854C. (P. C.) BELL VS. C. (C. M.), ET AL.
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RENDERED: AUGUST 21, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000189-ME
P.C.C.
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 08-AD-00022
C.M.C., Jr. and R, a
minor, a/k/a R, a minor
APPELLEES
OPINION
VACATING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1
SENIOR JUDGE.
COMBS, CHIEF JUDGE: P.C.C. (P) appeals from a judgment of adoption of the
Bell Circuit Court effectively terminating his parental rights and allowing his son’s
stepfather to adopt him. The evidence before the court did not establish clearly and
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
convincingly that P willfully abandoned his son. Therefore, we vacate the
judgment.
P was married to K.R.C. (K) on two occasions. A son, R.C.C. (R),
was born on June 17, 2002, during their second marriage. This marriage was
terminated soon after the child’s first birthday. During the course of the
dissolution of their marriage, P and K reached an agreement with respect to R’s
care and support. K was to be R’s sole custodian, and P was to have visitation with
his son each Wednesday, each Christmas Day, each Father’s Day, and on
alternating Thanksgiving and Easter holidays. P was entitled to visit more often by
agreement.
On December 8, 2006, K married C.M.C (C), the appellee. On
September 17, 2008, C filed a pleading with the Bell Circuit Court styled, “Petition
for Adoption and Termination of Parental Rights.” A copy was mailed by the
circuit clerk’s office to the Cabinet for Health and Family Services. P responded to
the petition by contending, in part, that C (as the child’s step-father) lacked
standing to initiate termination proceedings. Kentucky Revised Statute(s) (KRS)
625.050 provides that proceedings for the involuntary termination of parental
rights may be initiated only by the Cabinet, an adoption agency, the county, the
Commonwealth’s attorney, or a parent.
P also filed a motion in the dissolution proceedings to enforce his
visitation rights – separate and apart from his response in the proceeding for
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adoption/termination of parental rights. During a hearing on the adoption in
October 2008, the circuit court declined to consider P’s motion filed in the context
of the dissolution action. In response to a statement by P’s counsel, the court also
refused to hear evidence indicating that P had been denied visitation with his son
for years, admonishing counsel that he was “getting the cart before the horse.” The
court announced that resolution of the petition for adoption and termination of
parental rights would precede any consideration of the visitation issue. The court
advised that P could set his motion addressing the visitation issue later by filing a
motion for an evidentiary hearing if and only if the adoption petition was
ultimately denied.
Trial on the petition for adoption and termination of parental rights
began on October 23, 2008. After C completed his proof and announced closed, P
asked the court to deny the petition. P contended that as a stepfather, C lacked
standing to bring a petition to terminate the parental rights of the natural father and
that C had failed to meet other critical procedural requirements. The court
recessed the proceedings. On October 24, 2008, C tendered the affidavit of K in
which she consented to the adoption. C also moved to file an Amended and
Restated Petition for Adoption that omitted or suppressed any reference to the
termination of P’s parental rights.
The apparent purpose of this new filing was to allow C to invoke the
provisions of KRS 199.500, which allows for an adoption without parental consent
if a party pleads and proves that any of the provisions of KRS 625.090 exist with
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respect to the child. P objected, but the court permitted the documents to be filed
despite his objection.
On January 6, 2009, the court’s findings of fact and conclusions of
law were entered. The court concluded that the proceedings were not governed by
the provisions of KRS 199.500 or KRS 625.090 but instead by the provisions of
KRS 199.502. Pursuant to KRS 199.502, an adoption may be granted without the
consent of the biological living parent of a child if it is pleaded and proved that the
parent has abandoned the child for a period of not less than ninety (90) days. The
court found that C pled and proved that P had abandoned R for a period of years by
failing to exercise his right to visit with the child. The court granted the petition
for adoption based on the abandonment theory, thereby incidentally terminating
P’s parental rights.
