Opinion
2022-CA-1234-ME
04-14-2023
K.J. APPELLANT v. M.J.B.; E.M.W., A MINOR CHILD; AND J.A.W. APPELLEES
NOT TO BE PUBLISHED
APPEAL FROM BULLITT CIRCUIT COURT HONORABLE MONICA K. MEREDITH, JUDGE ACTION NO. 21-AD-00050
BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES
OPINION
COMBS, JUDGE
This case involves an adoption without consent. The family court granted the petition for adoption filed by the child's maternal great-aunt, the Appellee. The child's natural mother appeals. After our review, we affirm.
On October 12, 2021, the Appellee, M.J.B. (Adoptive Parent), filed a "PETITION OF ADOPTION &TERMINATION OF PARENTAL RIGHTS" (upper case original) seeking to adopt the minor child, E.M.W. (the child). Adoptive Parent is the child's maternal great-aunt. According to the petition, the child was born in October 2019 and had lived with Adoptive Parent since April 2020. Adoptive Parent alleged that the child's natural mother, the Appellant, K.J. (Natural Mother), had failed to provide essential parental care for the child, specifically that the factors in KRS 199.502(1)(a), (e), and/or (g) are applicable. The statute governs the conditions that must be found to exist in the case of an adoption without consent.
Kentucky Revised Statutes.
"By its nature, adoption under KRS 199 vitiates parental rights of biological parents. KRS 199.520(2). When there is a dual petition involving an adoption and involuntary termination of parental rights, the adoption supersedes the termination because KRS 199 encompasses KRS 625." E.K. v. T.A., 572 S.W.3d 80, 83 (Ky. App. 2019).
The case was tried on September 23, 2022. On October 5, 2022, the family court entered judgment of termination, findings of fact, and conclusions of law (FFCL) and entered judgment of adoption. In its FFCL, the family court found as follows:
[W]hen 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. The effect of the judgment is the adoption of the child at issue." C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019) (internal quotation marks and citation omitted).
1. [Adoptive Parent] . . . has had legal custody of the child . . . since October 13, 2020. [Adoptive Parent] acquired custody of the child on that date when she filed a Petition for Emergency Custody in the juvenile division of this court. A temporary removal hearing was
conducted and this Court granted temporary custody to [Adoptive Parent] on October 19, 2020. [The child] has remained continuously in the custody of [Adoptive Parent] since the emergency removal....
...
4. [Natural Mother] stipulated to dependency in 20-J-248-01 as reflected in the Adjudication Order entered January 26, 2021. Temporary custody of [the child] was continued with [Adoptive Parent] and [Natural Mother] was ordered to have no contact with the child until she engaged in mental health services and then contact was to be at the discretion of the Cabinet for Health and Family Services with [Natural Mother] submitting to hair and urine screens at the cost of the Cabinet to insure that she was not active in the misuse of controlled substances and she was to follow all recommendations of the Cabinet. The Adjudication Order is incorporated into these findings as through set forth wholly herein.
After [the child] was placed in the temporary custody of [Adoptive Parent], [Natural Mother] did not provide financial support for the child. She testified that she bought diapers once and that she bought "age appropriate" birthday and holiday gifts but had no way to get them to the child. [Natural Mother] also testified that she was in regular contact with her grandmother who is the mother of [Adoptive Parent]. The Court finds [Natural Mother] is not credible in her assertion that she could not provide even such nominal support because she had no way to deliver diapers and gifts to the child when she also testified that she was in contact with another family member who was in a position to make direct contact with [Adoptive Parent] and with [the child].
According to the testimony of SSW Rana Kaissieh to whom [Natural Mother's] case is currently assigned, a case plan was initially formulated . . . in July 2021 which [Natural Mother] failed to complete. The case was transferred . . . in August 2021 and was in the hands of SSW Wilson until February 2022 with no evidence of activity on [Natural Mother's] part . . . and then it was transferred to SSW Kaissieh who developed another case plan . . . which required (among other particulars) that [Natural Mother] submit to a drug and alcohol assessment and follow all recommendations . . . [and] complete a mental health assessment and follow recommendations. [Natural Mother] completed a mental health assessment March 30, 2022[,] but was terminated from Seven Counties (the mental health service provider) May 31, 2022[,] for violations of their policies. In June 2022 [Natural Mother] tested positive for methamphetamine and marijuana.
