T.R.C. v. J.T.M.

• Court: Court of Appeals of Kentucky
• Decided: November 22, 2024
• Docket: 2024-CA-0660
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 22, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2024-CA-0660-ME

T.R.C. APPELLANT

APPEAL FROM MARTIN CIRCUIT COURT v. HONORABLE ADAM O’BRYAN, JUDGE ACTION NO. 23-AD-00001

J.T.M.; CABINET FOR HEALTH AND FAMILY SERVICES; A.E.J., A MINOR; AND R.J.M. APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ECKERLE, L. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: This appeal is taken from the Martin Family Court’s findings

of fact, conclusions of law, order and judgment terminating the parental rights of

the appellant to his son and granting the adoption petition brought by the husband

of the child’s mother. Upon careful review, we affirm. FACTUAL AND PROCEDURAL BACKGROUND

The appellant, T.R.C. (“Father”) had a child (“Son”) with R.J.M.

(“Mother”) in 2012. Father and Mother were not married, and they became

estranged shortly before Son was born. Father saw the baby only once. Shortly

after the birth, Father left the state to pursue a job opportunity. After serving in the

military, he received a medical discharge and entered the construction industry.

He is currently employed as a foreman and earns over $90,000 per year. He also

receives a monthly benefit of $1900 from the VA. Father has resided outside

Kentucky throughout Son’s life, and he currently lives in Gainesville, Georgia. He

is married with two children and has purchased a larger home in anticipation of

being reunited with Son.

Son has resided with Mother for his entire life. In 2017, Mother met

J.T.M. (“Husband”). They began living together in 2018 and eventually married.

Husband has taken a paternal role in Son’s life and Son has called him “Dad” for

several years. Mother and Husband both have stable, well-paid employment.

After he and Mother broke up during her pregnancy, Father made

several unsuccessful attempts to establish a future relationship with Son by

contacting Mother via Facebook Messenger. He wanted to attend her medical

appointments and he offered to provide insurance coverage for Son and to

purchase baby supplies. Mother did not want any contact. Father sent her a

-2- message stating he would “go to the welfare office” and request a DNA test, not

because he did not think he was the child’s father but to “gain some rights” to the

baby. He did not follow through.

Father’s sister also tried to contact Mother for assurances that she and

Father would be allowed to have a relationship with Son. Mother blocked both

Father and his sister and told Father that he would have to go through the court

system if he wished to see Son. Father messaged Mother’s brother, who agreed to

communicate with him and sent Father some pictures of Son, but he ended contact

with Father in 2016.

On October 22, 2022, Father filed a petition to establish paternity and

custody. At that point, he had not seen Son for over ten years. Pursuant to an

agreed order, the parties underwent paternity testing which confirmed Father was

Son’s biological parent. On February 17, 2023, Husband filed a petition for

adoption and involuntary termination of parental rights, alleging that Father had

abandoned and/or neglected Son. Father responded with a request for joint custody

and timesharing with Mother. The family court held an evidentiary hearing with

testimony from Father, Father’s sister, Mother, and Husband. The family court

also interviewed Son in chambers. The court thereafter entered findings of fact,

conclusions of law, order, and judgment, terminating Father’s parental rights and

-3- granting Husband’s adoption petition. This appeal by Father followed. Further

pertinent facts will be set forth below.

STANDARD OF REVIEW

“An adoption without the consent of a living biological parent is, in

effect, a proceeding to terminate that parent’s parental rights.” C.J. v. M.S., 572

S.W.3d 492, 496 (Ky. App. 2019) (quoting B.L. v. J.S., 434 S.W.3d 61, 65 (Ky.

App. 2014)). “Accordingly, in adoption without consent cases we apply the same

standard of review that governs parental termination cases.” Id. “An appellate

court will only reverse a trial court’s decision to terminate a parent’s rights if such

decision is clearly erroneous, meaning there is no substantial, clear, and convincing

evidence to support the decision.” P.S. v. Cabinet for Health and Family Services,

596 S.W.3d 110, 115 (Ky. App. 2020); Kentucky Rules of Civil Procedure (CR)

52.01. “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, 70 S.W.2d 5, 9 (1934)). Therefore, we

will only disturb the circuit court’s findings if no substantial evidence exists in the

record to support its findings. V.S. v. Commonwealth, Cabinet for Human

Resources, 706 S.W.2d 420, 424 (Ky. App. 1986) (citation omitted).

-4- ANALYSIS

A petition seeking adoption of a child against the wishes of the child’s

biological parent “is governed in its entirety by [Kentucky Revised Statutes] KRS

Chapter 199.” R.M. v. R.B., 281 S.W.3d 293, 297 (Ky. App. 2009). 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” that any of ten

possible conditions exist with respect to the child. Here, the family court relied on

two of the statutory conditions to support its grant of adoption: “That the parent

has abandoned the child for a period of not less than ninety (90) days[,]” KRS

199.502(1)(a), and “[t]hat 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[.]” KRS 199.502(1)(e).

Father argues that the family court erred in finding that he abandoned

Son. “For the purposes of Chapter 199, ‘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.’” R.P., Jr. v. T.A.C., 469 S.W.3d 425,

427 (Ky. App. 2015) (quoting O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983)).

