Opinion
NO. 2020-CA-1142-ME
04-30-2021
S.P. APPELLANT v. R.L.; A.R.P., A CHILD; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; H.T.; M.L.; AND SUSANNE MCCOLLOUGH APPELLEES
BRIEF FOR APPELLANT: Than Cutler Stanford, Kentucky BRIEF FOR APPELLEE COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES: Leslie M. Laupp Covington, Kentucky BRIEF FOR APPELLEE R.L.: Christopher Reed Stanford, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 19-AD-00002 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES. COMBS, JUDGE: Appellant, S.P., appeals from a judgment of adoption of the Lincoln Circuit Court. After our review, we affirm.
S.P. (Father) is the biological father of a minor child, A.R.P., born on August 26, 2014. The Appellees, R.L. and M.L. (Mr. and Mrs. L.), are the child's maternal great-grandparents. The child was initially placed in foster care due to her mother's substance abuse during pregnancy. In July 2015, the child was placed with Mr. and Mrs. L., who were awarded permanent custody in September 2015.
In 2017, Mr. and Mrs. L. sought to adopt the child by filing a petition for termination of parental rights (TPR) -- involuntary as to Father but voluntary as to Mother, who executed a voluntary TPR on July 6, 2016. The petition was later amended to include a prayer for adoption. The matter was heard on August 14, 2017, and the trial court entered a judgment of adoption. Father appealed and an Anders brief was filed. This Court vacated the judgment of adoption due to noncompliance with the adoption statute, KRS Chapter 199, holding that Mr. and Mrs. L. might file a new adoption petition "[w]ith strict adherence to KRS Chapter 199 . . . ." S.B.P. v. R.L., 567 S.W.3d 142, 148 (Ky. App. 2018).
Anders v. State of California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Kentucky Revised Statutes.
On January 15, 2019, Mr. and Mrs. L. filed a new adoption petition naming as Respondents: the child's mother, the child's father, the guardian ad litem (GAL), the minor child, and the Cabinet for Health and Family Services (the Cabinet). On January 15, 2019, Mr. and Mrs. L. also filed motions for appointment of a GAL for the minor child and counsel for the child's father as an incarcerated individual. On January 15, 2019, the court entered orders appointing Susanne McCullough to represent the child's interest and Christopher Coffman as counsel for the child's father.
On March 18, 2019, Mr. Coffman, in his capacity as counsel for Father, filed a response. On May 2, 2019, Ms. McCullough filed a GAL report on behalf of the child recommending that the court grant the petition for adoption. A docket sheet of May 3, 2019, reflects that Attorney Cutler was substituted as counsel for Father.
On August 9, 2019, Father filed a motion to dismiss on the ground that the child had not been properly served with the petition as required by KRS 199.480(2). With respect to a child under fourteen years of age, that statute requires that service be made upon the individual or agency having custody of the child. Thus, Father argued that service upon the GAL was ineffective, citing Wright v. Howard, 711 S.W.2d 492 (Ky. App. 1986). Father also filed a motion to strike the GAL report and argued that it "should not operate as an evidentiary report to the Court but should function similarly to an Answer" in reliance upon Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014).
On August 13, 2019, Mr. and Mrs. L. filed a response to the motion to dismiss and argued that it was based upon "a misconstrued understanding of the requirements of service, and is moot, as the Petitioners [Mr. and Mrs. L.] have subsequently been served via constable."
On December 12, 2019, Father re-noticed his motions to dismiss and to strike the GAL report for January 3, 2019. We do not have a video recording of that proceeding; however, a hand-written notation on the trial court's docket sheet of January 3, 2019, reflects that the motion to dismiss was "moot as service issue has been resolved" and further states: "clarify that GAL report will not be considered as evidence and an answer for child should be filed."
Father's Designation of Evidence filed September 23, 2020, designates only the video record of the March 2, 2020, adoption hearing.