On appeal, P contends that the trial court erred by failing to apply the
correct legal standards to the proceedings and by permitting C to alter the course of
the proceedings after he had announced that his case was closed. P also argues that
the trial court’s findings of fact cannot form the basis of a valid legal conclusion
because they are not supported by substantial evidence. Since C failed to prove by
clear and convincing evidence that P had abandoned R, P urges that the judgment
of the trial court be vacated.
From our review of the proceedings, it is not at all clear which
allegations and statutes governed this cause of action – nor how P could have
discerned which cause of action he had to pursue in order to protect his parental
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rights. It is clear, however, that this matter has constitutional ramifications that
render the statutory procedural safeguards critically important. In Santosky v.
Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Court
observed as follows:
The fundamental liberty interest of natural parents in the
care, custody, and management of their child does not
evaporate simply because they have not been model
parents or have lost temporary custody of their child to
the State. Even when blood relationships are strained,
parents retain a vital interest in preventing the
irretrievable destruction of their family life. If anything,
persons faced with forced dissolution of their parental
rights have a more critical need for procedural
protections than do those resisting state intervention into
ongoing family affairs. When the State moves to destroy
weakened familial bonds, it must provide the parents
with fundamentally fair procedures.
In order to protect the rights of natural parents, Kentucky courts
require strict compliance with statutory provisions governing the involuntary
termination of parental rights. Day v. Day, 937 S.W.2d 717 (Ky.1997). We are
persuaded that P was not afforded fundamental due process throughout the course
of this litigation. In addition to the procedural pitfalls in his case compelling our
decision to vacate the judgment, C also failed to meet his burden of proof that P
had abandoned R.
C bore the burden to prove by clear and convincing evidence that P
had abandoned R for a period of not less than 90 days. KRS 625.090(2)(a); KRS
199.502(1)(a). The evidence in this case indicates that throughout R’s short life,
his father’s attempts to visit with him have been systematically thwarted by his
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mother. P described K as hostile and filled with animosity toward him. After
considering the testimony, the trial court accepted this characterization. P testified
that K schemed to deprive him of access to his son until he eventually began to ask
other family members to keep in contact with the child and even to host birthday
parties for R. K admitted that she advised P’s family (including R’s sister) to stay
away from the child. It is undisputed that despite K’s attempt to alienate P from
his son, P kept current with his child support obligation and sent gifts to the boy.
K admitted that she never kept P informed about any of R’s extracurricular
activities, and C admitted that he and K removed the child from Kentucky every
Father’s Day.
We conclude that the trial court erred as a matter of law by holding
that P had abandoned R. It is true that considerable deference is accorded to the
decision of a trial court to terminate a natural parent’s parental rights and to grant
an adoption. However, the court’s findings must be supported by substantial
evidence. Commonwealth, Cabinet for Families and Children v. G.C.W., 139
S.W.3d 172 (Ky.App.2004). “[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). Moreover, “[s]eparation to constitute abandonment and neglect
must be wilful and harsh.” Kantorowicz v. Reams, 332 S.W.2d 269, 271-72
(Ky.1960).
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The evidence presented in this case falls far short of demonstrating
that P intended to forego all parental duties and to relinquish his claims to the child
or that his separation was willful. The evidence does not approach – much less
satisfy – the requirement that it be clear and convincing. Instead, the evidence
indicates that P cares deeply about his son and that he intended to build a loving
relationship with him but was consistently frustrated and prevented from doing so.
The court acknowledged an attempt by C and K to exclude P from his son’s life
while simultaneously finding that P relinquished all parental rights and duties,
willfully separating himself from the child. This inherent contradiction is
untenable as a matter of law and fails to meet the evidentiary standard.
We vacate the judgment of the Bell Circuit Court in this matter with
the expectation and anticipation that it will proceed to resolve the pending
visitation motion within the dissolution proceeding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Jeffery W. Helton
Pineville, Kentucky
J.P. Cline III
Middlesboro, Kentucky
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