Opinion
NO. 2016-CA-001090-ME
06-23-2017
K. C. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; N. H.; M. H.; AND X. I. A. H., A CHILD APPELLEES
BRIEF FOR APPELLANT: Donna M. Dant Calhoun, Kentucky BRIEF FOR APPELLEES N. H. AND M. H.: Amealia R. Zackary Dixon, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 15-AD-00068 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: K. C. (mother) appeals from the Daviess Circuit Court's order denying mother's motion to dismiss and from its judgment terminating mother's parental rights to X. I. A. H. (child).
N. H. (father) and mother were married on February 14, 2008. Child was born in November 2008.
At the end of August 2009, mother left with child while father was at work. A week to two weeks later, child was returned to father by maternal grandmother. Father filed for dissolution of marriage in case number 2009-CI-01355 and was granted temporary custody of child, with supervised visitation for mother. Grandmother provided some childcare through April 2011, and mother was allowed to exercise visitation while child was with grandmother.
On May 8, 2011, the domestic relations commissioner filed a recommended order specifying that father have full custody of child with mother having the opportunity for visitation after she completed a parenting class. The parties had ten days to file objections before the report would be adopted by the court. That time elapsed without objections and, on May 18, 2011, the court adopted the commissioner's recommended order. At that time, counsel should have submitted a proposed decree, but failed to do so. Mother has not seen child or contributed to child's support since 2011.
Father and M. H. (step-mother) were married on November 18, 2011, in India. Father's and mother's marriage was formally dissolved through a decree entered on September 14, 2012, which was made retroactive through nunc pro tunc to May 18, 2011.
Child has three younger siblings born to mother. Child also has a younger sibling who was born to father and step-mother.
Mother and step-father were married in 2014. Mother's household consists of herself, step-father, her three children and step-father's three children.
In the fall of 2015, mother called father and requested visitation. In November 2015, mother's attorney wrote father a letter requesting visitation. Shortly thereafter, on November 24, 2015, father and step-mother filed a petition for involuntary termination of mother's parental rights and for adoption by step-mother in case number 2016-AD-00068. The Cabinet for Health and Family Services was made a party to the action and the child was named on the petition. A warning order attorney was appointed for mother because she could not be located.
Mother filed her response on February 1, 2016, and requested dismissal of the petition for failure to contain all necessary information and join all necessary parties. Mother also formally requested visitation in the dissolution action.
On February 16, 2016, father and step-mother asked that they be allowed to amend their petition to address mother's concerns and for appointment of a guardian ad litem. On February 29, 2016, the Cabinet completed a report recommending granting adoption of child.
On March 16, 2016, mother filed a motion requesting that the court dismiss the petition because father and step-mother did not obtain the Cabinet's approval before the petition of adoption was filed. She argued approval was needed because father's and step-mother's marriage on November 18, 2011, was void under Kentucky Revised Statutes (KRS) 402.020(1)(b) as occurring prior to when the dissolution of father's and mother's marriage was entered. Mother argued that although the decree of dissolution entered in 09-CI-01355 stated it would be retroactive pursuant to the doctrine of nunc pro tunc, this could not make the previous marriage between father and step-mother valid. Therefore, step-mother was not a person exempt under KRS 199.470 from having to obtain written approval from the Cabinet prior to filing a petition for adoption.
The provision of KRS 402.020(1)(d) prohibiting same sex marriage is unconstitutional pursuant to Obergefell v. Hodges, 135 S.Ct. 2584, 2604-05, 192 L.Ed.2d 609 (2015).
Father and step-mother responded that the dissolution action was resolved on May 18, 2011, when the court adopted the domestic relations commissioner's report. They argued it was an accident that a decree was not entered at that time, mother consented to entry of a nunc pro tunc decree, the court acted properly in granting it and mother cannot attack the decree in this matter without having filed a Kentucky Rules of Civil Procedure (CR) 60.02 motion to set aside the decree in the dissolution action.
On April 14, 2016, the court held a hearing to consider mother's motion to dismiss the petition and request for visitation in the dissolution action. The court orally denied the motion to dismiss, set a deadline for filing the amended petition to address technical issues and held the visitation issue in abeyance until a ruling in the termination case.
