R. C. R. v. COMMONWEALTH OF KENTUCKY CABINET FOR HUMAN RESOURCES (NOW CABINET FOR FAMILIES AND CHILDREN) IN RE: MINOR CHILDREN D.A.R., C.J.R.,JR., AND B.C.R.
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RENDERED: November 25, 1998; 2:00 p.m.
ORDERED PUBLISHED: January 15, 1999; 10:00 a.m.
MODIFIED: January 29, 1999; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1996-CA-003448-MR
R. C. R.
v.
APPELLANT
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE RON JOHNSON, SPECIAL JUDGE
ACTION NO. 95-AD-10
COMMONWEALTH OF KENTUCKY
CABINET FOR HUMAN RESOURCES
(NOW CABINET FOR FAMILIES AND CHILDREN)
IN RE: MINOR CHILDREN D.A.R., C.J.R.,JR., AND B.C.R.
BEFORE:
APPELLEE
OPINION AND ORDER
AFFIRMING
* * * * * * * * * *
COMBS, HUDDLESTON and KNOPF, JUDGES.
HUDDLESTON, JUDGE.
This is an appeal by R.C.R. from a Clay Circuit
Court order terminating her parental rights to her children,
D.A.R.,
C.J.R.,
JR.,
and
B.C.R.
The
trial
court’s
order
terminating custody is supported by clear and convincing evidence
that the children are abused or neglected and that it is in their
best interest to have their mother’s parental rights terminated.
Accordingly, we affirm.
D.A.R. was born on July 24, 1986; C.J.R., Jr., was born
on August 13, 1988; and B.C.R. was born on January 27, 1992.
By
order of the Clay District Court, the children are committed to the
Cabinet and are presently in a state-approved home.
On August 4,
1995, the Cabinet for Human Resources (now the Cabinet for Families
and Children) filed a petition for the involuntary termination of
the parental rights of the children’s biological mother, R.C.R.,
and biological father, C.J.R.
1996.
The matter was heard on October 29,
On December 3, 1996, the trial court issued an order
terminating the parental rights of the parents.
This appeal
followed.1
R.C.R. argues that the trial court erred in terminating
her parental rights because (1) the Cabinet failed to comply with
its statutory duty to provide services to R.C.R.;
(2) the Cabinet
has not followed its own program manual; and (3) the Cabinet failed
to prove by clear and convincing evidence the existence of a ground
for
terminating
her
parental
rights.
The
parental
rights
termination statute, Ky. Rev. Stat. (KRS) 625.090, 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 the child has been adjudged to
be an abused or neglected child by a court of competent
jurisdiction or is found to be an abused or neglected
child by the Circuit Court in this proceeding and that
termination would be in the best interest of the child.
No termination of parental rights shall be ordered unless
the circuit court also finds by clear and convincing
evidence
the
existence
of
one
(1)
or
more
of
the
following grounds:
. . . . .
(d) That the parent, for a period of not less than six
(6) months, has continuously or repeatedly failed or
1
The father, C. J. R., did not appeal the termination of his
parental rights.
2
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;
. . . ; or
(f) 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 summary the statute requires a finding (1) that the
child, by clear and convincing evidence, is an abused or neglected
child;2
(2) that the termination would be in the best interest of
the child; (3) one or more of the factors set out in subsection
(1)(a)-(f) are present.
In its order terminating parental rights,
2
Ky. Rev. Stat. (KRS) 600.020(1) defines "abused or
neglected child" as 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:
inflicts or allows to be inflicted upon the child physical or
emotional injury by other than accidental means; creates or
allows to be created a risk of physical or emotional injury to
the child by other than accidental means; commits or allows to be
committed an act of sexual abuse, sexual exploitation, or
prostitution upon the child; creates or allows to be created a
risk that an act of sexual abuse, sexual exploitation, or
prostitution will be committed upon the child; . . . .”
3
the trial court found that the children were
abused and neglected
children and made additional findings convincingly supporting its
conclusion.
