Opinion
NO. 2015-CA-001685-ME
04-28-2017
M.H., THE NATURAL MOTHER OF J.O.W., JR., A MINOR CHILD APPELLANT v. A.T. AND C.J.C. APPELLEES
BRIEF FOR APPELLANT: J.D. Fleming Lexington, Kentucky BRIEF FOR APPELLEE: Abigail E. Voelker Butler, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PENDLETON FAMILY COURT
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 13-AD-00022 OPINION
REVERSING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND JONES, JUDGES. KRAMER, CHIEF JUDGE: M.H., the natural mother of J.O.W., Jr., a minor male child, appeals the Pendleton Family Court's Findings of Fact, Conclusions of Law, and Judgment of Adoption in this case. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for M.H. filed an Anders brief stating that the appeal is frivolous, which was accompanied by a motion to withdraw as counsel which was passed to this merits panel. After a careful review of the record, we reverse and remand because the family court's Judgment of Adoption was based upon the court's insufficient findings of fact and conclusions of law. We deny counsel's motion to withdraw by separate order.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967).
I. FACTUAL AND PROCEDURAL BACKGROUND
A.T., the adoptive father, and C.J.C., the adoptive mother, are married. They filed their verified petition for adoption of J.O.W., Jr., who had resided with them for more than a year. The child was three years old at the time the petition for adoption was filed. The adoptive parents are the maternal aunt and uncle of the child. They sought to adopt the child without the consent of the child's biological living parents. Their petition for adoption alleged that the child's biological parents:
We have chosen not to correct the grammatical errors in this quotation from the petition for adoption.
have had no contact with the minor child for a period of not less than six months, have continuously or repeatedly failed or refused to provide or have 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 and for reasons other than poverty alone, have 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.
The family court held a hearing concerning the petition for adoption and whether the biological parents' rights should be terminated. Following the hearing, the court entered findings of fact and conclusions of law. The entirety of its findings concerning the biological mother were as follows:
We only address the family court's findings concerning the biological mother. This is because the biological father, who was a party to the petition for adoption, but who did not attend the termination of parental rights/adoption hearing because he apparently was trying to avoid being apprehended on an arrest warrant, did not appeal the family court's decision.
The [biological mother, M.H.,] failed to present any testimony contradicting the juvenile record wherein she failed to attend drug screens or receive an assessment or treatment for her drug dependency issues. [M.H.] has abandoned the minor child for a period of not less than 90 days prior to her incarceration, allowed emotional harm to the minor child and has exhibited conduct proving her incapable of caring for the minor child with no expectation of significant improvement. The legal grounds to terminate [her parental rights] under KRS 625.090 have be[en] proven.The court then concluded that M.H.'s parental rights were terminated, and that a judgment of adoption should be entered for the petitioners. Thereafter, the court entered its judgment of adoption, declaring, inter alia, that A.T. and C.J.C. are the adoptive parents of the child. M.H. now appeals.
Kentucky Revised Statute.
II. STANDARD OF REVIEW
We begin by noting that "[a]n adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007) (citation omitted). Thus, by entering the judgment of adoption in this case, M.H.'s parental rights were involuntarily terminated.
The standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence. 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.B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citation omitted).
Kentucky Rule of Civil Procedure.
III. ANALYSIS
After reviewing the record on appeal, M.H.'s counsel filed an Anders brief with this Court in compliance with A.C., 362 S.W.3d at 361. In A.C., this Court held that
an indigent parent defending a termination of parental rights action enjoys a statutory right to counsel during the appeal, [but] that right to counsel does not include the right [of an indigent parent] to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal.A.C., 362 S.W.3d at 367 (internal quotation marks and citation omitted). In accord with A.C., the mother's counsel in this case concluded that the appeal is frivolous, advised this Court of the frivolity, and moved to withdraw as counsel, but also filed an appellate brief which addressed anything that might possibly support the appeal. See id. at 371. This Court entered an order granting the mother time to file a pro se brief and passing counsel's motion to withdraw for a decision by this panel. Id.
M.H. filed a pro se brief. In her brief, she essentially challenges the testimony presented at the hearing by the adoptive parents and their witnesses.
We are now "obligated to independently review the record and ascertain whether the appeal is, in fact," frivolous. A.C., 362 S.W.3d at 372 (citation omitted). We have reviewed the record, and we disagree with counsel that the appeal is frivolous. M.H. was not given due process because the family court's findings of fact and conclusions of law, upon which its judgment of adoption was based, were woefully inadequate. Consequently, the entry of the family court's judgment of adoption was in error.
