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A.F. v. L.B.

Court of Appeals of Kentucky

March 1, 2019



          BRIEF FOR APPELLANTS: Alice (Ali) Dansker Doyle Vanceburg, Kentucky Charles L. Douglas, Jr. Greenup, Kentucky

          BRIEF FOR APPELLEES: W. Jeffrey Scott Brandon M. Music Grayson, Kentucky



          ACREE, JUDGE

         A.F. (Mother) and M.F. (Father) appeal the Greenup Circuit Court's interlocutory judgment entered pursuant to KRS[1] 199.502(1) terminating their parental rights regarding their biological child, K.F. (Child). They seek reversal arguing the family court erred procedurally and substantively. We affirm.


         Child lived with Mother and Father from her birth in April 2014 until September 2014 when Mother was incarcerated. For the next month, Child remained in Father's care. During that month, Mother's aunt and uncle, L.B. and B.B., assisted Father with childcare to accommodate his work schedule. The controversy among the parties began when L.B. and B.B. refused to return Child to Father and contacted the Kentucky Cabinet for Health and Family Services.

         The Cabinet filed a dependency, neglect, or abuse petition, offering Mother's and Father's continued drug use and Mother's incarceration as grounds for the petition. By agreement, the family court placed Child with L.B. and B.B. pursuant to an order of temporary custody. Child was three to four months old. The biological parents stipulated to the petition and negotiated a case plan with the Cabinet. According to the case plan, Father would have weekly visitation with Child and was ordered to cooperate with the Cabinet. The Cabinet recommended that "the permanency goal be return to parent and allow [Mother and Father] time to complete their case plan and work on sobriety."

         When Mother was released from incarceration, she immediately checked into long-term substance rehabilitation at The Healing Place in Louisville. Two months later, L.B. and B.B. filed for custody of Child. Following a hearing in the custody case, the family court awarded Father and L.B. and B.B. joint custody with substantial parenting time for Father. The effect of this petition was to remove the case from the juvenile docket. The family court noted that Father obtained a job and housing, cooperated with the Cabinet, and "[was] doing a remarkable job in working toward trying to regain custody of his daughter."

         Mother successfully completed her rehabilitation in 2015 and began living with Father. At that time, Child saw both parents for six hours every other weekend and holidays. Eventually, however, L.B. and B.B. began deviating from the visitation schedule. This prompted Father to file a motion to enforce it. The family court compelled compliance by a separate order, violation of which would constitute contempt.

         Shortly thereafter, Mother and Father were reincarcerated. The family court suspended Father's visitation and awarded L.B. and B.B. sole custody. Both biological parents were paroled in 2016. Father's Day, June 19, 2016, was the last day either Father or Mother visited with Child. Both were reincarcerated in 2017, when Mother violated the terms of her parole and the Commonwealth charged Father with robbery.

         Soon after Mother's release from prison in September 2016, she secured employment, but suffered a relapse, engaging again in the use of illegal drugs. From January to March 2017, her whereabouts were unknown even to her mother who filed a missing person report.[2]

         L.B. and B.B. filed the petition in this case on February 5, 2017, to adopt Child without Mother's and Father's consent. On March 30, 2017, the confidential report required of the Cabinet by KRS 199.510 was filed with the court clerk. On June 13, 2017, Mother began sending monthly twenty-dollar money orders to B.B. for Child's support. As of the date of the interlocutory judgment, the total amount of support Mother paid was $280. Mother also enrolled in therapy, parenting classes, and outpatient treatment.

         The family court conducted a hearing on September 6, 2017, to consider only whether L.B. and B.B. could establish, by necessary proof, the elements required by KRS 199.502(1) to terminate Mother's and Father's parental rights. The family court deferred ruling on the adoption itself.[3]

         During the hearing, counsel for Mother called to the witness stand the Cabinet's Social Service Clinician who prepared the confidential report. There was an objection when counsel expressed knowledge of the report's content by asking the clinician questions challenging its completeness. After the family court stated its belief that the confidential report was for the court's eyes only, [4] it reminded counsel that the proceeding was bifurcated. The court eventually ruled that questions should be limited to the witness's knowledge of facts relating to termination of parental rights, not the adoption. The parents took issue with that ruling. As discussed below, that ruling is at the center of one issue under review.

         The family court found the proof to have satisfied the requirements of KRS 199.502(1)(a), (e), and (g) as to both Mother and Father, and issued its findings of facts, conclusions of law, and judgment, terminating Mother's and Father's parental rights.[5] It entered this interlocutory judgment thirty-five (35) days after the close of arguments.

         Mother and Father sought dismissal of the case on the procedural ground that KRS 625.090(6) requires the family court to "enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days . . . ." The motion was denied. This appeal followed.


         Mother and Father argue the thirty-day restriction of KRS 625.090(6) for rendering judgments is not limited to involuntary termination of parental rights actions brought under KRS 625.050, et seq., but applies as well to adoptions without the consent of parents brought under KRS 199.502. Therefore, they argue, the adoption petition should have been dismissed. This presents a question of statutory interpretation. "The interpretation of statutes is a matter of law which we review de novo." Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 2018) (citation omitted).

         Their second ground for reversal is that the family court improperly refused to allow them to question the Social Service Clinician regarding the report the Cabinet filed pursuant to KRS 199.510. That questioning, argue Mother and Father, would reveal the report fails to strictly comply with the applicable statute. This is an evidentiary ruling. "[T]he standard of review of a trial court's evidentiary rulings is an abuse of discretion." Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky. 2009) (citation omitted).

         Finally, Mother and Father argue the family court's findings of fact supporting statutory grounds for terminating their parental rights are not based on substantial evidence. Our review of findings of fact in adoption actions involving terminations of parental rights is confined to the clearly erroneous standard set forth in CR[6] 52.01. S.B.B. v. J.W.B., 304 S.W.3d 712, 715 (Ky. App. 2010). However, "to pass constitutional muster, the evidence supporting termination must be clear and convincing." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015) (citation omitted); Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92, 71 L.Ed.2d 599 (1982) ("Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.").[7] As this Court has previously stated, clear and convincing proof does not mean uncontradicted proof. S.B.B., 304 S.W.3d at 715.


         Judgment entered 35 days after hearing does not fail to comply with KRS 199.502

         The biological parents argue the family court violated their procedural and due process rights by failing to comply with the statutory requirements of KRS 625.090(6) which says "the Circuit Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent within thirty (30) days[.]" ...

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