Opinion
2023-CA-0157-ME 2023-CA-0158-ME 2023-CA-0159-ME
11-09-2023
D.H.A. APPELLANT v. L.W.M.; M-F.M.; AND M.H.A., A MINOR CHILD APPELLEES AND D.H.A. APPELLANT v. L.W.M.; M-F.M.; AND T.W.A., A MINOR CHILD APPELLEES AND D.H.A. APPELLANT v. F.G.A., A MINOR CHILD; L.W.M.; AND M-F.M. APPELLEES
BRIEF FOR APPELLANT: Dustin Austin, pro se Pembroke, Kentucky BRIEF FOR APPELLEE: James G. Adams, III Hopkinsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JASON S. FLEMING, JUDGE ACTION NOS. 21-AD-00057, 21-AD-00058, 21-AD-00059
BRIEF FOR APPELLANT: Dustin Austin, pro se Pembroke, Kentucky
BRIEF FOR APPELLEE: James G. Adams, III Hopkinsville, Kentucky
BEFORE: CETRULO, COMBS, AND EASTON, JUDGES.
OPINION AFFIRMING AND ORDER DENYING MOTION TO DISMISS
COMBS, JUDGE
D.H.A., the biological father of three minor children, appeals from orders of the Christian Family Court terminating his parental rights and granting the adoption of M.H.A., T.W.A., and F.G.A. (the children) without his consent to L.W.M., the husband of the children's mother. D.H.A. challenges the findings and conclusions of the family court. After our review, we affirm.
On August 20, 2021, L.W.M. filed petitions to adopt the children. His wife, the mother of the children, filed her notice of consent to the adoption. D.H.A. objected to the adoption.
A social worker with the Cabinet for Health and Family Services undertook an investigation and submitted her reports. The Cabinet found no impediment to the adoptions. A guardian ad litem (GAL) was appointed by the family court to represent the interests of the children. The GAL completed his investigation and filed reports indicating that the statutory requirements for adoption were met; that the children were suitable for adoption; and that L.W.M. was of good and moral character. (After the evidentiary hearing conducted by the Christian Family Court, the GAL filed supplemental reports recommending that the petitions for adoption be granted over the objection of D.H.A.)
The family court's evidentiary hearing was conducted over two days. The court and counsel interviewed each of the children; it heard the testimony of the parties and other witnesses; and it received various exhibits introduced into evidence. The family court took judicial notice of D.H.A.'s criminal history and of litigation between the children's mother and D.H.A., which included a domestic violence matter. The children were the subject of an order of protection following D.H.A.'s threat to kill them and their mother.
In his testimony, D.H.A. admitted that he had not seen the children since June 2019 and that his relationship with them was broken. He acknowledged that he had the ability to complete court-ordered parenting classes in 2020 but that he was a "no-show" on multiple occasions. He admitted that he was later incarcerated as a consequence of his own actions.
D.H.A. acknowledged that even after completing counseling and a rehabilitation program in June 2022, he continued to engage in violent behavior that led to his conviction for felony assault. He testified regarding the pattern of domestic violence that plagued his life, including a conviction for unlawful imprisonment and three counts of assault of another ex-wife and her children. He violated a domestic violence order which led to his incarceration.
The children's mother testified about multiple incidents of domestic violence inflicted upon her by D.H.A. and witnessed by the children. She described the threats D.H.A. made against the children's lives in 2019 that led to the restriction on his visitation with them. The children's mother confirmed that D.H.A. failed to complete the court-ordered requirements (despite his ability to do so) for nearly two years. She indicated that D.H.A. had failed and refused to pay child support for a period of eighteen months between August 2020 and February 2022. She explained that payments resumed only after the petition for adoption was filed. The children's mother confirmed that D.H.A. failed consistently to provide clothes, school supplies, and medical care for the children.
L.W.M. testified that he married the children's mother in April 2021 and that the children had resided with him for nearly six years. He explained that D.H.A. had failed to provide parental care for the children since June 2019 and that he and their mother relied exclusively on their own ability to provide food, shelter, and medical care for them.
