Opinion
2022-CA-1235-ME
03-31-2023
A.Z.H. APPELLANT v. H.G.S.; A.R.S., A MINOR CHILD; AND B.K.S. APPELLEES
Briefs for Appellant: Ira S. Kilburn Salt Lick, Kentucky Brief for Appellee H.G.S.: Betty Megan Williams Mt. Sterling, Kentucky
NOT TO BE PUBLISHED
Appeal from Menifee Circuit Court Honorable William Evans Lane, Judge Action No. 21-AD-00008
Briefs for Appellant: Ira S. Kilburn Salt Lick, Kentucky
Brief for Appellee H.G.S.: Betty Megan Williams Mt. Sterling, Kentucky
Before: Easton, Lambert, and McNeill, Judges.
OPINION
LAMBERT, JUDGE
This is a stepparent adoption case in which the natural Father has appealed from the judgment of adoption entered by the Menifee Circuit Court on September 25, 2022, which terminated his parental rights, and from the findings of fact and conclusions of law entered the same day. We affirm.
A.Z.H. (the Father) and B. K. S. (the Mother) are the natural parents of minor child A.R.S. (the Child), who was born in 2013 when the parents were fifteen years old. The Mother married H.G.S. (the Stepfather) in 2019. And on July 20, 2021, the Stepfather filed a petition to adopt the Child, with the Mother's consent. The Stepfather alleged that he and the Mother had sufficient assets to protect and raise the Child. A guardian ad litem (GAL) was appointed for the Child.
The Stepfather filed an amended petition that October, stating that he was bringing his adoption petition pursuant to Kentucky Revised Statutes (KRS) 199.502 without the consent of the Father. In support of the petition, the Stepfather alleged that the Father had failed to protect and preserve the Child's fundamental right to a safe and nurturing home, that the Child was abused and neglected by the Father as defined in KRS 600.020, and that it was in her best interests that the Father's parental rights be terminated. The Stepfather specifically alleged that the Father had abandoned the Child for more than 90 days (KRS 199.502(a)), had failed to provide essential parental care and protection for the Child for not less than six months without a reasonable expectation of improvement (KRS 199.502(e)), and had failed to provide the essentials for the Child for reasons other than poverty without a reasonable expectation of significant improvement in his conduct in the immediately foreseeable future (KRS 199.502(g)). Therefore, the Stepfather requested that the trial court terminate the Father's parental rights and grant his petition to adopt the Child.
The Father filed an answer in opposition to the petition. He alleged that the Stepfather had taken steps to prevent him from seeing and having meaningful contact with the Child and that it would be in the Child's best interests to grant him joint custody with equal timesharing.
The trial court held a final hearing on May 11, 2022. The Mother testified first. She was born in 1997 and at the time of the hearing was a full-time student studying elementary education. She had been in a relationship with the Stepfather for the past seven years, and they had been married for three years. They had one child together, and she was expecting their second child. The Mother and the Child had moved in with the Stepfather in May 2016 after the Mother graduated from high school. She testified that the Stepfather and the Child had a great relationship and that the Child thought the Stepfather was her father until they told her he was not two years before.
The Child was born in August 2013 from the Mother's prior relationship with the Father. They were both 15 years old when the Child was born, and they never married. Paternity had been established through a DNA test. The Mother had been living with her mother (the Maternal Grandmother) when the child was born. The Maternal Grandmother supported the Mother and the Child at that time. The Mother went back to high school but remained active as a mother. When the Child turned one year old, she and the Maternal Grandmother decided that the Mother would move back to Menifee County to live with the Maternal Great-Grandmother. The Child stayed with the Maternal Grandmother during the Mother's junior and senior years in high school, and the Mother would get the Child on weekends and stay with her one day per week.
The Mother testified that the Child did not have a relationship with the Father, or any of his extended family. After the Child was born, the Father was in and out of her life. The Mother wanted him to be involved and got him visitation rights. But he would not help her with the Child and would show up late for visits. In August 2015, shortly after the Child turned two years old, the Father had her for a few hours. That was the last time the Father had seen the Child, and the Mother had not heard from him again. As far as she knew, he was on drugs and partying a lot. As of August of 2022, the Father would not have seen the Child for seven years.
