Opinion
NO. 2017-CA-000346-ME
01-12-2018
J.M.H. APPELLANT v. B.L.C.; A.D.C.; B.N.H.; AND A.R.H., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Doreen H. Thompson Lexington, Kentucky BRIEF FOR APPELLEES, B.L.C. AND A.D.C.: Christian Renau Worth Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE TIMOTHY PHILPOT, JUDGE
ACTION NO. 16-AD-00025 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, J. LAMBERT, AND NICKELL, JUDGES. LAMBERT, J., JUDGE: This is an expedited appeal arising from a proceeding for an adoption without the consent of the biological parent pursuant to Kentucky Revised Statutes (KRS) Chapter 199. J.M.H. has appealed from the February 20, 2017, order of the Fayette Family Court denying his motion to alter, amend, or vacate its December 6, 2016, order and judgment of adoption, which was supported by its findings of fact and conclusions of law entered on August 5, 2016. Finding no error or abuse of discretion, we affirm.
First, we shall identify the parties and other relevant individuals. The child at the center of the proceedings is A.R.H., who was born in April 2010 in Fresno, California (the Child). Her biological parents are B.R.H. (the Mother) and J.M.H. (the Father), who met in and currently live in Lexington, Kentucky. After the Mother became pregnant, the Mother and the Father moved to California, where they lived with the Mother's mother (the Maternal Grandmother). The biological parents were never married and are no longer in a relationship. B.L.C. is the Mother's sister and, therefore, the Child's maternal aunt (the Aunt), and her husband, A.D.C, is the Child's maternal uncle (the Uncle). The Aunt and the Uncle were married in 2015, and they also live in Lexington.
In 2012, due to substance abuse problems of both parents, the Aunt twice traveled to California to bring the Child back to Kentucky. First, for about a month during the Spring of 2012, the Aunt kept the Child. She then returned the Child to California. In July 2012, the Aunt traveled to California and brought the child back to Kentucky. Except for the brief time she was returned to California, the Child has lived with the Aunt and the Uncle in Kentucky since April 2012. In July 2013, the Aunt was granted permanent custody by the Fayette Family Court in Case No. 12-J-01780-001. As a part of the disposition order, the Mother was to complete substance abuse and parenting assessments and follow all recommendations. She was also permitted supervised visitation and phone contact with the Child. The Father was also ordered to complete substance abuse and parenting assessments and to follow all recommendations; to submit to CAPS drug testing; to complete an inpatient or intensive outpatient substance abuse program; to maintain full-time employment; to pay $400.00 per month in child support beginning June 15, 2013; to have supervised visitation with the Child, with the condition that visits would be terminated if he tested positive for drugs or missed a drug test; and to provide at least 24 hours' notice of a request for visitation or to change a scheduled visit. The family court stated that the award of permanent custody would not be subject to the two-year waiting period for a party to seek modification. More than two years later, the Father filed a motion to modify custody and expand timesharing.
This motion is not included in the certified record as it was filed in a separate action.
In February 2016, the Aunt and the Uncle filed a petition with the family court to adopt the Child through a relative adoption process. Pursuant to the statute, approval from the Cabinet for Families and Children and an independent home study were not required (KRS 199.470(4)(a) and KRS 199.473(1) and (2)). And KRS 199.480(3) did not require the appointment of a Guardian ad litem (GAL) to represent the Child's interests. In the event either the Mother or the Father failed to consent to the adoption, the Aunt and the Uncle asked that the adoption be granted without their consent pursuant to KRS 199.500(4) and KRS 199.502(1) and that their parental rights be terminated. In support, the Aunt and the Uncle alleged that conditions set forth in KRS 625.090 existed as to both parents. Regarding the Father, the Aunt and the Uncle alleged that he had failed to provide essential parental care and protection for the child and that he failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for the Child. Under both allegations, they alleged that there was no reasonable expectation of improvement, considering the age of the Child. The Aunt and the Uncle also moved the court to order the Cabinet to complete and submit a report pursuant to KRS 199.510, which the court granted. The Mother's voluntary and informed consent to the adoption was filed in the record shortly thereafter. She was represented by separate counsel at the time she completed her consent filing.
