Opinion
2021-CA-1301-ME
06-17-2022
J.E.P. AND L.P. APPELLANTS v. N.B.; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; AND K.G.P., A MINOR APPELLEES
BRIEFS FOR APPELLANTS: John M. Hendricks Winchester, Kentucky BRIEF FOR APPELLEE N.B.: Kimberly J. Olds Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT HONORABLE NORA J. SHEPHERD, JUDGE ACTION NO. 20-AD-00018
BRIEFS FOR APPELLANTS:
John M. Hendricks
Winchester, Kentucky
BRIEF FOR APPELLEE N.B.:
Kimberly J. Olds
Richmond, Kentucky
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
OPINION
ACREE, JUDGE:
VACATING AND REMANDING
Appellants, J.P. and Mother, appeal the Madison Family Court's October 5, 2021 denial of their petition (1) to terminate Appellee N.B.'s parental rights to Child and (2) for adoption of Child by J.P. We vacate the October 5, 2021 order and remand for further findings of fact and conclusions of law consistent with this Opinion.
BACKGROUND
N.B. is Child's biological father. Mother gave birth to Child on December 3, 2012. Mother and N.B. were not married but were in a relationship and cohabitated from 2011 until 2014. Their relationship began to deteriorate, and, according to Mother, her relationship with N.B. was toxic by the time the two separated. Mother and Child then moved from Versailles to Richmond.
N.B. failed to make child support payments since August 2015, and Mother states N.B. has had no contact with Child since October 2015. Mother states she and N.B. did communicate by electronic means for a time, but in 2015 she permanently blocked N.B. on social media and her phone following an argument. In those communications, N.B. acknowledged he provided no financial assistance and was not involved in Child's life for six years. He also acknowledged he had been an inconsistent presence in Child's life.
However, N.B. insists his absence from Child's life was due to no fault of his own. Instead, he claims Mother has been evading him and avoiding or rejecting his attempts to make contact. According to N.B., Mother did not tell him where she and Child were living in Richmond. He insists he regularly visited with Child on days when Child was with a babysitter in Versailles and continued to visit with Child on weekends once he moved to Louisville for work in 2014. The parties exchanged Child at locations along the interstate, and N.B. therefore remained unaware of Mother's location in Richmond. N.B. states Mother has not disclosed her and Child's address to him since their separation. Further, Mother did not talk to Child about her father after she severed contact. N.B. asserts he tried to contact Mother's family members in an attempt to contact Child.
Mother and J.P. began dating in July 2015 and were married in 2016. They have two children together. Mother described J.P. as "the rock" in Child's life and states J.P. is functionally Child's father; J.P. takes Child to school and sports activities and helps her with her homework. On November 30, 2016, Mother filed a petition for name change in the Madison District Court so Child's last name would match J.P.'s. Mother listed "no father known" on the petition, and, to Mother's knowledge, N.B. never received notice of the petition. The Madison District Court granted the petition on December 7, 2016.
N.B. avers he contacted the Jefferson County Child Support Office in March 2019 attempting to provide financial assistance to Child. He listed Child's birth name on the application and listed Mother's name as her name before her marriage to J.P. N.B. asserts the office could not locate Child and, therefore, N.B. could not initiate child support. Mother did not believe child support was necessary and, consequently, never initiated a child support action herself.
N.B. filed a petition to establish paternity, custody, and timesharing on November 12, 2019. Mother notes N.B. had not contacted Child for four years, but N.B. asserted in his petition he was unable to attempt a claim of custody or timesharing due to his previous financial circumstances. Mother and J.P. thereafter filed an action for stepparent adoption, which would terminate N.B.'s parental rights if granted.
The trial court held a hearing on October 5, 2021, on the custody and adoption petitions. The court heard testimony from multiple witnesses, including N.B., J.P., and Mother.
The trial court denied both petitions. It made limited written findings on a docket sheet, as well as oral findings. It found, in writing, that "[i]t remains the case that [C]hild does not know [N.B.], knows another as her father." The court also noted in writing that, although it could not terminate N.B.'s parental rights and it believed Mother's "interference with [N.B.'s] rights was unreasonable[, ]" it also believed granting N.B. his petition would not be in "[C]hild's best interest"; however, the trial court made no written factual findings to support its conclusions. The trial court declined to terminate N.B.'s parental rights and therefore did not grant the adoption. Mother and J.P. now appeal the trial court's denial of the adoption petition.
STANDARD OF REVIEW
"[A]n adoption without consent of the living biological parents is, by its very nature, a proceeding seeking the termination of parental rights." C.M.C. v. A.L.W., 180 S.W.3d 485, 489 (Ky. App. 2005). The standard of review in a termination case "is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings." M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky. App. 1998) (citing V.S. v. Cabinet for Human Res., 706 S.W.2d 420, 424 (Ky. App. 1986)). "Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established." American Rolling Mill Co. v. Pack, 278 Ky. 175, 182, 128 S.W.2d 187, 190 (1939) (citation omitted). Rather, "'[substantial evidence] means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]'" Id. (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).
