Opinion
2023-CA-0070-ME
04-21-2023
R.B. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; G.B.; K.B.; AND C.E.S., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Melissa C. Howard Jackson, Kentucky BRIEF FOR APPELLEE G.B.: Nanci M. House Winchester, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LEE CIRCUIT COURT HONORABLE NORA SHEPHERD, SPECIAL JUDGE ACTION NO. 21-AD-00009
BRIEF FOR APPELLANT: Melissa C. Howard Jackson, Kentucky
BRIEF FOR APPELLEE G.B.: Nanci M. House Winchester, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; KAREM AND MCNEILL, JUDGES.
OPINION
KAREM, JUDGE:
R.B., the biological father of minor child C.E.S., ("Child"), appeals a December 12, 2023 judgment of the Lee Circuit Court terminating his parental rights to Child and granting G.B.'s ("Stepfather's") petition to adopt Child. In sum, R.B. argues no substantial evidence supported the circuit court's three alternative bases for granting Stepfather's petition for involuntary adoption, i.e., its findings that the factors enumerated in KRS 199.502(1)(a), (e), and (g) were met in this matter. Upon review, we affirm.
Kentucky Revised Statute.
FACTUAL AND PROCEDURAL BACKGROUND
Child was born to K.B. ("Mother") in February 2009. Stepfather married Mother in 2011; and since then, Child, Mother, and Stepfather have resided together as a family in Lee County, Kentucky. In 2017, R.B. initiated an action in Lee District Court to establish his paternity of Child. Mother opposed R.B.'s action. However, R.B.'s paternity was established after DNA testing ascertained he was in fact Child's biological father. Following Mother's unsuccessful appeal of the district court's order establishing his paternity, R.B. petitioned for timesharing and joint custody of Child. On November 23, 2021, Stepfather, with Mother's consent, then filed a petition in Lee Circuit Court to effectively terminate R.B.'s parental rights and adopt Child.
On October 20, 2022, the circuit court held a hearing where it considered evidence and testimony from R.B., Stepfather, Mother, and a few others regarding Stepfather's petition. At the conclusion of the hearing, the circuit court granted Stepfather's petition after determining that doing so was in Child's best interests; that Stepfather was of good moral character; and that the other statutory requirements for involuntary adoption had been satisfied - particularly that the factors enumerated in KRS 199.502(1)(a), (e), and (g) were met in this matter. The circuit court later incorporated its oral findings to that effect into a written order of December 12, 2022, where, in relevant part, it held:
10. The requirements of KRS 199.520 to terminate parental rights regarding [R.B.] have been met. [R.B.] is the biological father of [Child], and he resides in Beattyville, Kentucky. [R.B. and Mother] separated when [Child] was approximately two months old and [R.B.] was incarcerated briefly. [R.B.] testified that he believed [Child] was his child. [R.B. and Mother] were not married and a paternity action was not filed until 2017, when [Child] was approximately eight years old. Paternity was established in 2017. [Mother] objected and indicated that [R.B.] was not the father and requested DNA testing. [Mother] appealed the paternity finding to the Kentucky Court of Appeals, which affirmed the trial court's determination. Even after paternity was legally established, approximately five years ago, [R.B.] has provided no financial support for the child. For a period of not less than six (6) months, [R.B.] 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 there is no reasonable expectation of improvement in parental care and protection, considering the age of the child. [R.B.], for reasons other than poverty alone, has continuously or repeatedly failed to provide and is incapable of providing essential food, clothing, shelter, medical care, and/or education reasonably necessary and available for the child's well-being and there is no reasonable expectation of significant improvement in his conduct in the immediately foreseeable future, considering the age of the child. [R.B.] has provided nothing for the child, now 13 years old, except an Easter Basket, an American Girl doll, and a few bags of clothes through his mother years
ago. [R.B.] has abandoned the child for a period of not less than ninety days and it is best that his parental rights be terminated. [R.B.] has made no effort to act as a parent in any way. [Stepfather and Mother] have acted as the only parents to [Child]. [Child] does not really know [R.B.] at all and calls the Petitioner 'dad.' [R.B.] may have made some improvements in his own life, but considering this child's age, there is no reasonable expectation of improvement. There is a custody action involving [Child] in Lee Circuit Court - 20-CI-00007, and as this Order terminates the parental rights of [R.B.], that action is now moot.
