R.R. v. CABINET FOR FAMILIES AND CHILDREN; R.E.R., A CHILD
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RENDERED: MAY 28, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-001344-MR
R.R.
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 01-AD-00036
CABINET FOR FAMILIES
AND CHILDREN; R.E.R.,
A CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: EMBERTON, CHIEF JUDGE; BARBER AND GUIDUGLI, JUDGES.
BARBER, JUDGE:
R.R. appeals, pro se, from an order of the
Kenton Circuit Court terminating his parental rights to his
child, R.E.R.
The trial court’s order terminating custody is
supported by clear and convincing evidence that the child is
abused or neglected and that it is in the child’s best interest
to have his father’s parental rights terminated.
we affirm.
Accordingly,
R.E.R. was born on April 23, 1990, in Hamilton County,
Ohio.
R.R. and J.H. are the natural parents of the child.
Both
the appellant and J.H. have engaged in criminal lifestyles which
has resulted in their repeated incarcerations.
Prior to his
most recent incarceration the appellant had custody of R.E.R.
During this period, the appellant left the child with numerous
caretakers and failed to seek proper medical treatment when the
child was accidentally shot in the eye with a BB gun.
When R.R.
was incarcerated in August 1999, temporary custody of the child
was given to his paternal grandparents.
On January 18, 2000,
R.E.R. was committed to the custody of the Cabinet for Families
and Children (Cabinet) by order of the Kenton District Court.
The child was placed in foster care, where he has since
remained.
On May 10, 2001, the Cabinet filed a petition for the
involuntary termination of the parental rights of R.R. and J.H.
in Kenton Circuit Court.
2002.
The matter was heard on January 25,
On May 20, 2002, the circuit court issued findings of
fact and conclusions of law and an order terminating the
parental rights of the appellant and the child’s mother.
On May
21, 2002, the circuit court entered supplemental findings of
fact in support of its decision.
1
This appeal followed.1
J.H. did not appeal the termination of her parental rights.
2
First, the appellant argues that the trial court erred
in terminating his parental rights because the Cabinet failed to
meet the standard of clear and convincing evidence as required
by the principal parental rights termination statute, KRS2
625.090.
KRS 625.090(1) 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 (1) the
child is an abused and neglected child as defined in KRS
600.020(1), and (2) that termination of those rights would be in
the child’s best interest.
In addition, KRS 625.090(2) provides
that at least one or more of the various grounds listed in KRS
625.090(2)(a) - (j) must also be proven by clear and convincing
evidence before a termination of parental rights may be ordered.
KRS 600.020(1) defines an abused and neglected child
as follows:
(1) "Abused or neglected child" means 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:
(a) Inflicts or allows to be inflicted upon
the child physical or emotional injury as
defined in this section by other than
accidental means;
2
Kentucky Revised Statutes.
3
(b) Creates or allows to be created a risk
of physical or emotional injury as defined
in this section to the child by other than
accidental means;
(c) Engages in a pattern of conduct that
renders the parent incapable of caring for
the immediate and ongoing needs of the child
including, but not limited to, parental
incapacity due to alcohol and other drug
abuse as defined in KRS 222.005(12);
(d) Continuously or repeatedly fails or
refuses to provide essential parental care
and protection for the child, considering
the age of the child;
. . .
(g) Abandons or exploits the child;
or
(h) Does not provide the child with adequate
care, supervision, food, clothing, shelter,
and education or medical care necessary for
the child's well-being. A parent or other
person exercising custodial control or
supervision of the child legitimately
practicing the person's religious beliefs
shall not be considered a negligent parent
solely because of failure to provide
specified medical treatment for a child for
that reason alone. This exception shall not
preclude a court from ordering necessary
medical services for a child; or
(i) Fails to make sufficient progress toward
identified goals as set forth in the courtapproved case plan to allow for the safe
return of the child to the parent that
results in the child remaining committed to
the cabinet and remaining in foster care for
fifteen (15) of the most recent twenty-two
(22) months;
4
In its order of May 20, 2002, the circuit court made
findings that the appellant had abandoned R.E.R. for periods not
less than ninety days; that the appellant had failed to protect
and preserve R.E.R.’s fundamental right to a safe and nurturing
home; and that R.E.R. was neglected while in the care of the
appellant by his failure to provide appropriate supervision and
needed medical treatment for the child.
