Opinion
2022-CA-0458-ME
01-20-2023
A.E.G. APPELLANT v. J.B.T.; A.L.T.; AND R.X.B., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Rebecca A. Smither,, A.E.G., pro se BRIEF FOR APPELLEES: Patrick F. Graney
NOT TO BE PUBLISHED
APPEAL FROM ANDERSON CIRCUIT COURT HONORABLE S. MARIE HELLARD, JUDGE ACTION NO. 21-AD-00012
BRIEFS FOR APPELLANT: Rebecca A. Smither,, A.E.G., pro se
BRIEF FOR APPELLEES: Patrick F. Graney
BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
OPINION
MCNEILL, JUDGE:
A.E.G. (Mother) Appeals from four separate orders of the Anderson Family Court that ultimately granted the adoption of Mother's child (Child) by J.B.T. and A.L.T (Appellees), who are Child's biological great-aunt and uncle. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for Mother filed an Anders brief stating that the appeal is frivolous, and later filed a motion to withdraw as counsel. Mother also filed a supplemental brief on her own behalf. After a careful review of the record, we affirm. We grant counsel's motion to withdraw by separate order.
The biological father of Child is deceased.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012).
Child was born addicted to drugs in 2019. Following his birth, he was admitted to the neonatal intensive care unit (NICU), but was moved to the neonatal abstinence care unit (NACU) upon exhibiting symptoms of withdrawal. Mother later testified that, although she visited Child in the NACU during this time, she was using drugs while at the hospital. Mother tested positive for cocaine, codeine, morphine, heroin, and methadone at the time of Child's birth. She had no prenatal care during her pregnancy.
The Cabinet for Health and Family Services (CHFS) filed a dependency, neglect, and abuse (DNA) petition in the Anderson Family Court. Child was placed in the custody of Appellees, where he has since remained. Mother testified she attended one hearing in the DNA action, but was otherwise uninvolved. She did not work her case plan or maintain contact with CHFS, and it is uncontested she was "on the run" from various criminal charges during the pendency of the DNA action. As a result, Mother has not had contact with Child since shortly after his birth.
Appellees filed a "petition for termination of parental rights and adoption" on July 19, 2021. Mother was appointed counsel, but also filed a pro se response to the petition from the Shelby County Detention Center. The guardian ad litem for Child filed a report recommending the family court grant the adoption. CHFS also conducted an independent investigation and submitted a report recommending the family court grant the adoption. At some point during the pendency of the adoption action, Mother was court-ordered to attend in-patient substance abuse treatment in one of her criminal cases.
The family court bifurcated the adoption hearings. On March 11, 2022, the family court heard what was characterized as the "termination portion" of the adoption procedure. Mother was present with counsel and presented evidence contesting the adoption. She testified on her own behalf and called an employee from the treatment center as a witness, who testified regarding Mother's progress. After the hearing, the family court entered findings of fact, conclusions of law, and a judgment terminating Mother's parental rights. The family court held a brief hearing to finalize the adoption on a later date. On March 29, 2022, the family court entered findings of fact, conclusions of law, and a judgment of adoption. Mother now appeals all four orders of the family court.
Generally, in an adoption action where consent has not been given by the biological parents, 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. See M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986)). Clear and convincing proof does not necessarily mean uncontradicted proof, but rather requires proof of a probative and substantial nature that is sufficient to convince ordinarily prudent minded people. Id. at 117.
Kentucky Rules of Civil Procedure.
On appeal, counsel for Mother filed an Anders brief stating that the instant appeal is frivolous. Pursuant to Anders, counsel identifies arguments that might support Mother's appeal. Mother also filed a supplemental pro se brief. The arguments presented to this Court primarily focus on Mother's assertion that the family court did not consider Mother's recent progress in addressing her criminal charges and attending in-patient substance abuse treatment. At the time of the hearing on March 11, 2022, Mother had been clean and sober for just over one year. Appellees point out that, although the family court made some findings pursuant to KRS 625.090 rather than the adoption statutes in KRS Chapter 199, this was harmless error and the record supports affirming the family court. We agree with Appellees.
Anders, 386 U.S. at 744, 87 S.Ct. at 1400.
Mother testified her sobriety date was March 8, 2021.
Kentucky Revised Statute.
