FROM LINCOLN CIRCUIT COURT HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 17-AD-00002
FOR APPELLANT: Christopher Lee Coffman Liberty, Kentucky.
FOR APPELLEES: Christopher Reed Stanford, Kentucky.
BEFORE: JONES, NICKELL AND TAYLOR, JUDGES.
characterized as the biological father of A.R.P., challenges
findings of fact and conclusions of law, as well as a
separate judgment of adoption entered by the Lincoln Circuit
Court, Family Division, on September 19, 2017. S.B.P. also
challenges an order overruling his motion for a new trial,
entered by the same court on December 15, 2017. Review of the
record, briefs and law mandates the findings of fact,
conclusions of law, and judgment of adoption be vacated due
to noncompliance with KRS Chapter 199.
was born addicted to drugs on August 26, 2014. Both her
biological mother, H.T., and father have long histories of
illegal drug activity.
birth, A.R.P. was placed with a foster parent attuned to
children with special needs who weaned her from drugs. In
2015, pursuant to Mercer Circuit Court, Family Division, Case
No. 14-J-00164-001,  A.R.P. was placed in the permanent
custody of the L.'s. There she remains and
appears to be thriving.
January 3, 2017, the L.'s petitioned for TPR-voluntary as
to H.T.; involuntary as to S.B.P. The L.'s identified
themselves as "petitioners" and listed four
"respondents"-H.T., S.B.P., GAL,  and the Cabinet
for Health and Family Services
("CHFS"). Consistent with KRS 625.050(1), the case
was styled, "IN RE: THE INTEREST OF [A.R.P.], a minor
child." Accompanying the L.'s petition was a
notarized statement labeled "Petition for Voluntary
Termination of Parental Rights" executed by H.T. on July 6,
2016, in which she voluntarily consents to TPR as to herself
and adoption of A.R.P. by the L.'s. The statement does
not mention S.B.P. CHFS filed no documents in this case and
never entered an appearance. While initiated as a TPR case,
the circuit court action was assigned an "Adoption"
matter progressed, the L.'s moved to amend the petition
to add a prayer for adoption. The motion listed the same
petitioners and respondents, repeated the same case style,
and carried the same case number. A copy of the motion to
amend was served on H.T., S.B.P. and CHFS via mail.
order amending the petition to add the prayer for adoption
was entered on April 18, 2017. Copies were sent by the
circuit court clerk to H.T., S.B.P. and counsel for the
L.'s. The record does not confirm a copy of the signed
order was provided to CHFS.
is a federal inmate with an anticipated release date of 2032.
The sum of his participation in this case was filing four
handwritten documents in which he consistently professed a
desire for his father to have temporary custody of A.R.P.
rather than the L.'s whom he believes are in their
eighties. He also said he expected relief from his prison
sentence due to a pending appeal (which was denied); claimed
his mother and father had agreed to care for his daughter;
requested legal representation for himself; denied abandoning
A.R.P.; and claimed, "[his father] is well aware of
what's going on and said he will take care of his
April 25, 2017, the L's moved for appointment of counsel
for S.B.P. under CR 17.04 and KRS 625.080 citing S.B.P.'s
failure to defend the action. Counsel was appointed for
S.B.P. on May 10, 2017, and set about trying to contact his
Notice of the final
hearing-scheduled to occur on July 27, 2017- was provided to
S.B.P. on July 3, 2017. When the hearing finally commenced on
August 14, 2017, counsel appeared on behalf of S.B.P., but
not having heard from his client despite sending letters
about the pending TPR petition, counsel did not
announce "ready," and stated he could add nothing
to a letter from S.B.P. dated August 10, 2017. Counsel
participated in the hearing to the best of his ability.
was the sole witness at the hearing. She testified no one
from S.B.P.'s family-not even the father S.B.P. claimed
was willing to accept custody of A.R.P. and care for her-had
contacted the L.'s. There was no testimony about any
disqualifying health or age issues. M.L. testified S.B.P.
had contributed nothing to A.R.P.'s upkeep-no money, no
cards, no presents. She testified S.B.P. saw the child once
in the hospital at birth and during a visit arranged by CHFS.
the proof closed, counsel argued the case. Counsel for S.B.P.
said a person-even one who is incarcerated-does not normally
ignore letters from the attorney appointed to represent him
alerting him a move is afoot to terminate his parental rights
and place his child for adoption. A.R.P.'s GAL
recommended TPR as to both mother and father and adoption by
the L.'s. Counsel for the L.'s argued S.B.P. had done
nothing for years to support or even contact his child and
urged the court to make the L.'s her permanent family.
the bench, the trial court found the only thing S.B.P. had
done during A.R.P.'s nearly three years of life was write
a letter. The court went on to find by both a preponderance
of evidence, and clear and convincing evidence, KRS
199.502(1)(e) and (g) were satisfied. The trial court
terminated the parental rights of both parents in its
conclusions of law and found adoption by the L.'s was in
A.R.P.'s best interest. Written findings of fact and
conclusions of law, and a separate judgment of adoption, were
entered on September 19, 2017.
the hearing ended, counsel for S.B.P. said he would file an
Anders brief and asked that S.B.P. be allowed to
proceed in forma pauperis. Before launching the
appeal, however, counsel moved for a new trial claiming
"accident or surprise." CR 59.01(c). Counsel for
the L.'s opposed the motion. The trial court denied the
new trial request finding S.B.P. had notice and opportunity
to be heard at the hearing; was represented by competent
counsel; and had offered no new information showing TPR and
adoption had been improvidently entered.
appointed counsel filed a notice of appeal. The
brief that followed alleged no errors in the trial
court's handling of the case and questioned only how
S.B.P.-while incarcerated-could have used his right to
counsel "in a meaningful way." Counsel then filed a
motion to withdraw in this Court.
motion panel passed the motion to withdraw to this merits
panel. We dispose of the motion via separate order entered