M.S.S. v. J.E.B. ( 2022 )

RENDERED: JANUARY 20, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0100-DGE
M.S.S. APPELLANT
ON REVIEW FROM COURT OF APPEALS
NO. 2020-CA-0995
WARREN CIRCUIT COURT NO. 18-AD-00043
V.
J.E.B., D.J.B., AND K.K.F.S., A CHILD APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
M.S.S. (“Mother”) requested review of an opinion by the Court of Appeals
affirming the Warren Family Court’s order concerning the adoption of her
minor child, K.K.F.S. (“Child”). Following a March 14, 2019, hearing, the
Warren Family Court entered a judgment on May 21, 2020, terminating
Mother’s parental rights and granting to Appellees, J.E.B. and D.J.B., the
adoption of Child without parental consent based on its finding that Mother
abandoned Child for a period of not less than 90 days. The Court of Appeals
affirmed that judgment, finding that clear and convincing evidence supported
the family court’s determination that Child was abandoned.
We granted discretionary review and directed the parties to address
specifically whether the Cabinet for Health and Family Services (“the Cabinet”)
was required to initiate an action to involuntarily terminate the biological
parents’ parental rights under Kentucky Revised Statutes (KRS) Chapter 625
before the filing of a petition for adoption by J.E.B. and D.J.B. After careful
review, we hold that the Cabinet was not required to initiate an action for
involuntary termination of parental rights before the filing of a petition for
adoption and the family court did not err in granting the petition for
nonconsensual adoption, thereby terminating Mother’s parental rights.
Consequently, we affirm the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother is the biological mother of Child, who was born in January 2011.
Mother has a long history of drug addiction and criminal convictions that have
greatly interfered with her ability to be a part of Child’s life.
Mother was first arrested for trafficking and first-degree possession of a
controlled substance in 2009, before Child’s birth. In October 2011, nine
months after Child’s birth, Mother was convicted of wanton endangerment and
bail jumping. She was granted shock probation in 2012, but she was then
convicted of possession of marijuana and sentenced to one and one-half years’
imprisonment. In 2013, she was convicted of possession of methamphetamine
and sentenced to another year of imprisonment. And in 2015, she was
convicted of promoting contraband and sentenced to another two and one-half
years’ imprisonment. She was released in 2017 and has remained out of prison
since then.
2
Before her incarceration in 2011, Mother voluntarily granted
guardianship of Child to Child’s maternal grandmother. However, in 2012, the
maternal grandmother tested positive for various drugs, and the Cabinet filed a
dependency, neglect, and abuse (“DNA”) petition against her. As a result, Child
was temporarily placed in the custody of J.E.B., a first cousin of Mother, and
D.J.B., his wife, the Appellees in this case, in February 2013. The family court
permitted Mother to visit Child at the discretion of the J.E.B. and D.J.B.
Ultimately, J.E.B. and D.J.B. received permanent custody of Child on
December 15, 2014.
On April 3, 2018, J.E.B. and D.J.B. filed a petition in the Warren Family
Court to terminate Mother and the biological father’s parental rights and to
adopt Child without the consent of the biological parents under KRS
199.502(1). The family court set the petition for a final hearing on March 14,
2019.
At the hearing, Mother testified that she had not had any contact with
Child since before November 24, 2014, the day her son was born, despite her
remaining out of jail from November 2014 to December 2015. However, Mother
testified that she attempted to visit Child multiple times during this period, but
Appellees would not allow her to do so and would threaten to call the police if
she came to their house. She also asserted that she was in the hospital with
her other child, a son, for a period of time after his birth in November 2014 and
was unable to visit Child during that period. She testified that, before
November 2014, she attended visitation every time she could and, when
3
visitation was relocated to child’s maternal aunt’s house in early 2013, she
brought clothes and other items for Child, but the maternal aunt would not
give them to Child. Mother also asserted that, while in jail, she wrote letters to
Appellees in which she asked about Child and enclosed drawings for Child.
Mother testified that, after she was paroled in 2017, she contacted Appellees
about visiting Child, but they denied her request. She filed a petition for
visitation on February 1, 2018.
Mother also testified that she had made significant improvements in her
life since her last incarceration began in November 2015. She has remained
sober since that time, and, since her release in 2017, she has maintained
steady, gainful employment and continued making child-support payments.
She has also regained joint custody of her son and plans to buy a house soon.
