Opinion
2021-CA-1016-ME
03-04-2022
L.A. AND B.A. APPELLANTS v. M.G. AND J.M.G., A CHILD APPELLEES
BRIEFS FOR APPELLANT: Rebecca M. Simms Louisville, Kentucky BRIEF FOR APPELLEE: Abigail Green Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE LORI N. GOODWIN, JUDGE ACTION NO. 20-AD-500064
BRIEFS FOR APPELLANT:
Rebecca M. Simms
Louisville, Kentucky
BRIEF FOR APPELLEE:
Abigail Green
Louisville, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE, JUDGES.
OPINION
GOODWINE, JUDGE:
L.A. and B.A. (collectively "Custodians") appeal orders of the Jefferson Circuit Court, Family Division dismissing their petition to adopt J.M.G. ("Child") without the consent of M.G. ("Mother"). Custodians also appeal 1 orders granting a continuance of the trial and appointing counsel for Mother. After careful review, we affirm.
L.A. and B.A. are married. B.A. is Mother's stepbrother.
BACKGROUND
This matter was initiated by Custodians' petition to adopt Child under KRS 199.470 filed on January 28, 2020. Mother did not consent to the adoption. Child's putative biological father was also named in the petition but was later dismissed from the underlying action and is not a party to this appeal.
Kentucky Revised Statutes.
The case was scheduled for a hearing on March 9, 2021. The family court's scheduling order states "[a]ny request for continuance shall comply with CR 43.03." Record ("R.") at 58. Mother attempted to contact the family court prior to the trial date. On the day of trial, Mother reported she did not have representation and could not afford counsel. She then moved for a continuance. Over Custodians' objections, the court granted the continuance and set the trial for May 14, 2021.
Kentucky Rules of Civil Procedure.
On March 24, 2021, Mother filed a pro se motion for appointment of counsel. In an affidavit attached to her motion, Mother stated she could not afford 2 an attorney. She reported that she was residing in a sober living house and would be working as a registered alcohol and drug technician ("RADT") and managing a sober living house in the future. The family court granted Mother's motion and appointed counsel to represent her in the adoption.
Mother completed what appears to be a blank motion form provided by the Jefferson Circuit Clerk's office. It is styled as a "motion to redocket." However, based on the contents of the attached affidavit, Mother is clearly requesting appointment of counsel.
The court first appointed Erin S. Kennedy as counsel for Mother before replacing her with Abigail Green, without explanation, prior to trial.
At trial, the family court heard testimony from Custodians and Mother. The Cabinet for Health and Family Services ("Cabinet") filed a report, as required by KRS 199.510.
According to evidence presented at trial, Child was born on August 29, 2017. At the time of Child's birth, Mother was unable to care for her due to substance abuse and medical complications relating to the birth. Mother has a history of substance abuse. Shortly after Child's birth, Mother and Custodians entered into an agreement for Custodians to have custody of Child and for Mother to have visitation at their discretion. Custodians agreed Mother would not pay child support. The arrangement was reduced to writing and entered as an agreed order in the Superior Court of Floyd County, Indiana on September 21, 2017. Mother was not represented by counsel when she entered into this agreement and 3 understood it to be a temporary arrangement. However, she has not moved to alter the agreement since its entry.
Mother was placed in a medically-induced coma after giving birth to the child and reported suffering from a brain injury.
Mother is thirty-five years old and has two older minor children, a daughter and a son, who are not the subject of this action. The daughter resides with her maternal grandmother and has daily contact with Mother. Custodians share custody of the son with his paternal grandmother. He primarily resides with his grandmother but visits Custodians every other weekend. He also speaks with Mother by video chat approximately four times per week. Mother also consistently visits with both of her older children. Child has relationships with both of her siblings and knows Mother is her parent.
After entry of the agreed order, Mother had consistent visits with Child. However, after suffering a relapse, visitation all but ceased. Mother admits there was a period in which she did not pursue visitation due to her drug use.
She entered a substance abuse rehabilitation program in California in May 2020. Upon completion of the program, she returned to Kentucky to be close to her children. Based on her concern that she would relapse again if she remained in Kentucky, she returned to California in January 2021. She voluntarily entered a mental health treatment program at that time.
