Opinion
NO. 2020-CA-0995-ME
02-26-2021
M.S.S. APPELLANT v. J.E.B.; D.J.B.; AND K.K.F.S., A CHILD APPELLEES
BRIEF FOR APPELLANT: Steven O. Thornton Bowling Green, Kentucky BRIEF FOR APPELLEES: D. Bailey Walton Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE DAVID A. LANPHEAR, JUDGE
ACTION NO. 18-AD-00043 OPINION
AFFIRMING
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BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES. DIXON, JUDGE: Appellant (Mother) appeals from the Warren Circuit Court's findings of fact, conclusions of law, and judgment of adoption, entered on May 1, 2020. After careful review of the briefs, record, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Mother has a history of drug addiction and criminal convictions which began prior to the birth of her daughter K.K.F.S. (Child) in January 2011. Mother was convicted of trafficking and possession of a controlled substance first degree in 2009, prior to Child's birth; bail jumping in October 2011—a mere nine months after Child's birth; possession of a controlled substance first degree in 2013; and promoting contraband first degree in 2015. From 2011 to 2015, Mother was granted shock probation multiple times, but each time she violated the terms of her release. As a result, Mother was in and out of prison, including three extended periods of incarceration lasting one year, a year-and-a-half, and two-and-a-half years, respectively, for at least five of Child's eight years of life.
Kentucky Revised Statutes (KRS) 218.1412.
Prior to her incarceration in 2011, Mother voluntarily granted guardianship of Child to Child's maternal grandmother. However, subsequently, a dependency, neglect, and abuse (DNA) action was filed regarding maternal grandmother. As a result, on February 2, 2013, temporary custody of Child was given to J.E.B., her maternal second cousin, and his wife D.J.B. (hereinafter collectively referred to as "Custodians"). Custodians received permanent custody of Child in December 2014.
As a part of the DNA action, Mother had supervised visitation with Child at Custodians' home. J.E.B. testified that Mother was routinely late, missed 70 to 80 percent of visits, and often cancelled last minute with excuses about multiple flat tires. After a couple of months, visitation was relocated to Child's maternal aunt's home. The maternal aunt testified that she could only remember two visits occurring and three instances where Mother cancelled (twice claiming flat tires and once a fight with Child's maternal grandmother). All parties agree Mother has not seen Child since at least November 24, 2014, when her son was born.
Mother testified she did not remember which dates she saw Child or cancelled visitation. She further asserted she was at visitation every time she could make it and that she had to remain in the hospital with her son for a period of time after his birth. Thereafter, Mother testified that she attempted to set up visitation, but J.E.B. would not allow it and threatened to call police if Mother came to Custodians' home. J.E.B. acknowledged that Mother requested to have some contact with Child, but maintained that it was only on holidays or birthdays, and Mother never provided notice beforehand. The parties agree Mother brought snacks or small items to visitation, as well as clothes for Child on at least one occasion—which J.E.B. testified were too large. Mother further indicated that she inquired if Custodians needed anything for Child but was rebuffed.
In November 2015, Mother was incarcerated once again. She testified she turned herself in on drug court sanctions as she believed incarceration was necessary to achieve sobriety. While incarcerated, Mother sent letters to Custodians inquiring about Child, requesting pictures, and enclosing drawings for Child. Custodians only opened a few of the letters before throwing them all away without showing them to Child. Mother sought and received permission from maternal aunt to send letters to her address for Child, which maternal aunt agreed to hold until an appropriate time.
Mother was paroled in August 2017 and promptly contacted Custodians about visiting Child; her request was denied. Mother filed a petition for visitation on February 1, 2018. On April 3, 2018, Custodians filed a petition in the same court to adopt Child without parental consent. The petitions were set for a final consolidated hearing on March 14, 2019.
At the hearing, Mother testified to significant improvements she had made since her incarceration, such as: being sober for five years; maintaining steady, gainful employment; paying child support, including payments toward the arrearage that accrued while she was incarcerated; and regaining custody of her son. Mother acknowledged that Child does not know her but testified that she wishes for them to become reacquainted and for Child to know her half-sibling. Mother proposes a therapeutic reunification process, and in furtherance of this goal, she has attended sessions with a licensed psychologist. Finally, Mother testified that denying the adoption and granting visitation would be in Child's best interest as Mother could give Child unique insight on life given all that she has overcome.