Because Child does not know Mother, Mother proposed a therapeutic
reunification and has attended sessions with a licensed psychologist.
J.E.B. testified that, when he first gained temporary custody of Child in
February of 2013, visitation took place at his house but was soon relocated to
maternal aunt’s house because Mother would arrive late or would not attend at
all. He testified that, even after visitation was relocated, Mother frequently
missed or arrived late to visitation. He estimated that Mother missed 70 to 80
percent of visitations during 2013 and 2014, and he stated that she often
canceled last-minute.
J.E.B. acknowledged that on one occasion Mother brought clothes for
Child to Appellees’ house during visitation, but the clothes were too large, and
4
he did not give them to Child. He also testified that he could only remember
Mother bringing a bag of candy to visitation at the aunt’s house on one
occasion. J.E.B. also acknowledged that Mother requested to have some
contact with Child after November 2014 but only on holidays and Child’s
birthday. He also stated that he remembered receiving a couple of letters in the
mail from Mother, but he did not give any of them to Child and eventually
threw them away.
Child’s maternal aunt also testified at the hearing and stated that she
could only remember Mother showing up to visitation at her house on two
occasions. She stated that Mother brought milkshakes for one of the visits and
brought a bag of items for Child to play with at the other. The aunt stated that
she could recall Mother calling twice to cancel visitation because of purported
flat tires and once to cancel because she was in a fight with Child’s maternal
grandmother.
Shortly after the hearing, Child’s guardian ad litem (“GAL”) filed a
supplemental report recommending that the court dismiss the petition for
adoption and termination of parental rights.1 In the GAL’s opinion, although
Mother was not present for significant periods of Child’s life, her efforts to be
involved with Child at various points were impeded by J.E.B. and D.J.B. She
further opined that Mother had a reasonable expectation of improvement in her
1 The GAL recommended dismissing the petition only with respect to Mother
and expressly stated no objection to the family court terminating the parental rights of
the biological father.
5
parental conduct considering the significant life improvements she has made
since her 2017 release from prison.
The family court ultimately granted J.E.B. and D.J.B.’s petition,
terminating Mother and the biological father’s parental rights and granting the
adoption of Child to J.E.B. and D.J.B.2 Specifically, the court found that, under
KRS 199.502(1)(a), Mother had abandoned Child for a period of not less than
90 days because, during periods of time when Mother was not in custody, she
did not devote herself to parenting Child. Mother appealed the family court’s
judgment, but the Court of Appeals affirmed, concluding that clear and
convincing evidence supported the family court’s finding of abandonment. We
granted discretionary review and now affirm the Court of Appeals.
II. 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.”3 Parental rights are a
“‘fundamental liberty interest protected by the Fourteenth Amendment’ of the
United States Constitution.”4 As such, “termination of parental rights is a grave
action which the courts must conduct with ‘utmost caution.’”5 So, “to pass
2 Child’s biological father did not appeal the family court’s judgment.
3 B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citing Moore v. Asente, 110
S.W.3d 336 (Ky. 2003)).
4 R.P. v. T.A.C., 469 S.W.3d 425, 426–27 (Ky. App. 2015) (quoting Santosky v.
Kramer, 455 U.S. 745, 753 (1982)).
5 Id. (quoting M.E.C. v. Commonwealth, Cabinet for Health & Fam. Servs., 254
S.W.3d 846, 850 (Ky. App. 2008)).
6
constitutional muster, the evidence supporting termination must be clear and
convincing.”6
That said, trial courts are afforded a “great deal of discretion” in
determining whether termination of parental rights is appropriate.7 “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.”8 “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.”9
Under this standard, we are “obligated to give a great deal of deference to the
family court’s findings and should not interfere with those findings unless the
record is devoid of substantial evidence to support them.”10
Additionally, “[s]ince 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.”11
6 Id. (quoting Santosky, 455 U.S. at 769–70).
7M.P.S. v. Commonwealth, Cabinet for Human Res., 979 S.W.2d 114, 116 (Ky.
App. 1998).
8 M.A.C. v. E.A., No. 2020-CA-0087-ME, 2021 WL 2878347, at *2 (Ky. App. July
9, 2021) (citing Commonwealth, Cabinet for Health & Fam. Servs. v. T.N.H., 302 S.W.3d
658, 663 (Ky. 2010); Kentucky Rule of Civil Procedure (CR) 52.01).
9 T.N.H., 302 S.W.3d at 663.
10 Id. (citing K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006)).
11 Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997).
