Opinion
NO. 2013-CA-000747-ME NO. 2013-CA-001327-ME
03-07-2014
M.H.G. APPELLANT v. C.W.R., III; M.M.R.; AND G.K.R., A CHILD APPELLEES
BRIEFS FOR APPELLANT: Patricia Ann Day Madisonville, Kentucky BRIEFS FOR APPELLEES: Ben Leonard Dawson Springs, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 12-AD-00053
OPINION
AFFIRMING
BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES. STUMBO, JUDGE: M.H.G. (hereinafter "Father") appeals from "Findings of Fact And Conclusions of Law Regarding Father's Parental Rights" rendered by the Hopkins Circuit Court which terminated his parental rights as to his biological daughter G.K.R (hereinafter "Child"). Father argues that the Judgment is void on statutory and procedural grounds. We find no error, and Affirm the Judgment on appeal.
Because this matter involves the involuntary termination of parental rights and affects a minor child, we will only use the initials of the parties involved.
Child was born on January 19, 2006, in Daviess County, Kentucky, to her mother M.M.R. (hereinafter "Mother"). Child's biological father is identified on her birth certificate as Father. Child was born during the marriage of Mother and Father. The marriage was terminated by way of a Decree of Dissolution rendered in 2007.
In 2012, Mother married C.W.R. (hereinafter "Petitioner"). On December 18, 2012, Petitioner filed the instant Petition for Adoption in Hopkins Circuit Court seeking to terminate Father's parental rights as to Child. As a basis for the Petition, he alleged that Father was a substance abuser, a convicted felon who was imprisoned at the time of filing, and who had been incarcerated or was otherwise absent for extended periods of the child's life.
A hearing on the matter was conducted on March 19, 2013. Present were Mother, the Petitioner, and Appellant's guardian ad litem, with Father being incarcerated and having executed a Waiver of Appearance. Mother and Petitioner presented testimony at the hearing, after which the trial court rendered its Findings of Fact and Conclusions of Law on March 28, 2013, terminating Father's parental rights. On April 4, 2013, the court rendered a Judgment of Adoption in favor of the Petitioner, along with separate Findings of Fact and Conclusions of Law in support thereof. The corpus of the court's Findings and Conclusions was that Child was a neglected child, that Father was found by clear and convincing evidence to be responsible for that neglect, that it was in Child's best interest to terminate Father's parental rights, and that all statutory factors for termination and adoption were otherwise met.
Thereafter, Father filed a series of Motions including a Motion to Alter, Amend or Vacate the Judgment due to Father not being present at the hearing, Motion for New Trial based on Father not receiving the final Judgment, and Motion to Reconsider the denial of the foregoing post-judgment motions. The Motions were denied.
In August, 2013, Father prosecuted the first of two appeals to this Court, styled No. 2013-CA-000747-ME ("First Appeal"). Therein, Father, through counsel, argued that the Orders of termination and adoption were void because the trial court failed to strictly adhere to the adoption statutes found at Kentucky Revised Statutes (KRS) 199.502 and KRS 199.520, and that the trial court improperly failed to apply Wright v. Howard, 711 S.W.2d 492 (Ky. App. 1986). The focus of this appeal is that the Judgments of termination and adoption are void on statutory and procedural grounds, and that adoption proceedings demand strict statutory compliance.
Thereafter in October, 2013, Father filed a second appeal, styled No. 2013-CA-001327-ME ("Second Appeal"). In this appeal, Father challenges the denial of his post-judgment Kentucky Rules of Civil Procedure (CR) 60.02 motion, wherein Father argued that 1) the docket order dated March 19, 2013, and rendered on March 28, 2013, had no indication of what standard the court used in severing his parental rights; 2) the Judgment should be set aside based on excusable neglect because when Father signed the Waiver of Appearance he did not understand that he was entitled to appear and give testimony, and 3) he was denied Due Process based on his mistaken belief that he did not have a right to attend the adoption hearing.
In the interest of judicial economy, the First and Second Appeals were consolidated. We will first consider Father's claim that the Judgment terminating his parental rights and the Judgment of Adoption failed to comport with the statutory guidelines and are therefore void as a matter of law. Father's argument on this issue centers on his claim that the Hopkins Circuit Court improperly failed to apply Wright, supra. In Wright, a panel of this Court found three procedural defects supporting reversal of a termination and adoption judgment. First, the panel found that the adoption petition did not name the proper party defendants pursuant to KRS 199.480, in that the biological mother was named as a co-petitioner with the adoptive stepfather. In the matter at bar, Mother was properly named as a Respondent.
Second, in Wright the panel of this Court found problematic the fact that a guardian ad litem had been appointed to represent the children in contravention of KRS 199.480(3), which provides that no guardian shall be appointed when both biological parents are parties to the action. In the matter before us, no guardian ad litem was appointed to represent the child.