After the hearing, Child's guardian ad litem filed a supplemental report recommending that the petition be dismissed where Custodians had failed to establish grounds to support the adoption without consent. Ultimately, the court entered an order terminating Mother's parental rights and granting the adoption. This appeal followed. Additional facts will be introduced as they become relevant.
STANDARD OF REVIEW
Adoptions permanently sever a parent's fundamental liberty interest to rear her child. R.P., Jr. v. T.A.C., 469 S.W.3d 425, 426-27 (Ky. App. 2015). The severance of parental rights is a grave action necessitating that courts apply the utmost caution. Id. at 427. Accordingly, the judgment must be supported by clear and convincing evidence. Id. Clear and convincing proof does not mean uncontradicted proof but, rather, is "proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014). We review the circuit court's findings of fact pursuant to the clearly erroneous standard set forth in CR 52.01 and will only disturb those findings if they are not supported by substantial evidence. Id. With these standards in mind, we turn to Mother's arguments.
Kentucky Rules of Civil Procedure. --------
ANALYSIS
"[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 [nine] conditions exist with respect to the child[.]" KRS 199.502(1). Custodians' petition relied on the requirements provided in subsections (a), (e), and (g), which state:
(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 court found Custodians had failed to meet their burden of proof with regard to subsections (e) and (g) as Mother had demonstrated that there was a reasonable expectation of significant improvement in her parental care, protection, and conduct. However, the court concluded that Mother had abandoned Child for 90 days.
Mother argues the court's order terminating her rights was in contravention of its own findings of fact and the applicable law. Much of Mother's brief addresses what she perceives to be a conflict between the court's determination that Custodians did not meet their burden regarding Mother's alleged failure to provide parental care and the essentials of life but did prove abandonment. We disagree. KRS 199.502(1)(e) and (g), which deal with parental care and the essentials of life, require the court to consider a parent's future conduct, and it was this consideration that necessitated a finding in Mother's favor on these allegations. However, subsection (a), abandonment, does not factor in potential parental adjustment and is confined solely to prior conduct. Accordingly, there is no conflict in the court's determination.
Likewise, we reject Mother's contention that the court erred in relying on abandonment alone to support the judgment. The plain language of KRS 199.502 is clear that the court need only find the existence of one of the nine enumerated conditions, one of which is abandonment.
Mother's final contention is that the court's determination was not supported by clear and convincing evidence. After thoroughly reviewing the record, however, we disagree.
As stated above, a parent's abandonment of her child for at least 90 days can serve as a basis to grant an adoption without consent. KRS 199.502(1)(a). "[A]bandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." J.H. v. Cabinet for Human Res., 704 S.W.2d 661, 663 (Ky. App. 1985) (quoting O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983)). Abandonment is a matter of intent and, as such, a parent's absence from the child on its own is insufficient to justify termination of parental rights. Id. at 663. Incarceration alone cannot serve as a basis to terminate parental rights; however, a parent's dedication to a criminal lifestyle, characterized by multiple convictions and lengthy sentences, is a relevant factor. Id. at 663-64.
In determining that Mother had abandoned Child, the court made two lengthy findings which can be summarized as: (1) Mother demonstrated a dedication to a criminal lifestyle due to her intermittent incarceration for much of Child's life; and (2) when Mother was not incarcerated, she did not devote herself to parenting as evidenced by the fact she has not seen Child since November 2014. The court's findings are amply supported by the record.
Mother admitted having between six and eight felony convictions and being intermittently incarcerated for at least five years after Child's birth on new convictions and probation violations. Moreover, while not incarcerated, Mother routinely missed scheduled visitations, seeing Child only sporadically from February 2013 until November 2014, and having no contact with Child for the following year despite being free from incarceration. Mother's actions, as well as her inaction in maintaining contact with Child, demonstrate a settled purpose to forego her parental duties and claims to Child. Accordingly, clear and convincing evidence supports the court's determination that Child was abandoned for at least 90 days, and the court did not err in granting the adoption.
CONCLUSION
Therefore, and for the foregoing reasons, the findings of fact, conclusions of law, and judgment of adoption of the Warren Circuit Court are hereby AFFIRMED.
KRAMER, JUDGE, CONCURS.
LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Steven O. Thornton
Bowling Green, Kentucky BRIEF FOR APPELLEES: D. Bailey Walton
Bowling Green, Kentucky