Mother has remained sober since April 2020. She now manages a sober living house and is certified as a RADT. She does not plan to return to 4 Kentucky because she fears moving back would lead to a relapse. She wishes to remain sober for her children. Although she now resides in California, Mother has had consistent contact with her older children and those relationships are positive. She visits her older daughter in Kentucky and her son travels to California for visits.
In addition to having positive relationships with her siblings, Child has a close relationship with Custodians. She refers to them as "mommy" and "daddy." She has only ever lived with Custodians and they have cared for her since her birth. Custodians have provided nearly all material support for Child.
Mother provided some diapers, wipes, and clothing when Child was an infant.
Since achieving sobriety, Mother's attempts to contact and visit Child have largely been unsuccessful. She has only seen Child once, in October 2020. Custodians alleged Mother has not requested to see Child. Mother claimed they did not make Child available when she requested visitation. She testified that Custodians brought her son to visit but would not bring Child. Mother does not object to Child remaining in Custodians' care but does not wish for her parental rights to be permanently severed. 5
For clarity, testimony indicates Mother was in Kentucky, not California, visiting her other children when this occurred.
On July 23, 2021, the family court dismissed Custodians' petition, finding they had not met their burden under KRS 199.502. Specifically, the court found they had not proven the necessary facts under KRS 199.502(1)(a), (e), and (g). The court further found
The court also addresses the applicability of KRS 199.502(1)(j). However, this applies only to putative fathers and, therefore, is inapplicable to this matter. Custodians do not raise this subsection on appeal.
[I]t is not in the best interest of the minor child that her mother's parental rights be terminated. [Mother] has a positive relationship with two of her three children. The siblings have a relationship with each other. The minor child lives part of the time with her brother . . . who is regularly communicating with [Mother]. [Mother] is doing well and maintaining her sobriety. It is reasonable that her relationship with [the child], once she is allowed to have one, will be a positive factor in [Child's] life.R. at 149.
Custodians moved for additional findings under CR 52.02 and for the court to vacate its judgment in favor of granting the adoption. The family court denied the motion to alter, amend, or vacate but made additional findings further explaining its decision. The court was unconvinced that Mother's signing of the agreed order was "per se abandonment." The court further found
[T]here was conflicting testimony regarding why [Mother] had not seen the child - [Custodians] testified they reached out to [Mother] and she was unable to visit the child as she was battling her drug addiction. [Mother] testified she reached out to [Custodians] on6
other occasions and they were unavailable on the dates she sought to see the child.R. at 168. This appeal followed.
STANDARD OF REVIEW
Involuntary adoption is comparable to capital punishment of the family unit because it is so severe and permanent. Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599 (1982). Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution. Id. at 753, 102 S.Ct. at 1394. "[A] parent's desire for and right to the companionship, care, custody and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." Lassiter v. Department of Social Services of Durham County, N.C. , 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981) (internal quotation marks and citation omitted). For this reason, courts must proceed in actions to terminate parental rights with "utmost caution." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (citing M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008)).
Because of the permanent infringement on the parent's liberty interest, evidence supporting an adoption without consent must be clear and convincing. Id. (citing Santosky, 455 U.S. at 869-70, 102 S.Ct. at 1403). "Clear and 7 convincing proof is that of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Id. (internal quotation marks and citation omitted).
Furthermore,
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the [family] court.Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and footnotes omitted). "[M]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal, and appellate courts should not disturb [family] court findings that are supported by substantial evidence." Id. (internal quotation marks and footnotes omitted).
ANALYSIS
On appeal, Custodians raise the following arguments: (1) they met their burden of proving, by clear and convincing evidence, that the adoption should have been granted under KRS 199.502; (2) the family court erred by denying their motion for additional findings of fact; (3) the family court abused its discretion by appointing counsel for Mother; and (4) the family court abused its discretion by granting Mother a continuance. 8
(1) Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted without the consent of the biological 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) T hat 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 the9
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.10 KRS 199.502. Custodians argue they proved by clear and convincing evidence the conditions in KRS 199.502(1)(a), (e), and (g) exist.