On April 18, 2016, father and step-mother filed their amended petition. In mother's response, she again asserted that father's and step-mother's marriage was invalid and deprived the court of jurisdiction over this action. The GAL's response recommended that the adoption be granted as in child's best interest because mother abandoned child, child was doing well in his current environment and accepted step-mother and her extended family as his family, and mother failed to provide financial or physical care for child.
On June 14 and June 15, 2016, the court held a trial on termination. Extensive testimony was taken from the witnesses which included father, three work-related witnesses for father (father's former employer and friend Sadmir Gollen, father's former co-worker Crystal McLimore and the partner of father's former employer Amirik Jammu), mother and three family witnesses for mother (grandmother, mother's aunt and mother's brother) and rebuttal witness social worker Ms. Fredrickson-Wilkey.
Father testified mother had medical complications associated with child's birth but that he and friends cared for her after she left the hospital until she was well enough to care for herself and child on her own. Father testified after child was born, mother did not have patience with child. She would scream at him, not hold him, and hand child to father when child needed something. Mother tried to get father to provide the child with care even when he was at work.
Father testified in February 2009, he went on a planned month-long trip to India. He felt comfortable leaving because mother was well enough to be on her own with child. While in India, mother called him and told him she wanted to move in with another man. He came home early, fifteen days into the trip, because he was worried about child. He discovered mother in bed with a man.
Father testified he tried to maintain his relationship with mother for the sake of child, but their relationship continued to deteriorate. Father testified mother did not seem to care about child. Mother smoked in the car and in their home around child. At one point, mother left father a message on their chalk board that she did not want to see child again because he was the ugliest baby she had ever seen and signed her initials at the bottom.
Father testified that mother repeatedly brought child to him at work during the night and left child for him to watch behind the counter so that she could go out with friends. During the winter, she often brought child into the store only wearing a diaper and sometimes mother left child in the car when she went inside the store. Father testified he did not want child left in the car unattended and would go and get child out of the car.
Father testified at the end of August 2009, mother left with child while father was at work. He testified mother took the furniture and TV and destroyed items left in the home.
On August 24, 2009, father filed a domestic violence petition. Father alleged mother abused him by putting a knife on him, scratching him twice with her fingernails and scratching his chin with a car key, took his possessions from the house and he came home to find her breaking the windows. Father requested mother be restricted from contacting him, requesting temporary custody of child and the return of his property.
On September 2, 2009, the court entered an agreed domestic violence order (DVO) which prohibited mother from contacting father except for custody or visitation of child until September 2, 2010. The DVO left issues of custody, support, visitation and property division to be governed by other litigations.
Ten to fifteen days after mother left with child, father testified that grandmother brought child to him at the store. According to father, child had a bad diaper rash, was under nourished and had scared eyes.
Shortly thereafter, father filed for divorce. During the pendency of the action, he entered into an agreement with grandmother that she would watch child while he worked and mother would have visitation during that time. He testified that grandmother was inconsistent about being available to watch child, so he arranged childcare with friends and eventually daycare when child was eighteen months old.
Father testified that after he was granted custody in 2011, mother never asked to see child, did not send any presents or cards, and did not provide court-ordered child support.
He did receive a call from mother after she was no longer having visitation. Mother asked him for her birth certificate, which he found and left at his workplace for her to pick up; mother did not ask about child during this phone call. He did not hear from her again until she called him in 2015 and asked him about visitation.
Father testified he has a good relationship with child and child is happy in his home with step-mother.
Father's witnesses testified consistently with father's testimony about mother's negative conduct toward child and father. McLimore testified she saw mother smoking in the car with child. Gollen and Jammu testified they saw mother bring child into the store wearing only a diaper in the winter. McLimore testified mother would often leave child unattended in the car and father would have to go out and bring child inside. Gollen and McLimore testified mother frequently left child behind the counter with father during his shift.
McLimore testified she saw mother smack father in the face at work and fling items off the counter. Gollen testified he saw an argument between mother and father and when he asked mother to leave the store, mother kicked his car as she was leaving. Gollen and Jammu testified they saw a large scratch on father's face and Gollen gave father time off work while it healed.
Gollen observed child being returned to father by grandmother at work and testified he remembered child being thin and he appeared to have been crying. However, child returned to his normal condition soon after being cared for by father. Gollen also corroborated that grandmother failed to provide childcare and his wife provided some childcare so father would not have to bring child to work.
Gollen also testified about his ongoing relationship with father's family and seeing that child receives good care from father and step-mother.
