Opinion
2023-CA-1075-ME
06-28-2024
C.M.C. APPELLANT v. P.K.R.; A.M.C., A MINOR CHILD; AND K.K.R. APPELLEES
BRIEF FOR APPELLANT: Ami L. Brooks Russellville, Kentucky. BRIEF FOR APPELLEES: Steven C. Girsky Clarksville, Tennessee.
NOT TO BE PUBLISHED
APPEAL FROM TODD CIRCUIT COURT HONORABLE JOE W. HENDRICKS, JR., JUDGE ACTION NO. 22-AD-00003
BRIEF FOR APPELLANT: Ami L. Brooks Russellville, Kentucky.
BRIEF FOR APPELLEES: Steven C. Girsky Clarksville, Tennessee.
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
CALDWELL, JUDGE.
C.M.C. ("Father") appeals from the judgment of the Todd Circuit Court which granted the petition for adoption of P.K.R. ("Stepfather") and terminated Father's parental rights to A.M.C., a minor child to Father and K.K.R. ("Mother"). After a careful review of the briefs and the law, we affirm.
BACKGROUND
Mother and Father began dating when they were in their early teenage years and married after Mother discovered she was pregnant in July 2011. Father was enlisted in the military and was deployed to Iraq shortly afterwards for several months. A.M.C. was born in early 2012 and Father returned. The parents' relationship over the next several years can only be described as tumultuous.
During the final adoption hearing, Mother testified at length about several domestic violence incidents perpetrated by Father over the years, which began when they were in high school and some of which occurred in the presence of A.M.C. She further testified Father was sporadically in and out of A.M.C.'s life for several month-long periods of time between May 2012 and 2018. Father provided conflicting testimony about some of the incidents and simply denied that others happened.
Both Father and Mother testified about Father's criminal history, which includes multiple DUIs, wanton endangerment and assault charges, and a felony sustained as a result of a high-speed intercounty motorcycle chase between Father and police in 2014. Father was sentenced to eight years of imprisonment but was released on parole after a few months, which he completed without violation. Father testified that he knew something was wrong with his mental health after this incident and was subsequently diagnosed with Post Traumatic Stress Disorder ("PTSD").
In February 2018, Mother filed a petition for dissolution (the "civil custody case"), and in March 2018 Mother filed a petition for a domestic violence order ("DVO") on behalf of herself and A.M.C. The DVO was filed as the result of an incident in which Father and his girlfriend came to Mother's house, began banging on the doors and windows, threw food across Mother's porch, and sent Mother harassing phone messages afterwards. The circuit court entered a DVO for one year as well as a bifurcated decree of divorce, reserving issues involving the child. Mother and Stepfather began dating in April 2018. After a hearing in June 2018, the circuit court entered an order that awarded sole custody to Mother, prohibited any contact between A.M.C. and Father's girlfriend, and stated Father could have visitation with A.M.C. only upon motion, when and if he produced all medical records pertaining to his PTSD diagnosis.
Father's criminal behaviors continued after the June 2018 custody hearing; the day afterwards, Father was arrested for assaulting a young woman - allegedly pistol whipping her - though charges from this incident were ultimately diverted. In November 2018, he was charged with wanton endangerment for drunkenly grabbing the steering wheel of a moving car from the hands of his girlfriend, causing the car to drive off the road. Father also received a DUI in Tennessee in 2019.
The DVO expired in March 2019 and in May of that year Father claimed he sent a text message to Mother but received a response that it was the wrong number. Father also attempted to contact Mother via social media, sending her two messages in July 2019, which Mother admitted to ignoring. Both parents acknowledged that Father has not seen or spoken to A.M.C. at least since the entry of the DVO in 2018, besides one interaction which occurred on Thanksgiving 2018, despite the DVO being in place.
