Opinion
NO. 2018-CA-000520-ME NO. 2018-CA-000521-ME
05-03-2019
M.S. APPELLANT v. J.B., II, NATURAL FATHER; C.D.B., STEP MOTHER; B.J.B., A MINOR CHILD; AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES AND M.S. APPELLANT v. J.B., II, NATURAL FATHER; C.D.B., STEP MOTHER; T.K.B., A MINOR CHILD; AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
BRIEF FOR APPELLANT: Lawrence R. Webster Pikeville, Kentucky BRIEF FOR APPELLEE: Tammy C. Skeens Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE LARRY E. THOMPSON, JUDGE
ACTION NO. 17-AD-00019 APPEAL FROM PIKE CIRCUIT COURT
HONORABLE LARRY E. THOMPSON, JUDGE
ACTION NO. 17-AD-00020 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, MAZE, AND NICKELL, JUDGES. GOODWINE, JUDGE: M.S. ("Mother") appeals an order of the Pike Circuit Court, Family Division, terminating her parental rights to her two children, B.J.B. and T.K.B., and granting their immediate adoption. She seeks reversal, arguing the family court erred procedurally and substantively. After careful review, finding no error, we affirm.
These appeals were previously assigned to another Court of Appeals' merits panel on August 23, 2018. However, the former presiding judge is no longer on the Court. Accordingly, it was necessary to reassign these appeals to a new merits panel. The reassignment occurred on January 17, 2019.
Initially, the notice of appeal "[gave] notice that [Mother] appeal[ed] from the Findings of Fact, Conclusions of Law and Order of Termination of Parental Rights entered March 12, 2018." However, a judgment and order of adoption was also entered on March 12, 2018. It is not referenced in the notice of appeal in contravention of CR 73.03, which states: "[t]he notice of appeal shall . . . identify the judgment, order or part thereof appealed from. . . ." (emphasis added). The notice of appeal identifies only the order terminating parental rights. It does not reference the order of adoption. This deficiency is not fatal to Mother's appeal. See Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986). Both orders are included in the certified record, but the order of adoption is not attached to Mother's brief, contravening CR 76.12(4)(c)(vii).
Kentucky Rules of Civil Procedure.
More egregiously, Mother's brief does not state how she preserved any of her arguments in the trial court, contravening CR 76.12(4)(c)(v), which states:
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987)). We require a statement of preservation:
CR 76.12(4)(c)(v) in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (internal citations omitted).
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether
palpable error review is being requested and may be granted.Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules "do not exist for the mere sake of form and style. They are lights and buoys to mark the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated."Id. (quoting Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)).
While noncompliance with CR 76.12 is not automatically fatal, in these situations, the Court of Appeals has three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only." Id. (citing Elwell, 799 S.W.2d at 47).
This is not trial counsel's debut in the Court of Appeals. He has disregarded appellate procedure before. While we choose to ignore the deficiency and proceed with the review in this case, counsel cannot be assured of the same result if non-compliant in the future.
BACKGROUND
Mother and J.B., II, ("Father") married in 2002 and divorced in 2005. They had two children: (1) T.K.B. born in 2003; and (2) B.J.B., born in 2008 after the parties divorced. At the time of their divorce, Mother was the primary custodian of the children.
In 2010, police arrested Mother for driving under the influence and endangering the welfare of a minor because the children were in her car. In 2011, the Cabinet for Health and Family Services ("Cabinet") filed a dependency, neglect, and abuse petition, alleging Mother was found severely intoxicated in her bed with one of the children. Mother stipulated to dependency in Pike Family Court.
Consequently, the family court awarded Father sole custody of the minor children and granted Mother weekend visitation. At that time, C.D.B. ("Step-Mother") resided with Father and the children. In 2012, Father and Step-Mother married. During this time, Mother visited with the children and worked her case plan. However, she never regained custody. In May 2014, Mother pled guilty to driving under the influence, 2nd offense. Thereafter, the family court suspended her visitation with the children, ordering her to enter, and complete, a drug and alcohol rehabilitation program. The family court ordered Mother file a petition with proof of successful completion of rehab, if she wanted to reestablish visitation. She failed to do so. Instead, on April 17, 2017, Mother filed a hand-written motion to hold Father in contempt for not allowing her to contact the children. The family court declined to hear the motion because Mother failed to file a petition to reestablish visitation.
Ten days later, Step-Mother filed a dual petition, seeking involuntary termination of Mother's parental rights under KRS 625 and adoption of the children under KRS 199. At the March 8, 2018 adoption hearing, the family court: (1) heard testimony regarding the termination of Mother's parental rights; (2) made oral findings that the statutory criteria under KRS 625.090 was satisfied for the children; (3) took a brief recess; and (4) heard testimony regarding the adoption and best interest of the children. Following testimony, the guardian ad litem recommended: (1) Mother's parental rights be terminated, and (2) Step-Mother adopt the children.