Mother testified that grandmother cared for mother in her home before the birth and cared for mother and child in her home following the birth. Mother testified she loves child and provided him with excellent care before she separated from father.
Mother admitted she signed and witnessed a statement that she told father she lied that she was having sex with another man to get him to come home early, told him he would never see his son again and when he returned early, he found the other man in her bed and attacked him. Mother admitted to having child in bed with her and another man, but denied she was unfaithful to father.
Mother denied leaving child for father to watch in the store except for one time when she was doing a favor for father. Mother denied dressing child inappropriately for the weather. Mother denied smoking in the car with child.
Mother denied hitting father. Mother admitted to one time accidentally scratching father with her artificial fingernails.
Mother testified that she was always present when grandmother cared for child and she was the one predominately caring for child.
A transcript of a September 23, 2009, hearing before the domestic relations commissioner to determine temporary custody of child was introduced into evidence. Mother admitted she testified neither of them was fit to have child and that grandmother should have custody.
Mother testified the only support she provided for child was when she provided medicine when child was ill during a visit at grandmother's house and bringing child a gift a couple of times. Mother testified that since 2012, she had not provided any food, clothing, shelter, medical care, education or anything else to provide for child's well-being. Mother testified that after her last prearranged visit with child in 2011, father never contacted her to arrange visitation with child and never asked her for child support.
Mother testified she wanted to provide for child and be a parent to him, but after the divorce she was hindered by matters outside of her control, including personal complications, father trying to keep child away from her, being prevented from contacting father due to the DVO, not knowing how to find father and not being able to take the required parenting classes.
Mother testified that trying to contact father to see child after the divorce was "like chasing a ghost." Mother testified she tried to call child on his birthdays, but father hung up on her. If she saw father and child in public, father left with child. Mother testified the last time she saw child was in the fall of 2013, when she saw father and child in a store parking lot, and father let her briefly visit with child.
Mother testified she was delayed in her efforts to see child in 2010 by the pregnancy and birth of her second child. In 2011, she contacted an attorney but was not able to pay his $1,500 retainer fee and he kept the $1,000 she did pay him. In 2012, her then boyfriend and future husband, who was supporting her, was focused on obtaining custody of his own children and he paid an attorney $6,000 to $7,000 to obtain custody of them.
While mother claimed the DVO prevented her from contacting father and there had been an incident with father that made her afraid to contact him, she admitted she knew she could have contact with father for purposes of arranging visitation and that the DVO only lasted for one or two years.
Mother admitted knowing that she was under a court order to pay child support, but did not know what amount of child support she was ordered to pay and did not pay any child support until her attorney tendered a check to father's attorney in 2015 for $160.
Mother claimed she did not know where to send child support, but admitted she knew where father worked. Mother admitted that although she had received a certified letter from father's attorney on March 16, 2011, she never attempted to contact father's attorney about visitation or paying child support.
Mother testified that she was not able to attend a parent education class in Daviess County in 2011 because the county had eliminated them. Ms. Fredrickson-Wilkey testified as a rebuttal witness that she co-taught the parenting classes in Daviess County every month from 1999 until they ended in March 2014. Mother testified she completed the required class in another county at the end of 2015 or the beginning of 2016.
Mother testified she received notice of the final divorce hearing and attended, but was unrepresented and did not know she could approach the bench with father's counsel, so did not understand the decree was going to be retroactive. She wanted her divorce to be final so she could get her name changed. She did not know what if any objection she would offer to its being entered nunc pro tunc at that time.
Grandmother's testimony corroborated mother's testimony. Grandmother testified that she cared for mother in her home before the birth and cared for mother and child in her home following the birth. Father only helped provide for them during this time by providing a car and a cell phone for grandmother.
Grandmother testified after mother left father, mother stayed with her and took care of child. She denied that child was in poor condition when returned to father and stated child was only to be brought to father for a visit but then father kept him.
Grandmother testified she was willing to provide child care for child and enjoyed caring for child but, after initially providing much of his care, father made other arrangements. Grandmother testified that mother was always present when grandmother had child and mother provided much of his care. Grandmother testified the last time she provided childcare was on March 18-19, 2011, but she saw child later that year and was also allowed to visit with him when they coincidentally saw each other.
Grandmother admitted she testified before the domestic relations commissioner that mother had a temper and she was concerned about the people mother associated with. Grandmother's only concern about father was the long hours he worked.