On January 17, 2019, the child's GAL filed an answer that the grounds for adoption in KRS 199.470, et seq., had been satisfied. The answer recommended that the petition for adoption be granted and also noted that the GAL should be removed as a named party as not being required by statute.
On March 2, 2020, the trial court conducted a final hearing, taking judicial notice of the testimony presented at the August 14, 2017, hearing in the initial proceeding. Mrs. L. and Mr. L. testified. Following their testimony, Father's counsel moved to dismiss for failure to establish the required elements for adoption. The trial court explained that it had taken judicial notice of the prior testimony. Father also argued that the written petition itself was deficient in that it did not state the child's date of birth, full name, place of birth, or the Petitioners' place of birth, nor did it describe any property. The statute setting forth the requirements for adoption is KRS 199.490, which provides in part as follows:
(1) The petition shall allege:
(a) The name, date, place of birth, place of residence, and mailing address of each petitioner, and, if married, the date and place of their marriage;
(b) The name, date, place of birth, place of residence, and mailing address, if known, of the child sought to be adopted;
(c) Relationship, if any, of the child to each petitioner;
(d) Full name by which the child shall be known after adoption;
(e) A full description of the property, if any, of the child so far as it is known to the petitioner;
(f) The names of the parents of the child and the address of each living parent, if known. The name of the biological father of a child born out of wedlock shall not be given unless paternity is established in a legal action, or unless an affidavit is filed stating that the affiant is the father of the child. If certified copies of orders terminating parental rights are filed as provided in subsection (2) of this section, the name of any parent whose rights have been terminated shall not be given;
(g) The name and address of the child's guardian, if any, or of the cabinet, institution, or agency having legal custody of the child;
(h) Any further facts necessary for the location of the person or persons whose consent to the adoption is
required, or whom KRS 199.480 requires to be made a party to or notified of the proceeding; and
(i) If any fact required by this subsection to be alleged is unknown to the petitioners, the lack of knowledge shall be alleged.
Counsel for Mr. and Mrs. L. made a motion for leave to amend the petition, which the trial court granted, reserving Father's arguments. Father then testified telephonically. His father, F.C (the child's paternal grandfather), also testified telephonically. At the end of the hearing, the trial court specifically directed Father's counsel to file an objection if any deficiencies remained uncured when the amended petition was filed.
On March 11, 2020, Mr. and Mrs. L filed an amended verified petition for adoption. On March 29, 2020, Father filed a written objection, raising only the following issue:
The body of the Amended Petition appears to address the statutory insufficiencies of the January 15, 2019 Petition. However, the prayer for relief still requests that the Respondent's parental rights be terminated (par. 1) and that Petitioner's be granted full care and custody of the child (par. 8). The prayer for relief itself does not request that the minor child be adopted by Petitioners.
On August 4, 2020, the trial court entered detailed Findings of Fact and Conclusions of Law (FFCL) and a Judgment of Adoption. At page 2 of its FFCL, the trial court addressed Father's objection to the amended petition:
[T]he Court notes that paragraph 2 of the prayer for relief does request that the petition to adopt the minor child be granted. . . . [T]he fact that the prayer for relief contains a request that Respondents' rights be terminated is not fatal to Petitioners' adoption petition. Specifically, the Court notes that the body of the petition and the proof presented conform to the requirements for an adoption petition pursuant to KRS 199.500(4) and KRS 199.502(1) and does [sic] not seek to terminate parental rights under KRS Chapter 625, rendering the prayer for relief to terminate parental rights superfluous.(Emphasis added).
The trial court found that since at least 2015, when the child came into Mr. and Mrs. L's custody, "Father had contributed nothing and provided no assistance, financial, medical, educational or otherwise, for the child . . . ." It also found that at the time of the hearing, Father was a federal inmate at a facility in South Carolina. Although he hoped for a successful collateral attack and relief from conviction, Father's original sentence was for 262 months, and his incarceration was expected to last several more years. The court found that by the time Father is eligible for release, the child will be close to the age of majority. It found that the child has done well in Mr. and Mrs. L.'s home -- the only home she has known.
