Opinion
2024-CA-0063-ME 2024-CA-0070-ME
06-21-2024
A.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.A.D.; R.F.D.; C.N.D.; AND B.L.T., A CHILD UNDER 18 YEARS OF AGE, APPELLEES AND A.T. APPELLANT v. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; L.A.D.; R.F.D.; C.N.D.; AND J.M.A.D., A CHILD UNDER 18 YEARS OF AGE, APPELLEES
BRIEF FOR APPELLANT: Rhett B. Ramsey BRIEF FOR APPELLEES A.L.D. AND R.F.D.: John Paul Jones II
NOT TO BE PUBLISHED
APPEAL FROM WAYNE FAMILY COURT HONORABLE JENNIFER EDWARDS, JUDGE ACTION NO. 21-AD-00031, 21-AD-00032
BRIEF FOR APPELLANT: Rhett B. Ramsey
BRIEF FOR APPELLEES A.L.D. AND R.F.D.: John Paul Jones II
BEFORE: ACREE, EASTON, AND MCNEILL, JUDGES.
OPINION AND ORDER
EASTON, JUDGE:
The Appellant, A.T., challenges the Wayne Family Court's orders terminating his parental rights to his minor children (hereafter "Children") and allowing Appellees, L.A.D. and R.F.D., to adopt them pursuant to KRS199.502. These appeals have been consolidated, and we address both terminations and adoptions in this Opinion. We affirm the orders of the Wayne Family Court.
Kentucky Revised Statutes.
FACTUAL AND PROCEDURAL HISTORY
A.T. ("Father") is the biological father of the Children. R.F.D. ("Aunt") is the maternal aunt of the Children, and L.A.D. ("Uncle") is her husband. Aunt and Uncle were married in July 2018. Aunt received temporary custody of the Children in March 2018. Soon after, the Cabinet for Health and Family Services ("Cabinet") filed a DNA petition. Aunt was granted permanent custody of the Children in October 2018. The Children have resided with Aunt and Uncle since their placement in March 2018. The Children are now seven and eight years old.
Acronym for Dependency, Neglect, and Abuse.
Father did not participate in the underlying DNA action. Initially, there were problems with locating him. Father was incarcerated in Ohio beginning in August 2018. Father was convicted of burglary after a jury trial in Ohio. He was sentenced to serve five years. He served the entire sentence, ultimately being released from the Chillicothe Correctional Institution in late July of 2023.
When Father was released from Chillicothe, he was arrested on a Kentucky warrant for a probation violation for absconding and transferred to the Wayne County Detention Center. The warrant had been issued by the Wayne Circuit Court in a criminal case in which Father pled guilty to Second-Degree Burglary, Unlawful Imprisonment, Fourth-Degree Assault, Second-Degree Criminal Mischief, Third-Degree Terroristic Threatening, and Violation of Kentucky EPO/DVO. These charges stem from a violent altercation with the Children's mother ("Mother") in January 2017 when the Children were both infants under two years of age. Father's Kentucky probation was revoked in midAugust 2023.
No. 17-CR-00066.
Emergency Protective Order/Domestic Violence Order. Father admits that he was the aggressor in the domestic violence which led to the DVO in Case No. 17-D-00003, which then served as the basis for the indictment charge for violation of a DVO.
Aunt and Uncle filed a Petition for Adoption in December 2021. A final hearing took place on October 18, 2023. Mother did not appear and did not participate in the hearing. She likewise has not appealed the adoption orders. Father was transported from the Wayne County Detention Center to the hearing, where he appeared with appointed counsel.
Aunt and Uncle testified. Their testimony was consistent in that neither Mother nor Father had seen the Children since 2018. Neither parent has attempted to see or speak with the Children. The Children refer to Aunt and Uncle as "mom" and "dad." They do not ask about their biological parents, and Aunt and Uncle believe the Children probably would not know who Father was.
Aunt further testified that both Children were behind on vaccinations and medical care when she gained custody of them. The younger child had major abdominal surgery immediately after birth that required follow-up care with a specialist. Both Children had minor developmental delays that required attention. They are now on track developmentally. Aunt testified neither parent has provided for the Children, although Mother paid the minimal monthly amount required per a child support order.
Father testified on his own behalf. He spoke about his previous substance abuse issues, but he claimed he has been clean and sober since his incarceration. He also testified that he participated in several programs and received certificates while in prison. He stated he used this time to better himself.