Aunt testified that she helped grandmother take care of mother after child's birth. Aunt testified she knew where father worked and had seen child there after father had sole custody.
Brother testified he knew where father worked and he made an effort to see child. He knew mother wanted to see child but admitted he had not personally seen mother make any effort to do so. Brother testified father was a good parent and worked hard to provide for child.
At the conclusion of the hearing, the court specifically found mother and the witnesses offered in support of mother's position were not credible. The court agreed with father's statement that "[mother] just forgot [child]." Mother neglected child and did not make any effort until the last minute and did not provide anything toward child's care. While grandmother may have some slight parental relationship with child, there was none at all by mother even when mother and father had joint custody and the court did not believe mother had any bond with child.
On June 28, 2016, the court entered its order denying mother's motion to dismiss and its findings of fact, conclusions of law and judgment. In resolving the motion to dismiss, the court determined that in the dissolution action after the commissioner's report was entered and the time for exceptions to be filed expired, on May 16, 2011, the only thing remaining was for the court to enter a final decree within twenty days of its submission. The court found that because father's counsel was under the mistaken belief that the commissioner's report operated as a decree of dissolution, counsel failed to tender a decree to the court. On September 10, 2012, father filed a motion for entry of a decree seeking that it be entered nunc pro tunc, mother received notice and appeared at the hearing and made no objection, and the decree was entered on September 14, 2012 and made retroactive to May 18, 2011. The court concluded that when it made the order nunc pro tunc, the court acted properly within its authority.
In the court's judgment terminating mother's parental rights to child, it made a number of factual findings. The court found mother failed to provide for child from the last week in August 2009, until May 2016, when she sent a check through her attorney. Mother knew how to find father through his work. The court found mother failed to see her child even though she was not prevented from doing so. It also found that mother placed child in a number of detrimental situations during the marriage. Mother argued she did not complete a parenting class because none was available but a rebuttal witness established the availability of classes during this period. Mother did complete a parenting class in December 2015 or January 2016. Child has adapted well to living with father and step-mother and "receives good care in a warm, loving environment."
The court made the following conclusions of law:
1. The Court finds that the Child was "neglected" by the actions and omissions of the Mother as that term is defined in [KRS] 600.020(1), (3), (4), (7) and (8), thus,
the petition meets the requirements of KRS 625.090(1)(a)(2).The court terminated mother's parental rights to child and allowed step-mother to proceed with her petition to adopt. On July 12, 2016, the court entered the judgment of adoption.
2. The Mother has neglected this Child, KRS 625.090(3)(b), and has made no discernible efforts or adjustments from late 2009 until late 2015, i.e., six years or more, in her circumstances, conduct or conditions to make it in the Child's best interest to return him to her home, and said six years is far in excess of a reasonable period of time, considering the age of the Child, for the Mother to have acted. KRS 625.090(3)(d). The Mother has failed and refused to pay a reasonable portion of the Child's care to the extent she was financially able to do so. KRS 625.090(3)(f). There was no evidence that the Child would receive any emotional or mental health benefit if he were reunited with the Mother. If anything, reunification would appear to be detrimental. KRS 625.090(3)(e). For the foregoing reasons, the Court concludes that it is in the best interest of the Child that the Mother's parental rights be terminated. KRS 625.090(3); KRS 625.090(1)(b).
3. (A) The Mother has abandoned the Child for a period of not less than ninety (90) days. KRS 625.090(2)(a). (B) The Mother, for a period of not less than six (6) months, has continuously and 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. KRS 625.090(2)(e). (C) The Mother, 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 Mother's conduct in the immediately foreseeable future, giv[en] the age of the Child. KRS 625.090(2)(g).
On July 22, 2016, mother appealed from the order denying her motion to dismiss and the judgment terminating her parental rights. Mother argues the court erred by failing to dismiss the petition or amended petition because father's and step-mother's marriage is void and they failed to obtain written approval from the Cabinet Secretary before filing their petition. She also argues the court abused its discretion in determining that there was clear and convincing evidence to support termination of parental rights.