The Father, on the other hand, did not consent to the adoption, and he filed a response in opposition to the petition. In his response, the Father agreed that the appointment of a GAL was not required, but stated that "such input may benefit the Court." He specifically disputed that any provisions of KRS 625.090 existed with respect to the Child and requested that the family court deny both the request to terminate his parental rights and for adoption.
The Cabinet filed a confidential report in May 2016 detailing the findings of its investigation of the parties. Regarding the Child's adjustment, the Cabinet stated as follows:
The petitioners state that they want to adopt the child in order to provide her with a stable environment in which to grow up and opportunities that may not be available to her otherwise. They are also in the process of creating a Will for themselves and want to be able to add her to it, in the event something were to happen to them, so that she would be provided for. They have been involved with the child off and on since her birth. The child is accustomed and adjusted to the petitioners' home because she has consistently resided with them since 2012. The child refers to the petitioners as "mommy" and "daddy". The petitioners are willing to allow visits with the birth parents to continue after adoption.The Cabinet recommended that the adoption be granted.
The court held a final hearing on July 18, 2016. At the beginning of the hearing, the parties discussed the status of both the adoption and the custody cases. While counsel for the Father thought the hearing that day would be related to both the adoption and custody motions, counsel for the Aunt and the Uncle stated that the pending motions in the custody action had been ruled on in June. Counsel for the Aunt and the Uncle went on to state that at the case management conference in the custody case, the parties had discussed the higher standard of proof necessary in the adoption action and that it would make more sense to hold the adoption hearing. Counsel for the Father stated that the custody action pre- dated the adoption action and that it took priority. The court decided to proceed on both cases and permitted the Aunt and the Uncle to put on their proof, followed by the Father putting on his proof.
The Aunt was the first witness to testify. The Child first came to live with her and the Uncle in April 2012. She was later granted permanent relative custody in a juvenile action. The Aunt met the Father through the Uncle when she moved to Kentucky for an internship; the Father and his then-wife were living with the Uncle. The Father and the Mother began a relationship while he was still married. The Mother became pregnant and had an abortion. Two months later, the Mother was in a car accident and discovered she was again pregnant. The Maternal Grandmother had the Mother return to California. The Father moved to California a few months later, and they moved in with the Maternal Grandmother. The Aunt continued to live in Kentucky. The Child was the result of the second pregnancy.
The Aunt testified that both parents had problems with drugs in the Fall 2011. The Aunt traveled to California multiple times at the Maternal Grandmother's request to address the issue. The Mother admitted she had a problem with methamphetamines and opiates, and the Father was taking the Mother's pills. During April 2012, the Aunt reported that the Child was staring at a wall when she tried to play with her. An attempted intervention was not successful with the Father, but the Mother agreed to let the Aunt take the Child back to Kentucky. They promised they would get help. The Aunt returned at Mother's Day and left the Child in California. A month later, the Maternal Grandmother called the Aunt to say that the Father had disappeared and was living on the streets. The Maternal Grandmother called the Father's father (the Paternal Grandfather) and told him she would pay for an airline ticket for the Father to return to Kentucky. The Father, after detoxing in a hotel, entered a rehab facility where his sister was also a patient. The Aunt returned to Kentucky with the Child, where she has remained since that time.
The Aunt sought permanent custody of the Child due to issues the Father was having with his rehab attempts and his proximity in Indiana. A juvenile action was filed, and a social worker in Florida performed an evaluation, where the Father was at that time living. The Father tested positive for marijuana at that time. In July 2013, the Aunt was awarded permanent sole custody of the Child. In the permanent custody order, the Mother and the Father were required to complete various tasks to make progress as to the Child, including substance abuse assessments, parenting classes, drug testing, maintaining employment, and the payment of $400.00 per month in child support. The Aunt had not been provided with a certificate to show that the Father had completed a substance abuse assessment. The Aunt had received $100.00 in child support from the Father in October 2013, but nothing else.
