion that termination of J.W.R.’s parental rights
would not be in the best interest of D.R. was supported by
substantial evidence.
While D.R. never lived with J.W.R. and
would not be residing with him, we find that it was appropriate
for the family court to consider, “the efforts and adjustments”
J.W.R. had made, “in his circumstances, conduct, or conditions.”
J.W.R. testified that he desired to be a father to D.R. and to
develop a close and loving relationship with her.
Although the
family court also found that J.W.R. had been absent from D.R.’s
life and had made little effort to establish a relationship with
her, the family court also found J.W.R. both sincere and credible
in his desire.
At trial, J.W.R. and his mother both testified
that J.W.R. had sole custody of one of his older children, and
J.W.R.’s mother testified that her son was a loving and caring
parent to the child in his custody as well as to his other
children.
She testified, further, that J.W.R., upon finding out
he was D.R.’s father, sincerely wished to establish a paternal
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relationship with D.R.
J.W.R.’s mother also testified that she
and J.W.R.’s father were willing to help J.W.R. to establish and
maintain a relationship with D.R.
At trial, V.L.C. did not
dispute J.W.R.’s parenting skills regarding his other children,
and the family court noted that V.L.C. had moved residences
without telling J.W.R.; had placed a block on her telephone so
she could not receive J.W.R.’s telephone calls and allegedly had
told J.W.R. that he was not D.R.’s father.
Usually, of course, a child benefits from a close and
loving relationship with a parent.
V.L.C. offered no evidence at
trial that D.R. would be emotionally, mentally, or physically
harmed by having a relationship with her biological father.
As
for her 1996 allegations of domestic violence, V.L.C. never
substantiated those allegations, and the family court, as factfinder, had sole discretion to weigh the credibility of V.L.C.’s
allegations.
The court did not find those allegations to be
persuasive.
“In a trial without a jury, the findings of the trial
court, if supported by sufficient evidence, cannot be set aside
unless they are found to be 'clearly erroneous.'
This principle
recognizes that the trial court had the opportunity to judge the
witnesses’ credibility.
anew upon appeal.”
Without the rule, actions would be tried
R.C.R. v. Commonwealth, Cabinet for Human
Resources, supra at 39, quoting Ky. R. Civ. Proc. (CR) 52.01 and
Stafford v. Stafford, Ky. App., 618 S.W.2d 578 (1981).
We will
not deviate from this well-founded rule nor will we retry this
action anew upon appeal.
We defer to the family court, which had
the best opportunity to hear and weigh the evidence presented.
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Therefore, the judgment of the Jefferson Family Court
is affirmed.
GUIDUGLI, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Teddy B. Gordon
Louisville, Kentucky
Oliver K. Metzerott
Louisville, Kentucky
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