7
III. ANALYSIS
Mother argues that the family court erred in terminating her parental
rights and granting the petition for adoption because the Cabinet did not
initiate a proceeding to terminate her parental rights before J.E.B. and D.J.B.
filed their petition for adoption. She further argues that the family court erred
because its finding that she abandoned Child under KRS 199.502(1)(a) was not
supported by clear and convincing evidence and conflicts with other factual
findings in the judgment of adoption.
A. The Cabinet for Health and Family Services was not required to
initiate an involuntary termination of parental rights action before
the J.E.B. and D.J.B. filed a petition for adoption without the
consent of the biological parents.
We address first the issue which we granted review to consider and
which we specifically directed the parties to brief: whether the Cabinet was
required to initiate an involuntary termination of parental rights action under
KRS Chapter 625 before J.E.B. and D.J.B.’s filing of a petition for adoption.12
We conclude that the Cabinet was not so required.
12 Although not argued in the courts below, we directed the parties to brief this
issue on our motion. Specifically, this Court’s Order Granting Discretionary Review
included the following directive:
Among the issues to be specifically addressed regarding the involuntary
termination of the parental rights of the biological parents herein, are
whether the Appellees may initiate the involuntary termination of
parental rights action, or whether the Cabinet for Health and Family
Services must do so, pursuant to KRS Chapter 625, prior to the filing of
a petition for adoption by the Appellees.
Per our request, the parties dutifully argued both sides.
8
Appellees filed a petition seeking both involuntary termination of Child’s
biological parents’ parental rights and the adoption of Child without the
consent of the biological parents. Generally, involuntary termination
proceedings are governed by KRS Chapter 625.13 While proceedings for
involuntary termination may be initiated by a number of different entities,
including the Cabinet,14 the Cabinet must always be made a party to the
action.15
Adoptions, however, are governed by KRS Chapter 199.16 That KRS
chapter encompasses both adoptions with and without the consent of the
biological parents.17 While consensual adoptions, governed by KRS 199.500,
require that “[t]he parental rights of the parents have been terminated under
KRS Chapter 625[,]” no such requirement exists for adoptions without the
consent of the biological parents, which are governed by KRS 199.502.18 In
fact, KRS 199.502 makes clear that, “[i]f granted, the adoption itself terminates
13 See KRS 625.050.
14KRS 625.050(3) (“Proceedings for involuntary termination of parental rights
may be initiated upon petition by the cabinet, any child-placing agency licensed by the
cabinet, any county or Commonwealth's attorney or parent.”).
15KRS 635.060 (“In addition to the child, the following shall be the parties in an
action for involuntary termination of parental rights: . . . [t]he petitioner; . . . [t]he
[C]abinet [for Health and Family Services], if not the petitioner; and . . . the biological
parents, if known and if their rights have not been previously terminated.”).
16 See KRS 199.470.
See KRS 199.500 (governing consensual adoptions); KRS 199.502 (governing
17
adoptions without consent of the biological parents).
18Additionally, a family court may grant an adoption without the consent of the
biological parents “if 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.” KRS
199.500(4).
9
the parental rights of the biological parents.”19 As such, a plain reading of KRS
199.500 and KRS 199.502 leaves no doubt that the Cabinet is not required to
initiate an involuntary termination of parental rights action under KRS Chapter
625 before the filing of a petition for adoption without parental consent under
KRS 199.502.
This statutory structure led the Court of Appeals to conclude correctly
that when a petitioner seeking adoption files a dual petition seeking both
involuntary termination of parental rights of the biological parents and an
adoption without the consent of the biological parents, “the adoption
supersedes the termination because KRS Chapter 199 encompasses Chapter
625.”20 In such cases, “KRS 199 governs the entirety of the . . . petition.”21
While, in this case, J.E.B. and D.J.B.’s petition sought both adoption
without consent of the biological parents and termination of the biological
parents’ parental rights, the petition specified that it was seeking adoption and
termination only under KRS 199.502. The family court’s judgment further
makes clear that the adoption was granted under KRS 199.502, and only upon
entry of the judgment of adoption were Child’s biological parents’ rights
terminated, again under KRS 199.502. As such, the Cabinet was not required
19 C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019) (citation omitted); KRS
199.520(2) (“Upon granting an adoption, all legal relationship between the adopted
child and the biological parents shall be terminated except the relationship of a
biological parent who is the spouse of an adoptive parent.”).
