B.R.C., JR. v. D.G. and A.S., a minor, and R.C.
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RENDERED: JULY 18, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000934-MR
B.R.C., JR.
APPELLANT
APPEAL FROM WEBSTER CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 00-AD-00009
v.
D.G. and
A.S., a minor,
and R.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE:
B.R.C., Jr., appeals from an order of the
Webster Circuit Court dismissing his petition for the adoption
of his stepdaughter.
We affirm.
D.G. is the child’s father, and R.C. is the child’s
mother.
D.G. and R.C. were never married, but they had a
relationship which resulted in the birth of a child, A.S., on
October 20, 1990.
R.C. allowed D.G. to have regular contact and
visitation with the child from the child’s birth until 1993.
On
July 15, 1993, R.C. married the appellant, B.R.C., Jr.
Following the marriage of R.C. and B.R.C., D.G. was
allowed little visitation with the child.
R.C. testified in her
deposition that from the time A.S. was three or four years old
until February 11, 1997, D.G. requested visitation “probably
once a month” but was refused over 90% of the time.1
D.G. was arrested on February 14, 1996, was held in
custody for approximately 30 days, and was then released to
enter a 30-day drug rehabilitation program.
On July 10, 1996,
D.G. was sentenced to one year in prison on a drug charge, and
he was released from custody on January 31, 1997.
R.C.
testified in her deposition that D.G.’s last request for
visitation was on February 11, 1997.2
On May 7, 1997, D.G. moved the circuit court to award
him visitation with the child.
1997.
A hearing was held on October 6,
A domestic relations commissioner (DRC) conducted the
hearing, and a recommended order was entered on October 16,
1997, and adopted by the court on November 4, 1997.
The DRC
recommended that D.G. submit to a drug test, that both parties
and the child attend counseling sessions, that pending receipt
1
R.C. testified in her deposition that she did not force A.S. to go
with D.G. for visitation when she did not want to go and that she did
nothing to encourage visitation.
2
R.C. testified that she kept a journal of D.G.’s visitation with the
child.
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of the results of the drug test that D.G. not contact R.C.’s
home, that the parties exchange information necessary to
determine the amount of child support to be paid by D.G., and
that the DRC would review the visitation motion upon the filing
of the counselor’s report.
D.G. then underwent a drug screen
and tested positive for marijuana.
Apparently, no further
action occurred in the case until 2000.
In September 2000, D.G. had contact with A.S. at a
football game where A.S. was a cheerleader.
On October 17,
2000, B.R.C. filed a petition for adoption in the Webster
Circuit Court in his capacity as A.S.’s stepfather.
D.G. then
renewed his motion for visitation and submitted a negative drug
screen.
The DRC held the motion for visitation in abeyance
pending the outcome on the adoption petition.
A final hearing on the adoption petition filed by
B.R.C. was held on January 7, 2002.
On April 3, 2002, the
circuit court rendered an order denying the petition for
adoption.
The court stated in part as follows:
It is obvious that B.R.C. and R.C. have
provided excellent parenting for A.S. since
their marriage in 1993. Without question,
D.G. has not provided very much in the way
of parental help. It is clear that A.S. has
been and is much better off with B.R.C. and
R.C. that she would have been with D.G.
D.G. has been in prison and has not been
around to provide as much parental
involvement as he should have. A.S.
probably prefers the adoption. But these
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are not the issues that must be decided by
the Court.
The law recognizes the seriousness of
termination of parental rights by making it
very difficult to do so unless by agreement.
Termination is so final. At the time of
filing to terminate, a petitioner must be
able to prove by clear and convincing
evidence the specific grounds of termination
enumerated in KRS 625.090 and KRS 199.502.
Petitioner simply has not met the statutory
requirements of proof in this case.
Throughout A.S.’s life, D.G. has
attempted to exercise some visitation with
her. His testimony is that he offered to
help with her support but was told by B.R.C.
they would not accept it and ordered away.
R.C. admitted in her testimony that D.G. was
denied visitation ninety (90%) per cent of
the time he asked for it.
A pattern or scheme manifests itself
through the evidence whereby B.R.C. and
R.C., having sufficient money from their
disability and disability related income,
did not need D.G.’s financial assistance and
refused it. The Court understands that they
would like to have D.G. out of their and
A.S.’s life and even admits that under the
circumstances it might very well be in
A.S.’s best interest if D.G. were out of her
life. But when R.C. and D.G. engaged in the
union that produced A.S., they were equal
parents with equal rights, and R.C. cannot
simply decide that she will exclude D.G.
from her life. He is her father.
D.G. took legal action seeking
visitation in 1997. Court ordered
counseling in 1997 resulted in a
recommendation that D.G. be allowed
visitation. Pending its decision, the
Domestic Relations Commissioner prohibited
D.G. from visiting A.S. So at the time of
petitioner’s petition, D.G. was prohibited
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from visitation by court order, not because
he had abandoned the child for more than
ninety (90) days as required by the statute.
From the evidence presented, the Court
can find no “settled purpose” by D.G. to
forego all parental duties as required by
DMS v. FAH, 684 W.D. 2d 320 (Ky. App.,
1985). The Court also agreed with
respondent that Wright v. Howard, 711 S.W.2d
492 (Ky. App., 1986) is controlling here.
The evidence is that D.G., while
encountering problems mostly of his own
making, but also because of R.C.’s
determination to exclude him from A.S.’s
life, never had much chance to exercise his
parental rights with A.S.
This appeal by B.R.C. followed.
An adoption without the consent of a natural parent
“may be granted without the consent of the biological living
parents of a child if it is pleaded and proved as a part of the
adoption proceedings that any of the provisions of KRS 625.090
exist with respect to the child.”