The Aunt continued to supervise visitation between the Child and the Father, although at times the Paternal Grandfather supervised the visits. She always permitted the Father to have visitation with the Child, and these visits lasted about an hour. They were held at restaurants or in the park, wherever the Father asked to meet. The Aunt was concerned about visitations that were supervised by the Paternal Grandfather when she was not able to be present, and these were generally around birthdays or family holidays. The Aunt related a visit in 2014 at Chuck E. Cheese's that had also been attended by the Father's girlfriend. The Aunt was concerned with a girlfriend being around during a visit. She followed up with the Paternal Grandfather, who told her that the girlfriend had gotten in the car when he picked up the Father and that he felt very uncomfortable. The Father admitted that this was an error in a text message and said that the girlfriend attending the party was not planned. The Aunt researched the girlfriend and discovered that she had several drug offenses. The Father had not informed the Aunt about this girlfriend. Two months later, the Father told her he was having a birthday dinner and that the girlfriend was attending. The Aunt said that was not alright with her, and the girlfriend did not attend the dinner. The Aunt testified about public social media posts she had seen showing photographs of the Father and the girlfriend on a beach and of her wearing a diamond ring. Because the Father had only paid her $100.00 in child support, the Aunt did not believe the Father's priorities were where they were supposed to be.
The Aunt went on to testify about her relationship with the Child. She made arrangements for the Child's medical care and placed her in pre-school. She provided her clothing and meals. The Father had not provided any funds for the Child's needs, with the exception of the $100.00 in child support he paid in 2013. The Aunt considered the Child to be her daughter; the Child called her "mommy" and the Uncle "daddy." For as long as the Aunt had the Child in her care, the Father had never taken the Child to a medical appointment, attended a parent-teacher conference, bought her school supplies, or taken her ice skating, golfing, or fishing, or to church. The Child had attended church with the Parental Grandfather. The Aunt's intent was not to cut the Father out of the Child's life. Rather, the Child did not remember living with anyone else, and the Aunt did not want the Child's life to be disrupted. She was also old enough to know who her parents were, and the Aunt did not want to cut either them out of the Child's life. The Aunt described parenting as being a full-time job, and likened the Father to putting the Child on "layaway." The Aunt wanted to provide stability for the Child through the adoption.
On cross-examination, the Aunt said she never had any confidence that the Father was clean from drugs. She never saw him as parental; he only played with the Child. She said he had never requested unsupervised visitation. He never asked the Aunt about the Child's school or medical appointments. He never asked anything parental about the Child. She said the Father slept through a breakfast visitation one month before he filed his motion for custody. She also said the Father waited for two years to move to change the custody order, despite the waiver of the two-year period for seeking modification. The Aunt stated that she never addressed his lack of child support payments with him, saying that it was not her responsibility to do so because it was in the court order and that she was able to afford to take care of her. This, she said, was another example of his failure to be a parent. She said four years previously, the Father sought to take the Child to Florida, but failed a drug test. The Father had only bought her toys for gifts, never any clothes or anything parental. For visitations, the Aunt would always let the Father choose the time and the place, with time restrictions in place with school nights and her 7:00pm bed time. He had only once asked to see the Child on a Saturday, at a time when his mother was in town.
The Uncle testified next. He discussed the scrapbook the Child created in which she referred to him as "daddy." He had been providing for her every day since she came to live with them. He put her to bed, read her books, took her fishing and golfing, and had taken her to golf camp at Greenbriar the previous month. He helped pay for the Child's childcare costs, school, vacations, and activities. If anything were to happen to the Aunt, he believed he should be the one to raise her because he was the Child's father. The Uncle said it had been awhile since he had spoken with the Father, but they had been roommates in the past when they were in their twenties. They met through the Father's former wife, who had also lived with them. He did not believe the Father was using drugs when they were roommates.
