Opinion
2021-CA-0127-ME
03-04-2022
P.J. AND K.J. APPELLANTS v. A.E.; CABINET FOR FAMILY AND CHILDREN; J.R.R.; AND L.R., A CHILD APPELLEES
BRIEFS FOR APPELLANTS: Tasha K. Schaffner Crestview Hills, Kentucky BRIEF FOR APPELLEE A.E.: Justin D. Durstock Ft. Mitchell, Kentucky BRIEF FOR APPELLEE J.R.R.: Blaine J. Edmonds III Ft. Mitchell, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
NOT TO BE PUBLISHED
EXPEDITED APPEAL FROM KENTON CIRCUIT COURT HONORABLE ROBERT W. MCGINNIS, SPECIAL JUDGE ACTION NO. 18-AD-00171
BRIEFS FOR APPELLANTS: Tasha K. Schaffner Crestview Hills, Kentucky
BRIEF FOR APPELLEE A.E.: Justin D. Durstock Ft. Mitchell, Kentucky
BRIEF FOR APPELLEE J.R.R.: Blaine J. Edmonds III Ft. Mitchell, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky
BEFORE: DIXON, McNEILL, AND K. THOMPSON, JUDGES.
OPINION
McNEILL, JUDGE
P.J. and K.J. (collectively "Appellants") appeal an order of the Kenton Family Court denying their petition for adoption of L.R., a minor child. Upon careful review, we vacate and remand for proceedings not inconsistent with this Opinion.
L.R. was born on November 30, 2014. At the time of his birth, his mother, A.E. ("Mother"), was in a residential substance abuse treatment program. L.R. had methadone in his system at birth. L.R.'s biological father, J.R.R. ("Father"), was either incarcerated or in substance abuse treatment at the time of L.R.'s birth. Mother and L.R. moved in with A.E.'s mother, P.J., shortly after his birth. When L.R. was approximately seven (7) months old, A.E. relapsed and began using substances again. A.E. was eventually arrested on a probation violation and, at that time, P.J. contacted the Cabinet for Health and Family Services ("the Cabinet"). A dependency, neglect, or abuse ("DNA") petition was filed in Kenton Family Court, and P.J. was awarded temporary custody of L.R. in January 2016. She was awarded permanent custody in the DNA action in September 2017. Father, who lives in Lexington, Kentucky, was granted supervised visitation with L.R. every other Sunday for four hours. Mother was not granted visitation. In October 2018, P.J. and her husband, K.J., filed the underlying petition to adopt L.R. The Cabinet filed a written report with the family court pursuant to KRS 199.510 and recommended the family court grant the adoption. The petition languished for two years and a final hearing was eventually held in December 2020. L.R. was six years old at the time of the final hearing.
Kentucky Revised Statutes.
The findings contained in the Cabinet's report must be accepted by the family court unless they are arbitrary or unreasonable. A.F. v. L.B., 572 S.W.3d 64, 73-74 (Ky. App. 2019) (citing Dickey v. Boxley, 481 S.W.2d 283, 284-85 (Ky. 1972)).
Testimony revealed that L.R. has lived with Appellants since shortly after his birth. Since that time, they have provided for his daily needs, including two eye surgeries early in his life, hospitalizations due to asthma, and more recently, speech therapy. Mother has had little involvement in L.R.'s care and upbringing, and admitted as much in her testimony. Mother has struggled with drug addiction since she was a teenager and has been in and out of at least twenty substance abuse treatment programs. At the time of the hearing, Mother was participating in a methadone program, but had been in the program for only approximately two months. She had no contact whatsoever with L.R. from January to September 2020. At the time of the hearing, Mother had been living with Father for just over one month and admitted to "living pretty much like a gypsy here and there" since 2019. Mother stated the last time she had a job for longer than six months was in 2013 or 2014, and she was not employed at the time of the hearing. She admitted she has never provided "the essentials of life" for L.R., including food and clothing. Mother also admitted she needs additional treatment for her addiction and stated she would like to get into a sober living facility. She testified she hoped to be in a position to care for L.R. on her own in one to two years, but conceded "nothing" had prevented her from getting into a program in the two years since the petition was filed. Mother had sought to obtain visitation with L.R. in the DNA action by filing a motion to review, but admitted she did not show up to court for the motion because she had again relapsed. The record before us reveals that Mother has not otherwise sought visitation or custody of L.R. through the family court.
