RENDERED: MARCH 14, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1346-ME
J.M.B., BIOLOGICAL FATHER APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE SUSAN WESLEY MCCLURE, JUDGE ACTION NO. 22-AD-00047
K.L.D., BIOLOGICAL MOTHER; B.R.T.-D., A MINOR CHILD; AND R.W.D. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
JONES, A., JUDGE: J.M.B. (“Father”) appeals the judgment of the Hopkins
Circuit Court which granted the petition for adoption of R.W.D. (“Step-Father”)
and terminated Father’s parental rights to B.R.T.-D., a minor child to Father and
K.L.D. (“Mother”). Father’s counsel commenced the appeal on his behalf and has
filed a brief in compliance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) and Anders v. California, 386 U.S. 738 (1967).
The Anders brief concedes that there are no meritorious or nonfrivolous issues that
could be raised. Counsel also filed a motion to withdraw. Father filed a
supplemental pro se brief as afforded under A.C., 362 S.W.3d at 371. Step-Father
filed a response brief. After a careful review of the record on appeal, the relevant
law, and the briefs filed, we affirm the circuit court’s judgment of July 5, 2023.
Additionally, we have granted the motion of Father’s counsel to withdraw by
separate Order, as all requirements of A.C. and Anders, supra, have been met.
I. BACKGROUND
Child was born on October 10, 2017. Mother and Father never
married, though Father is listed on Child’s birth certificate. Father was arrested in
December 2017 and has been in and out of incarceration several times since then.
Mother began living with Step-Father around the time Child was six-months old.
In late 2019, while Mother and Step-Father were taking a break from
their relationship, Father stayed with Mother occasionally, though Father stated the
longest consistent period of time was two weeks. (Video Record, (“V.R.”) June
27, 2023 Hearing – 11:19:20.) In December 2019, Mother filed for a Domestic
Violence Order (“DVO”) of protection after an altercation occurred in which
Father was intoxicated and belligerent in the presence of Child. In March 2020,
-2- the Crittenden Circuit Court granted a DVO for a period of one year on behalf of
Mother and Child against Father. (Record, (“R.”) at 321.)
Sometime in August 2021, after the DVO had expired, Father
contacted Mother via text to inquire about seeing Child. At that time Father was in
a rehabilitative facility. Mother denied any visitation, expressing her concerns for
Father to have finished rehabilitation and be sober for a longer period of time;
however, she indicated a willingness to allow contact in the future if that occurred.
(V.R. June 27, 2023 Hearing – 10:02:00.) This did not occur, as Father was
arrested again in January 2022 and eventually convicted of trafficking in a
controlled substance under KRS1 218A.1412.
Father has been incarcerated since then, and at the time of the final
hearing in this matter, his sentence was set to finish in 2030 with a parole
eligibility date of early 2024.2 Father testified that, while incarcerated, he sent
three letters to Mother inquiring about seeing Child; however, Mother stated she
only received one, which was sent after the adoption proceedings commenced.
(V.R. June 27, 2023 Hearing – 12:01:30.)
1 Kentucky Revised Statutes. 2 As indicated in the circuit court’s order of May 24, 2024, Father’s parole eligibility date was moved to June 2025.
-3- Mother and Step-Father married in September 2021. Step-Father filed
a petition for adoption on December 27, 2022. Father objected to the adoption and
was appointed counsel. The Cabinet for Health and Family Services conducted an
investigation pursuant to KRS 199.510 and filed its report in which it approved of
the adoption on March 9, 2023. (R. at 34.) The Guardian ad Litem (“GAL”)
appointed for Child likewise filed a report in which he recommended the adoption
occur. (R. at 47.) Mother filed an entry of appearance and waiver in agreement of
the adoption on May 30, 2023.
The circuit court held a hearing on June 27, 2023; all parties attended
and testified. At the end of the hearing, the circuit court made findings on the
record, granted Step-Father’s petition for adoption, and terminated Father’s
parental rights. It entered written findings of fact and conclusions of law and a
judgment of adoption on July 6, 2023. (R. 360, 368.) This appeal followed.3
3 Father filed a notice of appeal on September 29, 2023. This Court initially issued an order for Father to show cause as to why this appeal should not be dismissed as untimely. After further review of the record, the Court discovered that the circuit court had not yet ruled on Father’s pro se motion filed on July 17, 2023, which requested post-judgment relief from the July 6, 2023 Judgment. The circuit court then denied Father’s pending motion on May 24, 2024. While Father’s notice of appeal was premature, it relates forward to the May 24, 2024 order. See Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994). Thus, the notice of appeal was timely filed. Kentucky Rules of Appellate Procedure (“RAP”) 3(A)(3).