The Father testified next. He first addressed irregularities in some of his CAPS drug testing. He had three positive drug screens and was able to have two of these retested. The screens were negative on retesting. The reports of the retests were not certified. The Father went on to testify about when he lost his daughter. He said he had been in a bad place and was beginning his recovery when he moved back to Kentucky. He admitted that he had had a problem with drugs in the past, but had been clean since December 2012. He worked as an area manager for a retail store and currently earned about $50,000.00 per year. He said he and the Aunt were friends before the Child was born and that he still considered her a dear friend. The Father wanted unsupervised visitation with the Child so that he could form more of a relationship with her. He described supervised visitation as uncomfortable. He said he had completed the parenting and cognitive thinking classes that were originally ordered, and while he failed to get sober at first, he got involved with work to add stability to his life. He was hoping that things were working themselves out between him and the Aunt. He said he missed his daughter. He was more localized with his job at the current time, which led him to seek additional time with the Child.
The Father discussed his girlfriend, to whom he was engaged at the time of the hearing. He described the situation where his girlfriend came to the restaurant with them. He said that the Child asked her to come with them, but described the situation as uncomfortable. Regarding child support, he was aware that he had been ordered to pay $400.00 in child support, but he never discussed this with the Aunt. He said he did not have a lot of money, but the Aunt and the Uncle did. He knew that the Child was being provided for, and he was trying to attain stability for himself. He started a savings account for the Child three months before the hearing, and it contained about $4,000.00. He had purchased toys for the Child as presents over the years. His father and step-mother had purchased her clothes.
The Father wanted to be involved in every aspect of the Child's life, but he could not do so with the parameters put in place by supervised visitation. He wanted to form a bond with the Child and take her fishing. He wanted to be a daily, involved parent. He and the Aunt never discussed the Child's school or medical appointments. He felt the Aunt did not want him to be involved so the subject was avoided. Through drug testing over the year, he thought he had proven that he was clean and that he should have unsupervised visitation with the Child. He wanted joint custody of the Child. While he considered the Aunt and the Uncle to be mother and father figures for the Child, the Father wanted to share parenting with them, which he had not been allowed to do. The Child also spent time with the Paternal Grandfather on Friday evenings.
On cross-examination, the Father admitted that he had only made one child support payment. He did not recall that it was monthly. He said he could not afford to pay the support at first, but was now in a position to do so. He received his promotion in October 2015, but had not made any payments. He had not provided any funds for the Child. The Father did not use drugs or drink alcohol. He began in AA, although drinking alcohol was not his problem, but he found a group to surround himself with on the same path to recovery. He said that through prayer and meditation, he had remained sober, and that his relationship with God kept him sober. He did not have an AA sponsor, but he occasionally took people to AA meetings to introduce them to the program.
The Father admitted that the Aunt and the Uncle had been the Child's parents. He agreed that it was his responsibility to create the relationship between him and the Child, not the Aunt. He was also responsible for staying sober and paying his child support. He admitted that he spoke with the Child during visits, but the Father did not know the names of the Child's swim team or cheer team, or the name of her doll. He had never asked these questions. He thought the best way to ensure he had a relationship with the Child was to have joint custody. He admitted that he took a trip to a Mexican resort, had a $300.00 car payment, leased his house, and earned $30,000.00 per year prior to his promotion. He had been living with the girlfriend for a year and a half. She worked, earning between $14.00 and $15.00 per hour, and attended school. He had completed the parenting and cognitive thinking classes in 2016. The Father believed that the Aunt and the Uncle had done an admirable job raising the Child.
The next witness to testify was the Paternal Grandfather. He was aware of the Father's drug problems years earlier, having learned this from the Maternal Grandmother when the Father was living in California. He flew out to California and tried to get him set up in a program. The Father did not follow through with this. The Father moved back to Lexington at least two years ago. He did not have any concerns with the Father as far as his alcohol and drug use. He was more responsible now that he was no longer taking drugs. The Paternal Grandfather knew the girlfriend and did not have any concerns about her, despite knowing about her past legal issues. He would support a joint custody award. On cross-examination, he admitted that when he found out that the Aunt and the Uncle wanted to adopt the Child, he said the Child was where she needed to be.
The Father's girlfriend testified next. She and the Father were engaged and planned to get married in May 2017. She was arrested in 2011 for drug possession. She had been addicted to Oxycodone between the ages of 16 and 19. She tried going to a Suboxone clinic and quitting on her own, but this did not work. She was in treatment for ten months when she was 19 years old, and that program gave her the tools she needed to stay clean. She went to AA for years. Her first day of sobriety was March 22, 2012, when she was in jail. She entered into treatment in April 2012 in connection to her criminal case. She was on low-supervised probation. She was sentenced in January 2013 after she went into treatment. She had never failed a drug test or violated the terms of her probation. She had met the Child three times, twice at church and once at the restaurant when the Child asked her to come with them. She understood that the Aunt wanted the best for the Child.