When asked on direct examination by her attorney why she did not take advantage of video calls or telephone calls with L.R. during the pandemic, Mother responded, "I was probably on drugs at that point. I really don't know why, honestly."
With the exception of a few no-shows, testimony revealed that Father generally utilizes his supervised visitation of four hours every other Sunday, but he admitted to being late for most of the visits and, therefore, has seldom taken full advantage of his time with L.R. Father is employed as a floor manager at Thoroughbred Motors in Lexington, Kentucky, but has been employed in the past as an occupational therapist. Father currently takes suboxone and testified that he last used heroin in 2015. Father pays $400.00 per month in child support. P.J. testified that when in-person visitation was suspended from March through May 2020 during the COVID-19 pandemic, Father did not call to check on L.R. or attempt to speak to him on the telephone or via video call. Father has never sought to increase his parenting time or remove the supervision requirement through the family court, but says he plans to do so. Father could not state the name of L.R.'s school and has not asked P.J. about the school. He does not know the names of L.R.'s teachers and has never asked for report cards or progress reports. Father stated that he has "never been provided the opportunity" to parent L.R.
Although Father's occupational therapy license is now active, it has been suspended twice in the past for drug-related incidents.
Father testified that he takes suboxone "for a chronic injury from playing football in college."
Testimony was unclear whether the child support paid by Father is directed to support of L.R. P.J. testified that Father agreed to pay $400.00 per month in child support to cover the cost of Mother's methadone treatment, and no clarification was provided regarding who receives the child support paid by Father.
After the hearing, the family court denied the petition for adoption. This appeal followed. Further facts will be developed as necessary.
Generally, in an adoption action where consent has not been given by the biological parents, our review is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence. The family court's findings will not be disturbed unless there exists no substantial evidence in the record to support them. See M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986)). Clear and convincing proof does not necessarily mean uncontradicted proof, but rather requires proof of a probative and substantial nature that is sufficient to convince ordinarily prudent-minded people. Id. at 117.
Kentucky Rules of Civil Procedure.
However, in the instant action, after careful examination of the record, we note that the facts are not in dispute. Appellants argue, in part, that the family court's findings are not supported by the evidence, but they draw our attention to portions of the judgment that are conclusions of law by the family court. Whether the family court correctly applied the law to the facts is a question of law that we review de novo. E.K. v. T.A., 572 S.W.3d 80, 82 (Ky. App. 2019) (citation omitted). Accordingly, we conclude the family court incorrectly applied the law to the facts by ignoring the adoption statutes and applying only the mandates of KRS Chapter 625.
In Kentucky, the right to adopt exists only by statute and there must be strict compliance with the adoptions statutes. Wright v. Howard, 711 S.W.2d 492, 494 (Ky. App. 1986). A petition for adoption shall be granted if it is pleaded and proven that
the facts stated in the petition were established; that all legal requirements, including jurisdiction, relating to the adoption have been complied with; that the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child; and that the best interest of the child will be promoted by the adoption and that the child is suitable for adoption.KRS 199.520(1).
The first sentence of the family court's findings of fact and conclusions of law states, "[Appellants] filed this action pursuant to KRS 625.090 et seq., seeking involuntary termination of the parental rights of [Mother] and [Father] to the child, [L.R.]." This Court recently explained that
KRS 625.090 is only applicable to the extent specified in the adoption statutes. As our prior case law makes clear, adoption without consent does not require that all the requirements of the termination statute be satisfied. Specifically, adoption without consent does not require a finding by the family court that the child had been neglected or abused or a consideration of whether additional services might be provided to bring about reunification.A.K.H. v. J.D.C., 619 S.W.3d 425, 431-33 (Ky. App. 2021) (emphasis in original).
