Opinion
NO. 2019-CA-1911-ME NO. 2019-CA-1912-ME NO. 2019-CA-1913-ME
05-21-2021
K.S.A. APPELLANT v. BRYAN WAYNE SMITH; RUTH ANN SMITH; AND W.E.S., A CHILD APPELLEES AND K.S.A. APPELLANT v. BRYAN WAYNE SMITH; RUTH ANN SMITH; AND A.L.S., A CHILD APPELLEES AND K.S.A. APPELLANT v. BRYAN WAYNE SMITH; RUTH ANN SMITH; AND L.S., A CHILD APPELLEES
BRIEFS FOR APPELLANT: Jeffrey A. Herrington Lexington, Kentucky K.S.A., Pro Se Mt. Sterling, Kentucky BRIEFS FOR APPELLEES: Sue M. Lake Cynthiana, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 19-AD-00026 APPEAL FROM HARRISON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 19-AD-00027 APPEAL FROM HARRISON CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 19-AD-00028 OPINION AND ORDER
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; TAYLOR AND L. THOMPSON, JUDGES. TAYLOR, JUDGE: K.S.A. brings Appeal Nos. 2019-CA-1911-ME, 2019-CA-1912-ME, and 2019-CA-1913-ME from December 5, 2019, Judgments of Adoption of the Harrison Circuit Court, Family Court Division, (family court) as to each of K.S.A.'s three biological children. For the reasons stated, we vacate and remand these appeals.
This adoption proceeding was initiated without K.S.A.'s consent to the adoption and thus sought the termination of her parental rights in accordance with Kentucky Revised Statutes (KRS) 199.500(4) and KRS 199.502(1).
BACKGROUND
The three biological children of K.S.A. are W.E.S., who was born July 13, 2015; A.L.S., who was born January 22, 2009; and L.S., who was born May 11, 2007. Each of the children had different fathers. In 2015, the Cabinet for Health and Family Services (Cabinet) filed petitions of dependency, neglect, or abuse concerning the three children in the family court, after drugs were discovered in W.E.S.'s system shortly after his birth. The children were removed from K.S.A.'s custody by the Cabinet and initially placed with the maternal grandmother. As a result of the parents' behavior, the children were removed again and placed with Bryan Smith and Ruth Smith. Bryan is the second cousin of the children. By order entered March 2, 2017, the family court granted the Smiths permanent custody of W.E.S., A.L.S., and L.S.
On July 9, 2019, the Smiths filed separate Petitions for Adoption of W.E.S., A.L.S., and L.S. In each petition, the Smiths sought to adopt the children without K.S.A.'s consent. In W.E.S.'s petition, the Smiths sought adoption without the father's consent. In A.L.S.'s petition, the father signed a voluntary consent to terminate parental rights, and in L.S.'s petition the father was deceased.
Shortly after filing the adoption proceedings, the Smiths filed in each action a "petition" seeking to terminate the parental rights of K.S.A. Therein, the Smiths alleged that K.S.A. had abandoned the children for more than ninety days, had failed to provide essential parental care and protection for more than six months, and had failed to provide essential food, clothing, shelter, medical care, and education to the children for reasons other than poverty. Additionally, the Smiths argued that there was no reasonable likelihood that K.S.A. would improve her conduct in the immediate foreseeable future to provide for her children.
In W.E.S.'s petition, Bryan Smith and Ruth Smith also sought to terminate the parental rights of W.E.S.'s father, J.A. J.A. has not filed an appeal of the judgment of adoption entered in W.E.S.'s case, and thus, he will not be addressed in this Opinion.
For some inexplicable reason, the family court bifurcated the proceedings and conducted two evidentiary hearings. At the hearing to consider the termination of K.S.A.'s parental rights on November 12, 2019, only two witnesses were called to testify. The Smiths called a case worker from the Cabinet, and K.S.A. testified in opposition to the petition by phone. After closing argument by counsel, the family court announced there was a sufficient basis established under KRS 199.502(1) to allow the case to move forward to an adoption hearing. The court made handwritten notes on calendars in the record for each child's case but made no specific findings nor entered an order regarding the termination of K.S.A.'s parental rights. The family court concluded the adoptions should proceed without K.S.A.'s consent pursuant to Kentucky Revised Statutes (KRS) 199.502(1)(a), (e), and (g). Thereafter, by a December 5, 2019, Judgment of Adoption in each case, the family court granted the Petition for Adoption as to each child - W.E.S., A.L.S., and L.S. However, the written findings of fact in support of the judgments made no findings regarding the termination of K.S.A.'s parental rights, but rather referenced an earlier "order" regarding the same. These appeals follow.
K.S.A. was incarcerated in the Montgomery County jail at the time of the hearing and participated by phone, with appointed counsel present in the courtroom.
STANDARD OF REVIEW
We begin by noting that an adoption without the consent of a living parent under KRS 199.502 is still effectively a proceeding to terminate parental rights. C.J. v. M.S., 572 S.W.3d 492, 496 (Ky. App. 2019). Thus, in adoption without parental consent cases, this Court applies the same clearly erroneous standard as applied in parental rights termination cases. Id.
Accordingly, the standard of review for a family court's decision to terminate parental rights is the clearly erroneous standard which requires the court's decision to be based upon clear and convincing evidence. Kentucky Rules of Civil Procedure (CR) 52.01; M.P.S. v. Cabinet for Human Res., 979 S.W.2d 114, 116-17 (Ky. App. 1998). The family court's decision will not be disturbed on appeal if the decision was supported by substantial evidence. M.E.C. v. Commonwealth, Cabinet for Health and Family Servs., 254 S.W.3d 846, 850 (Ky. App. 2008).
