RENDERED: NOVEMBER 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0376-ME
R.H. APPELLANT
APPEAL FROM GREENUP FAMILY COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 23-AD-00008
C.G.; COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES; D.G.; G.P.N.P., A MINOR CHILD; AND J.P. APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.
CALDWELL, JUDGE: R.H. (“Mother”) appeals from orders of the Greenup
Family Court granting petitions for adoption without her consent, as living,
biological mother. We affirm the family court. FACTS
Appellant, R.H. (“Mother”), is the biological mother of G.P.N.P.
(“Child”). J.P. (“Father”) is the biological father. Appellee, C.G. (“Aunt”) is
Father’s sibling, co-Appellee D.G. (“Uncle”) is husband to Aunt. Child has been
in the care of Aunt and Uncle since leaving the hospital three days after birth, in
August 2021.
Mother has an extensive history of drug abuse, beginning when she
was still a teenager. Child was Mother’s fifth birth. Mother’s oldest three
children were adopted by her own mother and stepfather, with her respective
parental rights terminated. The fourth-born child is in the custody of Mother’s
paternal grandmother. A sixth child was born to Mother in September of 2023;
this was the first Mother brought home from the hospital or to be in her primary
care.
Aunt and Uncle filed a Verified Petition for Adoption, initiating the
underlying action in Greenup County Family Court, on February 28, 2023.1 On
April 4, 2023, a confidential report was filed with the family court by the Cabinet
for Health and Family Services (“CHFS”). Mother filed an answer on April 22,
2023. A final hearing in the matter was originally scheduled for July 11, 2023.
1 Previously, Aunt and Uncle had been awarded custody of Child in a CI action, and permanent placement of Child in a juvenile action. In the latter, Mother stipulated to have neglected Child.
-2- Mother filed a motion to continue on July 5, 2023. Therein, she asserted she was
hospitalized and receiving IV antibiotics 24 hours per day. The motion was
granted and the hearing rescheduled.
The final adoption hearing finally occurred on February 6, 2024. The
guardian ad litem recommended adoption of Child by Aunt and Uncle, as well as
termination of Mother’s parental rights. Testimony was heard from Aunt, Mother,
Mother’s counselor, Mother’s paternal grandmother, and Mother’s maternal
grandmother.
At the hearing, Mother presented testimony indicating she had
demonstrated efforts to overcome her drug addiction and improve her parenting.
A mental therapist who treated Mother testified. He said Mother began seeing him
on September 13, 2023, pursuant to her participation in a medication-assisted
treatment program at OVP Health in Ashland, Kentucky. He indicated drug
screen results he had reviewed were appropriate and that he had observed an
improvement in her over the months of his treatment. The mental therapist
indicated Mother was doing well and complying with her treatment.
Mother’s paternal grandmother also testified. She affirmed having
custody of one of Mother’s children, who was five years old on the date of the
hearing. She testified she had begun allowing Mother to visit this child
approximately a year prior. She testified Mother’s condition and efforts at
-3- sobriety had improved during that time; she described Mother as doing well in
taking care of her new baby. Mother’s maternal grandmother also testified. She
also described a recent improvement in Mother’s condition, as well as efforts in
parenting and sobriety.
At the time of her testimony, Mother had not seen Child in more than
a year. The last visitation attempted had been set up by Aunt on the Child’s first
birthday, in August of 2022. Aunt testified she had not heard from Mother for
quite some time prior to this occasion, which she attributed to Mother’s continuing
active addiction. Prior visitations which had occurred were sporadic, Aunt
testified, as Mother would often disappear for months at a time, without requesting
to see the Child.
