B.L. v. J.S.

• Decision Date: 09 May 2014
• Docket Number: No. 2013–CA–000733–ME.,2013–CA–000733–ME.
• Citation: 434 S.W.3d 61
• Parties: B.L., Appellant v. J.S.; J.S.; B.T.L.; and A.N.R., Appellees.
• Court: Kentucky Court of Appeals

434 S.W.3d 61

B.L., Appellant

v.J.S.; J.S.; B.T.L.; and A.N.R., Appellees.

No. 2013–CA–000733–ME.

Court of Appeals of Kentucky.

May 9, 2014.

Max Comley, Frankfort, KY, for appellant.

Nicole S. Bearse, Frankfort, KY, for appellee.

Before ACREE, Chief Judge; JONES and MAZE, Judges.

OPINION

JONES, Judge:

This case arises from a Judgment of Adoption entered by the Franklin Circuit Court granting the adoption of a minor child, B.L. (Minor Child), to Appellees J.S. and J.S. (Adoptive Parents) and the resulting termination of Appellant's (Biological Father) parental rights with respect to Minor Child. On appeal, Biological Father asserts that the Franklin Circuit Court erred by granting the adoption because he was not represented by counsel during critical stages of the underlying dependency case proceedings, the trial court failed to consider less drastic means than adoption, and because the Adoptive Parents lack the requisite statutory relationship to Minor Child for the adoption. For the reasons more fully explained below, we AFFIRM.

I. Background

Minor Child was born on December 15, 2007, to A.R. (Biological Mother) and Biological Father. Biological Mother and Biological Father lived together on and off after Minor Child's birth. Biological Father was incarcerated several times after Minor Child's birth.¹ He was last incarcerated on February 9, 2011, and remained in custody throughout the remainder of the time period at issue.²

On April 14, 2011, Biological Mother gave birth prematurely to R.J.P., Minor Child's half-brother. After R.J.P. showed severe signs of drug withdrawal and his meconium drug screen tested positive for cocaine, methadone, and several other drugs, the Cabinet for Health and Family Services (the Cabinet) was alerted.

On April 21, 2011, the Cabinet filed a non-removal Juvenile Neglect Petition for both children. The petition listed Biological Father as the biological father of Minor Child, but only Biological Mother was listed as a person responsible for neglecting Minor Child. Biological Father was properly served with a copy of the petition in jail.

A hearing was held on April 29, 2011, wherein the Cabinet changed the non-removal petition to a removal petition. Also at that hearing, an attorney was appointed to represent Biological Mother and a guardian ad litem (Guardian) was appointed for the children. Biological Father, who was still incarcerated, was not present or represented by counsel. During the hearing, Biological Mother stipulated to neglect and both children were temporarily placed with Biological Father's mother (Minor Child's paternal grandmother), who agreed only to keep the children for a short time. Accordingly, the Cabinet had to secure another placement for the children. The Cabinet placed the children with the Adoptive Parents in June of 2011.³

The trial court conducted a disposition hearing on July 22, 2011. Biological Father was again not present or represented by counsel. During that hearing, the trial court committed Minor Child to the Cabinet's custody and directed him to remain with the Adoptive Parents until further order of the trial court. The trial court also adopted a reunification plan for Biological Mother.

The trial court conducted two additional hearings on October 21, 2011, and January 6, 2012. During those hearings, it was revealed that Biological Mother was not working on her case plan for reunification with the children and both the Guardian and the Cabinet recommended that the Adoptive Parents receive permanent relative custody of the children. Biological Father was not present or represented by counsel at either hearing. Biological Father did not have any interaction with the Cabinet and did not have a case plan. The trial court granted the Adoptive Parents “permanent relative placement” of Minor Child on January 6, 2012.

The Adoptive Parents filed a Motion to Intervene in the neglect case and a Motion for Permanent Relative Custody of Minor Child on May 11, 2012. Biological Father responded to the motions. He asked to be transported to the hearing and to be appointed a guardian or attorney to assist him. Biological Father was transported to the hearing, which the trial court conducted on June 22, 2012. At the hearing, the trial court questioned Biological Father regarding whether he objected to the Adoptive Parents' request for custody of Minor Child. The trial court denied Biological Father's motion for counsel because it determined that there were no contested issues. The trial court then found that the Adoptive Parents qualified as de facto custodians and that it was in Minor Child's best interests to remain in their home. The trial court awarded sole custody of Minor Child to the Adoptive Parents.

Shortly thereafter, on July 23, 2012, the Adoptive Parents filed a Petition to Adopt Minor Child pursuant to KRS Chapter 199, et seq. Biological Father was properly served with a copy of the petition. The trial court appointed Biological Father a guardian to represent his interests in the adoption proceedings due to his continued incarceration. Biological Father filed a pro se response objecting to the adoption and his guardian filed another response objecting to the adoption on his behalf. Biological Father's guardian was then released from his duties and the trial court appointed an attorney for Biological Father. Minor Child's Guardian and the Cabinet issued reports recommending that the adoption be granted.

Biological Father filed a motion to dismiss the adoption petition on December 28, 2012, alleging that the petition must be dismissed because he was not represented by counsel during the prior neglect proceedings. After oral argument, the trial court denied Biological Father's motion to dismiss, noting that Biological Father was not named in the neglect petition. The trial court specifically found that “considering the fact that [Biological Father] was incarcerated during the entirety of the neglect case, and continues to be incarcerated, without the ability to take custody of, or care for [Minor Child], the trial court does not believe that the proceedings in the neglect case have any effect on the adoption petition that [Biological Father] seeks to dismiss.”

A final hearing on the adoption petition was held on February 11, 2013. Biological Father was present and represented by counsel. Biological Father testified at length during the hearing. Biological Father testified that he was aware of Biological Mother's drug use while caring for Minor Child; that he had previously used drugs while caring for Minor Child; that he had been incarcerated at least three of the five years of Minor Child's life; that he would be eligible for parole in March 2013 but he had no expectation that he would be granted parole; that he did not have employment lined up when he was released from prison; that he would likely have to live in a halfway house upon release; and that he had not participated in any medical or education choices for Minor Child. Biological Father also testified that he planned to pursue custody of Minor Child after his release from prison; that he had sent cards to Minor Child; that his mother had been in contact with Minor Child and sent him gifts; and that he had provided some supplies for Minor Child, such as diapers, on occasion prior to his incarceration. Biological Mother did not present any evidence.

The Adoptive Parents also testified and presented testimony from the Cabinet. At the close of the hearing, Biological Father requested a directed verdict, alleging that the Adoptive Parents lacked the requisite familial relationship to adopt Minor Child under KRS 199.470(4). The trial court took the matter under advisement and the Adoptive Parents filed a written response. The trial court eventually denied the motion for directed verdict and issued a Judgment of Adoption on March 21, 2013. It is from that Judgment that Biological Father appeals.

II. Standard of Review

The proceedings in the adoption case were primarily pursuant to KRS 199.500 and KRS 199.502, adoption without the consent of the biological parents. An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights. Moore v. Asente, 110 S.W.3d 336 (Ky.2003). The standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR 52.01 based upon clear and convincing evidence. The findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings. Clear and convincing proof does not necessarily mean uncontradicted proof. It is sufficient if there is proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116–17 (Ky.App.1998). 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. See Day v. Day, 937 S.W.2d 717 (Ky.1997).

We are also reminded of the protected rights of parents to raise their own children. As the Supreme Court summarized in Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the rights to conceive and to raise one's children have been deemed “essential,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), basic civil rights of man, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and rights far more precious than property rights, May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state...