This appeal followed.
STANDARD OF REVIEW
Appellate review of findings of fact in adoption actions concerning the termination of parental rights is limited to the "clearly erroneous" standard discussed in CR 52.01. S.B.B. v. J.W.B., 304 S.W.3d 712, 715 (Ky. App. 2010). Such review reflects the notion that the trial court was in the best position to judge the witnesses' credibility. R. C. R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998). However, as stated in R.P., Jr. v. T.A.C., "to pass constitutional muster, the evidence supporting termination must be clear and convincing." 469 S.W.3d 425, 427 (Ky. App. 2015). Clear and convincing evidence does not equate to "uncontradicted" evidence. W.A. v. Cabinet for Health and Family Services, Commonwealth, 275 S.W.3d 214, 220 (Ky. App. 2008). Rather, clear, and convincing evidence is "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people." V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 423-24 (Ky. App. 1986) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
Kentucky Rule of Civil Procedure.
ANALYSIS
As this Court has stated, "a petition seeking adoption of a child against the child's biological parent's wishes is a discrete subset of involuntary termination of parental rights cases[.]" C.M.C. v. A.L.W., 180 S.W.3d 485, 490 (Ky. App. 2005). Such an action "is governed in its entirety by KRS Chapter 199." R.M. v. R.B., 281 S.W.3d 293, 297 (Ky. App. 2009). Particularly, KRS 199.502(1) sets forth in relevant part that "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 one of the ten conditions specified in that subsection "exist with respect to the child[.]"
Here, the circuit court relied on three such conditions. The first, set forth in KRS 199.502(1)(a), required that "the parent has abandoned the child for a period of not less than ninety (90) days[.]" The second, set forth in KRS 199.502(1)(e), required:
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[.]
The third condition the trial court relied on, as set forth in KRS 199.502(1)(g), required:
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[.]
As discussed, R.B. takes issue with each of the circuit court's findings relative to these factors. Because it is dispositive for purposes of our review, we need only address the circuit court's finding regarding abandonment pursuant to KRS 199.502(1)(a). Relative to this point, R.B.'s focus on appeal is upon what he began doing in 2017. R.B. emphasizes that he initiated paternity proceedings relative to Child in 2017. He defended the establishment of his paternity in those proceedings when Mother subsequently appealed. Continuing this theme in his brief, he adds:
As a result, a finding that [R.B.] "abandoned the minor child for ninety days" was clearly erroneous; [R.B.] had no settled purpose to forgo his parental claims to the child. To the contrary, [R.B.] had a settled purpose to claim this child as his own and continually litigated for five years to establish his legal right under Kentucky law to make custody decisions regarding his child and to
spend time with her. [Mother] appealed each and every decision made in favor of [R.B.] over time until the appeals were exhausted, prohibiting him from having a parental relationship with the child as he desired.
The trial court in its final order erroneously found that "[Stepfather and Mother] have acted as the only parents to [Child] as [R.B.] has made no effort to act as a parent in any way." Yet the evidence was clear that [R.B.] made every effort to be permitted to act as a parent to his daughter for five years and was met with unrelenting litigation and appeals from the biological mother. Thus, a finding of abandonment was clearly unsupported.(Emphasis added) (citations omitted).
However, the focus of the circuit court's order was not only upon what R.B. did beginning in 2017; it was also upon what R.B. did (or failed to do) beforehand. Recall, Child was born in February 2009 - eight years before R.B. initiated proceedings to establish his paternity. Prior to that point, R.B. only participated in Child's life for a period of approximately two months following her birth. He had no other involvement with her.
R.B.'s operative assumption is that because he did not choose to legally establish his paternity of Child until 2017, he could not have legally abandoned Child before 2017. He apparently believes that his non-participation in Child's life between 2009 and 2017 was accordingly irrelevant, and that the circuit court therefore erred in basing its "abandonment" finding upon his absence from Child's life during that timeframe. R.B. believes, as stated on page 13 of his appellate brief, that the circuit court "wrongfully considered evidence of his actions prior to the establishment of paternity[.]"