At the attempted visit, Aunt drove to her grandmother’s home, where
Mother and Father were, so they together could see Child. When she was on her
way, Aunt sent a message to let Mother and Father know; she did so again upon
her arrival. Aunt sat in the driveway for an extended period waiting for either
Mother, or Father, to come outside and see Child. However, neither did so. Aunt
eventually left, believing Mother’s condition from active addiction was the reason
she did not come out to see Child. Aunt chose to cease communication with
Mother at that point. Aunt testified she did so out of fear for the minor Child’s
safety, which she believed to be in danger if exposed to Mother while in a state of
-4- active addiction. Aunt testified she was no longer in contact with Father and
believed her brother continued to actively use drugs.
Aunt expressed doubt that Mother had ever demonstrated a period of
sobriety that would render visitation appropriate. She conceded she had not
returned text messages Mother had sent her. She testified she had consulted and
relied upon the advice of her attorney and a CPS worker involved in the juvenile
case in reaching the decision to ignore Mother’s text messages.
Mother conceded that once, during the pendency of the adoption
action, there had been a lapse in her sobriety. However, she insisted this had
occurred because she had been abducted and involuntarily drugged by Father and
his friends. Father, who is the biological father of Child and to Mother’s sixth-
born, did not file an appearance in the action and did not testify. All testimony
indicated Father continued to live a lifestyle of active addiction. Aunt testified she
had ceased contact with her brother as a result. Father’s relationship with Mother
was discussed on several instances.
Mother testified she had ceased all contact with Father. She
conceded a lapse in her sobriety had occurred when she last saw Father in May of
2023. However, Mother said she had been abducted by Father and injected with
drugs, against her will by Father and his friends. Mother’s maternal grandmother
had testified she had reported Mother missing in May of 2023, after she could not
-5- locate her and worried for her safety. Mother testified she had reported this
kidnapping to police but that jurisdictional issues had complicated any charges
being filed.
Aunt’s testimony had described encountering Mother and Father
together on two occasions during May of 2023, one during the period Mother was
reported missing. Aunt’s testimony indicated her skepticism that Mother’s drug
use at this time was involuntary. Once, in early May of 2023, Aunt saw Mother
and Father sitting in a car together, but otherwise alone, outside the home of Aunt
and Father’s grandmother.
Aunt testified she encountered the two outside her grandmother’s
home again in late May of 2023. This occurrence was during the period Mother
was reported as a missing person. Aunt had gone to her grandmother’s home in
search of the two after learning from Uncle that he had recognized Mother and
Father in a van he passed while driving. As both Mother and Father were reported
as missing at the time, Uncle reported what he saw to Aunt. Prompted by this
news, Aunt went to her grandmother’s home and observed the van parked on the
side street. She pulled up beside it and observed Mother inside.
Aunt testified that she told Mother she needed to contact her family,
as they had reported her missing. Aunt described Mother’s appearance as “pretty
rough” and having disheveled hair and scabs over her body. Aunt testified that
-6- Police arrived at the scene later the same day and that, in reaction to this, Mother
transferred to the driver seat and attempted to flee the scene. Mother confirmed
she had fled from the police, despite her having been abducted and wishing to
escape from Father. She attributed her actions to the drugs she had taken
involuntarily.
Mother was hospitalized for an extended period after this incident.
Her testimony referenced a prior extended hospitalization incidental to intravenous
drug use. Mother dated her discharge from this prior hospitalization to November
of 2022, and referenced this as the onset of her sobriety, outside of the relapse in
May of 2023.
Following the hearing’s conclusion, three orders were
contemporaneously entered by the trial court on February 8, 2024 − an Order
Terminating Parental Rights which concerned Father, another Order Terminating
Parental Rights which concerned Mother, and an Order of Adoption and
Judgment. Mother timely filed a Motion to Alter, Amend, or Vacate which was
denied by the family court. This appeal follows.
STANDARDS OF REVIEW
Termination of parental rights is a very serious matter impacting
significant constitutional rights; accordingly, the “utmost caution” is required and
only when statutory requirements are clearly met should the family court terminate
-7- parental rights. M.E.C. v. Commonwealth, Cabinet for Health and Family
Services, 254 S.W.3d 846, 850 (Ky. App. 2008).