Father was not aware of the DNA action prior to being incarcerated. He claims that at that time, he had left the Children with their Mother and went to a sober living house in Lexington. Despite leaving the Children with Mother, Father said Mother was then using substances. He knew he would be unable to stay sober if he was around Mother while she was using. Father had started using again, which he described as "I failed a urine screen" rather than a candid admission of a relapse.
Father left the sober living house to attend to his mother, who was hospitalized after a suicide attempt. Father then went to stay with his older child's mother in Ohio. He offered no proof that he had permission to leave Kentucky while on probation. Father's Ohio burglary charge stems from his actions in the home of his oldest child's mother. Further testimony will be discussed as it becomes relevant to our analysis.
The family court entered its Findings of Fact and Conclusions of Law, and Judgment and Order of Adoption for both Children in November 2023. The family court found Father, for a period of not less than six months, had 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 Children. It further found Father had not provided adequate care, supervision, food, clothing, shelter, education, or medical care necessary for the child's well-being, and that he has failed to make sufficient progress toward identified goals as set forth in the court-approved case plan to allow for the safe return of the Children. These failures resulted in the Children remaining in the custody of Aunt and Uncle.
Father then filed this appeal. He claims Aunt and Uncle did not properly plead KRS 199.502(1)(e) and (g); therefore, the family court could not rely on those grounds to terminate his parental rights. Alternatively, he argues that, even if properly before the family court, these factors are not supported by clear and convincing evidence. Further, he argues Aunt and Uncle did not satisfy the requirements of KRS 199.502(1)(a), the only ground properly pled in the petition.
STANDARD OF REVIEW
"An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." M.S.S. v. J.E.B., 638 S.W.3d 354, 359 (Ky. 2022). We therefore apply the same standard of review of a termination of parental rights case, which is the clearly erroneous standard outlined in CR 52.01. The factual findings must be supported by clear and convincing evidence. Id. "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." Id. at 360 (internal quotation marks and citations omitted). "Because adoption is a statutory right, Kentucky Courts require strict compliance with the statutory procedures to protect the rights of natural parents." R.M. v. R.B., 281 S.W.3d 293, 297 (Ky. App. 2009).
Kentucky Rules of Civil Procedure.
ANALYSIS
KRS Chapter 199 outlines the procedure for private adoptions.
[A]n adoption without consent involves four distinct considerations: (1) did the petitioner comply with the jurisdictional requirements for adoption; (2) have any of the conditions outlined in KRS 199.502(1) been established; (3) is the petitioner of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child as required by the first portion of KRS 199.520(1); and (4) finally, will the best interest of the child be promoted by the adoption, and is the child suitable for adoption as required by the
final portion of KRS 199.520(1).A.K.H. v. J.D.C., 619 S.W.3d 425, 431 (Ky. App. 2021) (footnote omitted). Father disputes only the family court's findings regarding the second element. Father contests that at least one condition of KRS 199.502(1) has been met.
Aunt and Uncle filed an initial and an amended petition pursuant to KRS 199.502, which outlines the conditions necessary for an adoption to be granted without the consent of the biological living parents. The relevant portions of the statute provide as follows:
(1) 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[.]
Father first argues that Aunt and Uncle did not properly plead factors (e) and (g) listed above, and therefore the family court could not base its decision on them. We disagree.
Father is correct that, under KRS 199.502, the conditions necessary to allow an adoption without parental consent must be both pleaded and proved. However, Kentucky is a notice pleading state. Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 240 (Ky. 2020). This is explicitly set out in our civil rules, which state: "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required." CR 8.05(1).
What is required is notice of the factors a party intends to rely upon prior to a hearing. We believe Aunt and Uncle's amended petition met this standard. Their amended petition states:
The parental rights of the Respondents [Father] and [Mother], the biological parents of [Child], should be terminated pursuant to KRS 199.502(1) for the following reasons:
(a) They have abandoned the child for a period of not less than ninety (90) days;
(e) They have continuously or repeatedly failed or refused to provide parental care for the child for a period of not less than six (6) months; and
(g) They have continuously or repeatedly failed or refused to provide for the child's essential needs such as food, clothing, shelter, medical care, and education for reasons [other than] poverty alone.
What is missing in Aunt and Uncle's amended petition is the remainder of subsections (e) and (g), which state "and that there is no reasonable expectation of improvement . . . considering the age of the child." Father never filed a response to the amended petition. He did not raise any objection to the issues to be decided prior to the final hearing or at that hearing. The question of any insufficiency of the amended petition was never argued to the family court. Father cannot now raise this issue for the first time on appeal. See Taylor v. Kentucky Unemployment Ins. Comm'n, 382 S.W.3d 826, 835 (Ky. 2012).