That said, R.B. presents this Court with no authority favoring his belief; and in any event, he is incorrect. Abandonment is "'neglect and refusal to perform natural and legal obligations to care and support, withholding of parental care, presence, opportunity to display voluntary affection and neglect to lend support and maintenance.'" J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985) (emphasis added) (citation omitted). It "is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983) (emphasis added) (citation omitted). In other words, a period of "abandonment" can begin when a parent becomes apprised of a strong probability of their parentage of a given child, but nevertheless elects to assert no such claim and instead avoid parental responsibility.
Illustrating this point is W.K. v. Cabinet for Health and Family Services, No. 2015-CA-000114-ME, 2016 WL 97769 (Ky. App. Jan. 8, 2016), a case factually similar to the one at bar. There, this Court held that termination of W.K.'s parental rights was proper because W.K. had abandoned his child. Id. at *5. W.K. had intimate relations with a woman who then became pregnant with, presumably, his child. W.K.'s relationship with the mother did not last. Id. at *3. W.K. knew of the child's birth but had reservations regarding the child's paternity because of the mother's behavior. Id. W.K. never met the child or attempted to be involved with the child's life. Id. W.K. did not know that the child had been placed in the custody of the Cabinet. Id. The Cabinet attempted to locate W.K. through an absent parent search to no avail. Id. at *2. However, W.K. was eventually located through a warning order attorney and, upon learning of the pending proceedings, reached out to the Cabinet. Id. W.K. expressed to the Cabinet that he wished to wait until paternity was confirmed before moving forward with the case. Id. Eventually, paternity testing confirmed the child to belong to W.K., and the family court ultimately terminated W.K.'s parental rights. Id. at *2-4. This Court, in affirming the family court's order terminating W.K.'s parental rights, held that "[t]he cause for W.K.'s two-year long indifference toward Child cannot be laid upon the Cabinet any more than the end of that indifference can be legally presumed on the basis of a DNA test. W.K.'s indifference and his inaction were of his own making." Id. at *5.
We cite W.K. as persuasive, non-binding authority pursuant to Kentucky Rule of Appellate Procedure ("RAP") 41(A).
Here, as in W.K., "[t]his is not a case in which a man, oblivious even to the existence of a child, is surprised by the prospect that a child is his. Rather, this is the story of a man who had every reason to believe in the possibility, even probability, that he had a [daughter] and yet still refused the opportunity of fatherhood until the miracle of DNA science declared him the father." Id. Compared to the father in W.K., R.B. had significantly more reason, prior to initiating his paternity action in 2017, to believe he was the biological father of Child. Specifically, he shared a continuing intimate relationship with Mother when Child was conceived. He and his parents attended Child's birth in 2009. He resided with Mother and Child for two months thereafter. Mother's uncontradicted testimony was that after Child was born, she and R.B. agreed that R.B. was Child's father, and that a birth announcement was placed in the local newspaper indicating R.B. was Child's father. And, in finding that R.B. was sufficiently apprised of factual circumstances indicating he had impregnated Mother and was Child's father, the circuit court credited R.B.'s own testimony that he has believed Child to be his biological daughter since she was born. Indeed, it was Mother, not R.B., who later sought DNA testing in R.B.'s paternity action in 2017.
As set forth above, the circuit court's order merely states "[R.B.] testified that he believed [Child] was his child." However, Paragraph 15 of its order also provided: "All oral findings of the Court on October 20, 2022, are incorporated herein by reference." And, one such oral finding the circuit court made was: "(a), under those critical findings, that the parent has abandoned the child for a period of not less than 90 days. Knowing that [Child] was his child, being present when she was born, [R.B.] made no effort to even think about parenting her until she was already eight years old, and when someone else had assumed the role of father in her life and was caring for her. I can find abandonment by his father by clear and convincing evidence."
R.B. also evinced a settled purpose to forego and avoid his parental duties and to relinquish all claims to Child, at least until 2017. Particularly telling is the following exchange he had with counsel during the October 20, 2022, hearing:
COUNSEL: You got out of jail on September 1, 2009. You said for two more years, you weren't allowed to have any contact?