Pursuant to the provisions of KRS 199.502(1), an adoption may be granted without the consent of the living biological parent of a child where it is proven as part of an adoption proceeding that any one of nine conditions exists with respect to the child. In his petition, L.W.M. relied upon conditions in subsections (a), (e), and (g) of the statute, which provide:
Kentucky Revised Statutes.
(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).
It was undisputed at trial that D.H.A. had not seen or cared for the children for over three and one-half years. As a result, the family court found by clear and convincing evidence that D.H.A. had abandoned the children for a period of not less than ninety (90) days under subsection (a). It found that a domestic violence order to have no contact with the children provided "perimeters [ sic ] in which [he] could get visitation if he completed parenting classes and provided proof of three (3) months of continuous counseling . . . ." It was undisputed that it took D.H.A. nearly two years before he submitted any information for the family court to consider reinstating his visitation.
It also found by clear and convincing evidence that for a period of not less than six months, D.H.A. continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the children. The family court found that D.H.A. had physically and emotionally abandoned the children from at least August 20, 2019, and that there was no reasonable expectation of improvement in his ability or willingness to provide for their care and protection considering their ages.
Finally, the family court found by clear and convincing evidence that for reasons other than poverty alone, D.H.A. had 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 children's well-being. In light of his history, the family court found that there was no reasonable expectation of significant improvement in D.H.A.'s conduct in the immediately foreseeable future.
It observed that according to D.H.A.'s testimony, "very little seemed to be his fault" and that his explanation of events focused on minimizing the violence described by others (including the children). It noted that the adoption was first proposed by the eldest of the children and was warmly received by the younger ones; that L.W.M. already treated the children as his own; and that none of the children was willing to give D.H.A. any more time to show them that he could be a father to them. They categorically rejected a father/child relationship with him.
The court reviewed the positive changes in the children's lives beginning with the arrival of L.W.M. in their mother's life. The court observed that they had thrived with the stability that his presence provided. It found that the children wished to formalize their relationship with L.W.M. The court specifically rejected D.H.A.'s desire to have "the kids and peace back in his life." It concluded that "at this point, the Court believes that the children are the ones that deserve the peace and finds it clearly in their best interest for the termination and adoption to occur so they can have that peace."
By order of the Christian Family Court entered December 29, 2022, the parental rights of D.H.A. were terminated and a judgment of adoption was duly entered. Once his motion to proceed in forma pauperis was granted, D.H.A., pro se, filed a notice of appeal. The notice specifically required D.H.A. to provide the court with his current mailing address.
We provided specific notice to the parties that our rules of appellate procedure establish a special procedural process for appeals arising from actions concerning the involuntary termination of parental rights. The parties were advised that the matter would be expedited and that they should pay careful attention to the applicable rules. These rules were identified in the notice, and the provisions were set out in full. The parties were notified that our rules required an abbreviated timeframe for the circuit court clerk to certify the record and an abbreviated period for the submission of briefs to the court. The notice indicated that D.H.A.'s brief shall be filed within 30 days of the circuit court clerk's notice to our clerk that the record has been certified. The parties were advised that the circuit court clerk is required to notify the parties that this notice has been provided. Finally, our notification to the parties indicated that our new rules of procedure "impose time deadlines that are strictly limited and allow for no latitude or relaxation."
The Clerk of Christian Circuit Court certified the record on appeal on February 14, 2023. On March 28, 2023, L.W.M. filed a motion to dismiss the appeal for failure of D.H.A. to file an appellant's brief. On this date, we provided notice to D.H.A. that the time for filing his brief had expired. We advised D.H.A. that if he had inadvertently missed the deadline, he "shall file a motion for additional time . . . within twenty (20) days of the date of this Notice" and that his brief "shall be tendered with the motion." We warned D.H.A. that his failure to act within twenty (20) days "shall result in an order dismissing the appeal and other sanctions may also be imposed against [him]."
On April 21, 2023, upon our own motion, we ordered that the appeal be held in abeyance for a period of thirty (30) days. We directed the family court to conduct a hearing to determine whether D.H.A. "is entitled to, and desires, appointed counsel to represent him. . . ." If D.H.A. desired counsel, the family court was directed to appoint counsel who was to enter an appearance forthwith. The family court was immediately to transmit a certified copy of its order to our clerk. Upon our receipt of a copy of the order, "this matter will be returned to the Court's active docket for further action, including consideration of [L.W.M.'s] motion to dismiss. . . ."