First, the family court did not err in finding Custodians did not prove Mother abandoned the child under KRS 199.502(1)(a). "[A]bandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." R.P., Jr., 469 S.W.3d at 427 (citation omitted). In order for a parent's actions to constitute abandonment, they must be willful and harsh. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590 (Ky. App. 2009) (citing Kantorowicz v. Reams, 332 S.W.2d 269, 271-72 (Ky. 1959)).
Herein, the family court was presented with conflicting testimony from the parties as to Mother's attempts at maintaining a relationship with Child. It is solely the family court's province to judge the credibility of witnesses and to give weight to the evidence presented at trial. Moore, 110 S.W.3d at 354 (footnotes omitted). The family court was convinced of the credibility of Mother's testimony. We will not disturb this determination. Furthermore, it appears Custodians interfered with Mother's attempts to build a relationship with Child. We believe it is telling that, if Custodians were to be believed, Mother did nothing to pursue a relationship with Child despite having maintained close, positive relationships with her older children. This discrepancy supports the family court's 11 finding that Mother's testimony was more credible than that of the Custodians. Because the court was convinced Mother had attempted to maintain her relationship with Child, Custodians did not prove she had a "settled purpose" to abandon Child.
Custodians further argue they proved the existence of circumstances under KRS 199.502(1)(e) and (g). However, both subsections require the petitioner prove there is no reasonable expectation of improvement in the parent's behavior. Herein, the family court noted Mother's completion of treatment, maintenance of sobriety for more than a year, employment with the rehabilitation facility, and positive relationships with her older children. The court found that Mother could have a positive relationship with Child if given the opportunity. On this basis, the court did not err in finding Custodians failed to meet their burden under KRS 199.502(1)(e) and (g).
Relatedly, Custodians argue the family court exceeded its authority in basing its decision to deny the petition on its determination of Child's best interest. Instead, Custodians allege the Cabinet determines Child's best interest. This is a misstatement of the Cabinet's role under KRS Chapter 199.
Upon the filing of a petition for adoption under KRS 199.470, the Cabinet is required to investigate certain factors enumerated in KRS 199.510(1) and file a report containing its findings with the family court. One of those factors 12 is "[w]hether the adoption is to the best interest of the child and the child is suitable for adoption." KRS 199.510(1)(c). Such a report was filed in this matter and the Cabinet reported its conclusion that adoption would be in Child's best interest. However, regardless of their contents, reports under KRS 199.510 are not determinative of any issue. Instead, they are one piece of evidence the family court considers in making its decision. The authority to make determine the child's best interest rests solely with the family court. See KRS 199.520(1).
The family court determined adoption was not in Child's best interest. The court specifically cites to Mother's positive relationships with her older children and notes Child's relationships with her siblings. Denial of Custodians' petition preserves Child's extended familial relationships. While adoption can be in a child's best interest, in this matter, adoption may have had a detrimental impact on Child's relationships with her siblings.
Second, the family court did not err in its additional findings. No later than ten days after entry of a judgment, a party may request the court make additional findings. CR 52.02. The rule does not require a court to make additional findings in response to a motion. McKinney v. McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008) (citation omitted). "By its own terms, the rule permits the [family] court to determine the sufficiency of its factual findings." Id. Because Custodians timely moved for additional findings, "the question on appeal is 13 whether the omitted finding involves a matter which was essential to the [family] court's judgment." Id.
Although the court made some additional findings of fact, it did not make jurisdictional findings under KRS 199.520(1). Custodians argue such findings are essential to the judgment.
KRS 199.520(1) requires:
After hearing the case, the court shall enter a judgment of adoption, if it finds 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.
These findings are required only if the family court is granting the adoption. As previously addressed, the court herein found the adoption was not in Child's best interest. Therefore, findings under KRS 199.520(1) were not essential to the judgment.