Kentucky Revised Statutes.
On March 12, 2018, the family court entered written: (1) findings of fact, conclusions of law and order of termination of parental rights; (2) findings of fact, conclusions of law on petition for adoption; and (3) judgment of adoption. This appeal followed.
STANDARD OF REVIEW
This is an adoption case. A family court shall enter a judgment of adoption if after a hearing, the court is satisfied 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).
"Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent." KRS 199.520(2). 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) 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.
"An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing Moore v. Asente, 110 S.W.3d 335 (Ky. 2003)). Accordingly, in adoption without consent cases we apply the same standard of review that governs parental termination cases. 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. "Additionally, since adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents." B.L., 434 S.W.3d at 65.
ANALYSIS
Step-Mother filed a dual petition seeking both termination of Mother's rights and adoption. Nevertheless, before both the family court and this Court, the parties have characterized this action primarily as one predicated on the termination of parental rights. To this end, they cite to, and rely on, the termination of parental rights statute, KRS 625.090. Further complicating this case, the family court made oral and written findings of fact and conclusions of law under KRS 625.090. To prevent further confusion in this case and future adoption cases, it is incumbent upon us to clarify that this is not a termination case governed by KRS Chapter 625; it is an adoption case governed by KRS Chapter 199.
If granted, the adoption itself terminates the parental rights of the biological parents. KRS 199.520(2). As in the present case, when two judgments have been unnecessarily entered in an adoption case, we view "the 'judgment of adoption' and 'order terminating parental rights' as being one document that comprises the judgment." Wright v. Howard, 711 S.W.2d 492, 495 (Ky. App. 1986). The effect of the judgment is the adoption of the children at issue. As such, we review the judgment for compliance with the adoption statutes.
It is 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 "all legal requirements, including jurisdiction, relating to the adoption have been complied with[.]" KRS 199.520(1) (emphasis added).
In Wright, we cautioned against filing a dual petition, like the one filed in this case, because all too often counsel follow the wrong procedures with disastrous consequences. As we explained over thirty years ago:
In filing the petition as a dual one for adoption and termination of parental rights, apparently in an attempt to
satisfy the requirements of both the adoption statutes and the involuntary termination statute the appellee Howards, as do most others taking this mistaken procedural approach, failed to fulfill [sic] various requirements of the adoption statutes, their only real concern under proper interpretation of KRS 199.500(4) and application of the strict compliance rule, and thereby caused the trial court to enter an invalid judgment.Id. at 496. See also E.K. v. T.A. ___ S.W.3d ___, 2019 WL 1087276 (Ky. App. March 8, 2019).
This opinion is now final and at the time of this writing, this was the only citation available.
When the lives of children are involved, counsel must be especially diligent to follow the correct procedures. We are gravely concerned that Wright's lessons have been lost to time. When the petitioner is the person seeking to adopt a child, an adoption petition, not a petition for termination of parental rights, should be filed. If the lower court erroneously allows a dual petition to move forward and enters two judgments, we treat the judgments as one. On appeal, we will review the judgment for compliance with the adoption statutes. If the adoption statute's minimal jurisdictional requirements have not been satisfied, the judgment of adoption is void. See Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997).
This is significant because a void judgment can be attacked via CR 60.02(e), even after the appeal period expires.
Even though Step-Mother designated her petition as one seeking termination of parental rights and adoption, we must review the record for compliance with the adoption statutes. We begin with KRS 199.470, which contains the basic requirements that must be satisfied to petition for adoption in Kentucky.
In this case, this inures to the benefit of Step-Mother because she lacked standing to seek involuntary termination of Mother's parental rights. KRS 625.050(3) ("Proceedings 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.").
To petition for adoption, a person must be eighteen and "a resident of this state or who has resided in this state for twelve (12) months next before filing[.]" KRS 199.470(1). The petition should be filed in the county where the petitioner resides. Id. Step-Mother pleaded that she is a resident of Kentucky. She filed her petition in Pike County, where she resides. She and Father married on February 10, 2012. Father filed an answer consenting to the adoption under KRS 199.011(17).
KRS 199.011 was amended by 2019 Kentucky Laws Ch. 33 (HB 158), effective June 26, 2019, which added a new Section 1. The above-referenced cite will fall under Section 2 under the amendment.
KRS 199.470(3) requires the child must have resided continuously with the petitioner "for at least ninety (90) days immediately prior to the filing of the adoption petition." The 90-day requirement does not apply if the child was "placed for adoption by the cabinet, by an agency licensed by the cabinet, or with written approval by the secretary of the cabinet[.]" Id. Here, neither the Cabinet, nor a child-placing agency, was involved in the children's initial placement. The family court granted Father permanent custody of the children on May 18, 2011, and Step-Mother resided with Father at that time. The record establishes that the children lived continuously with Father and Step-Mother since May 18, 2011. Step-Mother filed her petition on April 27, 2017. The 90-day requirement was met.