Generally, we review a family court’s application of the law to the
facts de novo. K.H. v. Cabinet for Health and Family Services, 358 S.W.3d 29, 31
(Ky. App. 2011). Questions of statutory interpretation – such as which statutes
govern adoptions or terminations of parental rights – are also subject to de novo
review, though we review evidentiary rulings for abuse of discretion. A.F. v. L.B.,
572 S.W.3d 64, 69 (Ky. App. 2019).
We review the family court’s findings of fact under the clearly
erroneous standard set forth in CR2 52.01, while keeping in mind those findings,
when made in support of termination of parental rights, are constitutionally
required to be supported by clear and convincing evidence. A.F., 572 S.W.3d at
69-70 (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92,
71 L. Ed. 2d 599 (1982)).
Nonetheless, “trial courts are afforded a great deal of discretion in
determining whether termination of parental rights is appropriate. A family court’s
termination of parental rights will be reversed only if it was clearly erroneous and
not based upon clear and convincing evidence.” M.S.S. v. J.E.B., 638 S.W.3d 354,
359-60 (Ky. 2022) (internal quotation marks, footnotes, and citations omitted).
2 Kentucky Rules of Civil Procedure.
-8- ANALYSIS
Any Error in the Family Court’s Citations to KRS3 625.090, Without Reference to KRS 199.502, Was Harmless
Mother argues the family court failed to make the required findings
for an adoption without consent, as mandated by KRS 199.502. The family court’s
orders, Mother points out, contain no references to KRS 199.502. Rather, she says,
the family court “instead applied KRS 625.090 in the Order Terminating Parental
Rights.”
As the matter was clearly an adoption action without parental consent,
we agree with Mother that KRS 199.502 was the applicable statute. See also KRS
199.500(4). Furthermore, we agree with her that the adoption procedures, as set
forth in KRS Chapter 199, require strict compliance. R.M. v. R.B., 281 S.W.3d
293, 297 (Ky. App. 2009). Mother cites to our decision in J.L.R. v. A.L.A., in her
argument the adoption judgment is void for failure to comply with the proper
adoption statute. 645 S.W.3d 63, 66 (Ky. App. 2022). However, under the facts at
hand, we do not view our analysis there as providing support to Mother’s position.
As we found in J.L.R., an argument closely paralleling Mother’s here was
addressed:
[J.L.R.’s] first argument is essentially a conclusory statement that the family court erred in applying the statutory provisions of KRS 625.090 and that the
3 Kentucky Revised Statutes.
-9- applicable statutes for adoption without consent are KRS 199.502 and KRS 199.520. We agree those are the applicable statutes. The pertinent question is whether there was compliance with them.
J.L.R., 645 S.W.3d at 66 (emphasis added).
In addressing this question, we did, ultimately, detect a failure of
statutory compliance on the part of the family court requiring remand in J.L.R. Id.
at 70. Specifically, the family court had erroneously issued a judgment of
termination rather than a judgment of adoption and had included the name of the
birth parents in the judgment; both of these errors were in violation of KRS
199.520(1). Id. at 66-67. Here, the family court’s Order of Adoption and
Judgment makes no mention of Mother or Father by name. Furthermore, no
specific error, in regard to KRS 199.520, is alleged or appears to have occurred.
It was the case in J.L.R., as here, that no specific reference was made
by the family court to KRS 199.502, only to KRS 625.090. Id. at 66. However,
the record demonstrated the adoptive parents had pled and proven the requirements
for adoption without consent, under KRS 199.502 (and KRS 199.500(4)). So, we
found no reversible error in the family court’s referring to KRS Chapter 625 – and
not KRS Chapter 199 – standing alone. Id. at 68-69.
KRS 199.502(1) states in pertinent part:
Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and
-10- proved as part of the adoption proceeding that any of the following conditions exist with respect to the child:
(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[.]