In August of 2020, the Father wrote a letter to the Mother while he was in rehab to make amends and apologize. He asked if he could see the Child when he got out of rehab in a couple of months. She and the Stepfather talked with the Child about this, and the Child told them that she did not want to see the Father. The Mother replied to the Father with this information. She did not hear from the Father for another year, when he sent her two text messages to which she did not reply. In the second message, the Father asked for her address so that he could send her the court information. By that time, the adoption petition had already been filed.
The Mother went on to testify about her relationship with the Father. They had been together more than two years. She said it was not a good relationship. The Father cheated on her, both while she was pregnant and after the Child was born. He refused to work. He abused her emotionally and physically. He constantly lied about where he was and with whom. The Father had moved in with her and the Maternal Grandmother after the Child was born. He was supposed to be going to work, but he was not doing that, going to school, or staying home to care for the Child. She said there were many red flags, but she wanted it to work. She knew he was smoking marijuana, although she did not know about any other substances he was taking. As to his mental health, she said it was apparent when he was off his medication. He took medication for attention-deficit/hyperactivity disorder (ADHD) and bipolar disorder.
The Mother testified that there were multiple periods of 90 days where the Father had not reached out to her or attempted to be part of the Child's life. He did not support or provide anything for the Child. She knew he had been ordered to pay child support and stated that he had paid some of that. The Father started making small incremental payments once this petition was filed. He was just over $10,000.00 in arrears.
The Mother believed it was in the Child's best interest to allow the Stepfather to adopt her. They had the financial means to raise her, and the Child wanted the adoption to be granted.
The Father's brother testified next. He had been married to the Mother's sister until four or five years ago. Their mother (the Paternal Grandmother) visited with the Child a few times but that ended because the Mother's family would not allow any contact. He testified that the Father had gone through a bad phase, doing drugs and committing crimes, but was a different person now. He was capable of being a good father to the Child, had the financial means to support her through his work, and was able to provide essential care and support for her.
The Paternal Grandmother testified next. She had been able to see and visit with the Child two times per week for a couple of months after the Child was born. The visits stopped when the Mother refused to let her see the Child. At that time, the Mother and Father had broken up. She had not seen the Child since she was a baby, and they had not had the opportunity to create a relationship. The Paternal Grandmother went on to testify about the father's criminal issues, mental health diagnoses, including ADHD, and his rehab stays for his drug addiction. She thought he was rehabilitated and was doing well. He was trying to take responsibility, and she thought he was currently able to provide essential care and protection for the Child. She testified that she had told the Father he was old enough at the age of 15 to decide whether to take medication for his mental health issues.
The Father testified next. He testified about the birth of the Child when he was 15 years old and that he had moved in with the Mother and the Maternal Grandmother when she was born. At that time, he worked at McDonald's, and he said that most of his pay went to help support the Child. He was currently paying support through the child support office. He believed he was able to provide for the Child's essential needs but had never been allowed to do any of this. The Father testified about his drug addiction, including a 2019 heroin overdose, and his rehab stays in 2019 and June of 2020. He said he had gone to rehab for a year and had been clean ever since without any issues. The Father testified that he had been diagnosed with ADHD and bipolar disorder and was currently healthy, both physically and mentally. He stopped taking his ADHD medication when he was 17 years old, and he finished high school after that. He had been treated at Pathways and was supposed to do an aftercare program. He had also participated in Alcoholics Anonymous and Narcotics Anonymous (AA and NA). He had not done his aftercare program or continued his participation in AA and NA because he had joined a church.
The Father also discussed his criminal charges, which included burglary, receiving stolen property, and sexual misconduct. The sexual misconduct charge was when he was almost 19, and the girl he was seeing was 16. He pled guilty, and the charges were diverted in early 2022.
