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J.B.W. v. C.A.W.

Commonwealth of Kentucky Court of Appeals
Apr 26, 2019
NO. 2018-CA-001313-ME (Ky. Ct. App. Apr. 26, 2019)

Opinion

NO. 2018-CA-001313-ME

04-26-2019

J.B.W. AND T.L.W. APPELLANTS v. C.A.W., J.V.H., AND C.J.W., a minor child APPELLEES

BRIEF FOR APPELLANTS: Mark E. Edison Shepherdsville, Kentucky BRIEF FOR APPELLEE: Tammy R. Baker Shepherdsville, Kentucky


NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 15-AD-00030 OPINION
AFFIRMING

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BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: J.B.W. and T.L.W. ("Grandparents") appeal the Bullitt Circuit Court's order denying their petition for adoption and involuntary termination of parental rights. For reasons stated below, we hold the trial court did not commit clear error by finding that adoption was not in the child's best interests; therefore, we affirm.

C.J.W. was born in 2009 and is the child of appellees C.A.W. ("Mother'), Grandparents' daughter, and J.V.H. ("Father"). In 2011, C.J.W. was placed in Grandparents' custody. It is undisputed that Father has not been a consistent presence in C.J.W.'s life due to Father's frequent moves from jail, prison, supervised release, and back to prison.

In May 2015, Grandparents petitioned to adopt C.J.W. and terminate Father and Mother's parental rights. At the time, Father was incarcerated at a halfway house. C.J.W.'s paternal grandmother, S.H., then petitioned for grandparent visitation. The trial court granted S.H.'s visitation. Twelve days later, Grandparents filed a non-support complaint against Father, causing Father's parole to be revoked.

The trial court held a hearing on Grandparents' petition for adoption and involuntary termination of parental rights. At the hearing, Grandparents, J.V.H., and S.H. testified. Mother did not appear at the hearing. S.H. testified that Father exercised visitation with C.J.W. every other weekend while he was at the halfway house, but visitation ceased after Father's parole was revoked. S.H. also testified C.J.W. was happy when he visited with her. Father testified that he regularly visited C.J.W. before his incarceration and the child was happy and engaged during his visitation. Father also testified that C.J.W. enjoyed positive relationships with his half siblings. Father also alleged that he paid child support and purchased clothes and toys for C.J.W. before his incarceration but was unable to do so while in prison.

The trial court held the petition for adoption in abeyance while Grandparents' appeal of S.H.'s visitation order was pending. After this Court dismissed the appeal and the Kentucky Supreme Court denied discretionary review, the trial court entered written findings of fact and conclusion of law denying the petition. The trial court found C.J.W. had a bond with S.H. and his half-siblings, that Father exercised visitation to extent permitted by his incarceration, and that Father paid child support and helped provide for C.J.W. before his incarceration. It also found Grandparents' had intentionally impeded C.J.W. relationship with Father and S.H. The trial court concluded that adoption by Grandparents would not be in C.J.W.'s best interest, as it would effectively terminate his relationship with Father and Father's family. This appeal follows.

"An adoption without the consent of a living biological parent is a proceeding to involuntarily terminate that parent's parental rights." S.S. v. Commonwealth Cabinet for Health and Family Services, 537 S.W.3d 834, 836 (Ky. App. 2017). KRS 625.090 provides that parental rights may be involuntarily terminated only if the court finds by clear and convincing evidence that (1) the child is abused or neglected, as defined under KRS 600.020(1); (2) the existence of one or more of the ten statutory grounds for termination; and (3) termination is in the child's best interest. Factors the court should consider when determining best interest includes "[t]he physical, emotional, and mental health of the child and the prospects for the improvement of the child's welfare if termination is ordered" and the biological parent's "payment or the failure to pay a reasonable portion of substitute physical care and maintenance if financially able to do so." KRS 625.090(3)(e)-(f).

Kentucky Revised Statutes.

"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, 253 Ky. 718, 70 S.W.2d 5, 9 (1934). Thus, the trial court has a great deal of discretion in determining whether termination is warranted. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). We review a termination of parental rights action under the clearly erroneous standard in CR 52.01, and the trial court's findings will not be disturbed unless no substantial evidence exist in the record to support its findings. Id.

Kentucky Rules of Civil Procedure. --------

In this case, the trial court heard testimony that Father exercised visitation with C.J.W. to the extent permitted by his incarceration and provided child support when he was not incarcerated. There was also testimony C.J.W. enjoyed positive relationships with Father, S.H., and his half siblings. There was evidence Grandparents intentionally impeded these relationships. Based on the evidence before the trial court, it was not clearly erroneous to find it in C.J.W.'s best interest to deny Grandparents' petition for adoption and involuntary termination of parental rights.

Accordingly, the order of the Bullitt Circuit Court is affirmed.

ALL CONCUR. BRIEF FOR APPELLANTS: Mark E. Edison
Shepherdsville, Kentucky BRIEF FOR APPELLEE: Tammy R. Baker
Shepherdsville, Kentucky


Summaries of

J.B.W. v. C.A.W.

Commonwealth of Kentucky Court of Appeals
Apr 26, 2019
NO. 2018-CA-001313-ME (Ky. Ct. App. Apr. 26, 2019)
Case details for

J.B.W. v. C.A.W.

Case Details

Full title:J.B.W. AND T.L.W. APPELLANTS v. C.A.W., J.V.H., AND C.J.W., a minor child…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Apr 26, 2019

Citations

NO. 2018-CA-001313-ME (Ky. Ct. App. Apr. 26, 2019)