Instead, the family court's decision complies with KRS 199.502(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:
(a) Granting the adoption without the biological parent's consent; or14
(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.KRS 199.502(2). Here, the family court entered findings of fact, conclusions of law, and an order setting out its determinations that Custodians had not met their burden of proof and adoption was not in Child's best interest. In addition to dismissing the petition for adoption, the court also ordered the parties to continue to abide by the agreed order on custody. This is sufficient under KRS 199.502(2).
Next, the family court acted within its discretion by appointing counsel for Mother. We must first note Custodians' allegation that the court appointed counsel for Mother sua sponte. The record plainly shows the court did not act on its own motion. Instead, Mother filed a pro se motion on March 24, 2021, asserting she could not afford representation and requesting appointment of counsel.
As explained above, the Supreme Court of the United States has repeatedly deemed the right of a parent to raise her children an essential civil right "far more precious . . . than property rights[.]" Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972) (citations omitted). In actions which may permanently sever a party's parental rights, "there must be complete deference to providing for all the parent's due process rights." T.W. v. Cabinet for Health and Family Services, 484 S.W.3d 302, 306 (Ky. App. 2016) 15 (internal quotation marks and citation omitted). The Supreme Court has not found an absolute right to counsel in termination of parental rights cases and, instead, adopted a case-by-case analysis for determining when counsel must be appointed. S.S. v. Commonwealth Cabinet for Health and Family Services, 537 S.W.3d 834, 836 (Ky. App. 2017) (citing Lassiter, 452 U.S. at 31-21, 101 S.Ct. at 2162; see also A.P. v. Commonwealth, Cabinet for Health and Family Services, 270 S.W.3d 418, 420 (Ky. App. 2008)). However, the Kentucky General Assembly eliminated the need for case-by-case analysis by codifying a biological parent's right to counsel in KRS 199.502(3). Id.
S.S. pertains to KRS 625.080(3) rather than KRS 199.502(3) because the termination of parental rights action therein was initiated by the Commonwealth under KRS Chapter 625. Private involuntary adoptions proceed under KRS Chapter 199. Although there are important differences between KRS Chapter 625 and Chapter 199, KRS 625.080(3), and KRS 199.502(3) are nearly identical.
A biological living parent has the right to legal representation in an adoption wherein he or she does not consent. The Circuit Court shall determine if a biological living parent is indigent and, therefore, entitled to counsel pursuant [to] KRS Chapter 31. If the Circuit Court so finds, the Circuit Court shall inform the indigent parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the biological living parent pursuant to KRS Chapter 31[.]KRS 199.502(3). 16
Either the petitioner or the Finance and Administration Cabinet can be ordered to pay appointed counsel's fee, which cannot exceed five hundred dollars. Herein, because Custodians are step-relatives under KRS 199.470(4)(a), the Finance and Administration Cabinet would be responsible for the fee. KRS 199.502(3)(b).
As a matter of construction, the legislature has applied the entirety of KRS Chapter 31 to appointment of counsel in adoptions proceeding under KRS 199.502. After a court determines a parent is indigent and informs him or her of the right to counsel, the parent must move for appointment of counsel. KRS 31.120(3) describes the format of the affidavit of indigency.
Attached to her motion was an affidavit subscribed and sworn to by Mother, stating the following:
I have [a] trial on May 14th, 2021 and I am currently living in California in sober living. I can get a notarized letter proving this, and also one showing I have completed my program in California. I am asking the courts to please appoint me [counsel] because at this time I cannot afford an attorney, as it is imperative that I have one at my upcoming court date, or the judge is going to move forward with this adoption case. I am doing everything in my power to stay sober and get my life together for my children. [At] my time here I have completed [and] received my RADT (registered alcohol [and] drug tech) in the state of California. I will be working [at] So. Cal. Sunrise [T]reatment Center helping other addicts achieve sobriety. I have also accepted a house management position in a sober living house in [H]untington Beach, California.R. at 116-19. Although Custodians are correct that Mother's affidavit does not conform with the specifications of KRS 31.120(3), this is not fatal to her request. 17
Despite the requirements of KRS 31.120(2) and (3), the statute indicates a clear preference for appointing counsel as early as possible in proceedings.
