Opinion
NO. 2020-CA-0556-ME
01-15-2021
J.M. APPELLANT v. T.J.A. AND S.B.L.P., a minor child APPELLEES
BRIEF FOR APPELLANT: Adam S. O'Bryan Paintsville, Kentucky BRIEF FOR APPELLEE T.J.A.: Tammy C. Skeens Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 19-AD-00004 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES. JONES, JUDGE: The Appellant, J.M. ("Biological Mother") appeals the orders of termination of parental rights and adoption without consent concerning her minor child, S.B.L.P. ("Child"), entered by the Johnson Circuit Court. After timely filing a notice of appeal, Biological Mother's court-appointed counsel submitted an Anders brief. A.C. v. Cabinet for Health & Family Servs., 362 S.W.3d 361, 363 (Ky. App. 2012). In the Anders brief, counsel asserts that no meritorious issues exist on which to base an appeal. Nonetheless, counsel points out that it is incumbent upon this Court to independently review the record to decide whether the appeal is frivolous. Following this Court's receipt of the Anders brief, Biological Mother was advised of her right to continue this appeal pro se and was provided with additional time to file a brief of her own choosing. Biological Mother did not respond.
Even though the parties designated their petition as one seeking termination of parental rights and adoption and cite to the termination statute, as explained in more detail within the body of this Opinion, we must review the record for compliance with the adoption statutes.
Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Along with the Anders brief, Biological Mother's counsel filed a motion seeking permission to withdraw as counsel on appeal. The Court referred counsel's motion to this panel to be decided in conjunction with the underlying appeal. By separate order, we have granted counsel leave to withdraw.
Accordingly, we have independently reviewed the record for the purpose of ascertaining whether the appeal is, in fact, devoid of nonfrivolous grounds for reversal. Id. at 372. After having done so, we agree with counsel's assessment. On the face of the record, we can perceive no basis warranting relief on appeal. Therefore, we affirm the order of the adoption without consent, which served to terminate Biological Mother's parental rights.
I. BACKGROUND
Biological Mother gave birth to Child in January of 2011. Child's biological father is deceased. Child was most recently placed in the care of the Appellee, T.J.A. ("Adoptive Parent") in September of 2016. Adoptive Parent is Child's maternal second cousin. Adoptive Parent was awarded permanent legal custody of Child through the Magoffin Circuit Court on or about April 17, 2017. Record ("R.") at 16-18. Child has remained in Adoptive Parent's care since that time. On March 15, 2019, Adoptive Parent filed a dual "Petition to Terminate Parental Rights/Petition for Adoption" in Johnson Circuit Court. R. at 1-4. Adoptive Parent named Biological Mother, Child, and the Cabinet for Health and Family Services ("Cabinet") as respondents. R. at 1.
Mother has three other children who are Child's half-siblings. Mother does not have custody of any of her four children.
Child had previously been in the custody of another relative along with his three half-siblings. The home only had two bedrooms and proved to be an impractical living situation for the children. As a result, two of the children, full sisters to one another, went to live with another maternal relative, and Child's half-brother went to live with his father; Child was placed with Adoptive Parent. Despite the distance, Adoptive Parent continues to make sure Child is able to see his siblings.
The petition alleged that Adoptive Parent is an unmarried resident of Johnson County, and that he had been awarded permanent custody of Child in 2017. It further alleged that Biological Mother had for at least the last two years continuously and repeatedly failed or refused to provide essential care and protection for Child, as well as continuously failed or refused to provide essential food, clothing, and shelter for Child, and that there was no reasonable expectation that Biological Mother would improve in the future. In contrast, Adoptive Parent alleged that he has provided for Child's needs since the time Child has been in his care; that he has the ability and desire to continue financially providing for Child; and that he would continue to nurture, protect, and educate Child in the event his petition for adoption was granted by the trial court.
The trial court appointed a guardian ad litem ("GAL") to represent Child, and the Cabinet and Biological Mother were served with a copy of the petition. Following its receipt of the petition, the Cabinet conducted an investigation and filed a report with the trial court. The Cabinet recommended the adoption be granted provided that all the legal requirements were met, including KRS 199.590(3).
Kentucky Revised Statutes.
Following receipt of the Cabinet's report, the trial court set the matter for a final hearing. Prior to the hearing, Child's GAL filed a report with the trial court. The GAL stated that she interviewed Child in private. Child reported having a good relationship with Adoptive Parent. He volunteered that Adoptive Parent takes good care of him and that he enjoys living with him. Child expressed that he wanted to be adopted, and that while he liked Biological Mother, he did not see her very often and understood why he was not able to live with her. The GAL recommended that the trial court grant the petition for adoption.
