Opinion
2021-CA-0232-ME
03-17-2023
L.D.S., JR. APPELLANT v. K.S.; S.K.S., A MINOR CHILD; AND THE CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
BRIEF FOR APPELLANT: JENNIFER L. TAYLOR WHITESBURG, KENTUCKY BRIEF FOR APPELLEE K.S.: AMBER HUNT SISCO PIKEVILLE, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM LETCHER CIRCUIT COURT HONORABLE JAMES W. CRAFT, II, JUDGE ACTION NO. 19-AD-00038
BRIEF FOR APPELLANT: JENNIFER L. TAYLOR WHITESBURG, KENTUCKY
BRIEF FOR APPELLEE K.S.: AMBER HUNT SISCO PIKEVILLE, KENTUCKY
BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
OPINION
ACREE, JUDGE
Appellant, L.D.S., Jr. (Father), appeals the Letcher Circuit Court's January 8, 2021 findings of fact and conclusions of law, and judgment of adoption. The circuit court granted the petition of K.S., Appellee (Grandmother), to adopt Appellee, S.K.S. (Child), thereby terminating Father's parental rights to Child. Finding no error, we affirm.
BACKGROUND
Since 2012, Father has been incarcerated for convictions of assault first degree, wanton endangerment first degree, and tampering with physical evidence. Father is Child's biological father. When Father was incarcerated, Child was one year old. Grandmother is Child's maternal grandmother. Child's biological mother is deceased.
The circuit court granted Grandmother custody of Child on June 5, 2017. On November 8, 2019, Grandmother filed a petition to adopt Child without parental consent pursuant to KRS 199.502(1). The circuit court granted repeated continuances for Father to afford him the opportunity to obtain a private attorney. The circuit court conducted a final hearing on December 21, 2020.
Kentucky Revised Statutes.
At the hearing, Father, Grandmother, and Father's mother testified. The court heard testimony that Father had not seen Child for over a year preceding the hearing, and that he only provided occasional financial support to Child. He had paid a total of three hundred and fifty dollars ($350.00) in support over a five-year period. Further, Father did not have custody of Child when he was incarcerated in 2012.
To his credit, Father did contact Child by phone and by mail, and Grandmother had occasionally taken Child to visit Father. However, Father's mother testified that Child is in the best place she could be by living with Grandmother. Grandmother has provided all care for Child since she obtained custody.
Following the hearing, the guardian ad litem for child recommended that Grandmother's petition for adoption without parental consent be granted. The circuit court granted the petition, concluding the grounds for adoption without consent of the parent pursuant to KRS 199.502(1) had been established. Father now appeals.
ANALYSIS
At the outset, we note Father's counsel filed a brief pursuant to A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012). Such briefs indicate counsel's belief that no meritorious basis for appeal exists. When reviewing such an appeal, "this Court will fully examine the record and decide whether the appeal is wholly frivolous ...." Id. at 371.
Adoption without the consent of a living biological parent is effectively a proceeding to terminate parental rights. See Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Accordingly, we apply the standard of review used in termination cases, which is "the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings." M.P.S. v. Cabinet for Hum. Res., 979 S.W.2d 114, 116. (Ky. App. 1998) (citation omitted). "Clear and convincing proof does not necessarily mean uncontradicted proof." Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934). "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.
Kentucky Rules of Civil Procedure.
"[P]arental rights are a 'fundamental liberty interest protected by the Fourteenth Amendment' of the United States Constitution." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 426 (Ky. App. 2015) (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982)). When the government terminates an individual's parental rights, it does not merely infringe upon those rights, but, instead, ends them. Id. (citing Lassiter v. Dep't of Social Servs. of Durham Co., N.C. , 452 U.S. 18, 27, 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981)).
That said, our statutes recognize that adoption of a child over the wishes of the biological parents may be granted in certain circumstances and, if granted, the adoption terminates the biological parents' rights to their child. When the legislature enacted KRS 199.502, it authorized courts to grant adoptions without the consent of the child's biological parents upon proof of certain specific conditions. In the case under review, the circuit court concluded enough of those conditions were satisfied to grant the adoption without Appellant's consent. Those conditions the court found satisfied were:
(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)(e) and (g).
Additionally, Appellee pleaded KRS 199.502(1)(a) in her petition, which permits adoption without the consent of biological living parents in the event "the parent has abandoned the child for a period of not less than ninety (90) days[.]" But, because Appellant maintained regular contact with Child via mail and telephone, the circuit court determined Appellant had not abandoned child, and thus KRS 199.502(1)(a) did not apply.
Because clear and convincing evidence supports the circuit court's conclusions, we conclude the circuit court did not err in granting the adoption and terminating Father's parental rights to Child. The mere fact of Father's incarceration is insufficient to terminate his parental rights. J.H. v. Cabinet for Hum. Res., 704 S.W.2d 661, 633-34 (Ky. App. 1985). However, there is ample evidence beyond Father's incarceration to support the circuit court's ruling by application of both KRS 199.502(1)(e) and (g).
As to KRS 199.502(1)(e), the circuit court found Father did not know basic information regarding Child, that Grandmother has provided all essential parental care and protection for Child since 2017, and that Child could not remember living in Father's home. As to KRS 199.502(1)(g), the circuit court found Father provided minimal financial support to Child since 2017, despite his receipt of rental income alone of $600.00 per month.
Both KRS 199.502(1)(e) and (g) require there be "no reasonable expectation of significant improvement" for an adoption to be granted. When making this determination, a circuit court is required to evaluate "the parent's current parenting ability, rather than just past behavior." A.F. v. L.B., 572 S.W.3d 64, 76 (Ky. App. 2019) (citing M.E.C. v. Cabinet for Health and Family Servs., 254 S.W.3d 846, 854 (Ky. App. 2008)). The circuit court satisfied that requirement here, determining that Father did not intend to seek custody of Child upon his release, but rather intended to improve his own situation first, indicating to the court there was no reasonable expectation of improvement in Father's provision of parental care. The circuit court also noted that, though Father completed parenting classes and other courses while incarcerated, it determined Father's primary motivation for doing so was to have his sentence reduced rather than to improve his ability to provide care for Child.
Clear and convincing evidence supports the circuit court's conclusions. Therefore, we cannot say the circuit court was clearly erroneous when it determined the conditions under KRS 199.502(1)(e) and (g) had been met. Accordingly, we affirm its grant of Grandmother's adoption petition and termination of Father's parental rights.
CONCLUSION
For the foregoing reasons, we affirm the Letcher Circuit Court's January 8, 2021 findings of fact and conclusions of law, and judgment of adoption.
ALL CONCUR.