On April 24, 2023, the Christian Family Court provided notice to D.H.A. of its hearing to determine whether counsel would be appointed to represent him. It attached to the notice an affidavit of indigency to be executed by D.H.A. The circuit court advised D.H.A. that his failure to appear would cause the court to assume that he did not wish to have counsel appointed to him.
On May 9, 2023, the Christian Family Court filed with this Court a certified copy of its order denying the appointment of counsel. The family court noted that D.H.A. had been represented by retained counsel throughout its proceedings. It found that D.H.A. waived appointed counsel on appeal. Whereas D.H.A. "did not appear, did not file the affidavit, and had the means previously to hire private counsel on his own, the Court den[ied] the appointment of counsel."
On May 24, 2023, D.H.A. filed with this Court a motion for additional time to file a brief. He tendered a brief (a prehearing statement) that could not be filed as it failed to meet minimum requirements. He did not serve a copy upon counsel for L.W.M. D.H.A. was given ten (10) days to make the necessary corrections.
On June 2, 2023, L.W.M. filed his response to D.H.A.'s motion for additional time to file his brief. L.W.M. noted the "extraordinary steps" that both this Court and the family court had taken to protect D.H.A.'s rights. He contended that D.H.A. had waived the appointment of counsel offered by the trial court and that he and the children "remain in a state of flux waiting for finality in this matter . . . ." L.W.M. urged this Court to grant his motion to dismiss the appeal.
By order entered on June 19, 2023, we granted D.H.A.'s motion for additional time to file a brief. We noted that D.H.A. had not yet attempted to tender a compliant brief. We gave him fifteen (15) days to file a "substantially compliant brief' and explained that we merely needed to see that he had made a "good faith effort" to comply with our rules. In light of the nature of the proceedings, we gave him "yet another chance to comply. . . ." However, we warned specifically that his "consistent disregard of the Court's directives will no longer be tolerated." We ordered that if he failed to file a brief within fifteen (15) days, the appeal would be dismissed. We denied L.W.M.'s motion to dismiss, noting, however, that he was not precluded from renewing the motion.
D.H.A. did not file a brief. On July 14, 2023, L.W.M. renewed his motion to dismiss the appeal. He observed again that we had warned D.H.A. that his failure to file a brief within fifteen (15) days would result in dismissal of his appeal.
Days later, D.H.A. filed another motion for additional time to file a brief. It was a copy of the motion for additional time that he had filed on May 24, 2023, and it contained no explanation for the continued delay.
L.W.M. filed a comprehensive response to the second motion for additional time. He argued that we had afforded D.H.A. "multiple opportunities to comply with the Civil Rules and Order of this Court, but he has demonstrated a clear pattern of non-compliance." L.W.M. stated that "[s]hall means shall" and requested that the warning of dismissal set forth in our prior order finally be imposed.
On July 26, 2023, D.H.A. filed yet another motion for additional time to file a brief. He explained that on July 25, 2023, for the first time, he had not "received a piece of mail from any court, attorney, or judge since the beginning of this process." He attributed his lack of notice of any of the proceedings in his appeal to "a miscommunication with the address." He tendered a brief. The response of L.W.M. followed.
L.W.M. disputed the explanation of D.H.A. for his failure to comply with our orders. He noted that L.W.M. provided his address in the notice of appeal and that nothing had been returned to any sender as undeliverable to him at that address. He noted that D.H.A.: had contacted our central office on numerous occasions; had responded in part to our orders; and had never previously mentioned that he was not receiving mail from anyone connected with his appeal. He never provided a new address to anyone.
By order entered on August 29, 2023, we granted D.H.A.'s motion for additional time to file a brief and directed the clerk to file his tendered brief. The motion of L.W.M. to dismiss the appeal was passed to this merits panel. L.W.M. was ordered to file his brief within thirty (30) days, and he did so.