-4- II. STANDARD OF REVIEW
An adoption without the consent of a biological parent is tantamount
to a proceeding which involuntarily terminates that parent’s parental rights. See
Moore v. Asente, 110 S.W.3d 336, 351 (Ky. 2003). Such judgments are reviewed
under the clearly erroneous standard and must be based upon clear and convincing
evidence. See CR4 52.01; see also J.R.E. v. Cabinet for Health & Fam. Servs., 667
S.W.3d 589, 592 (Ky. App. 2023). Clear and convincing evidence exists when it is
of a “probative and substantial nature carrying the weight of evidence sufficient to
convince ordinarily prudent minded people.” Id. (citing Rowland v. Holt, 253 Ky.
718, 70 S.W.2d 5, 9 (1934)). “Under [the clearly erroneous] standard, we are
‘obligated to give a great deal of deference to the family court’s findings and
should not interfere with those findings unless the record is devoid of substantial
evidence to support them.’” M.S.S. v. J.E.B., 638 S.W.3d 354, 360 (Ky. 2022)
(citations omitted.)
Furthermore, in matters to which A.C. and Anders, supra, are
applicable, this Court “independently review[s] the record and ascertain[s] whether
the appeal is, in fact, void of nonfrivolous grounds for reversal[,]” or in other
words, whether there was a palpable error. A.C., 362 S.W.3d at 370-72 (citing
Anders, 386 U.S. at 744). “Fundamentally, a palpable error determination turns on
4 Kentucky Rules of Civil Procedure.
-5- whether the [C]ourt believes there is a substantial possibility that the result would
have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MARCH 14, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1346-ME
J.M.B., BIOLOGICAL FATHER APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE SUSAN WESLEY MCCLURE, JUDGE ACTION NO. 22-AD-00047
K.L.D., BIOLOGICAL MOTHER; B.R.T.-D., A MINOR CHILD; AND R.W.D. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND A. JONES, JUDGES.
JONES, A., JUDGE: J.M.B. (“Father”) appeals the judgment of the Hopkins
Circuit Court which granted the petition for adoption of R.W.D. (“Step-Father”)
and terminated Father’s parental rights to B.R.T.-D., a minor child to Father and
K.L.D. (“Mother”). Father’s counsel commenced the appeal on his behalf and has
filed a brief in compliance with A.C. v. Cabinet for Health and Family Services, 362 S.W.3d 361 (Ky. App. 2012) and Anders v. California, 386 U.S. 738 (1967).
The Anders brief concedes that there are no meritorious or nonfrivolous issues that
could be raised. Counsel also filed a motion to withdraw. Father filed a
supplemental pro se brief as afforded under A.C., 362 S.W.3d at 371. Step-Father
filed a response brief. After a careful review of the record on appeal, the relevant
law, and the briefs filed, we affirm the circuit court’s judgment of July 5, 2023.
Additionally, we have granted the motion of Father’s counsel to withdraw by
separate Order, as all requirements of A.C. and Anders, supra, have been met.
I. BACKGROUND
Child was born on October 10, 2017. Mother and Father never
married, though Father is listed on Child’s birth certificate. Father was arrested in
December 2017 and has been in and out of incarceration several times since then.
Mother began living with Step-Father around the time Child was six-months old.
In late 2019, while Mother and Step-Father were taking a break from
their relationship, Father stayed with Mother occasionally, though Father stated the
longest consistent period of time was two weeks. (Video Record, (“V.R.”) June
27, 2023 Hearing – 11:19:20.) In December 2019, Mother filed for a Domestic
Violence Order (“DVO”) of protection after an altercation occurred in which
Father was intoxicated and belligerent in the presence of Child. In March 2020,
-2- the Crittenden Circuit Court granted a DVO for a period of one year on behalf of
Mother and Child against Father. (Record, (“R.”) at 321.)
Sometime in August 2021, after the DVO had expired, Father
contacted Mother via text to inquire about seeing Child. At that time Father was in
a rehabilitative facility. Mother denied any visitation, expressing her concerns for
Father to have finished rehabilitation and be sober for a longer period of time;
however, she indicated a willingness to allow contact in the future if that occurred.
