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C.J. v. M.S.

Court of Appeals of Kentucky

March 29, 2019

C.J. APPELLANT
v.
M.S., J.S; J.N.; K.D.J., A MINOR CHILD; AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY APPELLEES

          APPEAL FROM PIKE CIRCUIT COURT, FAMILY DIVISION HONORABLE LARRY E. THOMPSON, JUDGE ACTION NO. 16-AD-00083

          BRIEF FOR APPELLANT: Amber Hunt Sisco Pikeville, Kentucky

          BRIEF FOR APPELLEES: Tammy C. Skeens Pikeville, Kentucky

          BEFORE: GOODWINE, JONES AND NICKELL, JUDGES.

          OPINION AFFIRMING

          JONES, JUDGE.

         The Appellant, C.J., appeals from two orders entered by the Pike Family Court; the first order terminated C.J.'s parental rights to her biological child, K.J., and the second order allowed the Appellees, M.S. and J.S, to adopt K.J.[1]

         After timely filing a notice of appeal, C.J.'s court-appointed counsel submitted an Anders[2] brief on C.J.'s behalf. See A.C. v. Cabinet for Health and Family Serv., 362 S.W.3d 361, 364 (Ky. App. 2012). In the Anders brief, counsel asserted that no meritorious issues exist on which to base an appeal. Nonetheless, counsel pointed out that it is incumbent upon this Court to independently review the record to decide whether the appeal is frivolous.[3] Id. Following receipt of the Anders brief we advised C.J. of her right to continue this appeal pro se and gave her additional time to file a brief of her own choosing. C.J. did not respond.

         Accordingly, we have independently reviewed the record for the purpose of ascertaining whether the appeal is, in fact, void of nonfrivolous grounds for reversal. Id. at 372. After having done so, we agree with counsel's assessment. On the face of the record, we can perceive no basis warranting relief on appeal. The Pike Family's Court's orders of termination and adoption are affirmed.

         I. Background

         In May of 2013, C.J. ("Biological Mother") gave birth to K.J. ("Child"). Child resided with Biological Mother for a little over a year following her birth. Child began living with M.S. and J.S., a married couple (hereinafter referred to collectively as "Adoptive Parents") in or about October of 2014. Child has resided with and been cared for by Adoptive Parents since that time.

         Over the years, there have been periods when Child did not have contact with Biological Mother. At some point, however, a visitation schedule was put in place through the Cabinet for Health and Family Services ("Cabinet"). The schedule allows Biological Mother to have monthly two-hour supervised visitation with Child. In the six months preceding the adoption hearing, Biological Mother, who is unable to transport herself, missed two of her monthly visits because transportation was not arranged for her. With the exception of her monthly visitation, Biological Mother is not involved in Child's life.

         On August 1, 2016, the Pike Family Court awarded Adoptive Parents permanent custody of Child, finding that Adoptive Parents were Child's de facto custodians. A little over a year later, Adoptive Parents filed a dual petition with the Pike Family Court seeking to terminate the rights of Child's biological parents and leave to adopt Child. [4] In an investigative report, filed of record, the Cabinet concluded that Child was eligible for adoption, Adoptive Parents were morally fit and financially able to care and provide for Child and that adoption was in Child's best interests. After receipt of the report, the family court conducted a hearing. Biological Mother refused to consent to Child's adoption and participated in the hearing with the assistance of her court-appointed counsel.

         Adoptive Parents presented proof that they have cared for Child since October of 2014 when she came to live with them. They have provided all of Child's food, clothing, shelter, medical care, and education with no assistance from Biological Mother. They have their own home where Child lives with them. They are employed and have the means to continue caring for Child. Child views Adoptive Parents as her family. She is thriving in their care, and they want to raise Child as their own.

         Biological Mother testified that she is currently unable to care for Child and does not know that she will ever be in a position to do so. She is currently being treated for serious mental illnesses, including schizophrenia, bipolar disorder, and depression. Biological Mother has suffered from these mental illnesses for at least the last sixteen years, and for the last five years she has resided at the Golden Years Rest Home because she is unable to care for herself. Biological Mother does not know when, if ever, she will be able to live independently. Biological Mother receives approximately thirty dollars per month; she uses this money to buy coffee and cigarettes for herself. She admitted that she does not support Child and has not purchased even small gifts, food, or clothing for Child since Child has been in the care of Adoptive Parents. Other than the monthly supervised visits, Biological Mother does not see or talk to Child.