The court permitted the parties to make closing arguments after the testimony concluded. The Aunt and the Uncle described the Father's attempts to expand his role in the Child's life as "too little too late" considering her age. The Father's own testimony established that he failed to step up and parent the Child and failed to provide any financial support because the Aunt and the Uncle did not need it. Despite his sobriety, the Father was not acting like a parent. In response, the Father stated that the Aunt refused to go any further with visitation other than supervised. While it was not their job to seek the support payments from the Father, the Aunt and the Uncle did not appear to have a problem with his lack of payments because they never sought to enforce the order. He believed it would be in the Child's best interest to permit her to form a normal relationship with the Father. He requested that his parental rights not be terminated and that he be granted joint custody. The parties submitted proposed findings of fact and conclusions of law pursuant to the court's direction. The court adopted the Aunt and the Uncle's proposal and entered its findings of fact and conclusions of law on August 5, 2016.
In this ruling, the court made extensive findings about the Father's background with the Child and his current life. The court detailed the Father's drug abuse problems, failed rehab attempts, positive drug test results, and the fact that he had not completed a formal substance abuse program as he was ordered to do, but rather relied on his faith to maintain his sobriety. The court also recognized that the Father had maintained steady employment and was currently a regional manager with his company, and that he had completed parenting and cognitive thinking classes. However, the court also recognized that the Father had only paid $100.00 in child support in October 2013, despite the order that he was to pay $400.00 per month. The court rejected the Father's testimony that he could not afford to pay child support. The Father earned approximately $30,000.00 per year until October 2015, when he was promoted and began earning $50,000.00 per year. He had only purchased toys for the Child, while his parents had purchased clothing for Christmas and her birthday. The Father had also saved $4,000.00 over the last three months for the Child, but did not testify that he intended to use these funds for child support. Furthermore, he had enough money to pay for trips to Mexico in 2015 and 2016, for an engagement ring, for a $300.00 per month car payment, and for a three-bedroom leased home he shared with his fiancée. Based on this evidence and testimony, the court determined that:
[The Father] has not failed or refused to provide essential parental care and protection for any reasons based on poverty as $30,000.00 annual income is far more than would constitute poverty. [The Father] does not seem to understand that providing parental care and protection for a child would involve far more than $400 a month, but he testified that he could not even pay that much until his recent promotion even though he has failed to pay anything at all since he received it.
The court went on to address the Father's interactions with the Child, including visitation and his lack of involvement with other aspects of her life, such as medical appointments, parent-teacher conferences, activities, and her bible school's final show. The court rejected the Father's argument that the Aunt should have been doing more to establish a parental relationship between him and the Child, noting that the Aunt had never refused to let him see the Child and that it was not her responsibility to reunite them. It was up to the Father to seek relief from the court, which he did not do until October 2015. The court noted that the Father had not paid any child support since he sought modification of the custody order or since the present action had been filed. Therefore, the court found by clear and convincing evidence that the Aunt and the Uncle had "provided 100% of parental care and protection to [the Child]" and that the Father had failed to provide any. The court concluded that the Father "may mean well but he just does not have a real grasp on what parental care and protection would entail" and that there was no reasonable expectation of improvement in the foreseeable future, considering the age of the Child.
