Opinion
2021-CA-1007-ME
01-28-2022
M.N. APPELLANT v. A.A.; P.B.; AND S.B. APPELLEES
BRIEFS FOR APPELLANT: Allison S. Russell BRIEF FOR APPELLEE A.A.: Hugh Barrow
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 20-AD-500011
BRIEFS FOR APPELLANT: Allison S. Russell
BRIEF FOR APPELLEE A.A.: Hugh Barrow
BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
OPINION AFFIRMING
THOMPSON, L., JUDGE
M.N. ("Appellant") appeals from findings of fact, conclusions of law, and judgment of adoption rendered by the Jefferson Circuit Court in favor of A.A. Appellant argues that the adoption statutes, Kentucky Revised Statutes ("KRS") 199.500 and KRS 199.502, are unconstitutional because they are not narrowly tailored and improperly infringe upon parents' fundamental rights as to the care, custody, and control of their children. For the reasons addressed below, we conclude that Appellant has not overcome the strong presumption that KRS 199.500 and KRS 199.502 are constitutional. As such, we affirm the judgment on appeal.
We will not use the names of the parties because minor children are involved.
FACTS AND PROCEDURAL HISTORY
On April 25, 2017, a dependency, neglect, and abuse action was initiated in Shelby Family Court as to Appellant's biological child ("Child"). A finding of abuse and neglect was entered on August 16, 2017, and Appellant's cousin, A.A., was granted permanent custody of Child. A.A. has four biological children including one who is emancipated. The finding of abuse and neglect, and the order granting custody in favor of A.A., were based on Appellant's conduct which made her incapable of providing for Child's immediate and ongoing needs. Appellant had a history of drug addiction, prostitution, homelessness, and incarceration.
Case No. 17-J-00112-001.
In mid-2019, A.A. filed a petition in Shelby Family Court seeking to adopt Child. The Cabinet for Health and Family Services supported the petition. Due to jurisdictional issues, the Shelby Family Court dismissed the action and directed A.A. to refile the action in Jefferson Family Court.
A.A. refiled the petition in Jefferson Family Court, and Appellant was served via a warning order attorney on January 28, 2020. A.A. filed an amended petition in late 2020 to include as a party defendant the man shown as the father on the birth certificate, and Appellant answered in March 2021. Trial on the matter was conducted on June 2, 2021, after which the court memorialized the parties' stipulations that, 1) Appellant engaged in conduct making her incapable of caring for Child's immediate and ongoing needs; 2) the facts supported the finding of abuse and neglect; 3) Appellant's incarceration rendered her incapable of caring for Child's needs; and 4) Appellant did not know the identity of Child's biological father.
The Jefferson Family Court determined that this individual was not the biological father of Child.
The court rendered findings of fact detailing Appellant's usage of a litany of illegal drugs including opiates, cocaine, methamphetamine, and heroin. The court noted Appellant's recurrent homelessness and incarceration for prostitution and theft. The court found that Appellant failed to avail herself of several interventions offered by Child Protective Services.
The court went on to find that though Appellant visited Child after Child's placement with A.A., Appellant abruptly ended her visits and had no contact with A.A. nor Child for a period of two years. Since 2018, Appellant acknowledged seeing Child on only three occasions though there were no orders restricting her contact. During this time, Appellant continued to struggle with drug addiction, homelessness, and poverty. Appellant entered at least seven addiction programs, and relapsed after each of them. Appellant offered evidence of part-time employment, though acknowledged that she could not handle working full time and failed to return to work after an altercation with her boss.
As A.A. was seeking to adopt Child without Appellant's consent, the Jefferson Family Court applied its findings to KRS 199.502. That statute provides that the court may order adoption without the consent of the biological parent if one of several listed conditions were present. The court found that at least three conditions were present: 1) that Appellant abandoned Child for at least 90 days (KRS 199.502(1)(a)); 2) that she is substantially unable to provide essential care and protection to Child (KRS 199.502(1)(e)); and 3) that Appellant continuously and repeatedly failed to provide or has been incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for Child's wellbeing (KRS 199.502(1)(g)). Pursuant to KRS 199.502, the court made inferences from the record that there was no reasonable expectation of improvement.
