RENDERED: DECEMBER 12, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0423-ME
J.R.R. APPELLANT
APPEAL FROM BOONE CIRCUIT COURT v. HONORABLE JENNIFER R. DUSING, JUDGE ACTION NO. 23-AD-00040
K.J.; A.E.; L.M.J.R., A MINOR CHILD; AND P. J. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, ECKERLE, AND KAREM, JUDGES.
KAREM, JUDGE: J.R.R. (“Father”) appeals the Boone Circuit Court’s order
granting Appellees’ petition for adoption of L.M.J.R. (“Child”). Finding no error,
we affirm. FACTUAL AND PROCEDURAL BACKGROUND
Child’s biological mother, A.E. (“Mother”), gave birth to Child in
November 2014. Child was born prematurely with methadone in his system and
spent several weeks in the NICU after his birth.
Child began living with P.J., his maternal grandmother, and K.J., his
maternal step-grandfather, in December 2014, in Kenton County. When Child was
approximately seven (7) months old, Mother relapsed and began using drugs again.
P.J. contacted the Cabinet for Health and Family Services (the “Cabinet”) and the
Cabinet filed a dependency, neglect, or abuse (“DNA”) petition in Kenton Family
Court. The Kenton Family Court awarded P.J. temporary custody of Child in
January 2016. On September 11, 2017, the Kenton Family Court awarded P.J.
permanent custody of Child and gave Father supervised visits every other week for
four (4) hours.
In October 2018, the Appellees filed a petition to adopt Child in
Kenton Family Court (the “First Petition”). The Cabinet filed a written report
recommending that the court grant the First Petition. The Kenton Family Court
conducted an evidentiary hearing in December 2020 and entered findings of fact
and conclusions of law denying the First Petition on January 12, 2021. On appeal,
this Court concluded that the Kenton Family Court had incorrectly applied the law
to the facts by ignoring the adoption statutes and applying only the mandates of
-2- Kentucky Revised Statute (“KRS”) Chapter 625. On remand, the Kenton Family
Court issued revised conclusions of law on August 25, 2022, finding that the
Appellees had not proven that they had met the conditions contained in KRS
199.502 and again denied the First Petition.
On June 12, 2023, Appellees filed another petition for Child’s
adoption with the Boone Family Court (the “Second Petition”). Appellees and
Child had moved to Boone County during the pendency of the First Petition to
provide Child with a more neighborhood-like environment and a larger home. The
Cabinet filed a report on September 15, 2023, recommending that the family court
grant the Second Petition. On April 9, 2024, Mother waived her rights and
consented to Child’s adoption by Appellees.
Father filed a motion to dismiss the Second Petition on res judicata
grounds on November 16, 2023, and Appellees filed a response to the motion to
dismiss on December 7, 2023. The family court held a hearing on the motion to
dismiss on May 14, 2024, to determine whether any significant changes had
occurred since the date of the hearing on the First Petition in December 2020.
On May 22, 2024, the family court entered an order denying Father’s
motion to dismiss and finding that there had been a material change of conditions
since the First Petition was considered by the Kenton Family Court in December of
2020, such that the issues presently before the family court were not identical to
-3- the issues previously considered. Thus, the family court held that res judicata was
not a bar to holding a hearing on the Second Petition.
The Boone Family Court held a hearing on the Second Petition on
January 13, 2025, at which all parties were represented by counsel. On February
28, 2025, the family court entered Findings of Fact and Conclusions of Law, along
with a Judgment of Adoption granting the Second Petition. This appeal followed.
We will discuss further facts as they become relevant.
ANALYSIS
1. Appellees’ Motion to Strike Father’s Appellate Brief and Reply Brief
Appellees have moved to strike portions of Father’s brief and reply
brief, alleging that both documents failed to substantially comply with Kentucky
Rules of Appellate Procedure (“RAP”) 32(A)(4) and RAP 31(E)(1). Father has
filed no response.
As discussed by a panel of this Court, “[i]t is a dangerous precedent to
permit appellate advocates to ignore procedural rules.” Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010). “They are lights and buoys to mark the
channels of safe passage and assure an expeditious voyage to the right destination.