The court went on to find that the Father failed to provide essential food, clothing, shelter, medical care, or education reasonably necessary for reasons other than poverty alone and there was no reasonable expectation of significant improvement in the immediately foreseeable future. He had only provided the Child with toys for Christmas and her birthday since April 2012; he had never provided, and refused to pay for, any essentials since the Child had lived with the Aunt and the Uncle and had not been doing so before that as he had substance abuse problems; his child support arrearage totaled $14,400.00 (he had only paid $100.00 in child support); and based on his income and splitting of his residence and expenses with his girlfriend, he made a sufficient salary to afford to pay child support. The court expressed concern about the Father's history of unsuccessful recovery attempts and his failure to complete any type of substance abuse problem, and the court found it troubling that despite his parenting and cognitive thinking classes, the Father did not "have a realistic understanding of the obligation or responsibility or requirements of a parent to provide essentials for a child." The Father's complacency had allowed the Aunt and the Uncle to become the Child's parents as they provided for 100% of her needs. Considering the status quo of the past four years, the court found that there was no reasonable expectation of significant improvement in the foreseeable future, considering the age of the Child.
The court recognized that the Cabinet recommended that the adoption be granted if all the legal requirements were met and that the Aunt and the Uncle were of good moral character, had good standing in the community, and had the moral and financial ability to raise the child. The court found that the Child was suitable for adoption because she had been in relative custody for most of her life and the Aunt and the Uncle wanted to plan for her future if something were to happen to one of them. The court also found that adoption would be in the Child's best interests, noting that everyone but the Father approved of the adoption, including the Paternal Grandfather. Therefore, the court terminated the Mother's and the Father's parental rights and indicated that a judgment would be entered permitting the Aunt and the Uncle to adopt the Child.
The Father filed a premature appeal from the August 5, 2016, ruling, which was dismissed by this Court on December 14, 2016. --------
In November 2016, the parties filed a joint motion requesting that the court enter a final judgment in the case. On December 6, 2016, the family court entered an order and judgment of adoption, finding that all legal requirements for adoption had been met and that it was in the Child's best interests for the Aunt and the Uncle to adopt her.
The Father moved the court to alter, amend, or vacate its December 6, 2016, judgment pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. He disagreed with the court's findings that adoption would be in the best interest of the Child and that there was no reasonable expectation for improvement in his conduct in the foreseeable future. He argued that the appointment of a GAL would have been in the Child's best interest and that there was "ample evidence" of a marked improvement in his conduct. The Aunt and the Uncle objected to the Father's motion. The family court denied the Father's motion in an order entered February 20, 2017, finding that a GAL was not required in this proceeding and rejecting his argument that the Father had established a reasonable prospect of improvement. This expedited appeal now follows.
In his brief, the Father contends that the family court should have appointed a GAL to represent the interests of the Child, that he had provided evidence of an expectation of improvement, and that the court failed to enter a judgment within thirty days of the hearing. The Aunt and the Uncle dispute the Father's arguments in their brief.
For his first argument, the Father argues that a GAL should have been appointed in this case and that it was error for the family court not to do so, necessitating a new hearing. He contends that he requested the appointment of a GAL, but the family court never ruled on his request. And because of the adversarial nature of the proceedings and the fact that the Aunt and the Uncle were seeking to terminate his parental rights, a GAL should have been required. We disagree.
KRS Chapter 199 addresses protective services for children, and KRS 199.470, et seq., specifically addresses adoption proceedings. KRS 199.480(3) discusses the necessary parties in an adoption petition, including the appointment of a GAL for the child at issue: "If the child's biological living parents . . . are parties defendant, no guardian ad litem need be appointed to represent the child to be adopted." Here, both biological living parents were named as parties to the adoption action; therefore, KRS 199.480(3) applies, and a GAL did not need to be appointed to represent the child. The Father is in essence asking this Court to act as the General Assembly and carve out an exception to this statutory provision. We decline to do so. We also recognize that the Father never specifically moved the family court to appoint a GAL; he merely stated in his response to the adoption petition that it may be helpful to the court if it were to do so. Accordingly, we find no merit in this argument.
Next, the Father argues that the family court erred in concluding that there was no reasonable expectation that he would improve in parental care and protection pursuant to KRS 625.090, which addresses the involuntary termination of parental rights. He argues that for several years he had maintained his sobriety, was gainfully employed, and had stable housing. He was a different man from the time the Aunt and the Uncle removed the Child from California and as such he established that there was an expectation of improvement in his ability to care for and protect the Child as her parent.
First, we agree with the Aunt and the Uncle that the Father has improperly argued that this case is a proceeding for termination of his parental rights under KRS Chapter 625. Rather, this is a relative adoption proceeding pursuant to KRS Chapter 199.