In its supplemental
findings of fact included in its May 21, 2002 order, the circuit
court made the additional finding that R.R. has repeatedly
failed to provide for the child and has on two occasions
abandoned the child to the care of others due to his
incarceration for felony convictions.
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 review in a termination of
parental rights action is confined to the clearly erroneous
standard in CR3 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.
V.S. v. Commonwealth, Cabinet for Human
Resources, Ky. App., 706 S.W.2d 420, 424 (1986).
3
Kentucky Rules of Civil Procedure.
5
"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., 253 Ky. 718, 70 S.W.2d 5, 9 (1934).
Evidence was presented at trial which clearly and
convincingly demonstrates that R.E.R. is an abused and/or
neglected child.
Among the evidence presented was evidence
that the appellant has a history of substance abuse, including
the abuse of crack cocaine and alcohol; that the appellant has
an extensive criminal history including convictions for firstdegree burglary, receiving stolen property (four counts), thirddegree burglary, theft by unlawful taking, fourth-degree assault
and persistent felony offender; that appellant has been
incarcerated numerous times during which time he was unable to
provide appropriate care for the child; that the appellant has
numerous parole violations which have led to additional periods
of inability to care for the child; and that R.R.’s minimum
expiration date pursuant to his current incarceration is October
3, 2009; that the appellant had on occasions left the child with
his girlfriend while he went out to drink; that the appellant on
at least one occasion left the child alone in his vehicle while
he went into a bar to drink; that the appellant had driven while
drinking with the child in the vehicle; that the appellant
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failed to seek proper medical care when the child accidentally
shot himself in the eye with a BB gun; and that on the day the
child was scheduled to have his eye operated on as a result of
the BB gun accident, the appellant attempted suicide.
Based upon the foregoing the trial court’s finding
that R.R. is an abused or neglected child was not clearly
erroneous under the clear and convincing evidence standard.
The second element of KRS 625.090(1) 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 existence of a ground for termination, the
circuit court is required to consider the following factors set
forth in KRS 625.090(3):
(a) Mental illness as defined by KRS
202A.011(9), or mental retardation as
defined by KRS 202B.010(9) 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 as defined in
KRS 600.020(1) toward any child in the
family;
(c) If the child has been placed with the
cabinet, whether the cabinet has, prior to
the filing of the petition made reasonable
efforts as defined in KRS 620.020 to reunite
the child with the parents unless one or
more of the circumstances enumerated in KRS
610.127 for not requiring reasonable efforts
7
have been substantiated in a written finding
by the District Court;
(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 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.
In its order of May 21, 2002, in addition to the
parental shortcomings of R.R. previously discussed, the trial
court made the following findings of fact relating to whether it
was in R.E.R.’s best interest that the parental rights of R.R.
be terminated:
4. Although the child loves his father and
has a desire to be with him, this Court is
persuaded that it would be in the child’s
best interest to terminate the father’s
rights so that the child can be adopted and
given a permanent, stable home. The
evidence is clear and compelling,
particularly from the testimony of
psychologist Richard Flesch, that this child
needs a family that he can count on to be
there for him. The Respondent has been in
and out of the child’s life and has
demonstrated the lack of true commitment to
be a responsible parent.
5. This Court is not basing its decision
solely on the Respondent’s status as an
8
inmate, but rather on the totality of the
evidence and the fact that the Respondent
had custody of his son when he chose to
commit crimes that resulted in the
abandonment of his parental obligations.
6. This child, who is not 12 years of age,
deserves to have a stable home. The
Respondent’s history belies his ability to
provide it. It is this Court’s hope that it
is not too late for the child to experience
a loving, supportive, permanent family
relationship.
7. Placement for adoption would clearly be
in the child’s best interest.