-5- Father argues that the evidence did not demonstrate a settled purpose

on his part to abandon Son. He claims he was unsure that he was the biological

parent and that he exhausted every avenue of communication with Mother and her

family members. Father argues that his inaction was not due to intentional or

voluntary relinquishment of his parental responsibilities but was due instead to

being repeatedly misled about his paternity.

He compares his situation with that of the appellant in J.A.T. v.

Cabinet for Health and Family Services, No. 2014-CA-000969-ME, 2014 WL

7339021 (Ky. App. Dec. 24, 2014). When J.A.T. learned he could possibly be the

father of a child, he immediately went to the county attorney’s office twice to

attempt to take a paternity test. He was told another man was named on the birth

certificate, however, and that there was nothing further he could do. About five

months later, the child’s mother named him as the putative father, and he was

ordered by the county attorney to take a paternity test. As soon as his paternity

was confirmed, he began taking the necessary steps to assert his parental rights.

The Court held that these facts were insufficient to support a finding that J.A.T.

had abandoned his child and it reversed the family court’s termination of his

parental rights. Id. at *4.

Father argues that he repeatedly reached out to Mother and her family

members to no avail and that he was repeatedly misled about Son’s paternity.

-6- Father alleges that Mother and her family sent him a “clear message” that he was

not Son’s father and that the “actual father” had already stepped up. He contends

that these affirmative misrepresentations, coupled with the fact that he was not

named on Son’s birth certificate, cast significant doubt on his legal relation to Son.

The evidence confirms Father did reach out repeatedly to Mother and

her family members via Facebook. In one of these messages, he was told by

Mother’s brother that he was not Son’s biological father, but there is little other

evidence that he was repeatedly misled about his paternity. Furthermore, after the

initially hostile exchange with Mother’s brother regarding Son’s paternity, their

exchanges became amicable and Father’s messages to the brother continued to

state that he wished to see his son.

Furthermore, unlike J.A.T., who upon learning he might be the child’s

father immediately took action, the evidence showed Father knew he was Son’s

parent from the time Mother became pregnant. Mother testified that Father was

present when she found out she was pregnant and that he was excited. Father

nonetheless took no affirmative steps to establish paternity or assert his parental

rights beyond the Facebook messages to Mother and her family, which he stopped

sending in 2016. Mother informed him that he would have to take legal action to

have a relationship with Son, but he made no attempt to do so, even though there

was no evidence of financial or other barriers to prevent him from acting. The

-7- facts are thus clearly distinguishable from those in S.J. v. Cabinet for Health and

Family Services, 604 S.W.3d 294 (Ky. App. 2020), another case cited by Father.

S.J.’s children had been taken into custody by the Cabinet for Health and Family

Services while she was incarcerated. She had neither the knowledge nor the ability

to communicate with the Cabinet. Eventually the Cabinet did reach out to S.J. and

she wrote letters to her children, but the Cabinet nonetheless decided not to

facilitate contact. The Court held that this constituted insufficient evidence to

show abandonment by Mother. Id. at 300.

But, substantial evidence in the form of numerous Facebook messages

showed that Father was virtually certain he was Son’s biological parent. Even

though Mother and her family rebuffed his messages, he made no attempt to use

legal channels to gain access to Son. The evidence shows Father is an intelligent,

financially-secure individual who was capable of seeking legal redress and did not

suffer from the disadvantages and obstacles experienced by S.J. The standard of

clear and convincing evidence does not mean uncontradicted evidence. R.P., Jr. v.

T.A.C., 469 S.W.3d 425, 427-28 (Ky. App. 2015) (citing W.A. v. Cabinet for

Health and Family Services, 275 S.W.3d 214, 220 (Ky. App. 2008)). Although

Mother and her family may have suggested he was not Son’s father, substantial

evidence shows he did know it was highly likely that he was Son’s father, but only

chose to institute legal proceedings in 2022 when Son was ten years of age.

-8- The family court’s finding that Father abandoned Son is supported by

substantial evidence in the record and will not be disturbed on appeal.

Next, Father contends the court improperly conflated the role of the

guardian ad litem (“GAL”) with that of a friend of the court (“FOC”). At the

outset of the proceedings, the court appointed a GAL who filed an initial report

stating he had reviewed the case file, was familiar with the court record, and had

met with Husband and Mother. The report states that the GAL was confident that

Husband was of good moral character and that the adoption by Husband would be

in the best interests of Son.

Father filed a motion to strike the report, arguing that the GAL was

improperly acting as an FOC by submitting a report and making recommendations.

Father’s attorney renewed these arguments before the court at a pretrial conference.

The GAL was present and stated that he was prepared to attend the final hearing

and to modify his recommendations. Father’s counsel argued that the GAL’s

report could become evidence that might result in his client losing his parental

rights. Mother’s counsel argued that the report was simply a recommendation that

could be changed at any time and that the GAL was advocating for what he

believed was best for his client, Son. The court denied Father’s motion to strike

the report.

