Opinion
2022-CA-0546-ME 2022-CA-0548-ME
03-03-2023
L.L. APPELLANT v. A.L. AND M.M.L., A MINOR CHILD APPELLEES AND L.L. APPELLANT v. A.L. AND A.T.L., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Adam S. O'Bryan Paintsville, Kentucky BRIEFS FOR APPELLEE A.L.: James Brandon May Paintsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT HONORABLE JANIE MCKENZIE-WELLS, JUDGE ACTION NO. 21-AD-00013, 21-AD-00012
BRIEFS FOR APPELLANT:
Adam S. O'Bryan
Paintsville, Kentucky
BRIEFS FOR APPELLEE A.L.:
James Brandon May
Paintsville, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; CALDWELL AND GOODWINE, JUDGES.
OPINION
CALDWELL, JUDGE:
L.L. appeals from the termination of her parental rights to her minor children, M.M.L. and A.T.L. We affirm.
Pursuant to court policy and to protect the privacy of the minor children involved, we do not refer to the children or to their parents by name.
FACTS
M.M.L. and A.T.L. were born to L.L ("Mother") and J.L. ("Father") in 2011 and 2012, respectively. After Mother and Father divorced, Father married A.L. ("Stepmother"). Stepmother filed petitions to adopt M.M.L. and A.T.L. (collectively, "the children") in June 2021. Father filed a notice of consent to the adoption. Mother filed a pro se notice that she did not agree to the adoption. The Cabinet for Health and Family Services ("CHFS") filed a report recommending the adoption be granted if all legal requirements were met.
The family court appointed an attorney for Mother and a guardian ad litem for the children later that summer. Mother's attorney successfully sought continuance of the hearing on the petition for adoption on a couple of occasions, once stating he had been unable to meet with Mother. In February 2022, the family court entered an order setting an early April 2022 hearing on the petition for adoption by agreement of the parties.
In late March 2022 - a couple of weeks before the scheduled hearing - Mother filed a pro se motion requesting visitation with the children. She stated therein that Father and Stepmother had changed their telephone number and were not letting the children speak to her on the phone despite being court-ordered to do so. She also asserted she had tried to file motions beforehand, but nothing happened. Her written motion did not say why she was filing a pro se motion despite having an attorney appointed for her.
In early April 2022, the family court proceeded with the hearing. Mother appeared with counsel. The family court heard testimony from social workers, Father, Stepmother, and Mother. And documentary evidence was submitted, including CHFS and juvenile court records. Shortly thereafter, the family court entered findings of facts and conclusions of law, orders terminating Mother's parental rights to the children, and judgments of adoption. Mother filed timely notices of appeal.
Mother's attorney filed Anders briefs - stating he perceived no meritorious grounds for appeal. He also filed motions to withdraw in each case. And he certified he provided copies of the briefs to Mother and told her she had a right to file supplemental pro se briefs on any issues she thought had merit.
See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
This Court entered an order passing the motions to withdraw to the merits in September 2022. We also stated in this order that Mother had thirty days from the order's date to file a supplemental pro se brief if she desired to do so. However, Mother has not filed a supplemental pro se brief.
It has come to this Court's attention that, as of early 2023, Mother's counsel (Adam S. O'Bryan) is now the Johnson Family Court judge. https://kycourts.gov/Courts/County-Information/Pages/Johnson.aspx (last visited Feb. 10, 2023). Although Mother's counsel filed motions to withdraw in June 2022, these motions were passed to the merits that September and had not yet been ruled upon when he took the bench. Had this Court requested additional briefing on any issue or denied his request to withdraw after counsel became a judge, problems could have ensued. Going forward, better practice would be to notify this Court before counsel ascends to the judiciary when a motion to withdraw remains pending in this Court.
Further facts will be discussed as necessary.
STANDARD OF REVIEW
As stated recently by our Supreme Court:
An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights. Parental rights are a fundamental liberty interest protected by the Fourteenth Amendment of the United States Constitution. As such, termination of parental rights is a grave action which the courts must conduct with utmost caution. So, to pass constitutional muster, the evidence supporting termination must be clear and convincing.
