M.B. v. D.W.

236 S.W.3d 31, 2007 Ky. App. LEXIS 346
CourtCourt of Appeals of Kentucky
DecidedSeptember 21, 2007
DocketNo. 2006-CA-002285-ME
StatusPublished
Cited by4 cases

This text of 236 S.W.3d 31 (M.B. v. D.W.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.B. v. D.W., 236 S.W.3d 31, 2007 Ky. App. LEXIS 346 (Ky. Ct. App. 2007).

Opinion

OPINION

HOWARD, Judge.

This appeal is from a judgment of the Hardin Circuit Court granting the petition for adoption of the minor appellee, M.B., by her stepfather, D.W., without the consent of her biological father, the appellant, M.B. (hereinafter the appellant). The appellant has undergone gender reassignment surgery and now lives as a woman. On appeal the appellant contends that clear and convincing evidence did not demonstrate grounds for the termination of parental rights. The appellant also contests the award of expert witness fees to the appellees. Finding no error, we affirm.

The appellant and the appellee, B.W., were married in June 1974 and three children were born of the marriage. The appellant and B.W. separated in 1997 and their marriage was dissolved by the Jefferson Family Court in 1998. In their settlement agreement, they agreed to joint custody of the two children who were not emancipated. B.W. was to provide the children’s primary residence and the appellant received liberal visitation. The appellant was to pay $600 monthly for child support until certain specified real estate was sold. The agreement stated that the appellant’s responsibility for “child support shall cease in lieu of the mortgage on the marital residence being paid off with proceeds from the sale of the acreage.” The appellant was to provide health insurance for the two minor children until B.W. was eligible for insurance, at which time the appellant was to reimburse B.W. monthly for the insurance. Responsibility for uninsured medical expenses was to be divided equally between the appellant and B.W.

The appellees have not alleged that the appellant failed to satisfy any of the child support obligations. However, the record reflects that the appellant did fail to reimburse B.W. for any health insurance premiums or to pay his half of the medical expenses which were not covered by insurance, as will be discussed below.

During the marriage the appellant cross-dressed with B.W.’s knowledge, but described this as merely a “fetish” and concealed the behavior from the children. After the divorce the appellant moved to Florida and ultimately began a medical gender reassignment procedure. The children visited with the appellant during the holidays in December 1998 and January 1999, and they noticed at that time that the appellant exhibited various feminine features. The appellant testified that all three of the children called after this visitation and said that they did not want to see the appellant again. M.B., who was nine years old at the time, did not see the appellant again until she testified in the [34]*34present proceeding, at age fifteen.1 The appellant underwent gender reassignment surgery in December of 1999.

In 2001 the appellant filed a motion in the Jefferson Family Court to enforce visitation rights with M.B., the only child not by then emancipated. However, M.B. still did not want to see the appellant, and was by this time in psychological counseling. In October 2001, the Jefferson Family Court entered an order restricting the appellant’s contact with M.B. unless approved by M.B.’s guardian ad litem. By order entered on August 7, 2002, the Jefferson Family Court directed that the appellant have no contact with M.B. pending further orders of that court.

On December 15, 2003, B.W., her husband, D.W., and M.B. jointly filed in the Hardin Circuit Court a petition for adoption, without the consent of the appellant. Following an extensive hearing, the circuit court, the Honorable W. Mitchell Nance, Special Judge, granted the petition. This appeal followed.

An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent’s parental rights. Moore v. Asente, 110 S.W.3d 336 (Ky.2003). KRS 625.090 provides that parental rights may be involuntarily terminated only if, based on clear and convincing evidence, a circuit court finds: (1) that the child is abused or neglected as defined in KRS 600.020(1); (2) that termination is in the child’s best interests; and (3) the existence of one or more of ten specific grounds set out in KRS

625.090(2). These grounds include the following:

(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm....
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(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....

We begin our analysis of this case with the proposition that parental rights are “essential” and “basic” civil rights, “far more precious ... than property rights.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (citations and internal quotation marks omitted). Parental rights cannot be terminated easily — “clear and convincing” evidence is required — and we believe the requirements of KRS 625.090 should be vigorously enforced.

However, this Court has also stated,

The trial court has a great deal of discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination.... This Court’s standard of review in a termination of parental rights action is confined to the [35]*35clearly 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....
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 (citations and internal quotation marks omitted).

M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116-117 (Ky.App.1998).

Our standard of review is consequently narrow. In this case, substantial evidence supports the circuit court’s decision and it must therefore be affirmed.

As stated above, to involuntarily terminate parental rights, the circuit court is required to find that neglect or abuse has occurred, that termination is in the child’s best interests and that one or more of the requirements of KRS 625.090(2) exist with respect to the child. KRS

Related

S.S. v. Commonwealth, Cabinet for Health & Family Services
537 S.W.3d 834 (Court of Appeals of Kentucky, 2017)
C.H. v. Cabinet for Health & Family Services
399 S.W.3d 782 (Court of Appeals of Kentucky, 2013)
Wa v. Cabinet for Health & Family Serv. Commonwealth
275 S.W.3d 214 (Court of Appeals of Kentucky, 2009)
Mb v. Dw
236 S.W.3d 31 (Court of Appeals of Kentucky, 2007)

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Bluebook (online)
236 S.W.3d 31, 2007 Ky. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mb-v-dw-kyctapp-2007.