Generally, a petition for adoption cannot be filed "unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by a child-placing institution or agency, or by the cabinet, or the child has been placed with written approval of the secretary[.]" KRS 199.470(4). If approval is required, "a copy of the written approval of the secretary of the Cabinet for Health and Family Services or the secretary's designee shall be filed with the petition." KRS 199.490(3). However, approval and/or placement by the Cabinet is not required if: (a) the petition is being filed by a blood relative, stepparent, stepsibling or fictive kin; (b) a child is received by the proposed adopting parent or parents from an agency without this state with the written consent of the secretary; (c) the child is being adopted under the provisions of KRS 199.585(1); or (d) the child has been approved under KRS Chapter 615. KRS 199.470(4).
The Cabinet did not place the children with Step-Mother, and she did not need to secure pre-approval from the Cabinet to adopt the children because she is their stepparent. Therefore, we find no discernible error with respect to the family court's determination that Step-Mother properly petitioned to adopt the children.
Next, we must determine whether Step-Mother complied with KRS 199.480, which governs party defendants, service of process, and guardian ad litem. To be valid, an adoption petition shall name as party defendants:
(a) The child to be adopted;
(b) The biological living parents of a child under eighteen if the child is born in lawful wedlock. If the child is born out of wedlock, its mother; and its father, if one (1) of the following requirements is met;
1. He is known and voluntarily identified by the mother by affidavit;
. . .
3. He has caused his name to be affixed to the birth certificate of the child;
. . .
5. He has contributed financially to the support of the child, either by paying the medical or hospital bills associated with the birth of the child or financially contributed to the child's support; or
6. He has married the mother of the child or has lived openly or is living openly with the child or the person
designated on the birth certificate as the biological mother of the child. . . .
KRS. 199.480(1). The adoption petition shall be served on the party defendants
(d)If the care, custody, and control of the child has been transferred to the cabinet, or any other individual or individuals, institution, or agency, then the cabinet, the other individual or individuals, institution, or agency shall be named a party defendant, unless the individual or individuals, or the institution or agency is also the petitioner.
in the same manner as provided in other civil cases except that if the child . . . is under fourteen (14) years of age and . . . the individual . . . has custody of the child, the service of process upon the child shall be had by serving a copy of the summons in the action upon . . . the . . . individual . . . any provision of CR 4.04(3) to the contrary notwithstanding.KRS 199.480(2).
In this case, Step-Mother named the Cabinet, both children, and Mother and Father as party defendants. A review of the record shows that she served all parties in compliance with KRS 199.480(2). Father filed an answer consenting to the adoption. Furthermore, even though not required, a guardian ad litem was appointed for the children.
KRS 199.480(1)(d) only requires joinder of the Cabinet if the child's care, custody, and control had previously been transferred to the Cabinet. In this case, the Cabinet never had custody of the children. Therefore, it was not necessary for Step-Mother to name the Cabinet. Id. ("If the care, custody, and control of the child has been transferred to the cabinet . . . then the cabinet . . . shall be named a party defendant . . .").
Because both children's biological parents were party defendants the family court was not required to appoint a guardian ad litem for the children. See KRS 199.480(3) ("If the child's biological living parents, if the child is born in lawful wedlock, or if the child is born out of wedlock, its mother, and if paternity is established in legal action or if an affidavit is filed stating that the affiant is father of the child, its father, are party defendants, no guardian ad litem need be appointed to represent the child to be adopted.").
After an adoption petition is filed, under KRS 199.510(1), the clerk of the court must forward two copies of the petition to the Cabinet. Upon receipt, the Cabinet (or its designee) shall, to the extent of available facilities, commence an investigation and file a written report of its results with the court. Id. The Cabinet's investigative report should address:
(a) Whether the contents of the petition required by KRS 199.490 are true;Id. On August 3, 2017, a KRS 199.510 investigative report was properly filed in this case. In the report, the Cabinet determined the contents of the petition required by KRS 199.490 were true, Step-Mother was of good moral character and financially able to support the children, that the children were suitable for adoption and adoption was in the children's best interest.
(b) Whether the proposed adoptive parents are financially able and morally fit to have the care, custody and training of the child; and
(c) Whether the adoption is in the best interest of the child and the child is suitable for adoption.
In sum, having reviewed KRS 199 in conjunction with the record, we are satisfied that the family court correctly concluded that Step-Mother was eligible to adopt the children and that the statutory prerequisites for adoption were satisfied in this case. As such, we will now examine the family court's decision to grant the adoption petition without Mother's consent.