KRS3 199.500(4).
KRS
625.090(2) provides in relevant part that a circuit court may
not terminate parental rights unless it first finds “by clear
and convincing evidence” the existence of one or more of several
grounds.
Those grounds include the following three grounds that
are relevant to this case:
(a)
3
That the parent has abandoned the child
for a period of not less than ninety
(90) days.
Kentucky Revised Statutes.
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(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.
KRS 625.090(2)(a), (e), and (g).
See also KRS 199.502(1)(a),
(e), and (g).
B.R.C.’s first argument is that he presented clear and
convincing evidence that D.G. had abandoned A.S. for periods in
excess of 90 days.
In support of his argument, B.R.C. asserts
that D.G. had limited contact with the child between 1994 and
1997 and that D.G. voluntarily abandoned the child between 1997
and 2000.
He notes that D.G. never again sought visitation
after the positive drug screen in 1997 until he (B.R.C.) sought
to adopt the child in 2000.
In further support of his argument,
B.R.C. cites Lester v. Looney, Ky. App., 461 S.W.2d 81 (1970).
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The burden was on B.R.C. to prove by clear and
convincing evidence that D.G. had abandoned A.S. for a period of
not less than 90 days.
See D.S. v. F.A.H., Ky. App., 684 S.W.2d
320, 322 (1985); KRS 625.090(2)(a); and KRS 199.502(1)(a).
The
mere fact that a child would have a better home elsewhere or
that the natural parent may provide less parental care than the
adopting parent is not ground to terminate the parental rights
of a natural parent in an adoption proceeding.
Ky. App., 655 S.W.2d 32, 34 (1983).
O.S. v. C.F.,
Further, the parental
rights of a natural parent should not be severed “because a
parent has temporary abdicated his parental responsibility in
favor of a kindred.”
Id.
Also, “abandonment is demonstrated by
facts or circumstances that evince a settled purpose to forego
all parental duties and relinquish all parental claims to the
child.”
Id.
In Wright v. Howard, Ky. App., 711 S.W.2d 492 (1986),
the case relied upon by the circuit court herein, this court
held that there could be no abandonment of a child where the
parent was under a court order not to exercise visitation.
at 497.
Id.
Also, in L.S.J. v. E.B., Ky. App., 672 S.W.2d 937
(1984), this court held that a parent’s separation from a child
due to incarceration of the parent is not tantamount to
abandonment of the child.
Id. at 940.
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The circuit court in the case sub judice found no
“settled purpose” by D.G. to forego his parental duties and
relinquish his parental claims to A.S.
In the first few years
after R.C. married B.R.C., D.G. requested to exercise visitation
rights, but R.C. usually denied his requests and prevented him
from doing so.
In the years that followed D.G.’s short period
of incarceration, he was under a court order not to have contact
with R.C.’s home.
Considering these facts, we cannot conclude
that the circuit court’s determination that D.G. did not abandon
the child was clearly erroneous.
See CR4 52.01.5
B.R.C.’s second argument is that the court erred in
its finding on the issue of whether D.G. failed to provide the
essential food, clothing, and shelter for A.S.
If such failure
is proven by clear and convincing evidence, then the parental
rights of the parent may be terminated.
See KRS 625.090(2)(g)
and KRS 199.502(g).
4
Kentucky Rules of Civil Procedure.
5
B.R.C. relies on the Lester case in an attempt to convince this court
that the circuit court erred on the abandonment issue. As in this
case, the natural parent in the Lester case initiated court
proceedings to obtain possession of her child but subsequently
abandoned the proceedings. Ultimately, the appellate court affirmed
the trial court’s determination that the child had been abandoned by
the parent. The court cited CR 52.01 and held that the trial court’s
findings were not clearly erroneous. Likewise, we hold that the
circuit court’s determination on the abandonment issue was not clearly
erroneous, although the result reached herein is opposite from the
result in the Lester case.
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D.G. testified that he offered to pay child support
but that R.C. refused to accept child support payments.
The
circuit court stated that “[a] pattern or scheme manifests
itself through the evidence whereby B.R.C. and R.C., having
sufficient money from their disability and disability related
income, did not need D.G.’s financial assistance and refused
it.”
This situation has some similarity with the facts in
G.R.M. v. W.M.S., Ky. App., 618 S.W.2d 181 (1981).
Therein, the
mother refused child support from the natural father and
thereafter filed a nonsupport action against him for the purpose
of obtaining his consent for her new husband to adopt the child.
Likewise, the mother had not allowed the natural father
visitation rights.
This court held that “[t]o terminate a
father’s parental rights on this basis under this provision
flies in the face of the true spirit and intent of the statute,
which is to sever relations between innocent children and a
deadbeat, disinterested dad.”
Id. at 184.
Likewise, this court held in the Wright case that
there was no abandonment, desertion, or neglect that evinced a
settle purpose to forego parental duties and claims to a child
when the natural father was under a court order prohibiting
visitation and not establishing an amount for child support.
711 S.W.2d at 497.
Similarly, in the case sub judice, D.G. was
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prohibited by court order from exercising visitation.
As for
any child support obligation, R.C. refused to accept child
support payments from him.
Further, R.C. never provided her
income figures to the circuit court in response to the court’s
order relating to the 1997 visitation motion filed by D.G.
We will not disturb the circuit court’s fact
determination that R.C. refused to accept child support payments
from D.G.
Thus, we conclude that the circuit court’s
determination in this regard was not clearly erroneous.
The order of the Webster Circuit Court dismissing
B.R.C.’s petition for adoption is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wm. Clint Prow
Providence, Kentucky
Rebecca J. Johnson
Marion, Kentucky
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