Kentucky Rules of Civil Procedure 52.01 governs "all actions tried upon the facts without a jury" and provides in pertinent part: "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses."
This standard of review reflects the law's protection of the parent-child relationship. While termination proceedings are not criminal matters, they encroach "on the parent's constitutional right to parent his or her child, and therefore, is a procedure that should only be employed when the statutory mandates are clearly met." Id. In this regard, we note that parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the Unites States Constitution. Santosky v. Kramer, 455 U.S. 745, 753 (1982). When the government acts to terminate a parent's rights, it is not merely infringing on those rights; it is ending them. Lassiter v. Dep't of Social Servs. of Durham County, N.C., 452 U.S. 18, 27 (1981). The protection of these rights is not reduced or altered where termination of parental rights occurs in an adoption proceeding. Regardless of how achieved, termination of parental rights is a serious action which the courts must conduct with the "utmost caution." M.E.C., 254 S.W.3d at 850. Therefore, in order to pass Constitutional muster, the evidence supporting termination must be clear and convincing. Santosky, 455 U.S. at 769-70; F.V. v. Commonwealth, Cabinet for Health and Family Servs., 567 S.W.3d 597, 606 (Ky. App. 2018) (citation omitted).
ANALYSIS
In each appeal, counsel for K.S.A. filed briefs pursuant to Anders v. California, 386 U.S. 738 (1967). See A.C. v. Cabinet for Health and Family Servs., 362 S.W.3d 361, 371 (Ky. App. 2012). And, in each brief, counsel states that there are no meritorious issues to raise in the appeals and filed motions to withdraw as counsel. However, K.S.A. also filed a pro se brief in each appeal and argues that the family court erred by granting the adoptions as to W.E.S., A.L.S., and L.S. without her consent. In particular, K.S.A. maintains that there was a lack of sufficient evidence to support the family court's decisions and that there was evidence that she had and would continue to improve. Given that this Court is vacating and remanding for further proceedings, it is hereby ORDERED the motions to withdraw shall be DENIED.
The adoption of a child may be granted in Kentucky without the consent of a biological parent pursuant to KRS 199.500(4) and KRS 199.502. To effectively terminate parental rights of a nonconsenting parent, the provisions of KRS 199.502 must be satisfied. KRS 199.502 reads, in relevant part:
(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;
(b) That the parent had inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(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;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to a child named in the present adoption proceeding;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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;
(h) That:
1. The parent's parental rights to another child have been involuntarily terminated;
2. The child named in the present adoption proceeding was born subsequent to or during the pendency of the previous termination; and
3. The condition or factor which was the basis for the previous termination finding has not been corrected;
(i) That the parent has been convicted in a criminal proceeding of having caused or contributed to the death of another child as a result of physical or sexual abuse or neglect; or
(j) That the parent is a putative father, as defined in KRS 199.503, who fails to register as the minor's putative father with the putative father registry established under KRS 199.503 or the court finds, after proper service of notice and hearing, that:
1. The putative father is not the father of the minor;
2. The putative father has willfully abandoned or willfully failed to care for and support the minor; or
3. The putative father has willfully abandoned the mother of the minor during her pregnancy and up to the time of her surrender of the minor, or the minor's placement in the home of the petitioner, whichever occurs first.
(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:
And, as provided under KRS 199.502(1), "one of the conditions set forth in subsections (a)-(j) [must] exist[] with respect to the child at issue" to grant an adoption without parental consent. C.J. v. M.S., 572 S.W.3d at 496.(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.
Unfortunately, we cannot reach the merits of these appeals. As noted, the family court bifurcated these proceedings and conducted a hearing on the termination of K.S.A.'s parental rights on November 12, 2019. On the day of the hearing, in the court record of each case, the family court entered handwritten notes on court calendars purporting to be findings and conclusions sufficient for the termination of K.S.A.'s parental rights. In the record pertaining to A.L.S., the calendar notes are not signed by the judge, notwithstanding they are "entered" in the record. In L.S.'s case, the calendar notes are signed by the judge on the first page, yet the notes continue on the back thereof, which is not signed by the judge. And, in W.E.S.'s case, where both K.S.A. and the father's parental rights were purportedly terminated, the calendar notes were signed by the judge at the end of the back page.
Notwithstanding the above, the 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.
At the conclusion of the hearing, the family court judge referenced K.S.A.'s criminal lifestyle, drug use, and poor decision making while making no specific reference to the evidence presented. The judge concluded the hearing by stating she was only "making a finding today that the adoption would go forward." November 12, 2019, hearing transcript at 11:06:48. --------
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).
Accordingly, we do not reach the merits of the appeals and the December 5, 2019, Judgments shall be set aside in all three cases. Whether another evidentiary hearing is conducted in accordance with KRS 199.502(2), shall be left to the sound discretion of the family court. However, we caution the family court that all adoption hearings are to be conducted in accordance with KRS 199.515.
For the foregoing reasons, we vacate and remand the Judgments rendered on December 5, 2019, in Appeal Nos. 2019-CA-1911-ME, 2019-CA-1912-ME, and 2019-CA-1913-ME for proceedings consistent with this opinion.
ALL CONCUR. ENTERED: May 21, 2021
/s/ Jeff S. Taylor
JUDGE, COURT OF APPEALS BRIEFS FOR APPELLANT: Jeffrey A. Herrington
Lexington, Kentucky K.S.A., Pro Se
Mt. Sterling, Kentucky BRIEFS FOR APPELLEES: Sue M. Lake
Cynthiana, Kentucky