Opinion
NO. 2020-CA-1150-ME
04-09-2021
T.B. APPELLANT v. T.W.B.; D.B.B., A CHILD; H.D.B.; AND CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
BRIEF FOR APPELLANT: Luke Bentley, III Vanceburg, Kentucky BRIEF FOR APPELLEE T.W.B.: Alice Dansker Doyle Vanceburg, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Dilissa G. Milburn Mayfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 19-AD-00013 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES. ACREE, JUDGE: T.B. appeals the Lewis Circuit Court's August 12, 2020, Findings of Fact and Conclusions of Law and Judgment of Adoption concerning his biological child, D.B.B. In accordance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012), counsel for T.B. filed a Notice of Appeal and, subsequently, filed an Anders brief conceding that no meritorious claim of error exists to present to this Court. Counsel accompanied the brief with a motion to withdraw, which was passed to this merits panel. After careful review, we grant counsel's motion to withdraw by separate order and affirm the circuit court's order of adoption.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
BACKGROUND
D.B.B. was born on July 22, 2014. She has lived with her biological mother, H.D.B., since birth. According to the Cabinet for Health and Family Services ("Cabinet"), D.B.B.'s biological father, T.B., ended his relationship with H.D.B. when she told him she was expecting a child. T.B. has been incarcerated during the majority of D.B.B.'s life. (Video Record "V.R." at 4:14:18-4:15:10).
Adoptive father, T.W.B., married H.D.B. in June 2018. He filed a Petition for Adoption on October 9, 2019. The petition alleged that T.B. abandoned D.B.B., has continuously or repeatedly failed or refused to provide essential parental care and protection, continuously failed or refused to provide essential food, clothing, shelter, and medical care, and that no reasonable expectation of improvement existed. On the other hand, he alleged that D.B.B. has resided with him since 2017, and he is able to properly care for her.
The petition superfluously asked that T.B.'s parental rights be terminated.
The circuit court appointed a guardian ad litem to represent the child and a guardian ad litem to represent T.B., who was incarcerated at that time. After conducting a thorough investigation, the Cabinet recommended the adoption be granted.
T.B. was serving time for a violation of his parole.
The circuit court conducted a final hearing on August 3, 2020, at which it heard testimony from, among others, T.B., T.W.B., and H.D.B. It entered its findings of facts and conclusions of law on August 12, 2020, finding:
10. Respondent, [T.B.], has abandoned the Child for a period of not less than ninety days and has, for a period of not less than six months, has continuously and repeatedly failed and refused to provide essential parental care and protection for the above-named Child.
11. Respondent, [T.B.], has continuously and repeatedly failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary and available for the above-named Child's well-being and there is no reasonable expectation of significant improvement in the Respondent's conduct in the immediately foreseeable future.
12. There is no reason known to the petitioners to believe that Respondent [T.B.'s] conduct in failing to care for the minor child will change in any way.
13. The Respondent [T.B.] has continuously and repeatedly failed or refused to provide essential parental protection for the Child, considering the age of the Child.
14. There has been no support paid by Respondent [T.B.] for the support of the above-named infant Child.
15. The Respondent, [T.B.], for reasons other than poverty alone, has continuously and repeatedly failed to provide essential food, clothing, shelter, or medical care reasonably necessary and available for the Child's well-being and there is no reasonable expectation of significant improvement in Respondent's conduct in the immediately foreseeable future, considering the age of the child.
16. The Petitioner has the facilities readily available and is willing to receive full and permanent custody via adoption of the Child herein named.
17. It is in the best interest of the infant Child named herein that the Respondent [T.B.'s] parental rights be terminated involuntarily, and that Judgment of Adoption be granted.
. . . .
The circuit court entered an accompanying order granting the adoption. This appeal followed.
19. The Petitioner is of good moral character, reputable standing in the community, and [is] of the ability to properly maintain and educate the Child to be adopted.
20. The child is suitable for adoption and it will be in her best interest if the Petitioner is allowed to adopt her.
ANALYSIS
Pursuant to A.C., the function of this Court is "to independently review the record and ascertain whether the appeal is, in fact, void of nonfrivolous grounds for reversal." A.C., 362 S.W.3d at 372 (citation omitted). Such review is analogous to a palpable error review, requiring only that we ascertain whether any error affects the substantial rights of a party. Id. at 370. If such a review results in the Court's agreement with an appellant's counsel that there is no nonfrivolous grounds for appeal, it is appropriate to affirm the circuit court.
Before this Court, both T.B. and T.W.B. have referred to this action primarily in the context of an action for the termination of T.B.'s parental rights. They cite and rely on the termination of parental rights statute, KRS 625.090. Although the circuit court eluded to the fact that T.W.B. sought the termination of T.B.'s parental rights, this is not a termination of parental rights case governed by KRS Chapter 625; it is an adoption case governed by KRS Chapter 199. We have reviewed the record accordingly.
Kentucky Revised Statute.
The circuit court only entered a Judgment of Adoption. Regardless, even had the circuit court entered separate orders—one terminating T.B's parental rights and the other granting the adoption—our review must be in accordance with the adoption statutes. C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019). --------
KRS 199.502(1) provides:
(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; . . . .
The circuit court determined by clear and convincing evidence that KRS 199.502(1)(a), (e), and (g) were proven. In addition, it concluded than an adoption would be in the best interest of D.B.B.
The record contains substantial evidence to support the circuit court's decision to grant T.W.B.'s petition for adoption. H.D.B. testified that the Child has lived with her since birth and that T.W.B. has helped provide for the Child since June 2017. In addition, she noted that T.B. has had little contact with D.B.B. Specifically, he has only seen her 9-10 times since her birth and has not seen her since December 2018. She further testified that T.B. has provided no support of any kind. (V.R. 2:46:45-2:50:20.) Likewise, T.W.B. testified that T.B. has provided no support of any kind since June 2017, when he became involved in raising D.B.B.
T.B. did not deny his lack of involvement in D.B.B.'s life, but asserted it was the result of H.D.B.'s refusal to allow him to visit, not to mention his incarceration. However, H.D.B. noted multiple occasions when she allowed T.B. to visit, but he would often arrive under the influence of drugs or alcohol. From the record, it appears that T.B. made little effort, if any, to become involved in D.B.B.'s life.
The Court in the case now before it has undertaken the appropriate review and agrees with counsel for Appellant that there is no nonfrivolous ground that would justify reversal of the circuit court.
CONCLUSION
We affirm the Lewis Circuit Court's August 12, 2020, Findings of Fact and Conclusions of Law and Judgment of Adoption.
ALL CONCUR. BRIEF FOR APPELLANT: Luke Bentley, III
Vanceburg, Kentucky BRIEF FOR APPELLEE T.W.B.: Alice Dansker Doyle
Vanceburg, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Dilissa G. Milburn
Mayfield, Kentucky