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S.B.P. v. R.L.

Court of Appeals of Kentucky

December 14, 2018

S.B.P.[1] APPELLANT
v.
R.L. AND M.L. APPELLEES

          APPEAL FROM LINCOLN CIRCUIT COURT HONORABLE MARCUS L. VANOVER, JUDGE ACTION NO. 17-AD-00002

          BRIEF FOR APPELLANT: Christopher Lee Coffman Liberty, Kentucky.

          BRIEF FOR APPELLEES: Christopher Reed Stanford, Kentucky.

          BEFORE: JONES, NICKELL AND TAYLOR, JUDGES.

          OPINION

          NICKELL, JUDGE:

         S.B.P., 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[2] 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.

         A.R.P. was born addicted to drugs on August 26, 2014. Both her biological mother, H.T., and father have long histories of illegal drug activity.

         At 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, [3] A.R.P. was placed in the permanent custody[4] of the L.'s. There she remains and appears to be thriving.

         On 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, [5] and the Cabinet for Health and Family Services ("CHFS").[6] 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"[7] 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" case number.

         As the matter progressed, the L.'s moved to amend the petition to add a prayer for adoption.[8] 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.

         An 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.

         S.B.P. 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 grandchild."

         On April 25, 2017, the L's moved for appointment of counsel for S.B.P. under CR[9] 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 client.

         Notice[10] 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.

         M.L. 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[11] 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.

         When 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.

         From 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.

         When the hearing ended, counsel for S.B.P. said he would file an Anders brief[12] 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.

         Thereafter, 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.

         A motion panel passed the motion to withdraw to this merits panel. We dispose of the motion via separate order entered contemporaneously herewith.

         LEGAL ...


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