Testimony, accepted by the trial court, demonstrated
that the children had been subjected to a dysfunctional family
environment
permeated
by
child
neglect,
chronic
violence, spouse abuse, truancy and gun play.
alcoholism,
In the testimony
many incidents of violence in the home were described including the
shooting of a third party by C.J.R.
On another occasion C.J.R.
bludgeoned R.C.R. over the head with a shotgun.
On another
occasion, C.J.R., while intoxicated, engaged in a stand-off with
the state police and refused to allow the children to leave the
home.
There was also testimony that the parents often engaged in
drinking and, as a result, the parents neglected to see that the
children attended school.
and spouse abuse.
C.J.R. admitted to a history of alcohol
The evidence also established that on one
occasion C.J.R. physically abused D.A.R. by slamming her head
against the dashboard of an automobile.
While it is true that
C.J.R. was most often the instigator of these incidents, the trial
court found that R.C.R. failed to take action to provide for the
protection and physical and emotional well being of the children.
As a result of these episodes, the children have been repeatedly
removed from their parents' home and placed in foster care.
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
4
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.
V.S. v. Commonwealth,
Cabinet for Human Resources, Ky. App., 706 S.W.2d 420, 424 (1986).
"Clear
and
convincing
uncontradicted proof.
proof
does
not
necessarily
mean
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."
v. Holt, Ky., 70 S.W.2d 5, 9 (1934).
Rowland
The numerous episodes
described in the record involving domestic violence, drunkenness,
irresponsible use of firearms, and general neglect convince us that
the trial court did not clearly err when it determined that the
children are abused or neglected.
The second prong of KRS 625.090 requires a finding that
the termination of parental rights would be in the best interest of
the child.
existence
required
In determining the best interest of the child and the
of
to
a
ground
consider
for
the
termination,
following
the
factors
circuit
set
court
forth
in
is
KRS
625.090(2):
(a)
Emotional
illness,
mental
illness,
or
mental
deficiency 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;
5
(b)
Acts of abuse or neglect toward any child in the
family;
(c)
If the child has been placed with the cabinet or a
child-placing agency or child-caring facility, whether
the cabinet has rendered or attempted to render all
reasonable services to the parent which reasonably might
be expected to bring about a reunion of the family,
including the parent's testimony concerning the services
and whether additional services would be likely to bring
about lasting parental adjustment enabling a return of
the child to the parent within a reasonable period of
time, considering the age of the child;
(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.
We see no basis to conclude that the trial court erred in
determining that it was in the best interest of the children that
R.C.R.’s parental rights be terminated. In a trial without a jury,
6
the
findings
of
the
trial
court,
if
supported
by
sufficient
evidence, cannot be set aside unless they are found to be "clearly
erroneous."
Ky. R. Civ. Proc. (CR) 52.01; Stafford v. Stafford,
Ky. App., 618 S.W.2d 578 (1981).
the
trial
court
credibility.
appeal.
had
the
This principle recognizes that
opportunity
to
judge
the
witnesses'
Without the rule, actions would be tried anew upon
Id. at 579.
At the hearing for termination of parental rights, ample
testimony was presented supporting the trial court’s conclusion
that it would be in the best interest of the children for R.C.R.’s
parental rights to be terminated.
In addition to the incidents
already discussed, the trial court also concluded that R.C.R.’s
long history of association with the Cabinet was because of her
inability to provide a stable, nurturing environment for her
children due to alcohol abuse.
The trial court also found that
R.C.R. has failed to provide for the protection, nurturing, and
physical and emotional well being of the children.
It was also the
trial court’s finding that R.C.R. had failed to follow through with
the
self-help
programs
provided
by
the
Cabinet
and
that
the
children experience delayed academic skills because of numerous
absences from school due to their parents’ intoxication.
Based upon these factors, among others, the trial court
determined that it would be in the best interest of the children if
R.C.R.’s parental rights were terminated.
disagrees
with
the
conclusions
of
the
While R.C.R. obviously
trial
court,
when
the
testimony is conflicting we may not substitute our decision for the
7
judgment of the trial court.
Wells v. Wells, Ky., 412 S.W.2d 568,
571 (1967).