KRS 199.502(1) governs adoption without the consent of a child's biological living parent. It provides in pertinent part:
(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;
. . .
(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;
. . .
(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[.]KRS 199.502(1).
One of the fundamental differences between termination of parental rights cases and adoption without consent cases is the absence of an abuse or neglect requirement in the adoption without consent statute. In a parental termination action, the family court must make a threshold finding that the child was either previously adjudged to be an abused or neglected child or is currently an abused or neglected child. KRS 625.090(1)(a). By contrast, "an adoption under KRS 199.502 . . . does not require a prior finding by a court that the child had been neglected or abused." B.L., 434 S.W.3d at 67. Though unnecessary, the family court herein made a finding of both dependency and neglect under KRS 625.090(1)(a).
The family court relied on subsections (a), (e), and (g) regarding Mother's continuous and repeated failures to provide for the children's needs and care for the children. We must determine whether substantial evidence supports the family court's conclusions with respect to one of these factors.
We first examine subsection (a). It provides:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;KRS 199.502(1)(a).
The family court found that Mother abandoned the children for a period of not less than 90 days. She had not seen the children for nearly four years. Mother suffered from substance abuse. In 2010, police arrested Mother for driving under the influence and endangering the welfare of a minor because the children were in her car. In 2011, the Cabinet filed a dependency, neglect, and abuse petition, alleging Mother was found severely intoxicated in her bed with one of the children. Mother stipulated to dependency in Pike Family Court.
Consequently, the family court awarded Father sole custody of the minor children and Mother weekend visitation. During this time, Mother visited with the children and worked her case plan. However, she never regained custody. In May 2014, Mother pleaded guilty to driving under the influence, 2nd offense. Thereafter, the family court suspended her visitation with the children and ordered her to enter and complete a drug and alcohol rehabilitation program. The family court ordered Mother file a petition with proof of successful completion of rehab if she wanted to reestablish visitation. She failed to do so. Father testified he did not receive any phone calls from Mother and he had not blocked her number on his phone. On April 17, 2017, Mother filed a hand-written motion to hold Father in contempt for not allowing her to contact the children. The family court declined to hear the motion because Mother failed to file a petition to re-establish visitation. Mother argued vehemently that her actions did not constitute abandonment because she was forced to stay away from her children. The family court was not persuaded by this argument because Mother was given specific instructions on how to reestablish visitation and she failed to do so.
The statute, however, is clear that the abandonment of care does not have to be willful. Even if the abandonment of care was not Mother's choice or preference, adoption can be granted so long as the family court finds that Mother is "substantially incapable" of providing care and protection and there is "no reasonable expectation of improvement." KRS 199.502(1)(e).
In finding that adoption was proper, the family court also relied on subsections (e) and (g). Subsection (e) provides:
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[.]KRS 199.502(1)(e).
Subsection (g) provides:
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[.]KRS 199.502(1)(g).
From May 18, 2011, the date Father was awarded permanent custody, until the date of the adoption proceedings, Mother owed $22,410 in child support. She paid $6,946.17. She paid $367.00 in 2017 and has an arrearage of $15,463.83. From July 1, 2015 until March 1, 2017, Mother failed to pay any child support. She testified that she did the best that she could. At times she worked four different jobs, but every time she would get a job, she would get arrested for non-support.
The family court emphasized that Mother's failure or inability to pay child support was not the primary reason for granting the adoption, nor would it solely rely on her failure to pay child support to terminate her parental rights. The family court focused more on Mother's failure to contact the children in nearly four years and her failure to re-establish visitation. Thus, the family court also predicated its order of adoption on Mother's past, present, and future inability to provide essential parental care and protection for the children under KRS 199.502(1)(e) and (g).
Mother's testimony supports the family court's conclusion that for a period of not less than six months Mother has been substantially incapable of caring for the children, and there is no reasonable likelihood that she will be able to care for the children any time in the reasonable future.
Prior to 1987, it was "incumbent upon the court when considering a petition to adopt pursuant to KRS 199.500(4) to not only require clear and convincing evidence of abandonment or neglect but to also consider any less drastic measures to accomplish the child's best interest." D.S. v. F.A.H., 684 S.W.2d 320, 323 (Ky. App. 1985). If this were still the law, affirming the family court would be more difficult since Father could maintain permanent custody of the children and Mother could re-establish her weekend visitation. However, "the current statute and its corresponding case law contain no requirement that a court consider means less drastic than adoption prior to a judgment of adoption." B.L. 434 S.W.3d at 67.
CONCLUSION
For the reasons set forth above, we affirm the order of the Pike Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Lawrence R. Webster
Pikeville, Kentucky BRIEF FOR APPELLEE: Tammy C. Skeens
Pikeville, Kentucky