On the date set for the final hearing, the trial court appointed counsel to represent Biological Mother and postponed the hearing to allow Biological Mother's newly appointed counsel time to prepare. Thereafter, counsel moved for leave to file a late answer and sought another continuance to provide additional time for him to prepare for the final hearing. The trial court granted both requests. Thereafter, the trial court granted two more continuances.
On March 5, 2020, the trial court conducted a final hearing, at which Adoptive Parent and Biological Mother along with their respective counsel and Child's GAL were present. Adoptive Parent testified to his good relationship with Child and his desire to adopt Child. He explained that since Child has been in his care, he had provided for all of Child's needs without any contribution or assistance from Biological Mother. He further testified that while Biological Mother visited Child fairly regularly after he first obtained custody, the visits had become more erratic. He estimated that in the past seventeen months, Biological Mother had only visited Child a couple of times at his home and that the visits only lasted fifteen to thirty minutes.
On the date of the final hearing, with the assistance of her appointed counsel, Biological Mother filed a motion seeking to be granted visitation with Child. Therein, she averred: 1) she was Child's Biological Mother; 2) she was employed; 3) she had a stable home; 4) she had a vehicle; and 5) it was her wish and desire to have visitation with Child. The motion was brought to the trial court's attention prior to the start of the adoption hearing. Adoptive Parent objected to the motion on the basis that it was procedurally improper to file a visitation motion in an action for adoption and termination. The trial court orally ruled that it was going to pass the motion, which would become moot if adoption was granted. Biological Mother did not object.
Biological Mother did not disagree that she failed to financially support Child. She believed that she had visited with Child more times than testified to by Adoptive Parent; however, she was unable to provide the trial court with the specific dates of those visits. She testified that she had taken efforts to get her life more under control but could not explain any specific actions she had taken. At the time of the hearing, she had been working at a local Dairy Queen for a couple of months and was living in a trailer with another cousin. She did not have custody of any of her four children. She testified that while she desired to see more of Child, she had not taken any legal action to obtain visitation prior to the filing of the adoption petition.
Following the hearing, the trial court entered findings of fact & conclusions of law with respect to its decision to terminate Biological Mother's parental rights. Its order states as follows:
1. The Court has jurisdiction of the parties and the subject matter hereto[.]
2. The Court finds that the respondent, [Biological Mother], is the natural mother of the minor child, [Child].
3. The Court finds that the natural father of the minor child was [G.L.P.] and he is deceased.
4. The Court finds that the petitioner is the maternal second cousin of the minor child, and that the minor child has lived with the petitioner in his home since September, 2016.
5. The Court finds that the minor child, [Child], is nine (9) years of age.
6. The Court finds that the petitioner, [Adoptive Parent], was awarded permanent custody by Magoffin Family Court, Action No. 13-J-0075-002, on or about April 13, 2017.
7. The Court finds by the testimony of the petitioner and the respondent that her visitation with the minor child has been sporadic in the last seventeen (17) months.
8. The Court finds through the testimony of the respondent, [Biological Mother], that she has not filed any motions with the Court to reinstate her visitation with the minor child; or to try to regain custody of the minor child.
9. The Court finds through the testimony of the petitioner and the respondent that the respondent, [Biological Mother], has not paid any child support for the minor child since April, 2017.
10. The Court finds through the testimony of the respondent, [Biological Mother], that she entered Guilty Pleas to various charges in 2016 and 2017 and had been incarcerated for at least a period of six (6) months.
11. The Court finds through the testimony of the respondent, [Biological Mother], that she has not had any significant drug treatment.
12. The Court finds through the testimony of the respondent, [Biological Mother], that she has four (4)
children; and that she does not have custody of any of them.
13. The Court finds through the testimony of the parties that the respondent, [Biological Mother], has not provided any essential food, clothing, shelter, medical care or education reasonable necessary and available for the child's well-being in more than six (6) moths, and, in fact, has not provided these things in more than three (3) years.
14. The Court reviewed the Guardian Ad Litem's report and recommendations, and that she recommended that the respondent, [Biological Mother's], parental rights be terminated and for the petitioner to be permitted to adopt the minor child.
15. The Court finds by clear and convincing evidence, pursuant to KRS 600.020 and KRS 625.090, that the respondent, [Biological Mother], has neglected the minor child, [Child].
16. The Courts finds by clear and convincing evidence, that the respondent, [Biological Mother], has continuously and repeatedly failed or refused to provide essential care and protection for the minor child; has continuously failed or refused to provide essential food, clothing and shelter for the minor child; with no reasonable expectation of improvement in the future. The respondent has not done any of these things in the past six months.
