Opinion
NO. 2014-CA-001018-ME
05-22-2015
D.R.S. APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Donnie Ray Stephens, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Kevin S. Shearer Special Assistant Attorney General Jamestown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM RUSSELL CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NOS. 03-J-00098, 03-J-00099, AND 11-J-00003
OPINION
AFFIRMING
BEFORE: CLAYTON, NICKELL, AND VANMETER, JUDGES. CLAYTON, JUDGE: This is an appeal from the Russell Circuit Court denying the Appellant's motion for telephone and letter contact with his minor children, B.S., K.S., and M.S. Based upon the following, we affirm the decision of the trial court.
BACKGROUND SUMMARY
Appellant, D.R.S., is the father of three minor children, B.S., K.S. and M.S. On January 11, 2011, the Russell County Attorney filed an action for Juvenile Dependency, Neglect and Abuse regarding the three children. The action was based on evidence that the Appellant had raped and fondled M.S. and fondled B.S. At this time, the children were placed in the care and custody of their maternal great aunt and her husband. The Cabinet for Health and Family Services recommended that the Appellant and his wife have no contact with the children.
On November 16, 2011, Appellant received a final judgment and sentence from the Russell Circuit Court based on his guilty plea to the charges of Rape, Second Degree, and Unlawful Transaction with a Minor, First Degree. He received a sentence of twelve years' imprisonment, which he is currently serving.
On January 19, 2012, the maternal great aunt and her husband were granted permanent custody of the children. On April 10, 2014, the Russell Family Court vacated an order of June 26, 2013, regarding a report about the possibility of contact between the Appellant and his children and overruled Appellant's request for visitation and telephone contact. The Appellant then brought this appeal.
STANDARD OF REVIEW
We review child visitation cases under an abuse of discretion standard. Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). An appellate court may "only reverse a trial court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000). With this standard in mind, we review the trial court's decision.
DISCUSSION
Kentucky Revised Statutes 403.320 provides that "[a] parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds...that visitation would endanger..." the child. It also provides that a court may enter or modify a visitation order when it would serve the best interest of the child.
If a parent is found to be unfit, the best interest of the child standard must be applied. Moore v. Asente, 110 S.W.3d 336, 360 (Ky. App. 2003). Evidence of sexual abuse is sufficient to determine that a parent is unfit. Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989).
In the present case, the Appellant pled guilty to sexually abusing two of his children. As a result, it was not an abuse of discretion for the trial court to determine that he was unfit. Once it was determined he was unfit, the trial court properly acted within the best interest of the children and granted permanent custody to the maternal great aunt and her husband. The trial court determined that, based on the evidence, it was not in the best interest of the children for the Appellant to have contact or visitation with his children. In denying Appellant's request for visitation and/or phone contact with the children, the trial court was acting within its discretion. Leach v. Harrison, 337 S.W.3d 646, 651 (Ky. App. 2011). Thus, we affirm the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: Donnie Ray Stephens, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Kevin S. Shearer
Special Assistant Attorney General
Jamestown, Kentucky