Opinion
NO. 2015-CA-000200-ME
01-08-2016
J.R. APPELLANT v. P.T. AND T.T. APPELLEES
BRIEF FOR APPELLANT: Nicole M. Prebeck Lexington, Kentucky BRIEF FOR APPELLEE: Jennifer McVay Martin Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOURBON CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 13-AD-00002 OPINION
AFFIRMING BEFORE: CLAYTON, KRAMER, AND STUMBO, JUDGES. KRAMER, JUDGE: J.R., hereinafter referred to as Biological Father, appeals from the Bourbon Circuit Court, Family Division, wherein it entered Amended Findings of Fact and Conclusions of Law and an Order and Judgment of Adoption, without his consent. Upon review, we affirm.
Biological Mother is not a party to this appeal. In an effort to protect the child at issue here we will not use the parties' names.
Adoptive Mother and Adoptive Father argue that this appeal should be dismissed as untimely because Biological Father did not also appeal from the Order and Judgment of Adoption, entered on November 7, 2014. However, this is precisely the type of case wherein substantial compliance first addressed in Ready v. Jamison, 705 S.W.2d 479 (Ky. 1986) applies.
This is another unfortunate case where parental drug use has resulted in the severing of parental rights. While the efforts of the Biological Father to rid himself of the noose of drug addiction is noble and to be commended, this is also another unfortunate case about that success occurring too late, with some irreversible consequences.
Biological Mother and Biological Father were both drug users. They conceived a child together but were never married. Child was born on January 10, 2012, and on January 13, 2012, Child was removed by DCBS and placed in the temporary custody of Mother's cousins, Adoptive Mother and Adoptive Father. Child tested positive for opiates at birth and experienced withdrawal symptoms thereafter. Child has resided with Adoptive Mother and Adoptive Father since that time. He is nearly three years old now.
A paternity test was administrated that determined that Biological Father was Child's father.
Given the condition of Child at birth, a DNA action was initiated, Case No. 12-J-00038-001. In the DNA action, permanent custody of Child was awarded by the Bourbon Family Court to Adoptive Mother and Adoptive Father on July 5, 2012. On the order granting custody, a designated box was checked that child support was ordered. However, other than this nothing else appears in the record regarding the amount of child support to be paid. This order also stated that "Pursuant to KRS 620.027 and the above findings, the Court has determined it would be contrary to the welfare and best interests of the child to return him/her to parental custody. Reasonable efforts were made to prevent removal of child from parental care or were not required by KRS 610.127." According to the DNA Dispositional Report filed in the DNA action, "the Cabinet [requested] to waive reasonable efforts due to [Biological Father's] continued drug use, refusal to go to treatment and risk of going to jail. . . . [Biological Father] has failed to comply with DCBS case plan as he has not provided appropriate stable house, stable employment, and had not provided DCBS with a mental health assessment, substance abuse assessment nor any other documentation required of him through his case plan. Worker has reminded [him] on several occasions he needs intensive treatment due to his drug use history however, he continues to refuse to go and is now at risk of jail time due to being sanctioned by drug court." On the July 5, 2012 docket sheet, which was signed by the presiding Judge, dated and entered into the official record, it stated that "perm. rel. custody to [Adoptive Mother and Adoptive Father;] visitation in discretion of custodians until further orders in custody action; remove from docket; [Biological Father] tested positive for 2x for drug court probation[;] tested positive for oxy & signed own admittance[.]"
Dependence, Abuse and Neglect, Kentucky Revised Statute Chapter 620.
From the time Child was placed with Adoptive Mother and Adoptive Father until the hearing on the petition for adoption, Biological Father only saw child twice. One of the two occasions occurred when Child was visiting with Biological Father's parents and at that time, it was a violation of a court order to allow Biological Father to have visitation with Child due to on-going drug use. Biological Father has never paid any child support, provided any financial support, sent gifts; initiated any type of contact with Adoptive Mother and Adoptive Father about maintaining a relationship with Child; or inquired of Adoptive Parents regarding Child's development, process or well being. According to Biological Father's testimony, he essentially knows nothing about Child other than a few other well-known facts about Child. In sum, they are strangers.
It is not entirely clear when the other visitation was.
While Child was beginning his life with Adoptive Mother and Adoptive Father in early 2012, Biological Father faced criminal charges filed against him by his mother for writing cold checks. Rather than face incarceration for the charges, Biological Father started the drug court program in March 2012, which he completed in May of 2014. During this time, his case plan in the DNA action included that he would complete a twelve-month inpatient rehabilitation program. He opted on his own to do drug court instead. It should be noted that he never moved the family court during the pendency of the DNA action to accept the drug court program rather than complying with the order for inpatient treatment. Biological Father failed some of his on-going drug screenings in 2012. One in particular was in July 2012. Apparently, it was after this failed drug test that the Court suspended visitation with Child. He testified at the hearing in this matter that he has been sober since December 6, 2012. Biological Father admitted to having a "significant" drug problem and testified that typical rehabilitation would not have worked for him. He had started one program that was to last for a year but left after only three days. Biological Father believed that he needed significant consequences if he did not make progress in becoming sober. Accordingly, he believed that the drug court program provided him the structure and consequences necessary for him to achieve sobriety. During the hearing in this matter, he testified that the drug court program was successful for him as he is sober now and intends to remain so.
According to Biological Father's Verified Motion for Supervised Visitation on April 2, 2013, he states that the "Court suspended visits between Father and [Child] around June 29, 2012." In his testimony during the adoption hearing, Biological Father testified that he was still testing positive for drugs in July of 2012.