The trial court noted the paternal grandfather's testimony that he was willing to provide care for the child and wanted contact with her, but that "up until now [Father's] family is essentially a stranger to the child . . . ." The court found that Mr. and Mrs. L. are of good moral character and reputable standing in the community and have the ability to properly maintain and educate the child. It found that adoption would be in the child's best interest.
The trial court determined that the necessary parties were before the court and that the statutory requirements had been met, "having been cured by the amended petition, which was served upon the necessary parties, who had the opportunity to respond." The trial court concluded as follows:
By a preponderance of evidence, and also by clear and convincing evidence, in accordance with KRS 199.502(1)(e) &(g), [Father] for a period of time not less than six months, . . . continuously or repeatedly failed or refused to provide or [has] been 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. Furthermore, [Father] 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.
On September 3, 2020, Father, by counsel, filed a Notice of Appeal to this Court. As this Court explained in C.J. v. M.S., 572 S.W.3d 492 (Ky. App. 2019):
Father, pro se, also filed a Notice of Appeal on September 25, 2020. That appeal, No. 2020-CA-1253, was dismissed by Order of this Court entered on January 7, 2021, as duplicative.
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.
Id. at 496 (footnotes omitted).
KRS 199.520(1). . . . 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 subjections (a)-(j) exists with respect to the child at issue. See KRS 199.502(1).
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 336 (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.
Strict compliance with statutory elements is required in all adoption cases:
[Since] adoption only exists as a right bestowed by statute . . . there must be strict compliance with the adoption statutes. . . . Nothing can be assumed,
presumed, or inferred and what is not found in the statute is a matter for the legislature to supply and not the courts.Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997).
The first issue that Father raises on appeal is that the amended petition did not strictly comply with KRS 199 because the prayer for relief still requested that parental rights be terminated and that petitioners be granted full care, custody and control of the child. The trial court concluded that that recitation was not fatal because the body of the petition and proof presented complied with KRS Chapter 199. We agree with the trial court's analysis of the issue set forth in its entirety above and adopt it as if it were our own.
Next, Father argues that the amended petition was not properly served on the parties. However, it does not appear that the issue was preserved for review. At the March 2, 2020, hearing, the trial court granted Mr. and Mrs. L. leave to file an amended petition. They filed a verified amended petition on March 11, 2019. On March 19, 2019, Father filed an objection, but he did not raise any issue regarding service.
The caption of the amended petition reflected that the GAL and Cabinet were served by certified mail and that the minor child was served by certified mail to petitioners. The certificate of service reflects that the child's GAL and Father's counsel were served by first class mail.
Father also argues that "[both] the original and Amended Petition erroneously named the [child's] guardian ad litem and Cabinet . . . as Respondents and this was never corrected." As Mr. and Mrs. L. explained in their Appellees' Brief, "[t]he crux of Appellant's argument is that too many people were named as a respondent . . . ."
KRS 199.480 is entitled "Parties defendant in an adoption proceeding; process; guardian ad litem." It provides in relevant part:
(1) The following persons shall be made parties defendant in an action for leave to adopt a child:
(a) The child to be adopted;
(b) The biological living parents of a child under eighteen (18), 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:
...
(c) The child's guardian, if it has one.
(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.
. . .
(3) If the child's biological living parents . . . are parties defendant, no guardian ad litem need be appointed to represent the child to be adopted.
In the case before us, the child to be adopted is named as a party as required by KRS 199.480(1)(a). However, it was not necessary to name the Cabinet as a party defendant because the individuals with the care, custody and control of the child are Mr. and Mrs. L., the petitioners. KRS 199.480(1)(d). Moreover, the biological living parents are parties defendant; therefore, it was not necessary to appoint a GAL. KRS 199.480(3).
On November 5, 2020, this Court entered a Show Cause Order directing Appellant to show cause why the GAL should not be removed as a party to this appeal. Appellant filed a response. By order entered on December 15, 2020, the motion was passed to the merits. In light of our determination herein, the GAL is hereby removed as a party to this appeal.