There was conflicting testimony presented about this incident at the final adoption hearing. What is undisputed is that Mother let Father's family take A.M.C. to the home of Father's sister for a Thanksgiving dinner, and Father arrived there while A.M.C. was still present. Mother found out about Father's presence and expressed her desire to not allow any more contact between A.M.C. and Father's family. Father's family attempted on one occasion in December 2018 to present A.M.C. with gifts; however, this resulted in police being called and Father's family have not had any significant contact with A.M.C. or Mother since then.
Father admitted that there was a gap in his medical treatment for his mental health issues between 2016 and 2020. However, Father explained he ultimately sought help after a voluntary hospitalization in September 2020. Since then, Father testified that he has been taking medication, though he could not recall what it was, and was going to therapy at the VA at least once a month. Additionally, Father stated he smoked marijuana multiple times most days to help manage his PTSD symptoms, but admitted he had been smoking marijuana since he was in high school. Father claimed that he had not drank alcohol since getting the 2019 DUI and that he had had no other criminal problems since then, other than an April 2023 speeding ticket for going 26 miles over the speed limit, which he was currently disputing.
Father testified that he received disability payments from the VA for his PTSD, a portion of which went to Mother for child support. No child support records were produced at the adoption hearing, but according to Father, he was never more than a month or two behind in making payments, other than when child support was initially awarded and he was assessed a significant arrearage which was set retroactive to the date Mother had filed the petition for dissolution. He admitted to being incarcerated for a short time in 2019 for nonpayment, but as of the date of the adoption hearing, Father was current on his payments.
Eventually in January 2022, Father filed a motion to establish visitation in the parties' civil dissolution and custody case. In the motion he referenced the June 2018 order and stated he was now ready to submit medical records relating to his PTSD. He also requested the no contact provision between A.M.C. and his girlfriend be lifted since he was now engaged.
Mother and Stepfather married on March 10, 2022 and Stepfather filed the petition for adoption in the underlying case the next day. Mother admitted she and Stepfather married sooner than anticipated for the purpose of filing the adoption petition. The circuit court consolidated the hearing on Father's motion for visitation filed in the civil custody case and the hearing in the adoption case.
During the final adoption hearing, Mother called Mary Davis, a licensed clinical social worker, as a witness. Ms. Davis had completed two reports, which were introduced into evidence after talking with Mother, Stepfather, and A.M.C. on two different occasions, and speaking with Father on one. She testified that her initial assessment was that Mother's detailed and extensive history of reported abuse was credible and led her to think she was a battered wife. She further stated that A.M.C. seems to be stable and healthy where she is now and has concerns with reintroducing Father because A.M.C. expressed reluctance to reunite with Father, exhibited a concerning demeanor when talking about Father, and claimed to remember some of the domestic violence incidents as described by Mother. She commended Father for seeking mental health treatment but had concerns that he had not significantly addressed his issues. She explained that Father exhibited a lack of empathy when trying to see things from A.M.C.'s point of view; he concerningly denied any violence happened between Mother and himself (other than when they both had been drinking); and she would be concerned with A.M.C. being subject to any reactionary triggers from his PTSD.
The guardian ad litem ("GAL") also filed a report recommending that adoption was in A.M.C.'s best interests. He stated that A.M.C. was an intelligent eleven-and-half-year-old in a stable home and had expressed her desire for Stepfather to adopt her. The GAL acknowledged A.M.C. may be entitled to some benefits through the VA if the termination is denied, but still recommended granting the adoption given his concerns with Father's history of criminal charges, abuse, and mental health issues.
After the adoption hearing, the circuit court granted the Stepfather's petition for adoption and terminated Father's parental rights, finding by clear and convincing evidence that multiple factors contained in KRS 199.502(1) existed, and that the adoption would be in A.M.C.'s best interests. On appeal, Father argues that the circuit court's findings were clearly erroneous.
Kentucky Revised Statutes.