We see no basis to conclude that the trial court erred
in determining that it was in the best interest of R.E.R. that
the appellant’s parental rights be terminated.
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."
CR 52.01; R.C.R. v. Cabinet for
Human Resources, Ky. App., 988 S.W.2d 36, 39 (1998).
This
principle recognizes that the trial court had the opportunity to
judge the witnesses' credibility.
would be tried anew upon appeal.
Without the rule, actions
Id.
At the January 25, 2002, hearing on the Cabinet’s
petition ample testimony was presented supporting the trial
court's conclusion that it would be in the best interest of the
child for appellant’s parental rights to be terminated.
Testimony was presented that R.E.R. has a need for consistency
9
and structure which could best be achieved through adoptive
placement; that Bobby has a good prognosis for adoptive
placement; that the child is currently bonded with his current
foster parents, who would be eligible as prospective adoptive
parents if termination of parental rights is ordered; and that
the child is showing tremendous improvement in his current
foster home.
Based upon these factors, among others, the trial
court’s determination that it would be in the best interest of
R.E.R. if the appellant’s parental rights were terminated was
supported by clear and convincing evidence.
While the appellant
may disagree with the conclusions of the circuit court, when the
testimony is conflicting we may not substitute our decision for
the judgment of the circuit court.
Wells v. Wells, Ky., 412
S.W.2d 568, 571 (1967).
Finally, KRS 625.090 requires a finding by clear and
convincing evidence that one of the factors set forth in KRS
625.090(2) is present.
These factors include:
(a) That the parent has abandoned the child
for a period of not less than ninety (90)
days;
(b) That the parent has inflicted or allowed
to be inflicted upon the child, by other
than accidental means, serious physical
injury;
(c) That the parent has continuously or
repeatedly inflicted or allowed to be
10
inflicted upon the child, by other than
accidental means, physical injury or
emotional harm;
(d) That the parent has been convicted of a
felony that involved the infliction of
serious physical injury to any child;
(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;
(f) That the parent has caused or allowed
the child to be sexually abused or
exploited;
(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 its May 20, 2002, order the circuit court
specifically determined that the grounds set forth in
subsections (a), (e), and (g) were present.
Based upon the trial evidence previously discussed,
there is substantial evidence to support the trial court's
determinations.
Thus, we cannot conclude that its findings are
11
clearly erroneous.
Nor can we say, after review of the record
and the findings of fact made by the trial court, that the
Cabinet has failed to meet its burden of proving its case by
clear and convincing evidence as required by KRS 625.090.
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(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).
Accordingly, we reject R.R.’s argument that the evidence did not
clearly and convincingly support a finding that one of the
factors enumerated in KRS 625.090(2) existed.
Next, R.R. contends that the records submitted by the
Cabinet were inadmissible hearsay evidence.
As noted by the Commonwealth, R.R. has failed to
comply with CR 76.12(4)(c)(iv) by providing references to the
record showing that this issue is preserved.
Furthermore, R.R.
does not specify which of the records introduced at the January
20, 2002, trial he believes were inadmissible hearsay.
Because of the foregoing deficiencies we are under no
obligation to review this argument.
However, we note that the
Cabinet introduced 21 numbered exhibits at the trial.
The
exhibits introduced either were not hearsay or were admissible
under one of the exceptions to the introduction of hearsay
evidence.
To the extent that any material included in the
12
exhibits should have been excluded under the hearsay rules, the
error was harmless.
CR 61.01.
Finally, R.R. contends that the various errors
throughout the trial of this case created a manifest miscarriage
of justice to the appellant and the child.
R.R. does not identify any specific errors which,
together, would result in a manifest miscarriage of justice.
However, we have extensively discussed the findings of the
circuit court, the evidence presented, and our standard of
review of the circuit court’s decision.
The Cabinet met its
burden of proof by clear and convincing evidence, and the
circuit court’s decision did not result in a manifest injustice.
For the foregoing reasons the judgment of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R.R., pro se
Covington, Kentucky
Terry L. Morrison
Lexington, Kentucky
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