The court noted that Appellant objected to the adoption, and that she argued that KRS 199.502 was unconstitutional because the standard for involuntary adoption was precariously low relative to the termination of parental rights provisions set out in KRS Chapter 625. The court declined to enter into an analysis of the public policy underlying KRS Chapters 199 and 625, noting that it was bound by the statutory law promulgated by the General Assembly. Based on the findings of fact and conclusions of law, the court granted A.A.'s petition for the adoption. This appeal followed.
Appellant's counsel attested that she notified the Kentucky Attorney General of a constitutional challenge in conformity with KRS 418.075(2).
ARGUMENTS AND ANALYSIS
Appellant, through counsel, argues that the Jefferson Family Court committed reversible error in granting A.A.'s petition for adoption of Child. Rather than asserting that the facts do not support the application of KRS 199.502 and the judgment of adoption, Appellant contends that KRS 199.500 and KRS 199.502 are unconstitutional and therefore void ab initio. She argues that these statutes 1) are not narrowly tailored to protect a compelling state interest and are therefore unconstitutional; and 2) that the standard for involuntary adoption under KRS 199.500 and KRS 199.502 is precariously low when compared to the termination of parental rights provisions set out in KRS Chapter 625, thus rendering the statutes unconstitutional. Appellant argues that the right to the care, custody, and control of children is a fundamental parental right subject to strict scrutiny, and that when seeking to protect children, the Commonwealth should engage in less drastic measures to preserve the familial relationship. In sum, Appellant seeks an opinion reversing the findings of fact, conclusions of law, and judgment of adoption.
Appellant's ARGUMENT section of the brief does not contain a statement at the beginning with reference to the record showing whether each issue was properly preserved for review and, if so, in what manner. See Kentucky Rules of Civil Procedure ("CR") 76.12(4)(c)(v). Rather than striking the brief and dismissing the appeal, CR 73.02(2)(a) and (b), we will consider the issues presented as it is clear that the claim of unconstitutionality was raised before and addressed by the Jefferson Family Court.
KRS 199.500 states that, (1) An adoption shall not be granted without the voluntary and informed consent, as defined in KRS 199.011, of the living parent or parents of a child born in lawful wedlock or the mother of the child born out of wedlock, or the father of the child born out of wedlock if paternity is established in a legal action or if an affidavit is filed stating that the affiant is the father of the child, except that the consent of the living parent or parents shall not be required if:
(a)The parent or parents have been adjudged mentally disabled and the judgment shall have been in effect for not less than one (1) year prior to the filing of the petition for adoption;
(b)The parental rights of the parents have been terminated under KRS Chapter 625;
(c)The living parents are divorced and the parental rights of one (1) parent have been terminated under KRS Chapter 625 and consent has been given by the parent having custody and control of the child; or
(d) The biological parent has not established parental rights as required by KRS 625.065.
(2)A minor parent who is a party defendant may consent to an adoption but a guardian ad litem for the parent shall be appointed.
(3)In the case of a child twelve (12) years of age or older, the consent of the child shall be given in court. The court in its discretion may waive this requirement.
(4)Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child.
(5)An adoption shall not be granted or a consent for adoption be held valid if the consent for adoption is given prior to seventy-two (72) hours after the birth of the child. A voluntary and informed consent may be taken at seventy-two (72) hours after the birth of the child and shall become final and irrevocable seventy-two (72) hours after it is signed.
Further, KRS 199.502 states that, (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:
(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.