Biological Father is to be commended for graduating from the drug court program. However, the barrier to Biological Father's case against the adoption without his consent is that it is undisputed that he has done nothing to provide for Child in any manner whatsoever or show any intent to act as a parent would.
After having Child in their care for a year, Adoptive Mother and Adoptive Father filed a Petition for Adoption and Termination of Parental Rights in the Bourbon Family Court on January 17, 2013. Biological Father filed a timely response and thereafter filed a motion for supervised visitation on April 2, 2013, which was denied. He followed up this motion with a subsequent motion for reconsideration on June 17, 2013, which was taken under advisement and apparently not ruled upon.
The family court held a hearing on the petition for adoption on July 17, 2014. Biological Father was ably represented by counsel. The family court entered Findings of Fact and Conclusions of Law on November 17, 2014, granting the petition for adoption and entering an Order and Judgment of Adoption. However, regarding whether any conditions outlined in KRS 199.502(1) were met, the findings only stated that "all legal requirements have been satisfied for this action." Biological Father filed a timely motion to alter, amend or vacate pointing out several errors the family court had made, including that the family court had made an erroneous finding that Biological Father had consented to the adoption and that the family court failed to make findings regarding issues that were raised during the hearing in this matter. Thereafter, the family court entered Amended Findings of Fact and Conclusions of Law, correcting several inaccuracies including the issue regarding consent. In the amended findings and conclusions, the court added that:
[T]he Respondents . . . biological parents, for a period of not less than six (6) months, have continuously or repeatedly failed or refused to provide or have been substantially incapable of providing essential parental care and protection for the child and that there is no reasonable expectation of improvement in the parental care and protection, considering the age of the child.
[T]he [Respondents], for reasons other than poverty alone, have continuously or repeatedly failed to provide or are 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 parents' conduct in the immediately foreseeable future, considering the age of the child.
Biological Father thereafter filed a timely notice of appeal. He takes issue primarily with the lack of findings by the family court, in particular with the lack of findings regarding whether his successful participation in drug court should have been construed by the family court as having the same effect as having completed a twelve-month inpatient rehabilitation program in order to sufficiently address his drug addiction.
Parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). Termination can be analogized as capital punishment of the family unit because it is "so severe and irreversible." Santosky, 455 U.S. at 759, 102 S.Ct. at 1398. Therefore, to pass constitutional muster, the evidence supporting termination must be clear and convincing. Id., 455 U.S. at 769-70, 102 S.Ct. at 1403; V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). Clear and convincing proof is that "of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent minded people." M.L.C. v. Cabinet for Health and Family Services, 411 S.W.3d 761, 765 (Ky. App. 2013) (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)).
KRS 199.502(1) governs the analysis of this case and basically sets forth a format of the conditions necessary to illustrate that a biological parent has acted in such a way that he has relinquished his rights as a parent. Relevant to the present case KRS 199.502 (1) provides that:
Kentucky Revised Statute. --------
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 [nine] 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[.]
According to Biological Father, the crux of this case is that the family court failed to enter findings regarding whether the completion of the drug court program satisfied the requirement that he was to complete a twelve-month inpatient drug rehabilitation program. He started the drug court program in March of 2012 and completed it in May of 2014. It would not be proper for this Court to entertain making findings of fact regarding this and given our review under KRS 199.502(1), it is not necessary to remand for findings on this issue by the family court because whether Biological Father is correct or not about this does not change the outcome of this case. The evidence of record clearly satisfies the requirements of meeting at least one—or more—of the nine conditions outlined in KRS 199.502(1).
According to Biological Father's testimony at the hearing on the adoption petition, he has seen Child two times since Child's birth. Biological Father argues that he filed motions for visitation, but they were either denied or they were taken under submission. He admitted at the hearing on the petition for adoption that he was still using drugs after Child's birth. The record contains information regarding failed drug screens in 2012. At the dispositional hearing in the DNA case in July of 2012, the family court allowed the Cabinet to waive reasonable efforts due to the fact Biological parents had failed to make even "minimal progress" on their respective case plans. Visitation was not barred from Biological Father due to his incarceration or any other reason other than his choice at the time to continue to use drugs, despite clear warnings from the Cabinet in the dispositional report dated June 29, 2012, that Biological Father "has continued to use drugs even now when his own child is at risk of being permanently removed."
Biological Father testified that he has never provided any resources—financial or otherwise—whatsoever for Child's benefit, nor has he provided so much as even a gift for Child. Biological Father was not under court order to have no contact with Adoptive Parents. Yet, he never contacted them to inquire about Child, his well being or his progress. According to Biological Father's testimony he essentially knows very little about Child at all despite the fact that he could have initiated some type of productive contact with Adoptive Parents about the well being of Child. By the time the Petition for Adoption was filed in January of 2013, Child had spent the first year of his life with Adoptive Parents, without any assistance from Biological Father. We applaud Biological Father for completing the drug court program over a period of two years. However, during this time—other than filing motions for visitation, which were denied due to on-going drug abuse or taken under submission—he did nothing to show an intent to provide for the essential care and protection of Child. Nothing prevented him from making some gesture that he intended to act in some capacity as a parent would. While he may now be sober, we cannot determine that the family court erred in its decision.
Accordingly, regardless of whether the completion of the drug court program may have been an ample substitute for the twelve-month inpatient rehabilitation program he was ordered to undergo, Biological Father's actions—or lack thereof—are sufficient to fulfill the requirements of adoption without parent consent under KRS 199.502(1).
ALL CONCUR. BRIEF FOR APPELLANT: Nicole M. Prebeck
Lexington, Kentucky BRIEF FOR APPELLEE: Jennifer McVay Martin
Lexington, Kentucky