Opinion
2021-CA-1408-ME
04-22-2022
A.W.W.W. APPELLANT v. B.L.W.; B.N.W., A MINOR; AND M.C.W. APPELLEES
BRIEF FOR APPELLANT: Michael J. Curtis Ashland, Kentucky BRIEF FOR APPELLEES: Marie E. Troxler Tracy D. Frye Nikki Burke Russell, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT HONORABLE JANIE MCKENZIE-WELLS, SPECIAL JUDGE ACTION NO. 20-AD-00021
BRIEF FOR APPELLANT: Michael J. Curtis Ashland, Kentucky
BRIEF FOR APPELLEES: Marie E. Troxler Tracy D. Frye Nikki Burke Russell, Kentucky
BEFORE: DIXON, JONES, AND K. THOMPSON, JUDGES.
OPINION AFFIRMING
DIXON, JUDGE:
A.W.W.W. (Mother) appeals the order terminating her parental rights to B.N.W. (Child) and judgment of adoption entered by the Boyd Circuit Court on November 15, 2021. After careful review of the briefs, the record, and the law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On March 30, 2020, M.C.W. (Stepmother) petitioned for stepparent adoption of Child without Mother's consent on grounds that Mother had abandoned Child for 90 days and had otherwise failed to provide Child with parental care and protection or the essentials of life for at least six months, and that there was no reasonable expectation of improvement in the foreseeable future. KRS 199.470; KRS 199.502. Mother answered, denying that she had abandoned Child and asserting that she is current on child support. Pursuant to KRS 199.510, the Cabinet for Health and Family Services filed a confidential report recommending the adoption be granted if all legal requirements were met. A guardian ad litem (GAL) was appointed for Child, who likewise recommended the adoption be granted.
Kentucky Revised Statutes.
A final hearing was held on May 19, 2021, at which Mother was not present. B.L.W. (Father), Stepmother, and M.W. - Mother's ex-husband with whom she shares a younger daughter - testified. Per the testimony, one month after Child was born on February 26, 2009, Mother and Father separated after Father returned home to discover an unattended grill creating a fire risk and Mother intoxicated while caring for Child. Father promptly filed for a dissolution of marriage, and Mother was restricted to supervised parenting time during the pendency of the action. In January 2010, the marriage was dissolved, and the court adopted Mother and Father's agreed order for joint custody and equal parenting time.
In June 2010, Mother was arrested for wanton endangerment first degree after police found her and Child nude in an unkempt house with scissors and alcohol bottles scattered on the floor. Mother pled to wanton endangerment second degree. After a period of suspended visitation, Mother was restricted to supervised visitation. Eventually, Mother's restrictions were rescinded, but following an incident in May 2013, where Mother was intoxicated while caring for her infant daughter from her subsequent marriage to M.W., Mother's visitation with Child was again suspended until July 2013, when supervised visitation was reestablished. In October 2013, Mother was charged and convicted of driving under the influence. Despite being permitted to have supervised visitation, Mother did not see Child until January 2014, and her final contact with Child occurred on June 21, 2015.
Beyond these specific events, Father and Stepmother testified that Mother's visitation with Child was always sporadic in nature, with extended periods without contact ranging from 30 days to nine months over the course of years. Further, Father and Stepmother testified that even when visitation did occur, Mother would frequently return Child early. Father testified that Mother had not been to any of Child's sporting events for the past six to eight years and had never requested information regarding Child's educational or medical status from him or Child's providers.
In contrast, Stepmother has been consistently in Child's life since he was nine months old, and they have lived as a family since Father and Stepmother's marriage in 2012. Child and Stepmother are bonded - he calls her "Mom" - and Child has a close relationship with Stepmother's family. Stepmother is an active participant in all areas of Child's life, and she and Father have exclusively provided all of Child's parental care since June 2015. Child is doing well, is happy, receives A's in school, and plays various sports.
On cross-examination, Father admitted that Child receives monthly payments from Mother's Social Security Disability, which started two years prior to the hearing, and received a lump sum of $20,000. He acknowledged that these payments, as well as any associated future benefits, will cease if Mother's rights are terminated. Nonetheless, Father and Stepmother asserted that they believe adoption is in Child's best interest because they can meet Child's financial needs through their gainful employment.
After the hearing, the evidence was supplemented with Mother's deposition. Mother denied that she abandoned Child for 90 days, although she admitted to not seeing Child from May 2013 to January 2014 and after 2017. She argued that Father hindered her visitation by being late to exchanges, or changing the location, and by constantly filing motions and appealing visitation orders. Mother admitted she is unfamiliar with Child's educational, extracurricular, and health matters, but she argued this is because Father refuses to communicate with her. Mother asserted that she had attempted to maintain a relationship with Child over the years by writing to the judge and texting or calling Father, though she did not provide specifics as to when these interactions occurred or the result. Additionally, immediately prior to this action, Mother, through counsel, wrote to Father informing him that she had been diagnosed with cancer and seeking to gradually reestablish visitation.