The court of competent jurisdiction in which the case is pending shall then determine, with respect to each step in the proceedings, whether he or she is a needy person. However, nothing shall prevent appointment of counsel at the earliest necessary proceeding at which the person is entitled to counsel, upon declaration by the person that he or she is needy under the terms of this chapter.KRS 31.120(1)(b) (emphasis added). Herein, Mother declared she was unable to afford counsel in the affidavit and, based on that assertion, the family court proceeded appropriately by appointing counsel.
Finally, the family court did not abuse its discretion in granting Mother a continuance. Custodians first argue the family court erred in granting the continuance where Mother did not comply with CR 43.03 as mandated by the court's own scheduling order. The court's order mandates "[a]ny request for a continuance shall comply with CR 43.03." R. at 58. However, the rule itself pertains only to requests for continuances based on the absence of evidence. See CR 43.03. Mother requested a continuance to obtain counsel, making CR 43.03 inapplicable to these circumstances.
Furthermore, were we to determine Mother's request did not comply with the family court's order, reversal would not be required. The order states that 18 "[s]hould the parties and their counsel fail to comply with the above provisions, the trial may be remanded with costs and attorney's fees assessed against the offending party." R. at 58. Custodians do not raise costs and fees as an issue on appeal.
In the alternative, Custodians argue the family court abused its discretion in granting the continuance under the factors listed in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001) (citing Wilson v. Mintzes, 761 F.2d 275, 281) (6th Cir. 1985)), and FCRPP 31(3).
Kentucky Family Court Rules of Practice and Procedure.
When deciding whether to grant a continuance, the family court must consider
(1) the length of delay;
(2) previous continuances;
(3) inconvenience to litigants, witnesses, counsel and the court;
(4) whether the delay is purposeful or caused by the accused;
(5) availability of other competent counsel;
(6) the complexity of the case; and
(7) whether denying the continuance will lead to identifiable prejudice.19 Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010) (citing Snodgrass, 814 S.W.2d at 581). The court is not required to make written findings as to the Snodgrass factors. Deleo v. Deleo, 533 S.W.3d 211, 217 (Ky. App. 2017). "Whether a continuance is appropriate in a particular case depends upon the unique facts and circumstances of that case." Snodgrass, 814 S.W.2d at 581 (citation omitted).
The court did not make written findings but stated on the record that it was granting the continuance because of the seriousness of termination of parental rights and to give Mother the opportunity to obtain counsel. We must determine whether the family court abused its discretion considering the totality of the circumstances. Id.
This matter had been pending for more than a year at the time Mother requested a continuance and she had more than three months' notice of the trial. The delay is attributable to Mother because she could have requested appointment of counsel sometime prior to the date of trial. No other continuances were requested by Mother or ordered by the court.
Custodians claim they were inconvenienced because they were prepared to celebrate the adoption. They further argue Child needs permanency which was delayed by Mother's request. Permanency is of the utmost importance in adoption proceedings, but it must be weighed against the importance of 20 protecting Mother's constitutional rights. During the approximate five-week period between the original trial date and the rescheduled date, Child's circumstances were unchanged.
In this matter, there would have been a clearly identifiable prejudice had the family court denied Mother's request for a continuance. On March 9, 2021, Mother informed the court she did not have counsel and wished to retain an attorney but could not afford to do so. As we have discussed at length, parental rights are a fundamental liberty interest under the Fourteenth Amendment which deserve protection. Santosky, 455 U.S. at 753, 102 S.Ct. at 1394. Mother was entitled to legal representation and, upon request, the family court must consider whether appointment of counsel is appropriate. KRS 199.502(3). It was proper, given Mother's assertion that she could not afford representation, for the court to give her the opportunity to file a motion. A court must be cognizant of the parent's constitutional rights throughout involuntary adoption proceedings. Considering the totality of circumstances, there was no abuse of discretion.