-9- At the final hearing, the GAL was present and questioned Father and

Mother. He asked Father if, when he saw Son as an infant, he had reason to doubt

that he was his child. Father replied “No.” The GAL asked Father’s age at that

time, and Father replied that he was twenty or twenty-one. The GAL asked him if

he was aware of the pregnancy at the time. Father testified that he was aware that

Mother was pregnant, that they broke up during the pregnancy and that he had no

reason to believe he was not the father. The GAL then questioned him about his

employment history, his salary, and his children. Finally, he asked him what he

envisioned timesharing to be. Father acknowledged it would be difficult to

structure timesharing because he lives far away but testified that he would defer to

the court.

The GAL asked Mother about Son’s age when he first started asking

about his father and she testified that it was before he was five years of age. He

was five when Husband first came into her life.

The GAL thereafter submitted a second report to the court in which he

summarized the evidence presented at the hearing and changed his

recommendation. The report states:

Without question [Father] has not, to date, supported his child. In his defense, he was not identified on the birth certificate and he was not 100% sure until the paternity testing results were received. However, it appears there was no indication the child was not his, biologically. The evidence is uncontroverted that he could financially

-10- support the child in the future. Considering the factors set forth in KRS 625.090, and the mandate that the evidence must be clear and convincing, KRS 625.090(2)(a) and (e) may potentially apply. However, it seems grossly unfair to apply those to Respondent when paternity was unclear and, especially when [Father] was not on the birth certificate.

The GAL acknowledged that in the course of the in camera interview,

Son stated he did not want to have a relationship with Father because he had not

had one so far. The GAL stated that he appreciated Son’s position and believed it

was a natural result of not ever having been introduced to Father.

The GAL concluded that he could not recommend termination under

the circumstances and recommended that Father and Son be permitted to get to

know each other gradually. He acknowledged the difficulty presented by the

distance between the parties and recommended that Father be required to show an

extraordinary level of commitment by traveling to visit Son in Kentucky on a

consistent and gradually increased basis. He also recommended that Father begin

paying child support.

Father filed a response to the GAL’s second report, stating that he had

no objections, agreed with a graduated approach to timesharing, and was willing to

travel to Kentucky for the initial stages with the hope that Son could visit him in

Georgia in the future. Husband filed a lengthy response objecting to the report and

-11- requesting the Court not to adopt it. Father filed a sur-reply urging the court to

adopt the report in full.

The circuit court entered an order approving the GAL’s motion for

attorney fees and directed the amount of the fees to be equally divided between

Father and Husband. The court crossed out a line in the order which stated, “the

report of the . . . GAL is hereby accepted.”

The Kentucky Supreme Court has emphasized that the GAL and the

FOC play distinct, separate roles in family court proceedings and should not be

confused with each other. Morgan v. Getter, 441 S.W.3d 94, 119 (Ky. 2014). The

FOC “investigates, reports, and makes custodial recommendations on behalf of the

court, and is subject to cross-examination[.]” Id. The GAL, on the other hand, “is

a lawyer for the child, counseling the child and representing him or her in the

course of proceedings by, among other things, engaging in discovery, in motion

practice, and in presentation of the case at the final hearing.” Id. Importantly, the

GAL “neither testifies (by filing a report or otherwise) nor is subject to cross-

examination.” Id. The Kentucky Supreme Court has cautioned that commingling

these two roles may violate the due process rights of the parties if, for instance, the

GAL investigates and reports as though he were an FOC but is shielded as a GAL

from cross-examination. Id.

-12- Father argues that he was deprived of due process when the court

allowed the GAL to assume the duties of an FOC, claiming the court created an

inherent and irreconcilable conflict of interest. He further claims that by

dismissing the GAL’s second report without articulating any justification for its

exclusion, it is not clear whether the court even considered the GAL’s report in

making its final determination.

We agree with Father that the circuit court improperly permitted the

GAL to perform the tasks of an FOC in the proceedings. The GAL investigated,

submitted reports, and made custodial recommendations, tasks exclusively within

the purview of the FOC. But Father has failed to articulate any specific violation

of his due process rights that resulted from the GAL’s activities. Understandably,

Father dropped his initial objection to the GAL’s actions after the submission of

the second report which was highly favorable to Father. The crossing-out of the

line on the court order indicates that the court chose not to adopt the report, a

decision fully within its discretion. Weighing the evidence is a task within the

“exclusive province of the trial court.” Moore v. Asente, 110 S.W.3d 336, 354

(Ky. 2003). In any event, Father did not seek any further clarification from the

court regarding its treatment of the report. In light of the substantial evidence in

the record supporting the court’s decision to grant Husband’s petition and the lack

of specific allegations or evidence that Father’s due process rights were violated by

-13- the GAL’s activities, we conclude that the trial court’s failure to properly delineate

the GAL’s responsibilities was harmless error in this case. See Kentucky Rules of

Civil Procedure (CR) 61.01.

CONCLUSION

For the foregoing reasons, the findings of fact, conclusions of law,

order, and judgment terminating Father’s parental rights and granting Husband’s

adoption petition is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEES R.J.M. AND J.T.M.: H. David Hicks Prestonsburg, Kentucky Jaryd H. Crum Paintsville, Kentucky

-14-