In mother's notice of appeal, neither the child nor the Cabinet was named as a party to the appeal either in the caption or body of the notice of appeal, but the GAL and Cabinet were listed as served under the certificate of service. The GAL and Cabinet have properly received all relevant filings and no one has filed a motion to dismiss for lack of jurisdiction. Pursuant to M.L.J. v. Cabinet For Health & Family Servs., Commonwealth, No. 2013-CA-000295-ME, 2014 WL 97741, 17 (Ky. App. 2014) (unpublished) and T.S. v. Cabinet for Health & Family Servs., No. 2008-CA-000366-ME, 2008 WL 4601398, 2 n.2 (Ky. App. 2008) (unpublished), if adequate notice is given to the GAL and Cabinet through service of the notice of appeal, deficiencies in properly naming the GAL and Cabinet in the notice of appeal do not deprive the Court of jurisdiction. We may properly cite these unpublished opinions because there are no published opinions which adequately address this issue. CR 76.28(4)(c).
Mother is seeking to collaterally attack the dissolution decree by challenging its validity to authorize step-mother's petition to adopt. Mother has not challenged the dissolution decree directly, either through an appeal or through a motion for relief of judgment.
We note that generally a dissolution decree itself is not subject to appellate review. KRS 22A.020(3); Clements v. Harris, 89 S.W.3d 403, 404-05 (Ky. 2002). --------
The dissolution decree is not subject to collateral attack in the termination/adoption action. Where a court has jurisdiction over the parties and subject matter, the judgment, if erroneous, is voidable, not void, and, thus, must be challenged directly through a timely appeal rather than through a collateral attack. Sitar v. Commonwealth, 407 S.W.3d 538, 541-42 (Ky. 2013); Dix v. Dix, 310 Ky. 818, 821-23, 222 S.W.2d 839, 842 (1949). See Gutierrez v. Commonwealth, 163 S.W.3d 439, 441-42 (Ky. 2005); Hisle v. Lexington-Fayette Urban Cty. Gov't, 258 S.W.3d 422, 431 (Ky. App. 2008); Mitchell Mach. & Elec. Co. v. Sabin, 218 Ky. 289, 291 S.W. 381, 382 (1927). Mother does not question whether the court had proper personal and subject matter jurisdiction in the dissolution action. Thus, even if the court erred in granting the dissolution nunc pro tunc, this error cannot be addressed in this proceeding. See Darpel v. Arnzen, No. 2003-CA-001411-MR, 2006 WL 29042, 2 (Ky. App. 2006) (unpublished) (holding that although a dissolution decree should not have been entered nunc pro tunc effective prior to the husband's death because it was not finalized at that time and, thus, wife should have owned their real property outright, no remedy could be given in a collateral partition proceeding). Therefore, we give effect to the dissolution decree as written, which properly authorized father and step-mother to file a petition for termination/adoption without preapproval of the Cabinet.
Mother next challenges whether the court properly decided termination was warranted.
KRS 625.090 provides that parental rights may be involuntarily terminated only if, based on clear and convincing evidence, a circuit court finds: (1) that the child is abused or neglected as defined in KRS 600.020(1); (2) that termination is in the child's best interests; and (3) the existence of one or more of ten specific grounds set out in KRS 625.090(2).M.B. v. D.W., 236 S.W.3d 31, 34 (Ky. App. 2007).
This Court's standard of review in a termination of parental rights action 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). "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." R. C. R. v. Commonwealth Cabinet for Human Res., 988 S.W.2d 36, 38-39 (Ky. App. 1998), (quoting Rowland v. Holt, 253 Ky. 718, 70 S.W.2d 5, 9 (1934)). The court is in the best position to judge the credibility of the witnesses and an appellate court cannot disturb the court's credibility findings that are supported by substantial evidence. D.G.R. v. Commonwealth, Cabinet for Health & Family Servs., 364 S.W.3d 106, 114 (Ky. 2012).
There was clear and convincing evidence that child was neglected by mother. The court made specific credibility findings against mother's excuses for failing to visit child and failing to pay child support. There was also sufficient evidence that termination was in child's best interest and specific grounds for termination were established based on mother's abandonment of child, failing to provide essential parental care and continuously failing to provide essential food, clothing, shelter, medical care, or education. The court acted properly in terminating mother's parental rights pursuant to KRS 625.090.
Accordingly, we affirm the Daviess Circuit Court's order denying K. C.'s motion to dismiss and affirm its judgment terminating K. C.'s parental rights to X. I. A. H.
ALL CONCUR. BRIEF FOR APPELLANT: Donna M. Dant
Calhoun, Kentucky BRIEF FOR APPELLEES N. H. AND
M. H.: Amealia R. Zackary
Dixon, Kentucky