The Father had not seen the Child for 5 or 6 years but claimed that he had tried to see her. He was blocked on social media. He said they would communicate through the Maternal Great-Grandmother. That ended because she was going to lose contact with the Child if the communications continued. He admitted that he had gone more than three months at a time without attempting to see the Child.
The Father testified that had never abused the Child or been adjudicated by a court to have done so. She had never been removed from his care. He believed he was able to provide essential care and protection for the Child. He said the only thing that got him through rehab and his problems was his desire to have a relationship with the Child. He understood that he had walked away, but he was ready to be a father. He began regular payments of child support in February 2021.
On rebuttal, the Mother disputed that she had ever told anyone in her family that she would cut them off if they allowed the Father or his family to see the Child. The Maternal Great-Grandmother also testified. The Mother had lived with her while she finished high school. She denied that she had ever acted as an intermediary between the Mother and the Father's family. No one had ever asked her to do this or asked for contact information. She denied that the Paternal Grandmother had ever been to her house to see the Child, and the Father's family had never brought any gifts for the Child.
At the conclusion of the testimony, the Father moved for a directed verdict due to insufficient evidence to justify the Stepfather's petition. The petition alleged that the Child had been abused or neglected, but there was no such testimony introduced. There was no testimony that there was no reasonable expectation of improvement; the opposite was true. The abandonment issue was the sole element that remained. He questioned whether abandonment for 90 days was enough to terminate his rights when he had turned his life around and because he had not intended to abandon the Child. The Stepfather argued that the Father had admitted to abandonment, and that was enough to support granting the petition. He also mentioned the Father's decision to stop taking his medications for his mental health diagnoses as well as the Father's pattern of conduct, including multiple rehab stays and his decision to stop taking his medications. He would be battling his substance abuse issues for the rest of his life. He described this as "too little, too late," as the Mother had stepped up to raise the Child while the Father had not. The Stepfather argued that the Child had been neglected by the Father, that the Father had abandoned the Child for 90 days, and that he had not consistently paid support for the Child. This was not due to poverty as he had maintained a job. Finally, the Stepfather argued that the Father had intended to abandon the Child when he decided to place drugs and criminal activity above the Child for years.
The GAL filed a report on August 23, 2022, in which she stated that she had met with the Child and the Mother, and that the Child had expressed a "strong desire to be adopted" by the Stepfather and have her last named changed. The Child had not seen the Father since 2015, when she was two years old, and "[i]t was reported that she was very bonded with her step-father and considered him to be her father." Based upon the testimony and evidence that had been submitted at the hearing, the GAL recommended that the Father's parental rights be terminated as he had abandoned the Child for more than 90 days and had failed to provide any parental care or protection for her for five years. The Child did not have any familial bond with the Father or his family. The GAL went on to recommend that the court grant the Stepfather's petition to adopt the Child as it was in her best interests.
The Stepfather also filed a post-hearing memorandum in support of his petition. He argued that a trial court only had to make a finding under one subsection of KRS 199.502(1) and that subsection (a), related to abandonment, did not require a consideration of future conduct. He also argued that the testimony at the hearing supported a finding under KRS 199.502(e) and (g) due to the Father's long history of drug abuse, his mental health diagnoses, his admitted failure to follow the discharge recommendations of his last drug rehabilitation center, and his decision to stop all mental health treatment without medical advice.
The trial court entered its findings of fact and conclusions of law on September 25, 2022, in which it detailed the testimony elicited at the hearing and concluded that the Father had abandoned the Child for 90 days, failed to provide essential parental care and protection for the Child for six months without a reasonable expectation of improvement, and failed to provide essential food, clothing, shelter, medical care, or education for the Child's well-being without an expectation of significant improvement in the immediately foreseeable future. The court went on to conclude that the Father did not devote himself to parenting the Child when he did not have physical custody of her, that he had a child support arrearage of approximately $10,000.00, and that he had never sent her birthday or holiday cards or purchased her school supplies or clothing. The court found that it would be in the Child's best interest to terminate the Father's parental rights and for the Child to be adopted by the Stepfather. The same day, the court entered a judgment of adoption. This appeal now follows.
