v.

• Decision Date: 09 December 2016
• Docket Number: NO. 2014-CA-001305-ME,2014-CA-001305-ME
• Parties: K.J.D. APPELLANT v. P.G.D., B.M.S., AND L.G.S. (Minor Child) APPELLEES
• Court: Kentucky Court of Appeals

K.J.D. APPELLANT v. P.G.D., B.M.S., AND L.G.S. (Minor Child) APPELLEES

NO. 2014-CA-001305-ME

Commonwealth of Kentucky Court of Appeals

DECEMBER 9, 2016

NOT TO BE PUBLISHED

APPEAL FROM SCOTT FAMILY COURT

HONORABLE TAMRA GORMLEY, JUDGE

ACTION NO. 13-AD-00036

OPINION

AFFIRMING

** ** ** ** **

BEFORE: DIXON, D. LAMBERT, AND MAZE, JUDGES.

DIXON, JUDGE: Appellant, K.J.D., appeals from a judgment of the Scott Family Court granting Appellee, P.G.D.'s, petition for adoption of L.G.S. (now L.G.G.), a minor, and effectively terminating Appellant's parental rights to the child. For the reasons set forth herein, we affirm the family court's decision.

K.J.D. (Father) is the biological father of L.G.S. (Child), who was born out-of-wedlock on August 20, 2007, to him and B.M.S. (Mother). It is undisputed that the parents were not in a relationship at the time Mother became pregnant. When Mother initially informed Father she was pregnant, he responded that it could not be his baby and, even if it was, she needed to terminate the pregnancy because he was not interested in having children. Mother subsequently notified Father of Child's birth through a social media post two months after the birth. From the end of October 2007 until the beginning of January 2008, Father was involved in the Child's life, keeping her on the days that Mother had to work. However, in January 2008, Father relocated to Charlotte, North Carolina. Although there is some dispute in the record, a paternity action was filed in either late 2007 or early 2008. In 2009, Mother and Child submitted to a blood test. Despite having notice of the action, Father did not submit to the paternity test until 2013. In the interim, Father had sporadic contact with Child in 2009 and 2010, and has had no contact since 2011. It is uncontested that Mother and Stepfather have been in a relationship since Child was approximately two years old and that Stepfather has undertaken a parenting role in Child's life.

Apparently, in early 2013, Father hired a private investigator to locate Mother and Child. On March 22, 2013, Father filed a petition for custody in the Scott Family Court, alleging that he was Child's biological father and seeking joint custody of the child. Paternity was subsequently established in May 2013. Thereafter, in September 2013, Father filed a motion for temporary custody of Child. The motion was denied and a no contact order was put into place against Father with respect to Child.

On September 7, 2013, Mother and Stepfather were married. Thereafter, on October 11, 2013, Stepfather filed a petition for adoption and termination of Father's parental rights in the Scott Family Court. Father, Mother and Child were all named as respondents and served with civil summons. Subsequently, a Guardian Ad Litem was appointed to represent Child's interests.

The family court conducted a bench trial on June 27, 2014. The Guardian Ad Litem and the Cabinet both submitted reports finding that it was in Child's best interest to be adopted by Stepfather. At the conclusion of the hearing, the family court entered an order granting Stepfather's petition. An adoption proceeding was held immediately thereafter. Father thereafter appealed to this Court as a matter of right.

The record herein is somewhat confusing as both the parties and the family court at times referred to this action as a termination of parental rights under KRS 625.050 et seq. and other times as an adoption case under KRS 199.500 et seq. Stepfather's petition was styled "Petition for Adoption and Termination of Parental Rights." Clearly, a termination case under KRS 625.050 et seq. can only be initiated by "the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth's attorney or parent." As such, Stepfather did not have standing to file an action to terminate Father's parental rights. Notwithstanding, although the family court's findings of fact and conclusions of law state that the action was filed pursuant to KRS 625.050 et seq., the family court references the applicable adoption statutes therein and, in fact, makes no specific ruling as toFather's parental rights. See generally R.M. v. R.B., 281 S.W.3d 293 (Ky. App. 2009).