17. The Court finds by clear and convincing evidence that respondent, [Biological Mother], has abandoned the minor child.
18. The Court finds by clear and convincing evidence by the testimony of the respondent, [Biological Mother], that she has provided no child support for the minor child.
19. The Court finds by clear and convincing evidence that it is in the best interest of the minor child, [Child], for the parental rights of the respondent, [Biological Mother], to be involuntarily terminated over the objections of her counsel.R. at 46-49. Following entry of these findings and conclusions, the trial court entered a separate order terminating Biological Mother's parental rights. R. at 50.
Thereafter, the trial court entered separate findings of fact and conclusions of law with respect to Child's adoption as follows:
1. The petitioner, [Adoptive Parent] was over the age of eighteen (18) years and a resident[] of Johnson County in the State of Kentucky at the time this action was commenced.
2. The petitioner has been a resident of this State for more than twelve (12) months next preceding the filing of the Petition for Adoption herein.
3. The petitioner is the maternal second cousin of the minor child, [Child].
4. The Court finds that the Respondent, [Biological Mother's], parental rights were involuntary terminated by separate Findings of Fact, Conclusions of Law and Order of this Court.
5. The biological Father, G.L.P., is deceased.
6. The Court accepts the allegations of the Petition for Adoption as being true and correct.
7. The minor child to be adopted has lived continuously in the home of the petitioner at least three (3) months immediately prior to the filing of the Petition for Adoption in this action.
8. The minor child is presently and has been for more than ninety (90) days, in the actual care and control of the petitioner.R. at 51-53. A separate Judgment of Adoption was entered at the same time as these findings and conclusions.
9. The Cabinet for Health and Family Services confidential report has been filed with the Court and recommends that this Petition for Adoption be granted providing all legal requirements have been met, has been duly filed and made part of the Record herein.
10. The Guardian Ad Litem, Hon. Stephanie Davis, has filed a Report with the Court recommending the Adoption be granted.
11. All material facts set forth in the Petition for Adoption herein were sufficiently and adequately established at the aforementioned hearing.
12. The petitioner is of good moral character and fitness, of reputable standing in the community and financially able to properly maintain, nurture, protect and educate the minor child sought hereby to be adopted. The child is suitable for adoption and the best interest will be promoted by this Adoption.
13. The child's name upon adoption will remain [Child].
Thereafter, acting with the assistance of her court-appointed counsel, Biological Mother filed a notice of appeal to this Court along with a motion to proceed in forma pauperis on appeal, which the trial court granted. Once before our Court, Biological Mother's counsel submitted an Anders brief, stating that no meritorious grounds for appeal exist. Counsel also filed a motion to withdraw. This Court provided Biological Mother with an opportunity to continue this appeal pro se by filing her own appellant's brief. Biological Mother did not respond to this Court's notice.
II. STANDARD OF REVIEW
"An Anders brief supplements a motion to withdraw filed after counsel has conscientiously reviewed the record and found the appeal to be frivolous." C.R.G. v. Cabinet for Health & Family Servs., 297 S.W.3d 914, 915 (Ky. App. 2009). Thereafter, this Court's duty is to review the record independently for prejudicial error. Id.
III. ANALYSIS
This case involves an adoption. The trial 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. See KRS 199.502(1).
Adoptive Parent filed a dual petition seeking both termination of Biological Mother's rights and adoption. Nevertheless, before both the trial 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.
It is vitally important, however, to recognize that this is not a termination case governed by KRS Chapter 625; it is an adoption case governed by KRS Chapter 199. C.J. v. M.S., 572 S.W.3d 492 (Ky. App. 2019).
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, 494 (Ky. App. 1986). The effect of the judgment is the adoption of the child at issue. As such, we review the judgment for compliance with the adoption statutes.Id. at 497.
We begin with KRS 199.470. This statute contains the basic requirements that must be satisfied to petition for adoption in this Commonwealth. To petition for adoption, a person must be eighteen and "a resident of this state or [have] 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. Adoptive Parent pleaded that he is a resident of Kentucky; he filed the petition in Johnson County where he resides.
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 record establishes that Child has lived continuously with Adoptive Parent since September of 2016. Adoptive Parent filed the petition in March of 2019. The ninety-day period 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). In this case, the record indicates that Adoptive Parent is Child's maternal second cousin, which would satisfy the fictive kin requirement, meaning that the Cabinet's preapproval was not required.