(V.R. June 27, 2023 Hearing – 10:02:00.) This did not occur, as Father was
arrested again in January 2022 and eventually convicted of trafficking in a
controlled substance under KRS1 218A.1412.
Father has been incarcerated since then, and at the time of the final
hearing in this matter, his sentence was set to finish in 2030 with a parole
eligibility date of early 2024.2 Father testified that, while incarcerated, he sent
three letters to Mother inquiring about seeing Child; however, Mother stated she
only received one, which was sent after the adoption proceedings commenced.
(V.R. June 27, 2023 Hearing – 12:01:30.)
1 Kentucky Revised Statutes. 2 As indicated in the circuit court’s order of May 24, 2024, Father’s parole eligibility date was moved to June 2025.
-3- Mother and Step-Father married in September 2021. Step-Father filed
a petition for adoption on December 27, 2022. Father objected to the adoption and
was appointed counsel. The Cabinet for Health and Family Services conducted an
investigation pursuant to KRS 199.510 and filed its report in which it approved of
the adoption on March 9, 2023. (R. at 34.) The Guardian ad Litem (“GAL”)
appointed for Child likewise filed a report in which he recommended the adoption
occur. (R. at 47.) Mother filed an entry of appearance and waiver in agreement of
the adoption on May 30, 2023.
The circuit court held a hearing on June 27, 2023; all parties attended
and testified. At the end of the hearing, the circuit court made findings on the
record, granted Step-Father’s petition for adoption, and terminated Father’s
parental rights. It entered written findings of fact and conclusions of law and a
judgment of adoption on July 6, 2023. (R. 360, 368.) This appeal followed.3
3 Father filed a notice of appeal on September 29, 2023. This Court initially issued an order for Father to show cause as to why this appeal should not be dismissed as untimely. After further review of the record, the Court discovered that the circuit court had not yet ruled on Father’s pro se motion filed on July 17, 2023, which requested post-judgment relief from the July 6, 2023 Judgment. The circuit court then denied Father’s pending motion on May 24, 2024. While Father’s notice of appeal was premature, it relates forward to the May 24, 2024 order. See Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994). Thus, the notice of appeal was timely filed. Kentucky Rules of Appellate Procedure (“RAP”) 3(A)(3).
-4- II. STANDARD OF REVIEW
An adoption without the consent of a biological parent is tantamount
to a proceeding which involuntarily terminates that parent’s parental rights. See
Moore v. Asente, 110 S.W.3d 336, 351 (Ky. 2003). Such judgments are reviewed
under the clearly erroneous standard and must be based upon clear and convincing
evidence. See CR4 52.01; see also J.R.E. v. Cabinet for Health & Fam. Servs., 667
S.W.3d 589, 592 (Ky. App. 2023). Clear and convincing evidence exists when it is
of a “probative and substantial nature carrying the weight of evidence sufficient to
convince ordinarily prudent minded people.” Id. (citing Rowland v. Holt, 253 Ky.
718, 70 S.W.2d 5, 9 (1934)). “Under [the clearly erroneous] standard, we are
‘obligated to give a great deal of deference to the family court’s findings and
should not interfere with those findings unless the record is devoid of substantial
evidence to support them.’” M.S.S. v. J.E.B., 638 S.W.3d 354, 360 (Ky. 2022)
(citations omitted.)
Furthermore, in matters to which A.C. and Anders, supra, are
applicable, this Court “independently review[s] the record and ascertain[s] whether
the appeal is, in fact, void of nonfrivolous grounds for reversal[,]” or in other
words, whether there was a palpable error. A.C., 362 S.W.3d at 370-72 (citing
Anders, 386 U.S. at 744). “Fundamentally, a palpable error determination turns on
4 Kentucky Rules of Civil Procedure.
-5- whether the [C]ourt believes there is a substantial possibility that the result would
have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918
(Ky. App. 2007) (internal quotation marks and citation omitted).
III. ANALYSIS
As mentioned above, counsel’s Anders brief asserts there are no
nonfrivolous grounds for appeal. However, in his supplemental pro se brief,
Father appears to contest the circuit court’s findings relating to KRS 199.502(1),
namely that there is not substantial evidence to support those findings.