The result in A.K.H. was not dictated by precedent that did not already exist at the time it was rendered, so there is no question of retroactivity. We acknowledge that A.K.H. was rendered by this Court ten days after the family court entered its findings of fact and conclusions of law. See Leonard v. Commonwealth, 279 S.W.3d 151, 160-61 (Ky. 2009). Furthermore, Mother also cites A.K.H. in her Appellee brief on page 3.
In the instant action, the family court did not refer to or apply the statutory mandates of KRS 199.470 et seq. at any point in its findings of fact and conclusions of law. Rather, the family court engaged in an analysis pursuant to KRS Chapter 625, and it is clear the family court incorrectly believed Appellants had the burden to prove all the elements of the three-part test for termination of parental rights contained in KRS 625.090, including that L.R. is an abused or neglected child, and whether there was proof the Cabinet had attempted to render services in order to keep the family together when considering L.R.'s best interests.
Additionally, KRS 625.050(3) restricts who may file a petition for termination of parental rights and states that "[p]roceedings for involuntary termination of parental rights may be initiated upon petition by the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth's attorney or parent." Appellants, not being one of the entities listed, could not have, and in fact did not, file a petition for termination of parental rights pursuant to KRS Chapter 625. See S.B.P. v. R.L., 567 S.W.3d 142, 146 (Ky. App. 2018).
Turning to the applicable adoption statutes, KRS 199.500(4) states
[n]otwithstanding the provisions of subsection (1) of this section, 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.(Emphasis added.)
KRS 199.502 provides additional guidance and states
(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;
© 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;
(h) That:
1.The parent's parental rights to another child have been involuntarily terminated;
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;
(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; or
(j) That the parent is a putative father, as defined in KRS 199.503, who fails to register as the minor's putative father with the putative father registry established under KRS 199.503 or the court finds, after proper service of notice and hearing, that:
1. The putative father is not the father of the minor;
2. The putative father has willfully abandoned or willfully failed to care for and support the minor; or
3. The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor's placement in the home of the petitioner, whichever occurs first.(Emphasis added.)
Both KRS 199.500(4) and KRS 199.502(1) require clear and convincing evidence of only one of the associated provisions, as opposed to the three-prong test required by KRS 625.090. Notably, KRS 199.502 makes no reference to KRS Chapter 625, Chapter 620, or Chapter 600 or their standards. A.K.H., 619 S.W.3d at 432 (citation omitted). We acknowledge that when a petition for adoption is granted, the rights of the biological parents are necessarily terminated.
It is a logical, of course, to ask why the labels matter if the end result is the same. The labels matter because the parties, style, manner of service, and jurisdictional prerequisites for an adoption petition are different than a petition seeking termination of parental rights. Before the family court can grant an adoption it must determine
that "all legal requirements, including jurisdiction, relating to the adoption have been complied with[.]" KRS 199.520(1) (emphasis added).C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019).
Finally, the family court failed to consider the best interests of L.R. in the context of the adoption.
[T]he 'best interest' of the child is the overriding consideration, and . . . an adoption may be granted if the court finds that to do so will promote the best interest of the child, without a finding of the existence of the statutorily enumerated qualifications of good moral character, reputable standing in the community, and ability to properly maintain and educate the child.Dickey, 481 S.W.2d at 284-85.
Accordingly, we vacate and remand for proceedings not inconsistent with this Opinion. On remand, the family court should strictly follow the adoption statutes in KRS Chapter 199, keeping in mind that full compliance with KRS 625.090 is not necessary. A.K.H., 619 S.W.3d at 432.
DIXON, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.