The Court finds that from the time the child was placed in the temporary custody of [Adoptive Parent] in October 2020 until March 2022, [Natural Mother] was not actively working a case plan. [Adoptive Parent] filed this action in October 2021. Even when [Natural Mother] began to actively work the case plan as a prerequisite to resuming contact with [the child,] [Natural Mother] was almost immediately non-compliant with significant requirements of the case plan.
[Natural Mother] effectively abandoned [the child] for a period of more than ninety (90) days. [Natural Mother] for a period of not less than six (6) months continuously and repeatedly failed to provide or has been substantially incapable of providing essential care and protection for [the child] and there is no reasonable expectation of improvement in parental care and protection. [Natural Mother] for reasons other than poverty alone, has continuously and 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 there is no reasonable expectation of significant improvement in [Natural Mother's] conduct in the reasonably foreseeable future.
5. The Court also finds that [Adoptive Parent], at some point after the child was placed in her legal custody, determined that she would not cooperate with reunification efforts. The Court finds that she expressed that she did not need financial support from [Natural Mother] to provide for [the child] and that, after the Petition which initiated this action was filed, on at least one occasion in May 2022 she actively impeded contact between [the child] and [Natural Mother]. While concerning, when considered within the context of the entire time period [Adoptive Parent] has had custody and, whether [Adoptive Parent] accepted financial support did not prevent [Natural Mother] from tendering it and she did not[.] [T]he Court finds by clear and convincing evidence that the statutory requirements for involuntary termination of [Natural Mother's] parental rights have been met.
The juvenile dependency/neglect or abuse petition, included in the supplemental record before us, alleged that both parents had been arrested 10/20/20; that Adoptive Parent had had the child since April 2020; and Natural Mother had no home for the child and was living in a van. Emergency custody of Natural Mother's other three children had been granted to their grandmother.
The family court recited at least three of the conditions under KRS 199.502(1) that are required to exist in order for involuntary termination to be determined.
On October 21, 2022, Natural Mother filed a notice of appeal to this Court from the trial court's judgment of adoption and judgment of termination and findings of fact and conclusions of law entered on October 5, 2022.
[I]n 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.
Clear and convincing proof does not necessarily mean uncontradicted proof; but rather, requires there is proof of a probative and substantial nature that is sufficient to convince ordinarily prudent minded people. Under this standard, we are required to give considerable deference to the [family] court's findings, and we will not disturb those findings unless the record provides no substantial support for them.C.J., 572 S.W.3d at 496 (internal quotation marks, footnote, and citations omitted).
Natural Mother's sole argument on appeal is that the family court "erred in finding that [Adoptive Parent] had met her burden of proving, by clear and convincing evidence, the grounds for adoption and termination set forth in KRS 199.502(1)." KRS 199.502(1) provides that:
[A]n 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[.](Emphasis added.)
Natural Mother addresses each of the above grounds and points to some testimony arguably in her favor. She contends that her efforts were thwarted by Adoptive Parent. In essence, Natural Mother re-argues her case.
The trial court addressed the fact that Adoptive Parent had impeded contact between the child and Natural Mother. Although referring to that behavior as being "concerning," the family court also found that Natural Mother was not prevented from offering support, "which she did not." The trial court found that Natural Mother was "not credible in her assertion" that she had no way to deliver nominal support, such as diapers and gifts. "[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
We have reviewed the recorded trial proceeding. Adoptive Parent testified that in the two and one-half years since the child has lived with her, Natural Mother had not provided any sort of child support. Other than a pack of diapers and some clothes in October 2020, Adoptive Parent has not received anything. Adoptive Parent testified that she provides for all of the child's material needs. Natural Mother testified that as of the date of the trial, she still was not able to have the child back in her possession.
Substantial evidence supports the trial court's conclusion that for reasons other than poverty alone, Natural Mother has continuously and repeatedly failed to provide essential food, clothing, shelter, medical care, or education necessary for the child's well being and that there is no reasonable expectation of significant improvement in the immediately foreseeable future. KRS 199.502(1)(g). That finding is sufficient. KRS 199.502(1) only requires that a court find that one of the subsections is applicable. B.L. v. J.S., 434 S.W.3d 61 (Ky. App. 2014). Accordingly, we need not address the remainder of Natural Mother's argument. We have no basis to disturb the conclusion of the trial court.
Therefore, we affirm the judgment of adoption entered by the Bullitt Family Court on October 5, 2022.
ALL CONCUR.