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." CR 61.01 (i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death
If an adoption is sought without consent of the biological parents, KRS 199.502(1) requires proof as part of the adoption proceedings that one of the conditions set forth in subsections (a)-(j) exists with respect to the child at issue. To wit,
(a) That the parent has abandoned the child for a period of not less than ninety (90) days;
(b) That the parent had inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to a child named in the present adoption proceeding;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present adoption proceeding was born subsequent to or during the pendency of the previous termination; and
3. The condition or factor which was the basis for the previous termination finding has not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death
of another child as a result of physical or sexual abuse or neglect; or
(j) That the parent is a putative father, as defined in KRS 199.503, who fails to register as the minor's putative father with the putative father registry established under KRS 199.503 or the court finds, after proper service of notice and hearing, that:
1. The putative father is not the father of the minor;
2. The putative father has willfully abandoned or willfully failed to care for and support the minor; or
3. The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor's placement in the home of the petitioner, whichever occurs first.This language closely mirrors that of KRS 625.090(2)(a). Indeed, KRS 199.500(4) provides
[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.
In other words, KRS 625.090 is only applicable in an adoption proceeding to the extent authorized by the adoption statutes. For example, KRS 625.090(1)(a)1. requires the court make a finding that the child is abused or neglected as defined in KRS 600.020(1). This requirement is not present in the adoption statutes. However, in the March 25, 2022 order, the family court made a finding that Child was abused or neglected pursuant to KRS 600.020(1). Although the evidence presented could arguably support a finding of abuse or neglect, it was not required under KRS Chapter 199. See A.K.H. v. J.D.C., 619 S.W.3d 425, 431 (Ky. App. 2021). This was harmless error by the family court.
The family court went on to find that "[p]ursuant to KRS 625.090":
a) [Mother] has abandoned [Child] for a period of not less than ninety (90) days[.]
b) [Mother], 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 [Child] and there is no reasonable expectation of improvements in parental care and protection, consider the age of [Child].
c) [Mother] has continuously or repeatedly failed to provide or is incapable of providing for [sic], essential food, clothing, shelter, medical care, or education reasonably necessary and available for [Child's] wellbeing and there is no reasonable expectation of significant improvement in his [sic] conduct in the immediately foreseeable future, considering the age of [Child].
Although the family court mistakenly cited KRS 625.090, it nevertheless made the findings required by KRS 199.502(1)(a), (e), and (g). We interpret Mother's argument that the family court did not take into account her recent progress towards sustained sobriety as claiming error in the family court's findings that "there is no reasonable expectation of significant improvement in [Mother's] conduct in the immediately foreseeable future." However, we need not reach the merits of this argument because the family court was required to find only one condition under KRS 199.502(1). It is undisputed that Mother abandoned Child for over two years after his birth. She had no contact with him whatsoever, failed to participate in the underlying DNA action, or work her case plan. Moreover, Mother did not attempt to have contact with Child until she contacted CHFS in September 2021, when Child was two years old. It is also undisputed that Mother has never provided any type of support to Child - financial, emotional, physical, or otherwise. She simply played no role whatsoever in Child's life after giving birth.
KRS 199.502 is not the only relevant statute for a court to consider in an adoption. KRS 199.520(1) provides that a family court shall enter a judgment of adoption if after a hearing, the court is satisfied that:
the facts stated in the petition were established; that all legal requirements, including jurisdiction, relating to the adoption have been complied with; that the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child; and that the best interest of the child will be promoted by the adoption and that the child is suitable for adoption.
These findings were contained in the findings of fact, conclusions of law, and judgment of adoption entered by the family court on March 29, 2022. We note that the four orders of the family court now on appeal were tied to the court's decision to bifurcate the adoption proceedings. This Court has never held that bifurcation of adoption proceedings is reversible error. A.K.H., 619 S.W.3d at 431; A.F. v. L.B., 572 S.W.3d 64, 72 (Ky. App. 2019). We have also recognized that
KRS 199.502(2) anticipates the family court's entry of a single unified final judgment. It states that "[u]pon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision either: (a) Granting the adoption without the biological parent's consent; or (b) Dismissing the adoption petition, and stating whether the child shall be returned to the biological parent or the child's custody granted to the state, another agency, or the petitioner."Id. at n.11.
While it was unnecessary and superfluous for the family court to enter separate findings of fact, conclusions of law, and order terminating Mother's parental rights in addition to the findings of fact, conclusions of law, and judgment of adoption, this was also harmless error. "Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent." KRS 199.520(2).
The potential, practical reasons behind bifurcation of a contested adoption are not lost on this Court. The hearing in a contested adoption is a somber and serious matter as the biological parent(s) stand to lose their parental rights to their child(ren). It is understandable that the court and parties would want to separate this from any hearing to "officially" grant the adoption which are, in practice, typically joyous occasions that include the child(ren) at issue, the adoptive parent(s), and friends and family members of the adoptive family.
In conclusion, there is substantial evidence in the record before us to support the family court's findings of fact, conclusions of law, and judgment of adoption. Any error on the part of the family court was harmless. Accordingly, we affirm the Anderson Family Court.
CETRULO, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY.