B.T.R. v. J.W.; and A.L.W.
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RENDERED:
October 8, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001711-MR
B.T.R.
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 02-AD-00034
J.W.; and A.L.W.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, SCHRODER, AND VANMETER, JUDGES.
VANMETER, JUDGE.
This is an appeal from an order entered by the
Kenton Circuit Court involuntarily terminating the parental
rights of appellant B.T.R.
Appellant asserts that the trial
court erred by finding that he abandoned and neglected his child
for at least ninety days, by finding that he repeatedly failed
or refused to care for his child, by failing to determine
whether some less drastic alternative should be pursued rather
than the termination of his parental rights, and by failing to
find that there was a reasonable expectation that he would
immediately and significantly improve his behavior toward the
child.
We disagree with each contention.
Hence, we affirm.
Appellant and appellee A.L.W. are the natural parents
of a daughter who was born in December 1994.
Appellant and
A.L.W., who never married, cohabited until 1997.
The child then
remained with A.L.W., who reached an agreement with appellant
regarding visitation and the payment of child support and
medical expenses.
Appellant moved to Florida in August 2000.
A.L.W. married appellee J.W. in September 2000, and in
April 2002 he filed a petition seeking to adopt the child.
A.L.W. filed an entry of appearance consenting to the adoption.
Appellant responded, asserting that he had been denied contact
with the child since moving to Florida and that he had been
unable to support her because A.L.W. concealed her whereabouts.
Appellant sought dismissal of the adoption petition and the
establishment of visitation rights.
A.L.W. cross-claimed,
requesting the court to involuntarily terminate appellant’s
parental rights and to proceed with the adoption.
A.L.W.
asserted in part that appellant had abandoned the child for more
than ninety days, and that he continuously and repeatedly had
failed to provide essential care and protection for her for more
than six months.
Appellant in turn sought dismissal of the
cross-claim and the establishment of child support and an
arrearage amount.
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After a hearing the trial court entered findings of
fact and conclusions of law.
The court noted that appellant
missed 37 of 67 scheduled visits with the child between March
and December 1999, and that he had no contact with her after
moving to Florida in August 2000.
The court further noted that
although appellant testified that he was financially able to
support the child, he provided no financial support or gifts
from July 2000 until March 2003, which was after this action was
filed.
The court found
incredible [appellant’s] testimony that he
did not know how to pay his support or
locate this child. Furthermore, when he
left for Florida in August, 2000, he had
delivered personal items to the residence of
[A.L.W.] and the child, where the child has
continued to reside. [Appellant’s]
testimony lacks veracity.
The court concluded that appellant had abandoned and neglected
the child for at least ninety days, and that he had
“continuously and repeatedly failed or refused to provide
essential care” for her since August 2000.
The court described
the relationships between the child and her stepfather, and
between the child and appellant, and concluded that the
termination of appellant’s parental rights would be in the
child’s best interests.
Subsequently, the court entered an
order terminating appellant’s parental rights.
followed.
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This appeal
Appellant asserts that the trial court erred by
finding both that he abandoned and neglected the child for more
than ninety days, and that he repeatedly failed to care for her.
We disagree.
KRS 625.090(1) provides that in circumstances such as
these, a circuit court may involuntarily terminate parental
rights only if it finds by clear and convincing evidence that
the child is abused and neglected as defined in KRS 600.020(1),
and that termination would be in the child’s best interests.
Further, parental rights may not be involuntarily terminated
unless the court also finds by clear and convincing evidence
that one or more of the grounds set out in KRS 625.090(2)
exists, including:
(a) That the parent has abandoned the child
for a period of not less than ninety (90)
days;
. . . .
(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
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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 600.020(1) defines an abused or neglected child as including
one whose “health or welfare is harmed or threatened with harm
when his parent”
(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.
Here, appellant testified that he provided support and
was involved with the child prior to his move to Florida, and
that he made some attempts to support and maintain contact with
her thereafter but was thwarted in his attempts to do so.
However, he admitted that he had not visited her since his move
to Florida.
Although appellant testified that he did not know
where to send support payments between July 2000 and March 2003,
the parties’ child support agreement included the proper address
for making child support payments through the Kenton County
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Domestic Relations office.
Moreover, despite appellant’s
allegations that he was unable to contact the child or send
support payments directly to A.L.W. because of A.L.W.’s frequent
moves, no evidence contradicted A.L.W.’s assertion that she and
the child have never moved from the house appellant visited
before moving to Florida.
Further, A.L.W. testified that
appellant did not support or maintain contact with the child
after his move, that he left no phone number when he did call
soon after moving, and that she had no way to contact him in
Florida.
Finally, she testified regarding the close
relationship between the child and A.J.W.
The undisputed evidence that appellant did not support
or maintain contact with the child after moving to Florida in
July 2000 constitutes clear and convincing evidence of abuse or
neglect as defined in KRS 600.020(1).
Moreover, those same
facts constituted clear and convincing evidence to support the
trial court’s findings that appellant abandoned and neglected
the child for at least ninety days, and that he continuously and
repeatedly failed or refused to provide essential care for her
after August 2000.
KRS 625.090(2)(a), (e) and (g).
Next, appellant contends that the trial court erred by
failing to explore whether some less drastic alternative such as
visitation should be pursued rather than the termination of his
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parental rights.
However, the court did address this issue as
follows:
The Court further finds and concludes
that the termination of [appellant’s]
parental rights is in the best interests of
this child. [The child] is flourishing in
the home with her mother and stepfather.
She refers to her father as [appellant’s
first name],” and to her step-father as
“dad.” She has expressed to others that she
does not desire to have contact with her
father. It has been almost three years
since she has had any contact with
[appellant]. The Court concludes that the
child’s emotional and mental health would be
adversely affected should [appellant] now
assert himself as her father. There are no
viable, less drastic measures than
termination that would be in this child’s
best interests. This is not a battle
between family members. Rather, the best
interests of the child dictate termination
as a result of [appellant’s] abandonment of
his daughter, his nonsupport of child
support for reasons other than poverty, his
lack of insurance for her, and his lack of
taking reasonable steps to try to have
contact with her for three years.
The Court further finds and concludes
that [appellant] not only abandoned his
child for more than ninety days, but he has
consistently failed to provide essential
food, clothing, medical care or other
necessities that were necessary and
available to him for the child’s well-being.
[Appellant’s] history of non-payment of
support together with his lack of serious
efforts to exercise visitation, causes the
Court to conclude that there is no
reasonable expectation of significant
improvement in his behavior towards this
child in the immediate future.
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(Emphasis added.)
We therefore are not persuaded that the trial
court failed to consider viable alternatives to the termination
of appellant’s parental rights.
Finally, we are not persuaded by appellant’s
contention that the trial court abused its discretion by finding
that there was no reasonable expectation that his behavior
toward the child would significantly improve in the immediate
future.
Instead, our review of the evidence shows that it
clearly supported the court’s findings regarding appellant’s
neglectful behavior and the lack of any reasonable expectation
of immediate improvement.
KRS 625.090(2)(e) and (g).
We cannot
say that the trial court abused its discretion by finding that
the termination of appellant’s parental rights is in the best
interests of the child.
The court’s judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Patrick E. Moeves
Crystal L. Ford
Newport, Kentucky
John R. Kummer
Edgewood, Kentucky
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