20E.K. v. T.A., 572 S.W.3d 80, 83 (Ky. App. 2019) (citing Wright v. Howard, 711
S.W.2d 492, 495 (Ky. App. 1986)).
21 Id.10
to file an action to involuntarily terminate the parental rights of Child’s
biological parents under KRS Chapter 625 before the Appellees filed their
petition to adopt Child. It was sufficient for the Appellees to proceed under KRS
199.502 alone.
Furthermore, the Cabinet is not necessarily required to be made a party
to an action for the adoption of a child. KRS 199.470 provides that “any person
who is eighteen . . . years of age and who is a resident of this state or who has
resided in this state for twelve . . . months next before filing may file a petition
for leave to adopt a child.” And KRS 199.480, which lists all parties defendant
required in an adoption, states that the Cabinet is only required to be a party
defendant “if the care, custody, and control of the child has been transferred to
the [C]abinet . . . .”22 Because this is an adoption case, and KRS 199 governs
the entirety of the proceeding, the Cabinet was also not required to be joined as
a party.23
Mother directs the Court to an unpublished opinion of the Court of
Appeals, K.N. v. R.P.,24 to support her argument that, notwithstanding the
provisions of KRS Chapter 199, the requirements of KRS Chapter 625 should
22 KRS 199.480(1)(d).
23 The Cabinet is, however, required to place a child for adoption—if not done so
by a child-placing institution or agency or with written approval of the secretary for
health and family services—before a petition for adoption can be filed. KRS 199.470(4).
And the Cabinet, “or any person, agency or institution designated by it or the court” is
required to investigate and report in writing to the court whether the contents of the
petition are true, whether the proposed adoptive parents are fit to care for the child,
and whether the adoption is in the best interest of the child. KRS 199.510(1). The
Cabinet fulfilled both requirements in this case.
24 No. 2007-CA-000181-MR, 2008 WL 275106 (Ky. App. Feb. 1, 2008).
11
have been followed because, at its core, J.E.B. and D.J.B.’s petition sought to
involuntarily terminate parental rights. But K.N. v. R.P. does not stand for the
proposition that a proceeding to terminate parental rights initiated by the
Cabinet must take place before a nonconsensual adoption proceeding.
Instead, in K.N. v. R.P., great-grandparents filed a dual petition seeking
to both terminate the parental rights of their minor great-grandchildren’s
biological parents and adopt the great-grandchildren.25 However, the great-
grandparents “sought a termination of the parents’ rights before adopting the
children.”26 The family court first held a trial on the termination proceedings,
and, only after terminating parental rights and making the children available
for adoption, considered and granted the great-grandparents’ petition for
adoption.27
The Court of Appeals reversed, finding that “[c]ontrary to the proceedings
which the General Assembly allows under KRS 199.502 for adoption without
parental consent, this case was not practiced under nor did it procedurally
follow KRS 199.502.”28 Rather, the court determined that the adoption
proceedings were conducted under KRS 199.500(1)(b), which allows for
adoption only after termination under KRS Chapter 625 occurs.29 And because
the great-grandparents lacked standing to initiate the termination proceedings
25 Id. at *1.
26 Id. at *11.
27 Id.
28 Id.
29 Id. (citing KRS 199.501(1)(b)).
12
under KRS 625.050(3), the family court erred in entering a judgment
terminating parental rights.30
By contrast, termination and adoption were not treated as two separate
causes of action in this case. Rather, the petition for adoption without parental
consent was requested, heard, and granted in accordance with KRS 199.502,
and Mother’s parental rights were terminated as a result. As such, we find
Mother’s argument on this point unpersuasive.
Mother also emphasizes that the court in K.N. “made it clear that an
individual whose parental rights are sought to be terminated is entitled to not
only an enforcement of statutory requirements in the proceedings, but to
constitutional due process protections that are afforded when the state plays a
role.” It is true that the court in K.N. noted that parental rights are accorded
due process protection under the Fourteenth Amendment to the United States
Constitution,31 but that is beside the point. The proceedings in K.N. were
flawed because the provisions of KRS Chapter 625 were not complied with,
despite the family court entering a judgment of adoption under KRS
199.500(1)(b). The proceedings were not flawed because the Cabinet did not
initiate a termination proceeding before the filing of a petition for
nonconsensual adoption under KRS 199.502. In fact, the K.N. opinion suggests
KRS 199.502 is the proper avenue for adoption proceedings initiated by a
30 Id. at *12–13.
31 K.N., 2008 WL 75106, at *10.
13
private party that result in termination of parental rights.32 As such, K.N. does
not lead this Court to conclude the proceedings in this case were in any way
constitutionally deficient. And, beyond referring this Court to the constitutional
discussion in K.N., Mother has not articulated a constitutional challenge to
KRS 199.502 sufficient to warrant this Court’s review.