R.B.: To the best of my knowledge.
COUNSEL: Alright, well let's say that that's 2011. From 2011 to 2017, isn't it true that when I asked you when you were under oath before, what you had done, you said you spoke to some attorneys, right?
R.B.: Yes.
COUNSEL: You didn't hire any of them until Mrs. Howard, correct?
R.B.: That's correct.
COUNSEL: You slipped some papers under the door at the child support office?
R.B.: Yes, sir.
COUNSEL: You don't have any copies of those papers?
R.B.: No.
COUNSEL: And you didn't follow up with that anyway because you didn't think [the county attorney] would do anything with them anyway, correct?
R.B.: Right.
COUNSEL: And, in that intervening time, other than those actions, talking to some attorneys, not hiring any of them until Mrs. Howard, and slipping some papers under
a child support office door that you didn't follow up with, you didn't do anything else to try and form a relationship with your daughter?
R.B.: No, because I was scared to.
COUNSEL: Okay, now we talked about your fear, and you being scared to. And I asked you repeatedly at your deposition about what changed, what changed and suddenly put you in a position to be able to overcome this fear. Do you remember us having that conversation?
R.B.: Maybe.
COUNSEL: Alright. Well, I've got the transcript of your deposition, so let me just see if you recall this. Did you then start talking about how, you know, you needed to get the money together to, you know, hire an attorney?
R.B.: Yeah, and I think that, um, I don't think my life was in a real good place then. I'm gonna be honest, I don't think my life was in a really good place when I was, when I was younger. Um, I think I needed to do better to get on my feet a little bit more before I could support a child, you know?
COUNSEL: Alright. Um, whether you were, you said when you were younger. Whether you were in a financial situation to be able to support a child, the fact is [Child] is born. And she had been born for a total of eight years before you had filed a paternity action.
R.B.: Yes, sir.
COUNSEL: And somebody had to financially support that child. And somebody had to raise that child.
R.B.: Yes, sir.
COUNSEL: And somebody had to make sure she had warm clothes on when she went outside when it's cold, and that she was picked up from school when she started school, right?
R.B.: Absolutely. And I would've done the same thing if I'd been provided the opportunity.
COUNSEL: Well, that comes back to my question. During that intervening eight-year period of time, even if you take two of those years and say hey, you're on probation, and you didn't want to go through your parents or whatever to try and establish that relationship for that six-year period of time, no matter what, you weren't the one providing those things to [Child], right?
R.B.: Yeah.
COUNSEL: And in fact, when I asked you about that, you even acknowledged, to your credit I think, you, quote, took longer, way longer, than I should have. You remember saying that?
R.B.: Yeah.
COUNSEL: And in terms of that eight-year period of time, two of which you were on the remaining of your probation, other than your mom providing [Child] some gifts and taking some stuff over to [Mother], there was no support provided by you. Is that right?
R.B.: That's right.(Emphasis added.)
Although R.B. may not have willfully desired to forego his parental rights to Child, his eight years of indifference and inaction toward Child were certainly willful insomuch as he knew of the strong probability of his paternity yet failed to do anything for Child. His inaction was of his own making, and we cannot fault the circuit court's determination that, at minimum, it was clear and convincing evidence that the 90-day period required for a finding of abandonment pursuant to KRS 199.502(1)(a) was satisfied. No clear error occurred, and we agree with the circuit court that these circumstances demonstrate R.B.'s intent to relinquish his parental rights regarding Child.
R.B. also argues the circuit court "erroneously failed to consider less drastic alternatives to protect the Constitutional interests of a biological parent to his child." To that end, he argues that "by the time he legally became a parent with paternity established, he had changed his life," and that the circuit court "wrongfully considered evidence of his actions prior to the establishment of paternity[.]"
As it appears in his brief, this additional argument is a repackaged version of his prior argument relative to the circuit court's finding of abandonment. We reject it for the same reason. The circuit court committed no error or abuse of its discretion in this respect. Apart from what is set forth above, R.B. takes no issue with any other aspect of the circuit court's dispositive order. Nor, for that matter, do we.
CONCLUSION
In light of the foregoing, we AFFIRM.