KRS 199.470 explains the process for filing a petition for adoption, and KRS 199.520 provides for the findings a court must make in order to enter a judgment of adoption as well as its legal effect:
(1) After hearing the case, the court shall enter a judgment of adoption, if it finds that the facts stated in the petition were established; that all legal requirements, including jurisdiction, relating to the adoption have been complied with; that the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child; and that the best interest of the child will be promoted by the adoption and that the child is suitable for adoption. In the judgment, the name of the child shall be changed to conform with the prayer of the petition. The judgment and all orders required to be entered and recorded in the order book, including the caption, shall contain only the names of the petitioners and the proposed adopted name of the child, without any reference to its former name or the names of its birth parents.KRS 199.500(1) provides that "[a]n 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" with some exceptions, notably if parental rights had been terminated under KRS Chapter 625. KRS 199.500(4), in turn, provides that:
(2) Upon entry of the judgment of adoption, from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the parents adopting it the same as if born of their bodies. Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent.
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.
In their petition, the Aunt and the Uncle requested that, in the event the Father failed to consent to the adoption, the court should grant their petition without his consent pursuant to KRS 199.500(4), as set forth above, and KRS 199.502(1)(e) and (g). KRS 199.502 addresses situations where a living biological parent does not consent to the adoption and sets forth the proof a petitioner must establish. As it pertains to the present case, the statute provides as follows:
(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:
. . .
(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;
. . . .
(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:
Because the Father did not consent to the adoption, the matter proceeded under KRS 199.502.(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.
The court found that the Aunt and the Uncle had established the conditions under KRS 199.502(1)(e) and (g) in its lengthy and detailed findings of fact and conclusions of law. We are mindful that CR 52.01 provides the general framework for the family court as well as review in the Court of Appeals:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An appellate court may set aside a lower court's findings made pursuant to CR 52.01 "only if those findings are clearly erroneous."). The Asente Court went on to address substantial evidence:
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted).
In his brief, the Father limits his argument to whether there was a reasonable expectation of improvement under KRS 625.090(2)(e), which addresses parental care and protection:
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[.]In its findings of fact, the family court made extensive findings related to the Father's failure to provide any parental care or protection for the Child throughout her life, including his failures to pay child support; to seek modification of the custody order any sooner than October 2015; to ask about or participate in the Child's medical appointments, parent-teacher conferences, or activities; or to interact with the Child to find out anything about her. The court concluded that,
After four years in [the Aunt and the Uncle's] stable home and having been raised under their consistent parental caregiving and given that [the Child] is now 6 years old, it has been shown by clear and convincing evidence that [the Father] may mean well but he just does not have a real grasp on what parental care and protection would entail - a parenting class completed in June of 2016 and desire to take [the Child] fishing being wholly insufficient to demonstrate otherwise - and there is no reasonable expectation of improvement in the foreseeable future.These findings of fact are supported by substantial evidence of record and are therefore not clearly erroneous. We find no merit in the Father's arguments otherwise. Accordingly, we hold that the family court did not abuse its discretion in finding and concluding that the condition set forth in KRS 199.502(1)(e) had been met.
Even if we had found merit in the above argument, the Aunt and the Uncle are correct that they only needed to establish that one condition in KRS 199.502(1) existed to support their petition for adoption without the Father's consent. The Father failed to address the court's separate finding under KRS 199.502(1)(g), which provides as follows:
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[.]Based upon our review of the record, however, we hold that the family court's findings and conclusions on this issue are also supported by substantial evidence and are not clearly erroneous.
Finally, the Father argues that the family court failed to enter the judgment of adoption within thirty days pursuant to KRS 625.090(6). As we stated earlier, this is a proceeding for adoption under KRS Chapter 199, not for termination of parental rights under KRS Chapter 625. Therefore, we find no merit in this argument.
For the foregoing reasons, the orders of the Fayette Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Doreen H. Thompson
Lexington, Kentucky BRIEF FOR APPELLEES, B.L.C.
AND A.D.C.: Christian Renau Worth
Lexington, Kentucky