Following the same reasoning, the family court did not violate FCRPP 31(3) by granting the continuance. The rule states, in adoption proceedings, "[a] continuance of any final hearing shall not be granted except upon good cause shown[.]" FCRPP 31(3). "Good cause" is not defined in the rule but is plainly defined as "[a] legally sufficient reason." Good cause, Black's Law Dictionary (11th ed. 2019). 21 Where "good cause" was not statutorily defined, the Supreme Court of Kentucky held it must be determined by the totality of circumstances. Hall v. Mortgage Electronic Registration Systems, Inc., 396 S.W.3d 301, 305 (Ky. 2012). Considering the totality of circumstances, the family court's decision to continue the trial to ensure Mother's constitutional rights were protected qualifies as good cause.
CONCLUSION
Based on the foregoing, we affirm the orders of the Jefferson Circuit Court, Family Division.
CLAYTON, CHIEF JUDGE, CONCURS.
CETRULO, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
CETRULO, JUDGE, DISSENTING: Respectfully, I dissent from the majority opinion and would have reversed the family court decision below. This was a petition for adoption filed by the only parents this minor child has ever known. The petitioners, family members of the Appellee, biological mother (M.G.), stepped in and took the child home from the hospital after M.G. tested positive for drugs during pregnancy. All of the parties knew that Child Protective 22 Services would have otherwise been involved, and L.A. and B.A. already had joint custody of M.G.'s older son.
M.G. has no custodial rights to any of her three children. Her mother has sole custody of the oldest child. Appellees have joint custody of the second child with the paternal grandmother and they have been the sole custodians of J.M.G.
To keep the child with family, the parties agreed to and signed a document in September of 2017 giving L.A. and B.A. sole permanent legal custody. The agreed order between these parties further stated that "no order on child support shall be entered at this time, because the respondent mother is unemployed at this time." Finally, that order specifically stated that it was modifiable upon the filing of a petition to modify custody. M.G. has never filed any such petition. Despite becoming employed after the order was signed in 2017, M.G. has never provided any financial support or parental care to J.M.G., other than providing some diapers and wipes in the first two months of her life. She stopped doing that with no explanation or reason.
She did not visit with or have any interaction with J.M.G. for a period of more than ten months. M.G. has never spent time alone with J.M.G. She acknowledged that L. A. and B.A. are the only parents J.M.G. knows, and they are the only ones who have provided for her.
M.G. has a long history of drug use, and while her current sobriety is laudable and she is working to help others with addiction, she has not lived in the 23 Commonwealth for over two years. She moved to California for rehabilitation and returned briefly to Kentucky, then returned to California out of fear that she would relapse. She has testified that she has no intention of returning to Kentucky to live. She did not want custody of J.M.G. She simply hopes to have some relationship in the future. It is admirable that she has kept a relationship with her older children, even from a distance, but I do not believe that is inconsistent with adoption for this child being in the best interests of this child.
Indeed, she testified that half of her life has been spent battling addiction, and she is not fully recovered because one year of sobriety is not evidence of full recovery. Again, she has no legal custody of the other two children and has lived out of state since May of 2020. Since she achieved sobriety, she has only seen J.M.G. once, in October of 2020. While there are disputes as to why that has been the case, there is no indication that her living situation is going to change.
If the parties to this matter had not voluntarily agreed to keep this child from being placed in protective custody four years ago, it is likely that the Cabinet would have moved for termination of M.G.'s rights much earlier. KRS 625.090 would have required the filing of an action to terminate rights involuntarily as the child has been in the care of the "foster parents" for more than 24 fifteen months. Under KRS 625.090, termination of parental rights should be pursued if
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[.]KRS 625.090(2)(e).
However, this was not an action under KRS 625.090, but a petition to adopt under KRS 199.502. I agree with appellants that only one factor in KRS 199.502 must be present for a court to grant an adoption (without consent) under this statute. The statute requires that the child has been abandoned for a period of no less than 90 days. In the case at bench, the minor child was abandoned for a period of nearly one year. KRS 199.502(1)(e) provides that if a parent has, for a period of six months or more continuously failed to provide for the child and there is no reasonable expectation of improvement in parental care and protection, then an adoption may be granted without parental consent. The evidence was uncontroverted that M.G. has not provided any financial support and has no plans to do so, nor to even return to the Commonwealth to have any personal relationship. Finally, KRS 199.502(1)(g) provides that an adoption may be granted if it is proven 25
[t]hat 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[.]