Kentucky Rules of Civil Procedure.
ANALYSIS
"[A]n adoption without consent involves four distinct considerations[.]" A.K.H. v. J.D.C., 619 S.W.3d 425, 431 (Ky. App. 2021). A petitioner must (1) have complied with jurisdictional requirements; (2) establish any of the conditions outlined by KRS 199.502(1); (3) be "of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child"; and (4) the best interest of the child will be promoted by the adoption, and the child is suitable for adoption. Id. at 429-30; KRS 199.502(1). As relevant to this appeal, KRS 199.502(1) provides the following grounds for granting an adoption without consent of a biological parent, the existence of at least one of which must be demonstrated by clear and convincing evidence:
Kentucky Revised Statutes.
(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[.]
KRS 199.502(1)(a), (e), (g).
There are no written trial court findings discussing which of the circumstances outlined in KRS 199.502(1) the trial court judge determined existed in this case. However, these are the only grounds that apply based on the provided facts.
Appellants assert in their brief the trial court made an oral finding of abandonment under KRS 199.502(1)(a) and that clear and convincing evidence supports this finding. However, N.B. claims in his brief the trial court did not make such finding, but rather the trial court orally found N.B. failed to be a father to Child for most of Child's life. Thereafter, the trial court considered the actions of Mother in preventing N.B. from seeing Child. In contesting the trial court's ruling, Appellants argue the trial court erred in its oral findings when it determined Mother's obstruction of N.B. evinced a lack of moral character sufficient to deny the adoption, and the trial court should have analyzed J.P.'s moral character instead.
The trial court failed to memorialize any of its legal conclusions or the factual findings supporting them in a written opinion or order. If such order does exist, it has not been made a part of the certified record. Appellants affixed to their brief a docket sheet, signed by the trial judge, which contains some written notes regarding the hearing: "Although [the court] cannot grant [termination of parental rights] [and] believes [Mother's] interference [with] [N.B.'s] rights was unreasonable, it remains [the] case that [C]hild does not know [N.B.] [and] knows another as her father . . . . [I]t is not in [C]hild's best interest to grant rights to [N.B.] today[.]" The docket sheet thereafter contains various instructions to the parties, including orders for therapy and payment of the guardian ad litem. The docket sheet does not specifically incorporate the trial court's oral findings. Because this docket sheet is the first and only exhibit to the Appellants' brief, it seems the parties share the conclusion this document provides enough for this Court to undertake a meaningful appellate review. It does not.
In relevant part, CR 52.01 states, "[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.]" In Anderson v. Johnson, the trial court conducted a hearing, with witnesses, to determine timesharing of a child following an award of joint custody pursuant to a divorce. 350 S.W.3d 453, 454-55 (Ky. 2011). The trial court "did not make specific findings of fact with separate conclusions of law, but only found 'that it is not in the best interest of [the child] to relocate[.]'" Id. at 455.
The Supreme Court determined the trial court's order was insufficient: "CR 52.01 requires that the judge engage in at least a good faith effort at fact-finding and that the found facts be included in a written order." Id. at 458 (emphasis added). "Failure to do so allows an appellate court to remand the case for findings, even where the complaining party failed to bring the lack of specific findings to the trial court's attention." Id. Because the trial court's order "include[s] no findings of fact to support [its] conclusion[, ]" the Supreme Court concluded the trial judge violated CR 52.01 and remanded the matter to the family court with instructions to "make specific findings of fact and separate conclusions of law consistent with this opinion, followed by the appropriate judgment." Id. at 459.
As in Anderson, the trial court's order in the instant case also violates CR 52.01. Without written findings of fact to review, we are unable to determine whether clear and convincing evidence supports its conclusions. We are unable to review, for instance, whether clear and convincing evidence supports a finding that N.B. abandoned Child as that term is applied by KRS 199.502(1)(a). Nor is it apparent the trial court actually made a finding of abandonment at all, or otherwise made factual findings to determine that any of the KRS 199.502(1) grounds existed.
As to Mother's alleged interference in N.B.'s attempts to see Child, the trial court simply concluded Mother's conduct was "unreasonable," and it made no written factual findings regarding her conduct at all. And, though the trial court does note Child knows someone else as her father rather than N.B., the order makes no reference to any of the several instances of absenteeism detailed in Appellants' brief.
The parties discuss, at length, the oral findings made by the trial judge, but the judge does not specifically incorporate those findings in her handwritten order; therefore, we cannot review them. Though neither party contests the sufficiency of the trial court's findings, our jurisprudence nonetheless permits us to confront that deficiency.
Because it is impossible for us to review the ruling that the parties request that we review, we must remand this matter to the trial court so that it can issue, in writing, findings of fact and conclusions of law.
CONCLUSION
Accordingly, we vacate and remand to the Madison Family Court for entry of findings of fact and conclusions of law consistent with this Opinion.
ALL CONCUR.