The objection had no merit in any event. Aunt and Uncle explicitly listed the statute and the subsections upon which they intended to rely. This was more than enough to place Father on notice. "The emphasis is on substance over form .... We construe that substantial justice was done in that the pleadings gave fair notice of what was taking place; therefore, procedural due process was not lacking." V.S. v. Cabinet for Hum. Res., 706 S.W.2d 420, 425-26 (Ky. App. 1986).
Any omission of statutory language in the amended petition did not prejudice Father, as it is clear what Aunt and Uncle intended to attempt to prove at the hearing. Father also presented evidence on the expectation of improvement. Indeed, as additional evidence on this subject, Father asks us to take judicial notice and consider the fact he was granted shock probation by the Wayne Circuit Court after the hearing in this case.
Appellate courts are courts of review not revision. The decisions at issue in this appeal were based on the evidence presented to the family court. While we should be hesitant to do so, we may take judicial notice of events in cases relied upon by the parties to give context. For the sake of his argument, we will grant Father's motion to give a more complete picture of his history, but, in doing so, we will consider the entire history of the criminal case through the same mechanism of judicial notice of the contents of the criminal file.
Judicial notice may not be taken of Kentucky CourtNet records (where we can find the shock probation order in this case) to present as evidence in a trial. See Marchese v. Aebersold, 530 S.W.3d 441 (Ky. 2017). But information about the existence and status of charges may be referenced by an appellate court to provide perspective for the trial court proceedings. See, e.g., Mulazim v. Commonwealth, 600 S.W.3d 183, 203 n.6 (Ky. 2020).
We will address the potential impact of shock probation as we assess the sufficiency of the evidence on the subject of expectation of improvement. Shock probation could be relevant for the purposes of this appeal only if the family court was aware of but did not consider the possibility. As reviewers, we should not add to and then reevaluate the evidence before the family court when its decisions were made.
Father argues that Aunt and Uncle did not satisfy the requirements of KRS 199.502(1)(e) and (g). He alleges that no evidence was presented at the hearing to suggest that his inability to provide parental care for his children was intentional or a refusal to do so. He also argues that the finding of the family court in which there is no reasonable expectation of improvement is clearly erroneous. Again, we disagree.
"Kentucky case law makes clear that a parent's incarceration does not, by itself, always establish that parental rights should be terminated. However, absence, voluntary or court-imposed, may be a factor to consider in determining whether the children have been neglected. For example, a parent's choosing a 'criminal lifestyle' which results in him being incarcerated and creating risks of physical or mental injury to his children can be construed as neglecting a child." A.R.D. v. Cabinet for Health &Fam. Servs., 606 S.W.3d 105, 110-11 (Ky. App. 2020) (internal quotation marks and citations omitted). "Kentucky case law does not favor termination of parental rights based solely on an isolated instance of incarceration, but clearly incarceration is something to be considered among all other factual circumstances." Id. at 111.
Father argues his inability to provide for his Children was solely due to his incarceration. Father consistently minimizes his actions and his individual responsibility for them. Father explained that he was "young and dumb" which resulted in his "being bound over at 17" and serving eight years. As an older adult, he received a two-year sentence for theft related to a car. But he insists this was just some misunderstanding, as he had permission to sell the car which was belatedly withdrawn by the owner.
Father pled guilty to serious charges related to Mother in Wayne County in 2017. Father explains that he pled guilty only because he had been in jail for eight months and the offer made was the first offer. He would receive a ten-year sentence (although he was facing up to twenty years to serve due to his persistent felony offender (PFO) status), and that sentence would be probated for five years. Father entered this plea, even though he suggests he was not really guilty. He mentioned he had evidence that Mother "was lying on me" about the charges. On cross-examination, Father admitted his plea was just one example of his taking the "easy way out."
Father also suggests that he did not really abscond from his probation. Yet he left the probation-authorized facility in Lexington and eventually went to Ohio missing a required appearance for his probation during this time. This was not his fault either according to him. Even though his mother was in the hospital, he tried to get to his required probation appearance, but his ride left him somewhere. He does not explain why he did not follow up to explain his situation. He blames "crazy circumstances."
Ultimately, Father admitted that he "left because I had to because I was trying to avoid all this time." Even with such an admission, Father insists his due process rights were violated when "Kentucky hit me with absconding" and revoked his probation, and he threatened an appeal. The appeal apparently became unnecessary to him with the granting of shock probation.