Any one of these grounds would have permitted the granting of this adoption.
The trial court clearly was impressed with the steps taken by M.G. after such a long period of addiction, and I do not disagree. However, the custodians in this case met their burden and proved by clear and convincing evidence that the adoption should have been granted under KRS 199.502. I believe the trial court did clearly err in concluding that the uncontroverted facts listed above did not meet the burden required of petitioners to an adoption, under KRS 199.502. This child has spent four years with the appellants, and appellee has not taken any steps to parent, nor does she intend to do so in the future. This family is entitled to finality so that they can secure medical care, make education decisions, and have assurance beyond an out-of-state agreed order that they have legal rights to the child they have raised since birth. The fact that the initial order waived support due to M.G.'s addiction and lack of employment at the time it was agreed to should not be the basis for denying the adoption.
If it is pleaded and proven that any one of the conditions of KRS 199.502 exist, an adoption may be granted without the consent of the biological 26 parent. There was no contrary evidence as to any of these three grounds which were proven by the adoptive parents. For the purposes of KRS Chapter 199, "abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983). Non-support is a factor to be considered. Although it does not constitute abandonment per se, sporadic payment of child support does not necessarily indicate that a person did not abandon his child. S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010); R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015). In this case, the mother has taken no steps to provide any support or even have a relationship with this child, but has "basically been disinterested in the child's upbringing while [s]he was living h[er] own life." Id. at 427.
This case is particularly analogous to C.J. v. M.S., 572 S.W.3d 492, 496 (Ky. App. 2019). In that case, the biological mother testified that she was unable to care for the child and did not know that she would ever be in a position to do so, due to mental illnesses. The biological mother had suffered from these mental illnesses for at least the last 16 years and did not know when, if ever, she would be able to live independently. Id. She admitted that she did not support the child and had not purchased even small gifts, food, or clothing for the child since the child had been in the care of adoptive parents. Id. Other than the monthly 27 supervised visits, biological mother did not see or talk to the child. Id. As stated therein,
This case involves an adoption. A family court shall enter a judgment of adoption if after a hearing, the court is satisfied that:
C.J., 572 S.W.3d at 496 (quoting KRS 199.520) (emphasis added).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)
Adoptions can be granted with or without the consent of the biological parents. KRS 199.500. If the adoption is sought without consent, KRS 199.502(1) only requires proof as part of the adoption proceedings that one of the conditions set forth in subsections (a)-(j) exists with respect to the child at issue. KRS 199.502(1); C.J., 572 S.W.3d at 496. The evidence from this biological mother is indistinguishable from that in C.J., as the mother here has not been able to, or has not made any effort to parent or in any way care for this child since birth. Because the appellants did so, the child has been safe and cared for.
As was the case in C.J., the evidence was undisputed that all legal requirements were met; the petitioners were of good moral character and reputable 28 standing; and had the ability to care for and educate the child. The Cabinet was notified and required to file its report and, pursuant to KRS 199.510, an investigative report was properly filed in this case. Therein, the Cabinet determined that the contents of the petition required by KRS 199.490 were true; that the adoptive parents were of good moral character and financially able to support the child; that the child was suitable for adoption; and that the adoption was in the child's best interests. The Cabinet recommended that adoption be granted.
The biological mother's own testimony established that she "has been substantially incapable of caring for Child (or herself), and there is no reasonable likelihood that she will be able to care for Child any time in the reasonable future." C.J., 572 S.W.3d at 502. I do not fault the family court for granting M.G. appointed counsel nor for granting a continuance, and I would agree with the majority on those points. However, there was no testimony as to mother's income, other than that she was employed in a sober living house in California. There was no proof that she was eligible for appointed counsel in this type of proceeding. But the court below gave her every opportunity to counter the proof presented by petitioners on their petition to adopt and she did not do so. She acknowledged that the child is receiving great care and simply asserted on appeal that she was not required to communicate with the child for the past ten months or provide support 29 under the agreed order. She did not dispute the facts established in the petition by the adoptive parents. All requirements having been proven, and I believe the trial court did clearly err. I would reverse the court below and grant the adoption. 30