R.M. v. R.B.

281 S.W.3d 293, 2009 Ky. App. LEXIS 33
CourtCourt of Appeals of Kentucky
DecidedFebruary 27, 2009
DocketNo. 2008-CA-001099-ME
StatusPublished
Cited by7 cases

This text of 281 S.W.3d 293 (R.M. v. R.B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R.M. v. R.B., 281 S.W.3d 293, 2009 Ky. App. LEXIS 33 (Ky. Ct. App. 2009).

Opinion

OPINION

TAYLOR, Judge.

R.M. and R.M., husband and wife, (hereinafter appellants) bring this appeal from an order of the Casey Circuit Court entered March 26, 2008, denying the termination of parental rights and adoption sought by appellants as concerns A.E.B, an infant child. For the reasons stated below, we affirm.

A.E.B. was born on July 6, 2005. Her natural parents are T.B.,2 her mother, and R.B. her father. R.M. is the maternal uncle of A.E.B. and his wife is A.E.B.’s aunt by marriage.

The sequence of events after A.E.B.’s birth is disputed. During the first month of birth, appellants babysat for A.E.B. on a daily basis. Appellants contend that shortly thereafter they assumed complete responsibility for A.E.B.’s care. R.B. contends that he and T.B. utilized appellants’ babysitting assistance on a less frequent basis, primarily when R.B. was out of town for work-related matters during the first ten months after birth. Appellants counter that shortly after A.E.B.’s birth, their relationship with A.E.B. was more custodial and permanent in nature than mere babysitting. Regardless of the disputed facts regarding appellants’ custodial control over the child, there is no dispute that both R.B. and T.B. have substantial personal issues and problems that interfered with their parenting duties of A.E.B. after her birth. In May 2006, the Cabinet for Health and Family Services (Cabinet) initiated a neglect action in the Casey District Court against T.B. and R.B. pursuant to KRS Chapter 620. During the pendency of this proceeding, A.E.B. was removed from T.B. and R.B. and placed in the temporary custody of appellants. The neglect action was subsequently transferred to the Pulaski Family Court in February 2007.

After conducting an evidentiary hearing, the Pulaski Family Court entered an order on June 11, 2007, granting appellants permanent custody of A.E.B. That order was further amended by order entered July 9, 2007. However, the Pulaski Family Court orders reflect that R.B. was not present at the evidentiary hearing due to his incarceration at the time of the hearing. The Pulaski County orders also only reference actions taken against T.B., not R.B.

On August 31, 2007, appellants filed a petition for adoption in the Casey Circuit Court seeking to adopt A.E.B. Included as an exhibit to the petition for adoption was an executed voluntary consent to the adoption on behalf of T.B. R.B. did not consent to the adoption. Thus, his parental rights were required to be terminated in accordance with Kentucky Revised Statutes (KRS) 199.502, which relates to a petition for adoption where the consent of a biological parent is not obtained. The adoption petition subsequently came before the Casey Circuit Court for an evidentiary hearing on March 7, 2008. At the conclusion of the hearing, the circuit court denied adoption of the child A.E.B. by appellants and [295]*295further denied the involuntary termination of the parental rights of R.B. The written order was entered March 26, 2008.

Appellants timely filed a motion to alter, amend or vacate the order entered by the Casey Circuit Court on March 26, 2008. The motion was denied by order entered May 13, 2008. This appeal follows.

The primary issues raised in this appeal by appellants relate to the failure of the Casey Circuit Court to terminate the parental rights of R.B., which was necessary for them to adopt A.E.B. Specifically, appellants argue that the order of the Pulaski Family Court that A.E.B. had been neglected as defined in KRS 600.020, which is the necessary statutory definition utilized in KRS Chapter 620 to support a neglect petition, warranted a termination of R.B.’s parental rights in accordance with KRS 625.090(2). KRS Chapter 625 pertains exclusively to the involuntary termination of parental rights. It is the primary legal basis argued by appellants in this appeal.

However, we note at the outset of our analysis that this case was not initiated as a termination of parental rights action but rather as an adoption proceeding under KRS Chapter 199. In fact, the caption for the pleading initiating this action is styled “Petition for Adoption,” and there is no reference whatsoever in this petition to the termination of R.B.’s parental rights. Nonetheless, KRS 199.502 sets out various conditions for which an adoption may be permitted without the consent of a child’s biological living parent, which effectively results in the termination of parental rights. These conditions are the same conditions set forth in KRS 625.090(2) which require clear and convincing evidence to prove whether one of the conditions therein supports the termination of parental rights. KRS 199.502 reads as follows:

(1) 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 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;
(b) That the parent had inflicted or allowed to be inflicted upon the child, by other than accidental means, serious physical injury;
(c) That the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm;
(d) That the parent has been convicted of a felony that involved the infliction of serious physical injury to a child named in the present adoption proceeding;
(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;
(f) That the parent has caused or allowed the child to be sexually abused or exploited;
(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 reason[296]*296ably necessary and available for the child’s wellbeing 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;
(h) That:
1. The parent’s parental rights to another child have been involuntarily terminated;
2.

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Cite This Page — Counsel Stack

Bluebook (online)
281 S.W.3d 293, 2009 Ky. App. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rm-v-rb-kyctapp-2009.