On appeal, the Father asserts that the Stepfather had not met the requirements of KRS Chapter 199 and that the judgment of adoption should be vacated. The Stepfather disputes this assertion and requests that this Court affirm the judgment.
While the Father argues that this Court should review the trial court's decision to grant the adoption petition de novo, we agree with the Stepfather that our review is based on the clearly erroneous standard as set forth in M.S.S. v. J.E.B., 638 S.W.3d 354, 359-60 (Ky. 2022):
"An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." Parental rights are a "'fundamental liberty interest protected by the Fourteenth Amendment' of the United States Constitution." As such, "termination of parental rights is a grave action which the courts must conduct with 'utmost caution.'" So, "to pass constitutional muster, the evidence supporting termination must be clear and convincing."
That said, trial courts are afforded a "great deal of discretion" in determining whether termination of parental rights is appropriate. "A family court's termination of parental rights will be reversed only if it was clearly erroneous and not based upon clear and convincing evidence." "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."
Additionally, "[s]ince adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents."(Citations and footnotes omitted.) "[T]he Court will not disturb the trial court's findings unless no substantial evidence exists on the record." M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 850 (Ky. App. 2008).
The procedure for private adoptions when a biological parent is still living is set forth in KRS Chapter 199.
[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).
KRS 199.502, the statute under which the Stepfather filed his amended petition, addresses what conditions are necessary for an adoption without the consent of the child's biological living parents. It provides in relevant part 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 wellbeing 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;
(2) Upon 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.
The conditions listed in subsection (1) are, with a few exceptions not relevant here, identical to the grounds listed in KRS 625.090(2), which provides for the involuntary termination of parental rights.
First, the Father argues that the trial court failed to comply with KRS 199.502(2) when it did not identify the specific facts upon which it based its decision that adoption was warranted. Rather, it merely summarized the testimony from the hearing and parroted the statute for its conclusions. The Father cites to an unpublished opinion of this Court, K.S.A. v. Smith, No. 2019-CA-1911-ME, 2021 WL 2021833 (Ky. App. May 21, 2021), in support of this argument. The issue in K.S.A. is somewhat distinguishable from the present case as it addressed written notes on calendar orders, only some of which were signed, and was a case that had been bifurcated, with the termination proceeding held first. The adoption judgments did not include written findings regarding the termination of parental rights but rather referenced the earlier "orders." Id. at *1. This Court declined to reach the merits of the appeal, holding:
[T]he handwritten "findings" set out on each calendar entry in the respective case files do not comply with KRS 199.502(2). The notations are similar in each case and at best are nothing more than a conclusory summary of evidence presented without any specificity based upon the testimony actually heard by the court. And, there were no orders entered terminating K.S.A.'s parental rights. These purported handwritten "findings" are simply insufficient as a matter of law to uphold the termination of K.S.A.'s parental rights. Perhaps most disturbing, the court stated at the end of the termination hearing that her "findings" were only to allow the adoption to proceed.
This Court has long held that orders terminating parental rights must state specifically the facts presented which justify the court's decision. Dep't for Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky. App. 1977). The mere parroting of the statutory language in KRS 199.502(1) as a purported finding to support termination without citation to the specific evidence presented which supported the family court's decision is not sufficient to comply with the mandatory requirements of KRS 199.502(2). See M.L.C. v. Cabinet for Health and Family Servs., 411 S.W.3d 761, 765 (Ky. App. 2013). In order for a family court's written findings to comport with KRS 199.502(2), the findings should be based upon the testimony and other substantive evidence presented at the hearing. Likewise, the family court needs to specify which evidence it relied upon to reach its legal conclusions. Otherwise, an appellate court is without any evidentiary basis in the record upon which it can conduct a competent review. And, it is not our responsibility to weigh the evidence presented. That duty is borne by the family court, which shall make factual findings thereof. A.F. v. L.B., 572 S.W.3d 64, 76 (Ky. App. 2019). Again,
we must emphasize that conclusory summaries of the evidence heard by the court without making specific findings simply do not comply with KRS 199.502(2).K.S.A., 2021 WL 2021833, at *4 (footnote omitted).