Accordingly, the Cabinet was neither required to be a party to the
adoption action nor required to file an action to involuntarily terminate the
parental rights of Child’s biological parents before the Appellees filed their
petition to adopt Child under KRS 199.502.
The dissent finds KRS 199.502 unconstitutional on due process grounds.
While we acknowledge that legitimate questions as to the constitutional
sufficiency of the procedures set out in KRS 199.502 may exist, we do not
believe those arguments are properly before us today.
The dissent identifies two perceived issues with the processes set out in
KRS 199.502. First, the dissent asserts that KRS 199.502 presents a
“constitutional end-run created by a statutory loophole” because it allows a
party to seek an adoption without consent, which terminates the parental
rights of the biological living parents, without having to prove all three of the
requirements for terminating parental rights under KRS 625.050: “(1) the child
is found or has been adjudged to be an abused or neglected child as defined in
32 See K.N., 2008 WL 75106, at *10 (“Contrary to the proceedings which the
General Assembly allows under KRS 199.502 for adoption without parental consent,
this case was not practiced under, nor did it procedurally follow, KRS 199.502.”).
14
KRS 600.020(1); (2) termination of the parents’ rights is in the child’s best
interests; and (3) at least one of the termination grounds enumerated in KRS
625.090(2)(a)-(j) exists.”33 In essence, the dissent argues the findings
necessary to grant an adoption, thereby terminating parental rights, when a
party petitions the court under KRS 199.502 are less onerous than the findings
the judge must make simply to terminate parental rights in an action brought
by the Cabinet34 under KRS Chapter 625.35 And second, the dissent states
that KRS 199.502 is unconstitutional because, in effect, it permits private
individuals to seek termination of parental rights by way of adoption.
However, the dissent fails to identify why the protections afforded to
parents whose rights are sought to be terminated by way of an adoption
without consent are constitutionally deficient, even assuming those protections
are “significantly lower” than those afforded to parents subject to involuntary
33 Commonwealth, Cabinet for Health and Fam. Servs. v. K.H., 423 S.W.3d 204,
209 (Ky. 2014).
34 As noted herein, KRS 625.050(3) permits “the cabinet, any child-placing
agency licensed by the cabinet, any county or Commonwealth's attorney or parent” to
bring a petition to involuntarily terminate parental rights.
35 The dissent describes the protections afforded to non-consenting parents
whose rights are sought to be terminated under KRS 199.502 as “significantly lower”
than those afforded to parents whose rights are sought to be terminated under KRS
Chapter 625. However, because the grounds set forth in KRS 625.090(2)(a)-(j) and KRS
199.502(1)(a)-(j) are substantially the same, and because in both termination and
adoption the trial court must determine that such action is in the best interest of the
child, KRS 199.520(1); KRS 625.090(c), we note that a party seeking termination
under KRS Chapter 625 need only prove one more pertinent element than is required
of a party seeking to adopt under KRS 199.502: the child is found or has been
adjudged to be an abused or neglected child as defined in KRS 600.020(1). See A.K.H.
v. J.D.C., 619 S.W.3d 425, 427 (Ky. App. 2021) (‘[O]ne of the fundamental differences
between termination of parental rights cases and adoption without consent cases is
the absence of an abuse or neglect requirement in the adoption without consent
statute.”).
15
termination under KRS 625.050. Similarly, the dissent does not identify why
the fact that a private party may petition the court for an adoption without
consent, which if granted, simultaneously terminates the rights of the
biological living parents, renders that process constitutionally deficient. And,
importantly, those arguments were never presented to this Court by either
party. As described above, Mother presented only a vague argument that the
process for adoption without consent contained in KRS 199.502 somehow runs
afoul of constitutional due process protections, relying on a somewhat
irrelevant discussion of due process in K.N.36 But that argument is neither
specific nor clear. This Court will not develop arguments on behalf of the
parties, especially arguments challenging the constitutionality of a well-
established statutory mechanism for adoption in the Commonwealth.37
B. The family court’s findings were supported by clear and convincing
evidence.