That said, trial courts are afforded a great deal of discretion in determining whether termination of parental rights is appropriate. A family court's termination of parental rights will be reversed only if it was clearly erroneous and not based upon clear and convincing evidence. 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. Under this standard, 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.
Additionally, [s]ince adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents.M.S.S. v. J.E.B., 638 S.W.3d 354, 359-60 (Ky. 2022) (internal quotation marks and citations omitted).
Since Mother's counsel has filed an Anders brief and motion to withdraw, "we are obligated to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361, 372 (Ky. App. 2012).
Having independently reviewed the record before us, we conclude that the family court's termination of parental rights must be affirmed under the standards stated in M.S.S., 638 S.W.3d at 359-60. Although Mother's appeal cannot succeed, we believe some not entirely frivolous issues merit further discussion.
Statutory Requirements for Adoption Without a Parent's Consent Met
KRS 199.500(1) provides that adoption shall not be granted without a parent's consent except under certain specified conditions including: the parents being divorced, one parent's rights having been terminated under KRS Chapter 625 and consent being given by the custodial parent. KRS 199.500(1)(c). And KRS 199.500(4) states: "Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child."
Kentucky Revised Statutes.
KRS 199.502(1) states in pertinent part:
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;
...
(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[.]
The petitions for adoption pleaded the grounds set forth in KRS 199.502(1)(a) (abandonment), KRS 199.502(1)(e) (failure or inability to provide essential parental care and protection), and KRS 199.502(1)(g) (failure or inability to provide necessities such as food and clothing). See also KRS 625.090(2)(a), KRS 625.090(2)(e), KRS 625.090(2)(g).
The family court found, by clear and convincing evidence, that Mother had abandoned the children for a period of over ninety days. See KRS 199.502(1)(a); KRS 625.090(2)(a). It also found, by clear and convincing evidence, that Mother had failed to provide essential parental care and protection for at least six months and failed to provide necessities without reasonable expectations of improvement in these regards. See KRS 199.502(1)(e) and (g); KRS 625.090(2)(e) and (g).
Upon our independent review of the record, we conclude that the family court's findings of failure to provide necessities, essential parental care, and protection are supported by substantial evidence and cannot be disturbed. Therefore, statutory requirements for permitting the adoption without Mother's consent and terminating her parental rights in this proceeding were met. See generally KRS 199.500, KRS 199.502, KRS 625.090.
The family court also found, by clear and convincing evidence, that termination was in the children's best interests and that Mother had neglected the children through patterns of substance abuse and instability and through failure to complete court-ordered services. See KRS 625.090(1)(a) and (c).
Lack of Discussion About Evidence that Mother was Impeded in Effort to Contact Children by Father and Stepmother's Actions is Troubling but Does Not Change Result
Though we ultimately conclude that the family court's judgment must be affirmed, we are troubled by its lack of discussion of evidence that the telephone number where Mother contacted the children was changed without Mother being informed of the new number and of Stepmother's admission that she and Father violated a court order that Mother have phone contact with the children.
Stepmother testified that Mother would call shortly before the children's bedtime after weeks of not calling and that Mother's phone calls upset the children. She also testified that Mother would attempt to call an inordinate number of times over a few-minute period when the phone was not answered. She further testified that Mother left terrible messages - although no specifics about the content or delivery of these messages was provided. Father also testified that he perceived Mother's phone calls as harassing.
Stepmother testified she and Father had discussed the situation with a case worker, and she admitted Mother had not been able to contact them over the past year since the telephone number was changed. Stepmother testified that she would have let the children talk to Mother if they had so wanted but they did not. On cross-examination, she admitted that she and Father had violated the court's order for Mother to have phone contact with the children. On re-direct, she stated she was not required to accept constant or harassing communications.
Apparently, the case worker was no longer employed with the Cabinet at the time of the hearing and she was not called to testify.
Father testified that Stepmother usually communicated with Mother rather than him, and that he never knew Mother's phone number. Mother testified that she was unable to contact the children due to the telephone number change and to being blocked on Facebook.
Given Mother's testimony about her efforts to contact the children being impeded, perhaps this could cast doubt on assertions that she intended to completely relinquish all parental claims. See, e.g., R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) ("abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child"). But regardless of any problems with the abandonment finding in light of this evidence, there is substantial evidence supporting the family court's findings that Mother did not comply with her duties to provide necessities and essential parental care and protection to the children.