With regard to her ability to provide Child with parental protection and the essentials of life, Mother denied having a problem with alcohol and noted that: she has had no convictions since her DUI, there were no safety issues in the last three years during which she had contact with Child, and she presently provides care for her current husband's child without incident. Mother denied that she has failed to provide for Child. She testified that she provided financial support and the option of a medical card for Child through her Social Security Disability benefits even though Father did not want her assistance. Mother denied that adoption is in Child's best interest.
After submission of proof, the Court concluded that Child's best interest was served by granting the adoption where Mother had abandoned Child for 90 days and had failed to provide Child with essential food, clothing, and shelter for at least six months with no reasonable expectation of improvement. Accordingly, the court entered an order terminating Mother's parental rights and a judgment of adoption. Mother timely appealed.
STANDARD OF REVIEW
Adoptions permanently sever a parent's fundamental liberty interest to rear their 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. Consequently, 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 out in CR52.01 and will only disturb those findings if they are unsupported by substantial evidence. Id. With these standards in mind, we turn to Mother's arguments.
Kentucky Rules of Civil Procedure.
ANALYSIS
Pursuant to KRS 199.520, a judgment of adoption shall be entered if, after a hearing, the court finds that: the facts of the petition were established; all legal requirements have been satisfied; the petitioner is of good moral character, with reputable standing in the community, and possesses the ability to properly maintain and educate the child; the child is suitable for adoption; and adoption is in the child's best interest. An adoption may be granted without the consent of the parent if a petitioner pleads and proves that at least one of nine conditions set out in KRS 199.502 exists. These, relevantly, include that the parent abandoned the child for at least 90 days and that, for reasons other than poverty alone, the parent failed for at least six months to provide the child with the essentials of life, and there is no reasonable expectation of improvement in the foreseeable future. KRS 199.502(1)(a), (g).
Mother first argues that the order terminating her parental rights is erroneous because the court failed to comply with the dictates of KRS 625.090 and render a determination of whether Child was abused or neglected as defined by KRS 600.020(1). Mother is incorrect, however. Contrary to Mother's claims, the underlying action was for an adoption which is governed by KRS 199.470-199.590, not KRS Chapter 625, and nothing therein requires a determination of neglect or abuse. For that reason, this claim fails.
Next, Mother argues that, despite the conflicting testimony, the court erred in concluding that she had abandoned Child for at least 90 days. Essentially, Mother admits to long periods of absence from Child's life but attributes them to Father's interference. In support, Mother argues: (1) she took off work to be present for Child's first day of school, but Father changed "it" (by which we presume Mother means Father changed the school Child was to attend) without telling her; (2) Father made a relationship with Child difficult by insisting Mother have supervised visitation; and (3) visitation went well during the three years prior to her last contact with Child in 2017.
"'[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; therefore, a parent's absence on its own is insufficient to justify termination of parental rights. Id. "[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Accordingly, we are required to give due deference to the court's credibility determinations and may only disturb the court's findings if they are not supported by substantial evidence. Id.; CR 52.01.
Herein, the court found that Mother had demonstrated a settled purpose to forego her parental duties and claims to Child by her failure to provide any parental care for more than four years. This finding was supported by substantial evidence. Mother admitted to not seeing Child for at least four years prior to the underlying proceedings, and Father testified that she made no efforts to stay abreast of Child's status. Mother further admitted that in the past seven years, she had not been involved with Child's medical care, education, or recreational activities, and with the exception of her disability payments which began in approximately 2019, she had also provided no food, clothing, or support for Child. While Mother disputes that she intended to absent herself from Child's life, because the court's findings are not clearly erroneous, we are compelled to accept the court's determination that Mother's less than compelling testimony was of little weight. Hence, we conclude the court did not err.
We need not address Mother's related argument that the court erred in concluding she had failed to provide Child with the essentials of life because the court's determination of abandonment satisfies KRS 199.502.
Finally, Mother contends the court's best interest determination is erroneous because, given her diagnosis and the fact she has not used alcohol in years, Child's best interest would be served by granting her visitation and not by adoption which would sever their relationship. The court made limited findings regarding Child's best interest, noting only that Mother had been absent from Child's life for at least four years, there was no reasonable expectation of improvement from Mother based on her past conduct, and Child had expressed his desire not to see Mother. While a more thorough analysis would certainly be a better practice, Mother did not seek additional findings. Moreover, the court's findings, though limited, are supported by substantial evidence, and it is unrefuted that Child is doing well in Stepmother's care. Consequently, we find no error.
CONCLUSION
Therefore, and for the foregoing reasons, the order and judgment of the Boyd Circuit Court are AFFIRMED.
ALL CONCUR.