With respect to the motion passed to the panel, L.W.M. observes that we have required only the bare minimum from D.H.A. Nevertheless, D.H.A. failed time and again to comply with both our specific orders or our rules. Our action in relaxing the rules and ignoring D.H.A.'s blatant disregard of our authority to compel his action has increased the burden on L.W.M. He explains that his counsel has been required to prepare numerous motions to dismiss and to respond to motions for additional time; to spend an inordinate amount of time trying to decipher D.H.A.'s arguments; and to scour the record to determine what was preserved, argued, and introduced in evidence. Consequently, L.W.M. has incurred added expenses affecting the family budget, thus costing the children both financially and emotionally as well. He urges us to dismiss the appeal without addressing it on its merits.
We deny L.W.M.'s motion to dismiss although we recognize and acknowledge the egregious failure of D.H.A. to comply with our rules. The serious matter of termination of parental rights has caused us to consider this case on the merits.
In the alternative, L.W.M. argues that we should review the issues presented in the brief submitted by D.H.A. only for manifest injustice. He explains that the brief is plainly defective and that D.H.A. even failed to show a good faith effort to conform to the rules of appellate procedure. L.W.M. observes that the brief does not contain a statement of preservation, a supported argument, or citations to the family court's record. He notes that D.H.A. has attached for our review documents that were never presented to the family court. Even more troubling, L.W.M. points out that D.H.A. asserts in his brief that "Judge Fleming repeats all of the fabricated lies" (referring to the testimony of L.W.M. and the children's mother) and argues that "[t]his stamps the bias Judge Fleming had for their side." Yet, during his trial testimony, D.H.A. conceded that he did not blame L.W.M. for being present for the children and admitted that their mother was a "good mother" who looks out for their best interests. With no factual support of record, D.H.A. has now challenged those concessions. L.W.M. urges us to affirm the family court's orders as no manifest injustice can be shown to exist.
We recognize that D.H.A.'s brief was prepared without benefit of counsel. Nevertheless, conformity with the Kentucky Rules of Appellate Procedure (RAP) is mandatory. See Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010). D.H.A. was aware that his brief must follow our rules; we provided him with a copy of our Basic Appellate Practice Handbook. Yet, D.H.A. failed to comply even minimally with our procedural rules, and his brief is materially deficient both in form and in content. See RAP 31.
We are empowered to strike briefs that fail to substantially comply with the requirements of our rules of appellate procedure. Id. Nevertheless, we strongly prefer to address appeals on their merits, and we have elected to do so in this case.
Parental rights are a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. M.S.S. v. J.E.B., 638 S.W.3d 354 (Ky. 2022); R.P. v. T.A.C., 469 S.W.3d 425 (Ky. App. 2015) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). "[Termination of parental rights is a grave action which the courts must conduct with 'utmost caution.'" R.P. v. T.A.C., 469 S.W.3d 425, 426-27 (Ky. App. 2015) (quoting M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254 S.W.3d 846, 850 (Ky. App. 2008)). Nevertheless, the family court is granted a "great deal of discretion" in determining whether termination of parental rights is appropriate. M.S.S. v. J.E.B., 638 S.W.3d 354, 360 (Ky. 2022) (quoting M.P.S. v. Commonwealth, Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998)).
A family court's decision to terminate parental rights will be reversed only where it was clearly erroneous and not based upon clear and convincing evidence. M.S.S. v. J.E.B., 638 S.W.3d 354, 360 (Ky. 2022). "Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Id. The family court must weigh the evidence, assess credibility, and resolve issues presented by conflicting evidence. Janakakis-Kastun v. Janakakis, 65 S.W.3d 843 (Ky. App. 1999). Consequently, upon review we are "obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." M.S.S. v. J.E.B., 638 S.W.3d 354, 359-60 (Ky. 2022).
We have carefully reviewed D.H.A.'s brief and have undertaken a review and assessment of the family court's findings and orders. We have been particularly aided by the brief prepared by L.W.M.'s counsel, which is skillfully and tactfully written. The facts established at the evidentiary hearing are sufficient to support the family court's finding of parental abandonment for the relevant statutory periods and its conclusion that adoption of the children is warranted and that it comports with the law.
Consequently, we affirm the orders of the Christian Family (Circuit) Court granting these adoptions.
As part of this Opinion, we order that L.W.M.'s outstanding motion to dismiss be, and it is hereby, denied.
ALL CONCUR.