         Following the final evidentiary hearing, the family court entered simultaneous, separate orders terminating Biological Mother's parental rights and granting Adoptive Parent's petition to adopt Child. This appeal followed.

         II. Standard of Review

         This case involves an adoption. A family court shall enter a judgment of adoption if after a hearing, the court is satisfied 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.

KRS[5] 199.520(1). "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." KRS 199.520(2). Adoptions can be granted with or without the consent of the biological parents. KRS 199.500. If the adoption is sought without consent, KRS 199.502(1) requires proof as part of the adoption proceedings that one of the conditions set forth in subjections (a)-(j) exists with respect to the child at issue. See KRS 199.502(1).

         "An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing Moore v. Asente, 110 S.W.3d 336 (Ky. 2003)). Accordingly, in adoption without consent cases we apply the same standard of review that governs parental termination cases. Our review is confined to the clearly erroneous standard in CR[6] 52.01 based upon clear and convincing evidence. The family court's findings will not be disturbed unless there exists no substantial evidence in the record to support them. See M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998) (citing V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986)).

         Clear and convincing proof does not necessarily mean uncontradicted proof; but rather, requires there is proof of a probative and substantial nature that is sufficient to convince ordinarily prudent minded people. Id. at 117. Under this standard, "we are required to give considerable deference to the [family] court's findings, and we will not disturb those findings" unless the record provides no substantial support for them. K.R.L. v. P.A.C. 210 S.W.3d 183, 187 (Ky. App. 2006). "Additionally, since adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents." B.L., 434 S.W.3d at 65.

         III. Analysis

         A. Adoption Petition versus Petition for Termination of Parental Rights

         Adoptive Parents filed a dual petition seeking both termination of Child's biological parents' rights and adoption. Nevertheless, before both the family court and this Court, the parties have characterized this action primarily as one predicated on the termination of parental rights. To this end, they cite to and rely on the termination of parental rights statute, KRS 625.090. To prevent further confusion in this case and future adoption cases, it is incumbent on us to clarify that this is not a termination case governed by KRS Chapter 625; it is an adoption case governed by KRS Chapter 199.

         If granted, the adoption itself terminates the parental rights of the biological parents. KRS 199.520(2). As in the present case, when two judgments have been unnecessarily entered in an adoption case, we view the "'judgment of adoption' and 'order terminating parental rights' as being one document that comprises the judgment." Wright v. Howard, 711 S.W.2d 492, 494 (Ky. App. 1986). The effect of the judgment is the adoption of the child at issue. As such, we review the judgment for compliance with the adoption statutes.

         It is a logical, of course, to ask why the labels matter if the end result is the same. The labels matter because the parties, style, manner of service, and jurisdictional prerequisites for an adoption petition are different than a petition seeking termination of parental rights. Before the family court can grant an adoption it must determine that "all legal requirements, including jurisdiction, relating to the adoption have been complied with[.]" KRS 199.520(1) (emphasis added).

         In Wright, we cautioned against filing a dual petition, like the one filed in this case, because all too often counsel follow the wrong procedures with disastrous consequences. As we explained over thirty years ago:

In filing the petition as a dual one for adoption and termination of parental rights, apparently in an attempt to satisfy the requirements of both the adoption statutes and the involuntary termination statute the appellee Howards, as do most others taking this mistaken procedural approach, failed to fulfill [sic] various requirements of the adoption statutes, their only real concern under proper interpretation of KRS 199.500(4) and application of the strict compliance rule, and thereby caused the trial court to enter an invalid judgment.

711 S.W.2d at 496.

         When the lives of children are involved, counsel must be especially diligent to follow the correct procedures. We are gravely concerned that Wright's lessons have been lost to time. Today, we remind the Bar once again that when the petitioner is the person seeking to adopt a child, an adoption petition, not a petition for termination of parental rights, should be filed. If the lower court erroneously allows a dual petition to move forward and enters two judgments, we treat the judgments as one. On appeal, we will review the judgment for compliance with the adoption statutes. If the adoption statute's minimal jurisdictional requirements have not been satisfied, the judgment of adoption is void.[7] See Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997).

         B. Compliance with ...


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