An adoption without the consent of a living parent is, in effect, a proceeding to terminate that parent's parental rights. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982), the United States Supreme Court recognized that parental rights are a "fundamental liberty interest protected by the Fourteenth Amendment" of the United States Constitution. Further, it is "plain beyond the need for multiple citation" that a natural parent's "desire for and right to 'the companionship, care, custody, and management of his or her children' " is an interest far more precious than any property right. Lassiter v. Dept. of Social Services of Durham Co., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). Accordingly, when the government acts to terminate a parent's rights, "it seeks not merely to infringe that fundamental liberty interest, but to end it." Id.

As recently noted by a panel of this Court in R.P., Jr. v. T.A.C., 469 S.W.3d 425, 427 (Ky. App. 2015), "[t]ermination can be analogized as capital punishment of the family unit because it is "so severe and irreversible." (quoting Santosky, 455 U.S. at 759, 102 S.Ct. at 1398). As such, to pass constitutional muster, a trial court must find that a termination of parental rights is supported by clear and convincing evidence. V.S. v. Commonwealth, Cabinet for Human Resources, 706 S.W.2d 420, 424 (Ky. App. 1986). The findings of the trial courtwill not be disturbed unless there exists no substantial evidence in the record to support its findings. Id. "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, 117 (Ky. App. 1998) (quoting Rowland v. Holt, 253 Ky. 718, 726, 70 S.W.2d 5, 9 (1934)).

KRS 199.502(1) provides that "an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as part of the adoption proceeding that any of [nine] following conditions exist with respect to the child[.]" (Emphasis added). The family court herein relied on subsections (a), (e), and (g), which provide:

(a) That the parent has abandoned the child for a period of not less than ninety (90) days;

(e) That the parent, for a period of not less than six (6) months, has continuously or repeatedly failed or refused to provide or has been substantially incapable of providing essential parental care and protection for the child, and that there is no reasonable expectation of improvement in parental care and protection, considering the age of the child;

(g) That the parent, for reasons other than poverty alone, has continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child's well-being and that there is no reasonable expectation of significant improvement in the parent's conduct in the immediately foreseeable future, considering the age of the child;. . .

KRS 199.502(2) further states that "[u]pon the conclusion of proof and argument of counsel, the Circuit Court shall enter findings of fact, conclusions of law, and a decision either: (a) Granting the adoption without the biological parent's consent; or (b) Dismissing the adoption petition, and stating whether the child shall be returned to the biological parent or the child's custody granted to the state, another agency, or the petitioner."

In this Court, Father argues that the family court erred in terminating his parental rights because Stepfather failed to prove by clear and convincing evidence the existence of any of the conditions set forth in KRS 199.050, particularly that he had abandoned Child. Father claims that Mother repeatedly thwarted any attempts he made to have contact with Child and that after 2011 he could not even locate her. Father argues that the fact he hired a private investigator and took legal action to pursue his parental rights is evidence that he did not intend to abandon Child. After reviewing the record and video of the hearing, we are compelled to conclude that the family court's judgment was supported by substantial evidence.

For the purposes of the adoption statutes, "abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child." O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983). Recently, in R.P., Jr. v. T.A.C.,469 S.W.3d 425 (Ky. App. 2015), a panel of this Court addressed a father's arguments regarding abandonment that were similar to those made herein. The panel found:

The trial court found that Father had abandoned Child after noting that he had participated in very little visitation and that he "had not initiated any effort at visiting with his son and had not regularly sent special occasion cards or gifts." The court surmised that Father "has basically been disinterested in the child's upbringing while he was living his own life."

Father challenges those findings by the court as erroneous because they disregarded testimony in which he and his parents alleged that Mother rebuffed their efforts to schedule visits with Child. . . .

. . .

Father summed up his testimony by acknowledging that he had failed to care for Child and would like the opportunity to start over.

. . .

Father has not set forth any authority or proof to indicate that his conduct did not "evince a settled purpose to forego

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