Pursuant to KRS 199.502(1):
[A]n adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of the following conditions exist with respect to the child:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
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(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, . . . emotional harm;
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(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; [or]
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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[.]
Further, KRS 199.502(2) provides:
Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision either:
(a) Granting the adoption without the biological parent's consent; or
(b) Dismissing the adoption petition, and stating whether the child shall be returned to the biological parent or the child's custody granted to the state, another agency, or the petitioner.
In the present case, the family court failed to enter sufficient findings of fact in its written findings to support its decision to terminate M.H.'s parental rights and grant the petition for adoption. We remind the family court that a court speaks only through its written record. See Holland v. Holland, 290 S.W.3d 671, 675 (Ky. App. 2009). As previously mentioned, the entirety of its written "factual findings" regarding M.H. were that M.H.:
failed to present any testimony contradicting the juvenile record wherein she failed to attend drug screens or receive an assessment or treatment for her drug dependency issues. [M.H.] has abandoned the minor child for a period of not less than 90 days prior to her incarceration, allowed emotional harm to the minor child and has exhibited conduct proving her incapable of caring for the minor child with no expectation of significant improvement.
The only true factual findings in that paragraph are that M.H. failed to contradict the juvenile record, which allegedly showed that she "failed to attend drug screens or receive an assessment or treatment for her drug dependency issues." That alone is insufficient evidence upon which to terminate M.H.'s parental rights. The court then held that M.H. had abandoned the child for at least ninety days, but the court did not provide any factual findings to support that conclusion, such as the dates comprising the ninety-day time period that M.H. had allegedly abandoned her child. The family court stated that M.H. had "allowed emotional harm to the minor child," but the court provided absolutely no written findings of fact to support that determination. Finally, the court held that M.H. had "exhibited conduct proving her incapable of caring for the minor child with no expectation of significant improvement," but the court provided no written factual findings to support that conclusion.
We remind the family court that although M.H. was incarcerated at different times in the past, "incarceration is just one factor to be considered when determining whether to terminate parental rights." M.L.C. v. Cabinet for Health and Family Services, 411 S.W.3d 761, 766 (Ky. App. 2013). --------
The family court needs to understand that its determination that M.H. had "abandoned the minor child for a period of not less than 90 days prior to her incarceration, allowed emotional harm to the minor child and . . . exhibited conduct proving her incapable of caring for the minor child with no expectation of significant improvement," which are statements that mirror the statutes pertaining to adoption without the consent of the parents, are not sufficient factual findings. See M.L.C. v. Cabinet for Health and Family Services, 411 S.W.3d 761, 765 (Ky. App. 2013) (holding that the trial court's findings of fact were not supported by clear and convincing evidence when the trial court merely "parrot[ed] the legal language required in KRS 625.090 [for the involuntary termination of parental rights] and did not explain or cite to any specific evidence which supported its decision regarding any of the factors."). Rather, the written findings of fact that a family court needs to make in order to properly terminate a parent's rights should be evidentiary findings of fact, based upon testimony and other proper forms of evidence, and the court needs to specify upon which evidence it has relied in reaching its conclusions in the written findings of fact in order to provide an evidentiary basis supporting its decision. Otherwise, an appellate court is unable to truly review the trial court's findings.
Also, in the present case, the court's referral to the juvenile record, without specifically stating the facts from the juvenile record it relied upon, is insufficient. The underlying juvenile record is not forwarded to this Court on appeal from an adoption case, and so we are unaware of which facts are contained in the juvenile record, rendering us unable to properly review those findings unless the family court specifies the facts from the juvenile record upon which it is relying in its decision.
Therefore, the family court's written findings of fact do not demonstrate that there was clear and convincing evidence to support its decision to terminate M.H.'s parental rights. Consequently, the family court erred in granting the adoption petition at this time, which effectively terminated M.H.'s parental rights. We disagree with counsel that this appeal is frivolous.
Accordingly, the judgment of the Pendleton Family Court is reversed and remanded for further proceedings.
ALL CONCUR. BRIEF FOR APPELLANT: J.D. Fleming
Lexington, Kentucky BRIEF FOR APPELLEE: Abigail E. Voelker
Butler, Kentucky