(3) A biological living parent has the right to legal representation in an adoption wherein he or she does not consent. The Circuit Court shall determine if a biological living parent is indigent and, therefore, entitled to counsel pursuant KRS Chapter 31. If the Circuit Court so finds, the Circuit Court shall inform the indigent parent; and, upon request, if it appears reasonably necessary in the interest of justice, the Circuit Court shall appoint an attorney to represent the biological living parent pursuant to KRS Chapter 31 to be provided or paid for by:
(a)The petitioner, a fee to be set by the court and not to exceed five hundred dollars ($500); or
(b)The Finance and Administration Cabinet if the petitioner is a blood relative or fictive kin as established in KRS 199.470(4)(a), a fee to be set by the court and not to exceed five hundred dollars ($500).
As to Appellant's claim that KRS 199.500 and KRS 199.502 are unconstitutional,
[A]cts of the General Assembly carry a presumption of constitutionality. A statute will not be invalidated as unconstitutional unless it clearly, unequivocally, and completely violates provisions of the constitution. Moreover, the Commonwealth does not bear the burden of establishing the constitutionality of a statute, rather . . . the one who questions the validity of an act bears the burden to sustain such a contention. The issue of whether a statute is unconstitutional is a question of law
subject to de novo review. Wilfong v. Commonwealth, 175 S.W.3d 84, 91 (Ky. App. 2004) (internal quotation marks, footnotes, and citations omitted).
Thus, in examining de novo the question of whether KRS 199.500 and KRS 199.502 are constitutional, we 1) begin with the presumption that they are constitutional; and, 2) recognize that Appellant has the burden of proving that they "clearly, unequivocally and completely" violate provisions of the constitution. Wilfong, 175 S.W.3d at 91 .
Appellant's argument centers on her contention that "[t]he statutory bar for termination of parental rights pursuant to an adoption under KRS Chapter 199 is precariously low, especially in contrast to the grounds that must be proven to terminate parental rights under KRS Chapter 625." After careful review of KRS 199.500, KRS 199.502, and KRS Chapter 625, we cannot conclude that Appellant has overcome the presumption that KRS Chapter 199 is constitutional, nor that Appellant has proven that KRS Chapter 199 clearly, unequivocally, and completely violates provisions of the constitution. Wilfong, supra.
Appellant's brief at p. 5.
Appellant asserts that in their current form, KRS 199.500 and KRS 199.502 cast such a wide net that a child whose parent was on military deployment or hospitalized with cancer for more than 90 days is subject to being characterized as abandoned for purposes of KRS 199.502(1) and at risk of involuntary adoption. This claim is simply untrue. To the contrary, a panel of this Court noted that abandonment is a matter of intent "to forego all parental duties and relinquish all parental claims to the child." J.H. v. Cabinet for Human Resources, 704 S.W.2d 661, 663 (Ky. App. 1985) (internal quotation marks and citation omitted). Were this not the case, "servicemen, prisoners of war, ship captains or persons requiring prolonged hospitalization would be likely candidates to have their parental rights terminated." Id. "Abandonment is a matter of intent which may be proved by external facts and circumstances[.]" Id. Facts and circumstances may prove that a mother has abandoned her child via a life of drug addition, crime, and incarceration. Conversely, other facts may prove that no abandonment has occurred if a parent is on military deployment or experiencing extended hospitalization. As this analysis is fact-dependent, it is objectively false that KRS 199.500 and KRS 199.502 cast such an overly broad net that innocent, loving parents may be ensnared and subject to the involuntary and unconstitutional loss of their parental rights.
CONCLUSION
KRS 199.500 and KRS 199.502 are presumed to be constitutional, and the burden rests with Appellant to demonstrate that they clearly, unequivocally, and completely violate provisions of the constitution. Wilfong, supra. Because KRS 199.500 and KRS 199.502 do not blindly characterize as abandoned any child whose parent is absent for more than 90 days, but rather impose a fact-based analysis of the parent's intent and reasons for the separation, they are not overly broad and do not operate to unconstitutionally terminate a party's parental rights. Appellant has not met her burden of overcoming the presumption that KRS 199.500 and KRS 199.502 are constitutional. Accordingly, we affirm the findings of fact, conclusions of law, and judgment of adoption of the Jefferson Family Court.
ALL CONCUR