STANDARD OF REVIEW
An adoption without the consent of a biological parent is tantamount to a proceeding which involuntarily terminates that parent's parental rights. Moore v. Asente, 110 S.W.3d 336, 351 (Ky. 2003). The standard of review in a case concerning the involuntary termination of parental rights "is confined to the clearly erroneous standard in CR 52.01, based upon clear and convincing evidence, and the findings of fact of the trial court will not be disturbed unless no substantial evidence exists in the record to support its findings." J.R.E. v. Cabinet for Health & Fam. Servs., 667 S.W.3d 589, 592 (Ky. App. 2023) (citations omitted.) Clear and convincing evidence exists when it is of a "probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." Id. (citing Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
Kentucky Rules of Civil Procedure.
"That said, trial courts are afforded a 'great deal of discretion' in determining whether termination of parental rights is appropriate." M.S.S. v. J.E.B., 638 S.W.3d 354, 359 (Ky. 2022) (quoting M.P.S. v. Commonwealth, Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998)). And "under [the clearly erroneous] 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 (citations omitted).
ANALYSIS
A trial court contemplates four distinct considerations in a contested adoption proceeding:
(1) [D]id 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). In this case, there is no dispute concerning the first and third considerations. Father contests the findings of the circuit court with regards to the second and fourth considerations.
There were procedural issues with Stepfather's initial petition for adoption; however, those were rectified after the circuit court allowed him to file an amended petition.
KRS 199.502(1) provides in relevant part:
[A]n 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;
. . .
(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;
. . .
(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 . . . .
In this case, the circuit court found that the conditions under KRS 199.502(1)(a), (c), (e), and (g) existed. However, those factors are not inclusive and only one need be proven in order for the trial court to grant an adoption without consent. See C.J. v. M.S., 572 S.W.3d 492, 496 (Ky. App. 2019).
Specifically, regarding KRS 199.502(1)(a), "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). Furthermore, "[s]eparation to constitute abandonment and neglect must be wilfull and harsh." Kantorowicz v. Reams, 332 S.W.2d 269, 271-72 (Ky. 1959). "[A]bandonment must be based on more than mere failure to exercise visitation . . . a vast distinction exists between absence and indifference." S.B.B. v. J.W.B., 304 S.W.3d 712, 717 (Ky. App. 2010).
Here, Father argues he did not abandon the child because the circuit court's June 2018 order in the custody case and the March 2018 DVO prevented his contact with A.M.C., and Mother thwarted his attempts to visit with A.M.C. Father likens Mother's conduct in the instant case to the mother's actions in P.C.C. v. C.M.C., Jr., in which this Court found that abandonment was not present when a custodial parent systematically thwarted and consistently frustrated the other parent's attempts to visit with a child. 297 S.W.3d 590, 592-93 (Ky. App. 2009). However, we believe this case is distinguishable.
In P.C.C., the parties had a visitation agreement, which the mother consistently refused to uphold for years. Id. at 591. The mother admitted to regularly removing the child from the state on the Father's Day holiday, and admitted to telling father's family to stay away from the child when he began asking them to keep in contact with child and even host birthdays. Id. at 592.
In this case, the entirety of Father's attempts to initiate visitation between March 2019, when the DVO expired, and January 2022 consist of two social media messages sent on one occasion and one other text message sent in 2019. Mother admitted to ignoring the social media messages but denied receiving the text message.
On cross-examination, Father admitted the text screenshot submitted into evidence was only a screenshot and Mother's phone number did not actually appear in it. Notably, neither the social media messages or the text mention anything about Father's attempts to seek mental health treatment for his PTSD or his willingness to provide medical records.
Additionally, Mother's prohibition of contact between A.M.C. and Father's family was based on her reasonable concerns regarding the capacity of Father's family to uphold the DVO and prohibit contact from occurring between A.M.C. and Father, which undisputedly occurred while the DVO was active in November 2018. Father expressed a fear that Mother would get police involved if he or his family attempted to make contact on his behalf; nevertheless, Father also acknowledged he could have still availed himself of the courts, which will be discussed further below.
Unlike the mother in P.C.C., Mother did not engage in "deliberate and systematic ploys" to thwart Father's attempts, and Father has not presented any evidence of consistent attempts to regain visitation. See R.P., Jr. v. T.A.C., 469 S.W.3d 425, 428 (Ky. App. 2015).