Their importance simply cannot be disdained or denigrated.” Id. (internal
quotation marks and citations omitted). “Our options when an appellate advocate
fails to abide by the rules are: (1) to ignore the deficiency and proceed with the
-4- review; (2) to strike the brief or its offending portions, [RAP 31(H)(1)]; or (3) to
review the issues raised in the brief for manifest injustice only[.]” Id. (citation
omitted).
Given the important nature of child adoption cases, we are not
inclined to strike either brief in its entirety or any portions thereof. However, we
warn counsel that in the future this Court may not be so tolerant, and we admonish
counsel to strictly follow the rules or risk having any future briefs stricken and/or
being held in contempt.
2. Discussion
a. Father’s Motion to Dismiss Based on Res Judicata
Father first argues that the family court erred in denying his motion to
dismiss based on res judicata. Specifically, Father claims that the matter was
litigated and finally decided by the Kenton Family Court during its adjudication of
the First Petition. A motion to dismiss for failure to state a claim upon which relief
may be granted is reviewed de novo, as it presents only a question of law. Fox v.
Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (footnote omitted).
The Kentucky Supreme Court has explained the doctrine of res
judicata as follows:
The rule of res judicata is an affirmative defense which operates to bar repetitious suits involving the same cause of action. The doctrine of res judicata is formed by two subparts: 1) claim preclusion and 2) issue
-5- preclusion. Claim preclusion bars a party from re- litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same cause of action. Issue preclusion bars the parties from relitigating any issue actually litigated and finally decided in an earlier action. The issues in the former and latter actions must be identical.
Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998)
(footnote and citations omitted). However, in relation to judgments subject to later
modification, this Court has adopted Comment c to Section 13 of the
RESTATEMENT (SECOND) OF JUDGMENTS, which provides:
A judgment concluding an action is not deprived of finality for purposes of res judicata by reason of the fact that it grants or denies continuing relief, that is, requires the defendant, or holds that the defendant may not be required, to perform acts over a period of time. Judgments of these types are rendered typically in actions for injunctions, specific performance, alimony, separate maintenance, and child support and custody.
The res judicata consequences of such judgments follow normal lines while circumstances remain constant, but those consequences may be affected when a material change of the circumstances occurs after the judgment. Thus if the judgment denied on the merits the continuing relief sought, but there has been a later material change of conditions, a new claim may arise upon the later facts (to be considered sometimes in combination with the old), and that claim will be held not barred by the previous judgment[.]
Wheeler v. Wheeler, 154 S.W.3d 291, 294 (Ky. App. 2004) (emphasis added)
(footnote omitted). Thus, the issue before the family court when analyzing
-6- Father’s motion to dismiss was whether Appellees had presented evidence of a
material change in the circumstances since the Kenton Family Court took evidence
regarding the First Petition.
In this case, we agree with the family court that there was evidence of
a material change in conditions since the hearing on the First Petition in December
2020, such that res judicata was not implicated. Indeed, Child was older, had
developed significantly while living full-time with the Appellees, and was
becoming more aware of his situation. Mother had also consented to the adoption
in the Second Petition, which was a significant change in circumstances.
Moreover, Mother had also continued to struggle with sobriety and had, in fact,
overdosed approximately two (2) weeks before the hearing on Father’s motion to
dismiss the Second Petition. The overdose required police assistance and the
administration of Narcan and resulted in Mother being charged with public
intoxication and possession. Father was present at the event and, since December
2020, had picked Mother up early from various inpatient recovery programs,
bonded her out of jail, and administered Narcan and CPR to her multiple times due
to her drug use. Finally, since December 2020, Father had failed to exercise a
great deal of the parenting time to which he was entitled and had never sought an
increase in his parenting time or for his visits to be unsupervised. Therefore, we
agree with the family court that, due to the change in circumstances, the action was
-7- not barred on res judicata grounds and the family court correctly denied Father’s
motion to dismiss.
b. Motion for Continuance
Father next argues that the family court erred in denying his motion
for a continuance. As stated by the Kentucky Supreme Court, “whether to grant a
motion for continuance is well within the sound discretion of the trial court.”
Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky. 1994) (citations omitted).
Indeed, “a trial court’s ruling on a continuance motion will remain undisturbed
unless it appears to the appellate court that, in overruling the motion, there was a
clear abuse of judicial discretion such as to deny the accused substantial justice.”
Id. (citations omitted).
In this case, Appellees filed the Second Petition with the Boone
Family Court on June 12, 2023. The family court scheduled a final hearing for
March 5, 2024. Subsequently, by agreement of all parties, the family court
continued the hearing to September 9, 2024. On September 4, 2024, Father filed a
motion to continue the September 9, 2024, final hearing for assorted reasons,
including the flare-up of a painful leg condition, court proceedings involving his
older children, and unreliable transportation. The family court granted this motion,
rescheduled the final hearing to January 13, 2025, and noted on its docket sheet
that this would be the last continuance.
-8- Thereafter, Father retained new counsel, who entered her appearance
on January 3, 2024—nearly four months after the family court granted Father’s
motion for a continuance and only one (1) week before the rescheduled hearing
date. Father’s new counsel filed a motion to continue the final hearing, stating that
she needed more time to prepare for the hearing scheduled for seven (7) days later.
The family court denied this motion at the beginning of the January 13, 2025, final
hearing, and held the final hearing on this date.
In his brief, Father argues that because of the trial court’s denial of his
motion to continue, Father was unable to present all the evidence he wished to
present during the trial. However, Father did not provide any evidence of a clear
abuse of judicial discretion that denied him substantial justice. Father chose to
retain new counsel on or about January 3, 2025, only ten (10) days before the
scheduled January 13, 2025, final hearing date, which Father had been aware of for
approximately four (4) months. Father’s attorney was included on both the court’s
May 22, 2024, order denying Father’s motion to dismiss as well as its trial order
dated September 11, 2024, which stated that the hearing was scheduled for January
13, 2025. It was well within the trial court’s discretion to deny the motion to
continue because it had already continued the matter twice. On the date of the
hearing, the Second Petition had been pending for approximately eighteen (18)
months. In the interests of justice and the best interests of the Child, it was not an
-9- abuse of discretion for the family court to deny Father’s second motion to continue
the final hearing.
c. Substantial Evidence Supporting the Circuit Court’s Granting of the Second Petition
Finally, Father argues that the circuit court’s findings in its order
granting the Second Petition were not supported by sufficient evidence and were
thus clearly erroneous. As discussed by a panel of this Court, “[a]n 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) (citation omitted). Therefore, “in adoption without consent cases we apply
the same standard of review that governs parental termination cases.” C.J. v. M.S.,
572 S.W.3d 492, 496 (Ky. App. 2019). “Our review is confined to the clearly
erroneous standard in [Kentucky Rule of Civil Procedure (“CR”)] 52.01 based
upon clear and convincing evidence.” Id. Thus, we will not disturb the family
court’s findings “unless there exists no substantial evidence in the record to
support them.” Id. (citations omitted).
Under this standard, “[c]lear 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. (citation omitted). Moreover, “‘we are required to give
considerable deference to the [family] court’s findings, and we will not disturb
-10- those findings’ unless the record provides no substantial support for them.” Id.
(quoting in part 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 (citation omitted).
To prevail on a petition for adoption without the consent of a child’s
biological parent, the petitioner must prove the existence of any one of the
conditions outlined in KRS 199.502(1)(a)-(j). A.K.H. v. J.D.C., 619 S.W.3d 425,
432 (Ky. App. 2021). Here, the family court determined that the Appellees had
successfully proven that Father, for a period of not less than six months, had
continuously or repeatedly failed or refused to provide or had been substantially
incapable of providing essential parental care and protection for Child, and that
there was no reasonable expectation of improvement in parental care and
protection considering Child’s age. KRS 199.502(1)(e).