The family court was made aware of the pending motion for shock probation. Even without shock probation, Father could have been paroled within six months. Future release was a factor considered either way. Essentially, the family court was called upon to decide the expectation of improvement with or without shock probation. When we examine the evidence as we have done, we see no error in the finding of no expectation of improvement. Father never accepted responsibility for his actions and how those actions impacted the Children, and his testimony gave no reason to expect improvement in this regard.
Father successfully argued that his Ohio sentence had to be run concurrently with the Kentucky sentence because his probation was not revoked within ninety days after Kentucky probation authorities became aware of his violation. KRS 533.040(3). The legislature has not addressed this statute despite the obvious and probably unintended result of rewarding those who commit crimes in other states while on probation because there is no mechanism to revoke probation for those in other states until the other state releases them. See Commonwealth v. Love, 334 S.W.3d 92 (Ky. 2011).
The words people choose convey the level of responsibility accepted. It is part of modern slang for those committing crimes to describe "catching" or having "caught" a charge. Father used this wording numerous times during his testimony. Criminal charges are not caught; they are committed. They are intentional acts, not baseballs falling into an innocent outfield to be "caught." This slang perpetuates a distancing between the crime committed and the one who chose to commit it. It is a lessening of personal responsibility.
As for the charges in Ohio, Father claimed he and the mother of his oldest child (then a teenager, now an adult) got into an argument, which was what led to his burglary charge and conviction. During this testimony, Father was incredibly vague about what exactly occurred, but he chalked up his charge, conviction, and five-year sentence as a "misunderstanding." He began his Ohio incarceration in August 2018. This was only about three months after he had been released from Wayne County Detention Center on his probation violation with the expectation of completing treatment in Lexington.
Regardless of the excuses offered, Father has pled or been found guilty of burglary of the homes where the mothers of his Children lived while the Children were living there. Father said that at some point he had been shot while residing in Ohio. He also was shot while sleeping while living in Kentucky prior to meeting Mother, although he does not give details of why he was shot in either event. He was not shot by the mothers of his Children or his Children. The presence of such violence in the home of the Children must be of continuing concern.
Father claims he provided for his Children prior to his incarceration, and that he was very involved in their lives. To the contrary, Aunt testified that Father, Mother, and the Children were living in a house Aunt owned while the Children were young. Aunt also helped financially care for them. Aunt also testified to instances where she, her mother, or another sister kept the Children for extended periods of time while their parents were elsewhere.
Had Father been a primary caregiver for the Children as he claimed, he would have known that the Children had been placed in the custody of Aunt and Uncle. He also testified he left the Children with their mother, despite his belief that she was using illegal substances. This shows an utter lack of concern for the Children's well-being. He conceded he did not know who had his Children when he was arrested and charged in Ohio.
The testimony was also consistent that Father made little effort to keep in contact with the Children. While Father's testimony was at times hard to follow, he stated he made one call to the Cabinet. He was advised to call back to set up a case plan, but he never did so. He claimed he sent a birthday card to the Children, but he was unsure if it was received. This one attempt occurred several years into his sentence in Ohio. The Children did not receive any other correspondence. He also failed to make any other efforts to contact the Children, such as requesting other family members to facilitate contact or discover their address or phone number.
While we take judicial notice of the shock probation, the possibility of that post-hearing event alone would not be sufficient for us to determine that the family court should have found a reasonable expectation of significant improvement on Father's part. It is still unknown where Father resides, if his residence is appropriate for the Children, if he is employed, or if he has the ability to remain clean and sober long-term. While he claims he has been substance-free since 2018, he has been incarcerated the entire time. Institutional sobriety presents a different challenge from maintaining sobriety while not in custody.
By the time of the termination hearing, the Children had been in the care and custody of Aunt and Uncle for five years. All evidence indicated that the Children were thriving and were strongly bonded with Aunt and Uncle. Despite Father having availed himself of programs available to him while incarcerated, we agree with the family court that Aunt and Uncle have shown clear and convincing evidence of the requisite factors required for adoption of the Children.
We do not believe the family court's findings regarding KRS 199.502(1)(e) and (g) are clearly erroneous. "[An] appellate court is obligated to give a great deal of deference to the trial court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." D.G.R. v. Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012). Although the family court did not comment on KRS 199.502(1)(a), the record supports a finding of abandonment under that section as well. There is no dispute that the adoption is in the best interest of the Children.
CONCLUSION
Father's Motion to Take Judicial Notice is GRANTED. The findings of the family court pursuant to KRS 199.502 are not clearly erroneous, and the family court did not abuse its discretion. For the foregoing reasons, the adoption orders of the Wayne Family Court are AFFIRMED.
ALL CONCUR.