Father's actions further demonstrate those which evince a settled purpose to forgo all parental duties. Mother testified at length about several periods of time when Father was absent from the child's life for more than 90 days prior to 2018. Father did not provide any testimony to refute his absences, he merely denied they happened. Regardless, it is undisputed he has had no contact with A.M.C. since March 2018.
Notably, the circuit court's custody order of June 2018 prevented visitation, but provided Father a very clear avenue of how to regain it. Specifically, the order only stated that he should provide the medical documentation from the VA concerning his PTSD diagnosis. During the adoption hearing Father admitted he could have come back to the circuit court at any time, but remarked there was no explicit deadline for him to do so. He acknowledged one reason he waited for so long to file a motion was that he did not know what to do and felt like he needed an attorney. He testified that he attempted to file a motion several times; however, no evidence was presented that he actually did so, nor does it appear he made any attempts whatsoever from the record available.
While there was no deadline, there was no set waiting period either. From the plain language of the order, Father could have obtained his medical records and filed a motion for visitation the very next day. Instead, the next day he was arrested for assaulting a young woman. He then waited two years before seeking further treatment for his PTSD and then another year and a half before filing his motion for visitation. It is clear from the evidence presented, including his own testimony, that Father manifested an intent to abandon A.M.C. He chose to engage in criminal actions, abuse substances, forgo mental health treatment, maintain a relationship with a woman which the circuit court prohibited from being around A.M.C., and delayed filing a motion for visitation for four years rather than attempt to be a parent. See J.R.E., 667 S.W.3d at 594.
Concerningly, Father's initial motion for visitation mentioned he was engaged to the girlfriend which was to not have any contact with A.M.C. pursuant to the June 2018 custody order. For reasons not elaborated upon during the hearing, Father claimed to have ended his relationship with his girlfriend, to focus on A.M.C., shortly before the adoption hearing.
We acknowledge that Father had paid child support and was current at the time of the adoption hearing. However, while "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[,]" and on its own, "is insufficient to overcome the great weight of the evidence presented supporting termination of parental rights[.]" S.B.B. v. J.W.B., 304 S.W.3d 712, 715-16 (Ky. App. 2010); see also R.P., Jr., 469 S.W.3d at 428. In light of Father's conduct from the period of March 2019 to January 2022, we hold there was sufficiently clear and convincing evidence that Father abandoned A.M.C. for a period of more than 90 days; therefore, we need not address the circuit court's other findings made under KRS 199.502(1).
Additionally, clear and convincing evidence exists which supports the circuit court's finding that the adoption and termination was in the best interests of A.M.C. It is undisputed that A.M.C. is in a stable and caring home and has formed a loving bond with Stepfather. Father himself did not express any concerns with the parental capacity of Stepfather and Mother. The Cabinet for Health and Family Services, Ms. Davis, and the GAL all recommended adoption be granted in their respective reports. Furthermore, both Ms. Davis and the GAL expressed significant concerns about A.M.C.'s well-being if Father was reintroduced into her life considering Father's issues and the length of his current absence. A.M.C. herself, though only eleven, also expressed her willingness to be adopted by Stepfather. While it is commendable that Father appears to have sought regular treatment for his mental health issues and now wants to be a father, the evidence he presented simply does not overcome the weight of the evidence presented by Mother and Stepfather, and Father's own admissions. "We reiterate that it is within the exclusive province of the trial court to weigh the evidence. Its finding was supported by sufficient evidence, and we may not disturb it." R.P., Jr., 469 S.W.3d at 428.
CONCLUSION
In this case, we hold that there exists sufficiently clear and convincing evidence that Father abandoned A.M.C. for a period of 90 days or more and that the adoption and resulting termination of parental rights was in the best interests of A.M.C. Accordingly, we find no clear error and affirm the judgment of adoption.
ALL CONCUR.