The final prong of KRS 625.090 requires a finding by
clear and convincing evidence of one of the factors set forth in
KRS 625.090(1)(a)-(f).
R.C.R. argues that the Cabinet failed to
prove by clear and convincing evidence the existence of one of
these grounds. In the case sub judice the trial court specifically
found that the grounds set forth in (d) and (f) were present.
There
is
substantial
determination.
evidence
to
support
the
trial
court's
Thus, we cannot conclude that its findings are
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 (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.C.R.’s argument that the evidence
did not support a finding that one of the six factors enumerated in
KRS 625.090(1) existed.
R.C.R.’s argument that the trial court erred because the
cabinet
failed
to
comply
services is unpersuasive.
with
its
statutory
duty
to
provide
R.C.R. argues that if termination of
parental rights becomes a goal the Cabinet has a mandate, pursuant
to 905 Ky. Adm. Reg. (KAR) 1:330 sec. 18(6), to continue case
planning and service delivery until the judgment order is received.
R.C.R. argues that after the children were removed to foster
8
care in December 1996, the Cabinet did not fulfill this obligation.
It is evident from the hearing that a wide range of counseling and
other efforts were undertaken to resolve the unfortunate situation
for the children that had been created by C.J.R. and R.C.R.
The
trial court specifically found that the Cabinet had "done all that
is required in its attempts to reunite the family unit."
As there
is clear and convincing evidence in the record to support this
finding, the finding was not clearly erroneous.
For similar reasons, R.C.R.’s argument that the Cabinet
failed to follow its own program manual is not a basis for
reversal.
She alleges that the Cabinet did not present proof that
it had considered alternatives to the termination of parental
rights, such as relative placement.
Under KRS Chapter 625, proof
that this alternative has been considered is not required to
terminate parental rights.
Once the conditions of terminating
parental rights are met, it is the duty of the Cabinet to then act
in the best interests of the children.
Placement with relatives
may be an option for consideration, but nothing more.
V. S. v.
Cabinet, Ky. App., 706 S.W.2d 420, 426 (1986).
Finally, we also deny the pending motion to dismiss,
which was passed to this panel on the merits, whereby the Cabinet
sought to have this appeal dismissed on the ground that the body of
R.C.R.’s notice of appeal fails to name the children as a party to
the appeal.
True enough, a child is an indispensable party to an
appeal concerning the termination of his or her parents' parental
rights, and the failure to name that child as a party to such an
appeal is grounds for dismissal of the appeal.
9
R.L.W. v. Cabinet
for Human Resources, Ky. App., 756 S.W.2d 148 (1988).
See also
City of Devondale v. Stallings, Ky., 795 S.W.2d 954 (1990).
instant
proceeding,
however,
involves
a
situation
which
The
is
distinguishable.
As in R.L.W., supra, the children were not listed as a
party in the body of the notice of appeal.
See also Stallings,
supra. However, unlike the situations in R.L.W. and Stallings, the
children were named in the caption of the notice of appeal as being
the party "in the interest of" whom the appeal was filed. Moreover,
the children’s guardian ad litem was served with copies of all
relevant pleadings.
Obviously, R.C.R.’s notice of appeal was poorly drafted.
Nevertheless, Blackburn v. Blackburn, Ky., 810 S.W.2d 55 (1991),
relaxed the standards for compliance with CR 73.03, and so we are
compelled to conclude that the inclusion of the children's names in
the caption of the notice of appeal was sufficient to confer upon
this Court jurisdiction over the children, to provide the parties
with fair notice of the appeal, and to identify the parties
thereto.
Hence, the pending motion to dismiss is DENIED.
The order of the trial court is affirmed.
ALL CONCUR.
ENTERED: November 25, 1998
/s/ Joseph R. Huddleston
JUDGE, COURT OF APPEALS
10
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry H. York
APPALACHIAN RESEARCH AND
DEFENSE FUND OF KENTUCKY, INC.
Barbourville, Kentucky
J. William Hernandez
COMMONWEALTH OF KENTUCKY
CABINET FOR FAMILIES AND
CHILDREN
Frankfort, Kentucky
11
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