Aunt and Uncle’s Verified Petition for Adoption included the
following paragraphs:
14. The grounds for this termination of parental rights as well as adoption are that [the biological parents have] abandoned the child for more than 90 days.
15. [The biological parents] have continuously and repeatedly failed to provide or have been substantially incapable of providing essential parental care and
-11- protection for the child and that there is no reasonable expectation of improvement in parental care and protection.
16. That [the biological parents], for reasons other than poverty alone, have 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 not reasonable expectation of significant improvement in their conduct in the immediate foreseeable future, considering the age of the child.
In the Order Terminating Parental Rights, as to Mother, the family court
found:
Pursuant to KRS 625.090(2)(a) the biological mother has by clear and convincing evidence abandoned and neglected the minor child for a period exceeding ninety (90) days. Moreover, it is apparent from her actions that she has a settled purpose to forego [her] parental duties and all parental claims to the child given that [she] has failed to provide any parental care for the minor child since her birth.
Moreover, the Court finds by clear and convincing evidence that KRS 625.090(1)(e) and KRS 625.090(1)(g) is [sic] also applicable in that [Mother] has continuously and repeatedly failed to provide and is incapable of providing essential parental care and protection for the child, essential food, clothing, shelter, medical care, or education reasonably necessary and available for the child’s well-being. There is additionally no reasonable expectation of significant improvement in the immediately foreseeable future. In making this finding, the court must look at the evidence presented to the court and the pattern of past behavior, and based upon this behavior, can only predict that his conduct would continue to be similar in the future. The Court has been
-12- presented with no evidence to refute these reasonable future expectations.[4]
“KRS 199 encompasses KRS 625.” J.L.R., 645 S.W.3d at 65 (quoting
E.K. v. T.A., 572 S.W.3d 80, 83 (Ky. App. 2019)). KRS 199.500(4) allows for
adoption without the consent of the biological living parents, where “it is pleaded
and proved as a part of the adoption proceedings that any of the provisions of KRS
625.090 exist with respect to the child[.]”5 Side-by-side examination demonstrates
the required findings of parental unfitness in KRS 625.090(2)(a), (e), and (g) are
directly mirrored in those of KRS 199.502(1)(a), (e), and (g). Accordingly, upon
the pleadings and evidence at hand, the family court’s incorrect or incomplete
statutory references are not necessarily an indication of its failure to make the
required findings under KRS 199.502.
We have previously acknowledged the mirroring statutory language in
KRS 199.502(1) and KRS 625.090(2) requires that, in some respects, the
determinations which must be made under the provisions also correlate. See R.M.,
281 S.W.3d at 296 (finding no error in family court’s allowing parties seeking
adoption without parental consent to present evidence relevant to obtaining
4 We presume the family court intended to cite to KRS 625.090(2)(e) and (g), and that its citations to KRS 625.090(1)(e) and (g) are simply typographical errors. KRS 625.090(1) has no subdivisions nominated (e) or (g). 5 Notwithstanding the specified exceptions to parental consent requirements in KRS 199.500(1).
-13- involuntary termination of parental rights under KRS Chapter 625, given
similarities between KRS 199.502(1) and KRS 625.090(2)). In reaching this
conclusion, we provided guidance as to the interplay between involuntary
termination of parental rights statutes in KRS Chapter 625 and the adoption
statutes in KRS Chapter 199, noting the “[p]rovisions of KRS Chapter 625 are
applicable only as permitted by KRS 199.500(4), and as specifically enumerated in
KRS 199.502.” R.M., 281 S.W.3d at 297.
With this in mind, the extent of the family court’s error may be fairly
described as referencing KRS 625.090, without an additional reference to KRS
Chapter 199. However, when examining the family court’s substantive findings,
language which tracks that contained in KRS 199.502(1)(a), (e), and (g) was
specifically invoked, despite any incomplete or mistaken citations to KRS 625.090.