Generally, a trial court must contemplate four distinct elements in a
contested adoption proceeding:
(1) [D]id the petitioner comply with the jurisdictional requirements for adoption; (2) have any of the conditions outlined in KRS 199.502(1) been established; (3) is the petitioner of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child as required by the first portion of KRS 199.520(1); and (4) finally, will the best interest of the child be promoted by the adoption, and is the child suitable for adoption as required by the final portion of KRS 199.520(1).
A.K.H. v. J.D.C., 619 S.W.3d 425, 431 (Ky. App. 2021) (footnote omitted).
Notably, there is no requirement for a finding that the child has been neglected or
abused in a contested adoption proceeding. Id.; compare KRS 199.502 with KRS
625.090.
-6- In the instant case, the circuit court explicitly made the required
findings and weighed all the necessary considerations. (R. at 363-66.)
Particularly, it found that Father abandoned Child for a period of not less than
ninety (90) days under KRS 199.502(1)(a).5 “[A]bandonment 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).
Though Father was incarcerated for a significant portion of Child’s
life, this is not reason alone to warrant a finding of abandonment. J.H. v. Cabinet
for Hum. Res., 704 S.W.2d 661, 663 (Ky. App. 1985). The circuit court noted
Father’s incarceration; however, it listed several other reasons as a basis for its
finding of abandonment. Those included the findings that: Father did not have
any communication or contact with Child since at least 2021; Father did not seek
any relationship or contact since January 2022; Father never filed any court actions
to request custody or parenting time; and Father has “not participated in decisions,
assisted with educational needs, provided any gifts, cards, letters, clothing, or other
necessities, and has provided no essential parental care and protection even during
times that he was not incarcerated.” (R. at 364.)
5 It also found KRS 199.502(1)(e) and (g) to have been established; however, those factors are not inclusive and only one factor need be proven to grant an adoption without consent. See C.J. v. M.S., 572 S.W.3d 492, 496 (Ky. App. 2019).
-7- Although Father stated he had sent a text in August 2021 and some
letters after he was incarcerated, he admitted to not sending any more
communications for fear that his requests would be rejected, stating that Mother’s
objection in August 2021 was a significant reason for his relapse into substance
use. (V.R. June 27, 2023 Hearing – 11:25:10.) Likewise, he admitted to not
engaging with the courts to request parenting time or custody,6 or consulting with
an attorney about his options to do so. (V.R. June 27, 2023 Hearing – 11:30:15.)
While Mother admitted to denying Father’s request to see Child in August 2021
and receiving one of Father’s letters (sent after the adoption proceeding
commenced), the evidence does not demonstrate that she engaged in “deliberate
and systematic ploys” to prevent Father from having time with Child, nor that
Father’s attempts were consistent. See R.P., Jr. v. T.A.C., 469 S.W.3d 425, 428
(Ky. App. 2015). Additionally, by his own admission, Father has not provided any
financial support, besides a small amount of court-ordered child support, nor has
he provided any gifts, cards, or other necessities to Child. (V.R. June 27, 2023
Hearing – 12:04:45.)
It is clear from the evidence presented, including his own testimony,
that Father manifested an intent to abandon Child. He chose to engage in criminal
6 The one notable exception to his lack of engagement with the courts was the letter sent to the circuit court regarding the adoption proceedings in June 2023. (R. at 60.)
-8- actions, abuse substances, and forgo treatment for his addiction, and he did so for
multiple periods of time, even when he was not incarcerated or otherwise
prohibited from seeing Child by the DVO. See J.R.E., 667 S.W.3d at 594.
Thus, we hold there was sufficiently clear and convincing evidence
that Father abandoned Child for a period of more than ninety (90) days, and, as it is
“within the exclusive province of the trial court to weigh the evidence[,]” we do
not disturb those findings. R.P., Jr., 469 S.W.3d at 428. Father’s actions in
seeking treatment for his addiction issues and desire to now be a parent are
commendable; however, his arguments and the evidence presented in his favor
simply do not overcome the weight of the evidence presented that it would be in
Child’s best interests for the adoption to occur.
IV. CONCLUSION
In conclusion, we agree with Father’s counsel and see no nonfrivolous
issue which could be raised on appeal which would warrant reversal of the circuit
court’s judgment. Accordingly, we affirm.
ALL CONCUR.
-9- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE R.W.D.:
Melanie A. Rolley Natasha Camenisch Little Madisonville, Kentucky Madisonville, Kentucky
SUPPLEMENTAL BRIEF FOR APPELLANT:
J.M.B., pro se Fredonia, Kentucky
-10-