The statute includes a blood relative as "a relative of half-blood, first cousin, aunt, uncle, nephew, niece, and a person of a preceding generation as denoted by prefixes of grand, great, or great-great; stepparent; stepsibling." KRS 199.470(4)(a) (emphasis added). Since Adoptive Parent is Child's second cousin, we must look to the definition of fictive kin. "Fictive kin" means an individual . . . who has an emotionally significant relationship with the child[.]" KRS 199.011(9). The testimony confirmed that Adoptive Parent has an emotionally significant relationship with Child and, therefore, qualifies as fictive kin even though as a second cousin he would not be technically considered a blood relative.
Next, we must determine whether Adoptive Parent complied with KRS 199.480, which governs party defendants, service of process, and guardians ad litem. To be valid, an adoption petition shall name as party defendants:
(a) The child to be adopted;KRS 199.480(1). The adoption petition shall be served on the party defendants "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).
(b) The biological living parents of a child under eighteen (18), if the child is born in lawful wedlock.
. . .
(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.
Kentucky Rules of Civil Procedure.
In this case, Adoptive Parent named the Cabinet, Child, and Child's only living biological parent as party defendants. A review of the record shows that all parties were served in compliance with KRS 199.480(2). Furthermore, a GAL was appointed for Child, and counsel was appointed for Biological Mother.
After an adoption petition is filed, pursuant to KRS 199.510(1), the clerk of 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;
(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 to the best interest of the child and the child is suitable for adoption.Id. A KRS 199.510 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; Adoptive Parent was of good moral character and financially able to support Child; and Child was suitable for adoption and adoption was in Child's best interest.
In sum, having reviewed the adoption statutes in conjunction with the record, we are satisfied that the trial court correctly concluded that Adoptive Parent was eligible to adopt Child and that the statutory prerequisites for adoption were met in this case. As such, we will now examine the trial court's decision to grant the adoption petition without Biological Mother's consent.
KRS 199.502(1) governs adoption without the consent of a child's biological living parents. It provides:
(1) Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of the following conditions exist with respect to the child:
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent had inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(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) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child, and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present adoption proceeding was born subsequent to or during the pendency of the previous termination; and
3. The condition or factor which was the basis for the previous termination finding has not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; orKRS 199.502(1).
(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.
We note that the trial court made a predicate finding pursuant to KRS 600.020 and KRS 625.090 that Biological Mother had neglected Child. 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 trial 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. v. J.S., 434 S.W.3d 61, 67 (Ky. App. 2014).
The trial court determined that clear and convincing evidence supported its conclusion that Biological Mother had continuously or repeatedly failed to provide or was incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there was no reasonable expectation of significant improvement in the Biological Mother's conduct in the immediately foreseeable future, considering the age of the child. See KRS 199.502(1)(g).
The trial court cited KRS 625.090, the parental termination statute; however, KRS 199.502(1)(a)-(j) actually mirrors KRS 625.090(2)(a)-(j) with respect to the grounds necessary to grant an adoption without consent. The trial court's reliance on the termination statute did not prejudice Biological Mother or render its ultimate conclusions invalid. The correct law was applied.
Having reviewed the record, we are confident that substantial evidence, including the testimony of both Adoptive Parent and Biological Mother, supports the trial court's conclusion. Adoptive Parent testified that since September of 2016, he has met all Child's needs including providing Child with food, shelter, and clothing. Biological Mother admitted that she has not paid any child support or otherwise contributed to Child's expenses in any meaningful way, even during the time periods that she was not incarcerated. Additionally, her visitation with Child was sporadic at best. At the time of the hearing, Biological Mother had only been employed for two months and was living in a trailer with another relative. She testified that only recently had the trailer been connected with proper utilities. Even though Biological Mother testified that she had gotten her life in a better place, she was unable to identify any specific steps she took to change her lifestyle that would allow her to provide Child with a stable home.
Prior to 1987, it was "incumbent upon the court when considering a petition to adopt. . . 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, the trial court would have been required to consider whether Adoptive Parent could maintain permanent custody of Child with Biological Mother receiving some sort of limited visitation as she requested. 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. Accordingly, as correctly observed by the trial court, it was not required to consider Biological Mother's motion for visitation prior to ruling on the adoption petition. Once the petition was granted, it mooted Biological Mother's motion. --------
In sum, having independently reviewed the record we can discern no prejudicial error to warrant reversal. Jurisdiction was appropriately established, and all the requirements necessary for adoption without consent are supported by substantial evidence of record. Accordingly, for the reasons set forth above, we affirm the orders of the Johnson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Adam S. O'Bryan
Paintsville, Kentucky BRIEF FOR APPELLEE T.J.A.: Tammy C. Skeens
Pikeville, Kentucky