Put another way, Mother has demonstrated only that the family court failed to cite
to KRS 199.502(1)(a), (e), or (g). An examination of the family court’s orders,
however, demonstrates no failure to make the findings contained in KRS
199.502(1)(a), (e), or (g). Mother has demonstrated no absence of strict
compliance with the substantive procedural requirements of KRS 199.502, only
incorrect citation; she, furthermore, demonstrates no prejudice which occurred
from the error. On the facts at hand, any error was harmless.
-14- The family court found abandonment for more than 90 days, failure or
inability to provide essential parental care, and repeated or continuous failure or
inability to provide necessities. In doing so, the family court found at least one
specified condition to permit considering granting adoption without consent
required by KRS 199.502 – by clear and convincing evidence – pled in the
adoption petition.
While explicit reference to the correct governing statute is certainly
the preferred practice, the court orders here demonstrate the family court making
the required findings to permit consideration of whether to grant the adoption
without Mother’s consent. KRS 199.502(1). See also KRS 199.500(4). In short,
the family court’s failure to explicitly reference KRS 199.502 does not merit relief
under these facts. Cf. A.K.H. v. J.D.C., 619 S.W.3d 425, 432 (Ky. App. 2021)
(reversing denial of stepfather’s petition for adoption without consent as family
court’s error in requiring stepfather to establish all requirements in KRS 625.090
rather than simply meeting requirements of KRS 199.502 prejudiced stepfather).
There is no indication Mother’s substantial rights were adversely affected by this
error. The family court’s failure to cite KRS 199.502, and the incorrect or
unnecessary citations to KRS 625.090, were harmless. See CR 61.01.
Mother additionally argues it was reversible error for the family court
to issue three separate orders. We disagree. We have previously stated it is
-15- unnecessary for the trial court to issue separate orders terminating parental rights
and granting the adoption. C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019).
However, on review, “we view the judgment of adoption and order terminating
parental rights as being one document that comprises the judgment. 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.” Id. (internal quotation marks
and citation omitted). Where judgments of termination of parental rights and
adoption are both entered, we treat them as one judgment and review for
compliance with the adoption statutes. Id. at 497 (citing Wright v. Howard, 711
S.W.2d 492, 494 (Ky. App. 1986)).
Substantial Evidence Supports the Family Court’s Findings
Mother also argues the family court’s findings were not supported by
the evidence. She essentially reargues her case, specifically, on the issues of
abandonment and a reasonable expectation of improvement. As our Supreme
Court has directed, “judging the credibility of witnesses and weighing evidence are
tasks within the exclusive province of the trial court.” Moore v. Asente, 110
S.W.3d 336, 354 (Ky. 2003). See also CR 52.01. Given the deference we must
accord to the family court’s judgments about the credibility of witnesses and the
weight of the evidence, we cannot disturb its factual findings as they are supported
by substantial evidence and therefore not clearly erroneous.
-16- The family court set forth in detail findings of fact concerning failure
or inability to provide essential parental care. See KRS 199.502(1)(e); KRS
625.090(2)(e). It found Mother had not contributed anything financially toward
Child. The family court acknowledged the testimony regarding Mother’s attempts
to text message Aunt about visiting Child and for her family to provide clothing
and noted “[t]ext messages produced show there has been no text messages since
December 2022.” The family court noted her continued unemployment and
reliance upon government assistance and family for income. The family court also
took notice of the juvenile action, with a stipulation of neglect by Mother, and the
circuit action, with no timesharing granted.
It is clear to the Court that neither biological parent has provided any parental care for the minor child since her birth. The biological mother has appeared to enter treatment but only entered such treatment several months after the filing of the Petition for Adoption. Both parents have abandoned the child and failed to provide financially. This is all supported by the testimony of the Petitioner and by [Mother] herself.