At page 4, ¶10 of its FFCL, the trial court correctly found that "[w]hile not required by KRS 199.480(1)(d), the Cabinet . . . was named a party to this action . . . ." Further, at page 5, ¶17 of its FFCL, the trial court explained as follows:
According to KRS 199.480(3), a guardian ad litem need not have been appointed to represent the child since both biological living parents are parties defendant herein. However, because a GAL was requested, appointed, and has participated in the proceedings, the Court finds it proper for that GAL to remain a named party defendant herein.
Father submits that the unnecessary naming of the Cabinet and of the child's GAL as parties constitutes reversible error because it does not strictly comply with KRS 199.480. We do not agree. Nothing in the statute supports that argument, and Father cites no authority that would require reversal. See C.J. v. M.S., 572 S.W.3d at 499 (Statutory prerequisites for adoption satisfied where, inter alia, petitioners named Cabinet, Child, and biological parents as party defendants and where "even though not required, a guardian ad litem was appointed for Child.").
Father also argues that the trial court erred in not striking the GAL's report from the record. As noted above, Father filed a motion to strike the GAL report and argued that it "should not operate as an evidentiary report to the Court, but should function similarly to an Answer" citing Morgan, 441 S.W.3d at 94.
Morgan addressed the role of the GAL appointed in a proceeding involving custody, shared parenting, visitation, or support pursuant to Family Court Rules of Procedure and Practice (FCRPP) 6. At page 119, our Supreme Court explained that the GAL:
should not be confused with the de facto friend of the court. Whereas the friend of the court investigates, reports, and makes custodial recommendations on behalf of the court, and is subject to cross-examination, the guardian ad litem is a lawyer for the child, counseling the child and representing him or her in the course of proceedings by, among other things, engaging in discovery, in motion practice, and in presentation of the case at the final hearing. The guardian ad litem neither testifies (by filing a report or otherwise) nor is subject to cross-examination.
The matter was heard on January 3, 2020. Although it does not appear that the report was stricken, a handwritten notation on the docket sheet of January 3, 2020, states: "clarify that GAL report will not be considered as evidence . . . ." We do not have a video recording of that proceeding. We presume that the trial court's ruling is correct in the absence of a complete record.
"[A]ppellant has the obligation and burden to establish trial error upon appellate review. When a record is incomplete and partially incomprehensible, we may indulge the presumption of correctness of the judgment upon review."Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 604 (Ky. 1967).
Father also contends that "it is possible the Court could have relied on the [GAL] report, despite the docket sheet note that it would not be considered." We must refrain from such pure speculation.
Father's final argument is that the following findings of the trial court are not supported by the evidence: the child's and Petitioners' mailing address, that the Petitioners were born in Stanford, Kentucky, and that they were married in Lincoln County, Kentucky.
At the hearing on March 2, 2020, Mrs. L. testified that she lives in Lincoln County, that she has lived there all of her life, and that the child has resided with her there since July 2015. At the August 14, 2017, hearing, Mrs. L.'s testimony established that her address was that as found by the trial court, that it is located in Lincoln County, that she and Mr. L., both live at the same address, that they were married on June 5, 1962, and that they are still husband and wife.
The trial court took judicial notice of the contents of this previous hearing. --------
The court was satisfied from the testimony presented that the statutory requirements were satisfied. So are we. As noted above, Father raised no objection to the sufficiency of the verified amended petition filed after the final hearing except as to the prayer for relief.
Finding no error, we AFFIRM the Judgment of Adoption of the Lincoln Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Than Cutler
Stanford, Kentucky BRIEF FOR APPELLEE
COMMONWEALTH OF
KENTUCKY, CABINET FOR
HEALTH AND FAMILY
SERVICES: Leslie M. Laupp
Covington, Kentucky BRIEF FOR APPELLEE R.L.: Christopher Reed
Stanford, Kentucky
Morgan, 441 S.W.3d at 119.