Under KRS 199.502(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 [nine] conditions exist with
respect to the child[.]” Appellees’ petition for adoption relied on the conditions
in subsections (a), (e), and (g), which state:
(a) That the parent has abandoned the child for a period of not less
than ninety (90) days;
...
36 2008 WL 275106, at *1.
37 KRS 199.502 was enacted in 1994.
16
(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[.]38
The family court found Appellees had failed to meet their burden of proof
with respect to subsections (e) and (g). Specifically, the court found that, “due
to the significant changes and progress [Mother] has made,” it was not
persuaded by clear and convincing evidence that there is no reasonable
expectation of significant improvement in Mother’s parental conduct in the
immediately foreseeable future or in parental care and protection, considering
the age of the child.
However, the family court concluded that Mother had abandoned Child
for a period of 90 days under subsection (a), and it granted the Appellees’
petition on that basis. More specifically, the family court found that, “during
periods of time when [Mother] was not in custody, she did not devote herself to
parenting Child.” The family court noted that, even though Mother was not
incarcerated from November 2014 to November 2015, she had no contact with
38 KRS 199.502(a),(g),(e).
17
Child, and instead engaged in activities that led to her re-incarceration. The
court summarized Mother’s efforts as “too little and too late.”39
On appeal, Mother first argues that the family court’s finding of
abandonment under subsection (a) is inconsistent with its findings with
respect to subsection (e) and (g). She contends that the family court could not
have found both that it was not persuaded by clear and convincing evidence
that that there is no reasonable expectation of significant improvement in
Mother’s future conduct and parental care and that she had abandoned Child
for a period of not less than 90 days.
But we find this argument unpersuasive, as the family court’s finding
concerning Mother’s reasonable expectation of improving her ability to parent
in the future does not conflict with its finding of abandonment. Notably,
subsections (e) and (g) require the court to consider a parent’s future conduct
and ability to parent, even despite any failure to provide parental care in the
past. However, subsection (a) contains no requirement that the court consider
the parent’s future conduct and requires only a straightforward finding that the
parent abandoned the Child for a period of 90 days or more.
Finally, Mother argues that the family court’s finding of abandonment
under subsection (a) is unsupported by clear and convincing evidence.
Particularly, she notes that the family court failed to mention in its findings of
fact and conclusions of law the GAL’s supplemental report, which
39 The Court did so by quoting A.F. v. L.B., 572 S.W.3d 64, 74 (Ky. App. 2019).
18
recommended the court dismiss the petition with respect to Mother because
Appellees thwarted Mother’s attempts to contact Child and because Mother
had a reasonable expectation of significant improvement based on her conduct
since her 2017 release.
Again, we find this argument unpersuasive, as the record contains
sufficient proof to find by clear and convincing evidence that Mother
abandoned Child. As the family court noted in its findings of fact and
conclusions of law, “abandonment is demonstrated by facts or circumstances
that evidence a settled purpose to forgo all parental duties and relinquish all
parental claims to the child.”40 Furthermore, while “[i]ncarceration alone can
never be construed as abandonment as a matter of law[,] . . . absence,
voluntary or court-imposed, may be a factor to consider in determining
whether the children have been neglected.”41
At the hearing, Mother admitted to being incarcerated for five of the first
eight years of Child’s life and that she has had no contact with Child since
November 2014. The family court heard testimony that Mother canceled or
failed to attend the vast majority of visitations, seeing Child only sporadically
from February 2013 to November of 2014. Although Mother testified that she
requested to have contact on multiple occasions after November 2014, J.E.B.
40 O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983).
41 J.H. v. Commonwealth, Cabinet for Human Res., 704 S.W.2d 661, 663–64 (Ky.
App. 1985).
19
testified that she did so only on holidays and birthdays, and she provided little
notice of the proposed visitations.
While incarceration alone is insufficient to support a finding of
abandonment, the family court ultimately heard a significant amount of
evidence to support its finding that Mother intended to forgo her parental
duties and relinquish her parental claims to Child even during periods when
she was not incarcerated. This evidence and the record as a whole clearly and
convincingly support the family court’s findings that Mother abandoned child
for a period of not less than 90 days. Accordingly, the family court did not err
in granting Appellees’ petition for adoption and termination of Mother’s
parental rights to Child under KRS 199.502(1)(a).
IV. CONCLUSION
For these reasons, the Court of Appeals’ decision upholding the family
court’s judgment is affirmed.