In the context of an adoption without parental consent, “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). Furthermore, “[s]eparation to constitute
abandonment and neglect must be wilfull and harsh.” Kantorowicz v. Reams, 332
S.W.2d 269, 271-72 (Ky. 1959). A finding of abandonment may not be based
-17- upon a “mere failure to exercise visitation” because “a vast distinction exists
between absence and indifference.” S.B.B. v. J.W.B., 304 S.W.3d 712, 717 (Ky.
App. 2010).
Here, Mother argues she did not abandon the Child because Aunt
thwarted her attempts to visit with Child, highlighting the testimony where Aunt
conceded she had ignored Mother’s text messages. This Court has, under different
circumstances, found that abandonment was not present when a custodial parent
systematically thwarted and consistently frustrated the other parent’s attempts to
visit with a child. P.C.C. v. C.M.C., Jr., 297 S.W.3d 590, 592-93 (Ky. App.
2009). However, Aunt and Uncle argue the case aligns more closely with our
decision in R.P., Jr. v. T.A.C., 469 S.W. 3d 425, 427 (Ky. App. 2015). We agree
with Aunt and Uncle.
The circumstances here are distinct from a scenario where deliberate
and systematic ploys to keep the natural parent and child apart in order to avoid
visitation. See P.C.C., 297 S.W.3d at 592. Mother’s own testimony indicated her
requests to see Child were sporadic, even in the period Mother was texting such
requests. Aunt indicated months would go by without any communication or
effort to see Child by Mother. Aunt additionally testified of making efforts to
keep Mother informed and involved with Child but Mother’s drug use consistently
took precedence. While Mother focuses upon a period of a few months during
-18- which Aunt left her text messages unanswered, Mother’s paternal grandmother
conceded she would not allow Mother to see the child she had custody of during
this same period as a result of Mother’s behavior incidental to her drug use.
As with R.P., Jr. v. T.A.C., Mother “merely argues that [her]
testimony about [Aunt’s] conduct outweighs [her] admissions about [her] own
behavior. We reiterate that it is within the exclusive province of the trial court to
weigh the evidence.” 469 S.W.3d at 428. The family court’s finding in this regard
was supported by sufficient evidence, and we may not disturb it.
Mother extends the same argument to family court’s finding she had
not provided parental care or essential needs for Child and there was no reasonable
expectation she would improve. Mother additionally points out to a text message
regarding an occasion she requested Child’s clothing size so her family could buy
clothing for Child. Likewise, this argument attempts to relitigate a matter for
which there was conflicting testimony. The family court’s order demonstrates this
evidence was considered and determined to be outweighed by other evidence,
including Mother’s own testimony regarding the history of her inaction with
regard to Child.
The family court must weigh factors to determine the best interest of
the child. KRS 199.520(1). To reach a determination of whether a parent has a
reasonable expectation for improvement, the family court will also examine the
-19- parent’s current parenting ability, rather than just past behavior. M.E.C., 254
S.W.3d at 854. In this case, the orders demonstrate the family court did so.
Testimony was undisputed that Mother has a history of drug abuse and, despite
numerous efforts at rehabilitation and treatment, she had resumed her active
addiction on numerous occasions. The family court noted her most recent return
to drug use had occurred during the pendency of the adoption action. Although
Mother insists this was involuntary, it is the family court’s responsibility to weigh
the evidence and make factual findings based on clear and convincing evidence.
This Court cannot substitute its judgment for that of the family court unless those
findings are clearly erroneous.
Mother’s efforts in sobriety and improvement of her life are
commendable. However, we cannot say the family court was clearly erroneous
when it found, by clear and convincing evidence, the existence of the conditions
enumerated in KRS 199.502(1)(a), (e), or (g). Having reviewed the record, we can
discern no reversible error in the family court’s decision to grant the adoption
petition.
ALL CONCUR.
-20- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Erin N. Hall Marie E. Troxler Greenup, Kentucky Russell, Kentucky
-21-