In the present action, the trial court made extensive findings in its written findings of fact and conclusions of law, and while much of the findings represent summaries of witness testimony, we hold that these are sufficient to meet the requirement in KRS 199.502(2). Therefore, we shall review the merits of the Father's appeal.
In the present action, the trial court found grounds supporting termination under KRS 199.502(1)(a), (e), and (g). We shall consider the abandonment ground first.
To establish abandonment under KRS 199.502(1)(a), it must be proven that the parent abandoned the child for a period of not less than 90 days. In S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010), this Court discussed the abandonment factor, stating:
Abandonment is not actually defined in our jurisprudence in the context of termination proceedings. Rather, "abandonment 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).
"Separation to constitute abandonment and neglect must be wilfull and harsh." Kantorowicz v. Reams, 332 S.W.2d 269, 271-72 (Ky. 1959). "Although payment of support is a significant factor in determining whether a parent has abandoned a child, Hafley v. McCubbins, 590 S.W.2d 892 (Ky. App. 1979), it is but one factor to be considered." S.B.B., 304 S.W.3d at 716. In addition, "abandonment must be based on more than mere failure to exercise visitation. Distance and inconvenience are no longer barriers to keeping in touch with others as modern technology has made communication ubiquitous and instantaneous, a blessing for absent parents. However, a vast distinction exists between absence and indifference." Id. at 717.
The evidence supports the trial court's conclusion that the Father had abandoned the Child for a period of not less than 90 days. The Mother testified that the Father had not seen the Child for seven years and that they (the Father and the Child) did not have a relationship. She stated that after the Child was born, the Father was in and out of the Child's life. Despite having visitation rights, the father did not show up or was late for visitations, and he did not pay child support. The Father had not seen the Child since mid-2015, and the Mother had not heard from him until August of 2020, when he had written her a letter while he was in rehab to ask if he could see the Child when he completed rehab in a couple of months. After she declined, the Mother did not hear from the Father again for a year, when he sent her two text messages.
The Mother specifically testified that there were multiple periods of 90 days where the Father had not reached out to her or attempted to be part of the Child's life. He began making small incremental child support payments once this petition was filed, and he had an arrearage of more than $10,000.00. We also note that the Father specifically admitted during his testimony that he had gone more than three months at a time without attempting to see the Child. The Father did not produce evidence to dispute or explain his absence from the Child for most of her life, other than his addiction and criminal problems.
We agree with the Stepfather that there is clear and convincing evidence to support the trial court's finding that the Father had abandoned the Child for 90 days; in fact, the proof is that he had abandoned her for many years. The Father's claim that he had desired to be part of the Child's life is not enough to overcome his actions in failing to take part in her life by keeping in contact with her or providing for her support and care. After he last saw the Child in 2015, the evidence establishes that he did not reach out to the Mother to contact the Child until August 2020 and then in July 2021. And he did not seek visitation through the court again until July 2021. This is not enough to overcome the proof that he abandoned the Child for well over the 90-day period set forth in KRS 199.502(1)(a). The trial court did not commit any error in so concluding.
The Stepfather is only required to prove one of the conditions set forth in KRS 199.502(1), and he has done so by establishing that the Father had abandoned the Child pursuant to subsection (a). See C.J. v. M.S., 572 S.W.3d 492, 496 (Ky. App. 2019) ("If the adoption is sought without consent, KRS 199.502(1) requires proof as part of the adoption proceedings that one of the conditions set forth in subjections (a)-(j) exists with respect to the child at issue."). Therefore, we need not reach whether the Stepfather established the conditions set forth in subsections (e) and (g), which also include proof that there was no reasonable expectation of improvement or significant improvement. However, we note that the Father has had years of sobriety issues and chose to terminate his aftercare support services.
In addition to its decision to terminate the Father's parental rights, we also hold that the trial court made the required findings regarding the Stepfather and the best interests of the Child to support granting the adoption petition.
For the foregoing reasons, the judgment of the Menifee Circuit Court is affirmed.
ALL CONCUR.