We agree with the family court that Appellees produced substantial
evidence demonstrating that Father had never—for Child’s entire life—been a
consistent, present parent to Child and that Appellees have been Child’s only
parental figures. Both Appellees testified that Father had only exercised about
thirty percent (30%) of the parenting time to which he was entitled. Father
-11- regularly and consistently misses visits with Child for a number of reasons—and
sometimes for no reason at all—and had gone at least three (3) consecutive months
without visiting Child at all. Father’s excuses for missing his visitation included
being sore from working out, that he was stuck in traffic, that he had to let the
cable guy into his house, that he had to help a friend move a refrigerator, and that
his internet was not working. Moreover, P.J. testified that, of the visits he had
kept, Father never once stayed for the full four (4) hours.
Moreover, Father failed to file any motions to gain custody, increase
his parenting time, or lift the supervision requirement for parenting time. Indeed,
as the family court stated in its Findings of Fact and Conclusions of Law, “[Father]
has never been involved with [Child’s] school, asked about [Child’s] education, or
helped [Child] with homework. He has never been present for a surgery or
attended any of [Child’s] medical appointments. He has never provided daily care
for [Child], fed [Child] consistent meals, ensured [Child] ha[s] proper sleep, or
taken care of [Child] when he is sick.”
We further agree with the family court that Father has “demonstrated
a repeated inability to use prudent judgment[.]” Significant evidence was
presented that Father consistently enabled Mother’s drug use. Moreover, Father
has never worked a case plan with the Cabinet, and the Cabinet stated in its
mandatory report regarding the Second Petition that it had sent Father forms to be
-12- completed and had offered a face-to-face interview. Father never returned the
forms or requested an interview. Based on the foregoing evidence, we find no
clear error with the family court’s findings under KRS 199.502(1)(e).
We further agree with the family court that Appellees had successfully
proven that, for reasons other than poverty alone, Father had continuously or
repeatedly failed to provide or was incapable of providing essential food, clothing,
shelter, medical care, or education reasonably necessary and available for Child’s
well-being and there was no reasonable expectation of significant improvement in
Father’s conduct in the immediately foreseeable future, considering Child’s age.
KRS 199.502(1)(g). As previously discussed, Appellees provided evidence that
they have provided the totality of Child’s care for his entire life, including Child’s
medical care. Child was born six (6) weeks premature with methadone in his
system, and Father was not present for his birth. Nor did Father, at any time, visit
Child while he was in the NICU after birth. Child suffered serious medical defects
in his early years due to his premature birth and underwent several major medical
procedures as a result. Father did not attend any of Child’s medical procedures and
was not involved in his speech therapy.
Moreover, there was no evidence that Father had ever purchased
clothing or food for Child or ensured that he was clothed or fed on a daily basis.
Child had lived with Appellees since he was merely weeks old, and Father had
-13- never provided Child with shelter. As for Child’s education, Appellees have
enrolled Child in every daycare and school that he has ever attended, and Father
has never participated in the enrollment process. Father had never been to Child’s
school, met his teachers, or attended a parent-teacher conference. Father has never
helped Child with his homework, read books with him, or ensured that he even
went to school.
Finally, we agree with the family court that adoption is in Child’s best
interests. Child is deeply attached to the Appellees and is comfortable in their
home. Appellees attend to all of Child’s medical and educational needs and have
provided numerous enrichment and extra-curricular opportunities. In sum, the
Appellees are the only parents Child has ever known.
Because the evidence presented at trial clearly established Father’s
prolonged failure to provide essential parental care under KRS 199.502(1)(e), his
inability to meet Child’s basic needs under KRS 199.502(1)(g), and that adoption
by the Appellees is in Child’s best interests, the family court properly found that
Father’s parental rights should be terminated and that the Second Petition should
be granted. Given the lack of any reasonable expectation that Father’s conduct
will improve, and considering the Child’s best interests and stability, we affirm the
family court’s decision.
-14- CONCLUSION
For the foregoing reasons, we affirm the Boone Circuit Court’s order
granting the Second Petition.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Daniel T. Guidugli Tasha K. Schaffner Alexandria, Kentucky Crestview Hills, Kentucky
-15-