Third, the Wright court found that the biological mother improperly failed to file a sworn consent to the adoption. This error is not present in the instant case, as Mother specifically admitted every allegation in the Petition and requested that the adoption be granted. We find no basis for concluding that the Hopkins Circuit Court improperly failed to apply Wright herein.
In a related argument, Father goes on to contend that the matter below was improperly adjudicated under KRS 199.500(1)(b), which allows for an adoption without parental consent if the parent's rights have been previously terminated under KRS Chapter 625. The procedures outlined in KRS Chapter 625 provide that such proceedings may be initiated only by the "cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth's attorney or parent." KRS 625.050(3). Rather, he argues that the matter should have proceeded under KRS 199.502. The substance of Father's argument on this issue is that the termination action was not initiated by the Cabinet or other enumerated agencies, that the procedural protections set out in KRS Chapter 625 were not followed, and that the termination Order is therefore void.
Father does not challenge the content of the Findings, but rather argues that the court failed to adjudicate the matter within the statutory scheme.
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We find no error on this issue. The focus of Father's argument is that the trial court improperly relied on the child neglect and abandonment provisions of KRS 625.090, when it should have proceeded under KRS 199.502. KRS 199.502 states that,
(1) Notwithstanding the provisions of KRS 199.500(1), an 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;
(b) That the parent had inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(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;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to a child named in the present adoption proceeding;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;(2) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision either:
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect.
2. The child named in the present adoption proceeding was born subsequent to or during the pendency of the previous termination; and
3. The condition or factor which was the basis for the previous termination finding has not been corrected; or
(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.
It is noteworthy that the conditions for which an adoption may be permitted without the consent of the child's biological living parent set out the same conditions found in KRS 625.090(2). In 2009, a panel of this Court determined that,
KRS 199.502 sets out various conditions for which an adoption may be permitted without the consent of aR.M. v. R.B., 281 S.W.3d 293 (Ky. App. 2009).
biological living parent, which effectively results in the termination of parental rights. These conditions are the same conditions set forth in KRS 625.090(2) which require clear and convincing evidence to prove whether one of the conditions therein supports the termination of parental rights.
In its March 29, 2013 Findings of Fact and Conclusions of Law Regarding Termination of Father's Parental Rights, the Hopkins Circuit Court entered into a comprehensive analysis of the factors set out in KRS 625.090. This analysis comports with KRS 199.502 and R.M., supra. Additionally, KRS 199.500(4) provides that, "an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child." We conclude that the Hopkins Circuit Court's reliance on KRS 625.090 conforms to the statutory scheme. We find no error.
In his Second Appeal, Father takes issue with the trial court's unfavorable disposition of his April 15, 2013 CR 60.02 Motion seeking relief from the final Judgment based on mistake, inadvertence, surprise or excusable neglect. Father argued below that the docket order dated March 19, 2013, and entered on March 28, 2013, did not reveal the standard the court used in severing Father's rights. Father asserted that this was a mistake which could be resolved under CR 60.02. Additionally, Father argued that the Judgment should be set aside under CR 60.02(f) on the theory that Father did not understand that he was entitled to appear and give testimony and did not have to sign the Waiver of Appearance. Father also argued that the Judgment should be vacated because he was not given timely notice of the entry of the final Judgment terminating his parental rights.
In disposing of this Motion, the Hopkins Circuit Court found that it was uncontested that Father's court-appointed attorney did not receive a photocopy or notice of the entry of the final order from the circuit clerk. The court also noted, however, that no evidence was adduced upon which the court could make a factual finding of the method or success of delivery of Father's copies. Ultimately, the court relied on CR 77.04(4) for the proposition that,
the failure of the clerk to serve such notice, or the failure of a party to receive such notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the Court to relieve a party for failure to appeal within the time allowed[.]
The court went on, however, to conclude that even if it were permitted to address the motion to alter, amend or vacate the judgment, "that motion would likewise be denied." The court found that Father voluntarily signed the Waiver of Appearance, that he did not present any list of witnesses or other evidence to be presented, and did not move for an order to be transported or to appear via telephone. Ultimately, the court determined that no basis existed for granting the relief sought.
We find no error herein. The record demonstrates that Father signed and filed a valid Waiver of Appearance, and that no effort was made to present witnesses or to make a personal or telephonic appearance. As the Hopkins Circuit Court properly noted, it cannot grant a motion that was never made. The trial court found the Waiver to be effectual, and we find no basis for tampering with that decision. We also cannot conclude that the trial court improperly failed to reveal the legal standard upon which it relied, nor that Father's purported failure to receive notice of the Judgment forms a basis for vacating the Judgment.
For the foregoing reasons, we Affirm the March 28, 2013 Order and Judgment Terminating Father's Parental Rights, the April 4, 2013 Judgment of Adoption, and the May 23, 2013 Order denying Father's Motion for CR 60.02 relief.
ALL CONCUR. BRIEFS FOR APPELLANT: Patricia Ann Day
Madisonville, Kentucky
BRIEFS FOR APPELLEES: Ben Leonard
Dawson Springs, Kentucky