Substantial Evidence Supports Finding of Failure or Inability to Provide Essential Parental Care and Protection
Though the family court's factual findings are not detailed, it found -by clear and convincing evidence - that Mother failed to or was unable to provide essential parental care and protection for at least six months without a reasonable expectation of improvement in this regard considering the children's ages. These findings are supported by substantial evidence.
The evidence included social worker testimony about a recent CHFS investigation and court findings of neglect regarding the children's two younger half-siblings based on Mother's substance abuse while pregnant and failure to supervise the two younger siblings, who were found outside in a parking lot while Mother remained indoors. It also included another social worker's testimony and documentation about findings of neglect regarding the children at issue here a few years ago due to unsanitary conditions and witnessing domestic violence. These prior cases involving the children here resulted in permanency being established with Father due to Mother's failure to complete all recommended services and Father's home being found appropriate.
The social worker for the younger half-siblings' cases admitted she was not personally familiar with the children at issue here or their CHFS cases. And the social worker who had worked the case about the children at issue here a few years back admitted that she had not worked with this family for a couple of years so that she had no personal knowledge of the family members' present circumstances.
Stepmother testified that Mother had missed some scheduled visitations even prior to the suspension of supervised visitations at Safe Haven due to the pandemic in March 2020. And documentary evidence and Stepmother's testimony indicated that after visitation services at Safe Haven were reinstated in March 2021, Mother failed to contact Safe Haven or update her contact information so that further visits could be set up. Thus, Mother had not visited with the children for about two years at the time of the hearing.
Stepmother also testified to the children previously needing dental work since they did not receive dental care while in Mother's custody a few years back. And she testified to the children attending therapy - which she perceived that they needed as a result of emotional harm suffered in Mother's home. Furthermore, Stepmother opined in her testimony that there was no reasonable expectation of improvement in Mother's providing essential care and protection considering the children's ages although she admitted to not having spoken with Mother for over a year.
In light of this evidence, we cannot say that the family court's findings of failure or inability to provide essential parental care and protection for at least six months with no reasonable expectation of improvement considering the children's ages was clearly erroneous.
Substantial Evidence Supports Finding of Failure to Provide Necessities
Similarly, without discussing the underlying facts in detail, the family court found - by clear and convincing evidence - that Mother had, for reasons other than poverty alone, continuously or repeatedly failed to or been unable to provide necessities such as food, clothing, shelter, and medical care and that there was no reasonable expectation of improvement in the immediately foreseeable future considering the children's ages. And this finding is also supported by substantial evidence.
Mother admitted she was currently unemployed. She testified she was receiving government assistance and repaid some child support arrearages. However, court records indicated that her child support obligation was still in arrears - and Stepmother testified Mother still owed about $2,000 in child support.
Stepmother testified that Mother had not provided any food, clothing, shelter, or holiday or birthday gifts to the children since March 2020. Again, Stepmother had also testified to indications the children did not receive proper dental care while in Mother's care. Furthermore, Stepmother opined in her testimony that there were no reasonable expectations of significant improvement in Mother's ability to provide necessities in the immediately foreseeable future considering the children's ages.
There was some documentation in Safe Haven records of Mother providing food and gifts to the children during visits prior to the suspension of visitation services in March 2020. Nonetheless, Stepmother's testimony is substantial evidence of no further provision of food or gifts - at least known to Stepmother - after March 2020.
In light of this evidence, we cannot say that the family court's finding of failure to provide necessities such as food, clothing, shelter, and medical care with no reasonable expectation of significant improvement in the near future considering the children's ages was clearly erroneous.
In sum, the statutory requirements for granting the adoption without Mother's consent and thereby terminating her parental rights were met. Furthermore, the family court's factual findings were supported by substantial evidence and its decision was not an abuse of discretion given the evidence. Thus, in light of the standards stated in M.S.S., we must affirm.
CONCLUSION
For the foregoing reasons, we AFFIRM the family court's judgment and we grant Mother's counsel's motion to withdraw by separate order.
ALL CONCUR.