All sitting. Hughes, Keller, Nickell, and VanMeter, JJ., concur. Lambert,
J., dissents by separate opinion, in which Conley, J., joins.
LAMBERT, J., DISSENTING: Respectfully, I must dissent. This Court
has recognized that substance use disorder (SUD) is a disease. We say that we
support those who suffer from the crippling effect of the disease in their
recovery. And, we say that we support reunification of parent and child. Yet, a
mother who is nearly five years into recovery from SUD and now lives a stable
life has been stripped of her parental rights, even though: 1) the Cabinet for
Health and Family Services did not seek to terminate those rights; 2) a mental
20
health professional testified that termination would be against her child’s best
interests; and 3) the child’s attorney opposed the termination of her parental
rights.
The underlying facts of this case are not that uncommon. A relative of a
formerly drug-addicted parent has been granted permanent custody of that
parent’s child. That parent has now overcome SUD, gotten her life back on
track, and sought visitation with her child through an order of the court. This
motivated the custodians to sever all ties by the filing of this action. Though
M.S.S. certainly has not been a model mother, she has worked diligently in
recent years to get her life back on track.
The law of this case, however, reveals a deep constitutional defect in the
way our Courts have now interpreted the power of an individual to undermine
the parental rights of any parent. We are presented with a straight-forward
issue that has a nuanced and complex answer: must an involuntary
termination of parental rights (TPR), which can only be brought by the
Commonwealth, precede an order for adoption when a natural parent contests
that adoption, or may a TPR and an adoption occur simultaneously with
limited involvement from the Commonwealth and without the consent of the
biological parent? The majority endorses and adopts the latter approach. I
disagree. Such an approach empowers private individuals to unilaterally assert
the unfitness of natural parents and does not comport with the Kentucky
Constitution or the United States Constitution. The majority’s opinion
muddies further the already turbulent procedural waters that plague this area
21
of family law. Additionally, I believe the trial court’s findings of fact were
clearly erroneous. I, therefore, dissent.
“The rights to conceive and to raise one's children have been deemed
essential, basic civil rights of man, and rights far more precious than property
rights.”42 The state’s power to authorize or initiate the severance of the legal
relationship and the accompanying bond between natural parent and child
ought to be—and has long been—scrutinized with the utmost precision and
care.43 Issues concerning the termination of a biological parent’s right to rear
and raise their child are of the highest constitutional concern.44
In the instant case, private individuals have sought to employ the levers
of government to sever a parent/child relationship by way of simultaneous
42 Stanley v. Illinois, 405 U.S. 645, 651 (1972) (internal quotation marks,
brackets, ellipsis, and citations omitted).
43 See, e.g., Santosky v. Kramer, 455 U.S. 745, 753 (1982) (stating the Court
traditionally recognizes that “freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth Amendment.”); Armstrong v.
Manzo, 380 U.S. 545, 550 (1965) (stating due process requires notice and a hearing in
a TPR action, because “the result of the judicial proceeding [would be] . . .
permanently to deprive a legitimate parent of all that parenthood implies.”); Stanley,
405 U.S. at 651 (“It is plain that the interest of a parent in the companionship, care,
custody, and management of his or her children ‘come[s] to this Court with a
momentum for respect lacking when appeal is made to liberties which derive merely
from shifting economic arrangements.’” (citation omitted)); Wisconsin v. Yoder, 406
U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong
tradition of parental concern for the nurture and upbringing of their children. This
primary role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition.”).
44 Cab. for Health and Family Servs. v. K.H., 423 S.W.3d 204, 208 (Ky. 2014).
See also Yoder, 406 U.S. at 213–14 (protecting a parent's right to control the rearing,
education, and religion of his or her child); Skinner v. Oklahoma, 316 U.S. 535, 541
(1942) (holding that the right to raise a child is a “basic civil right” of a parent).
22
petitions for adoption and TPR. Appellate courts in Kentucky have consistently
warned against such joint petitions.45
Regardless of who initiated the proceedings to sever the tie that binds the
legal and personal relationship between parent and child, the result is the
same: the complete and total evisceration of that relationship most sacred.46
TPR actions, in all their forms, are “the family law equivalent of the death
penalty in a criminal case.”47 It does not, to me, reason that procedural
protections would, on one hand, be heightened when the Commonwealth
brings the proceeding, and, on the other hand, be lessened when a private
individual brings the proceeding, because it is ultimately the action of the
state—by statute permitting adoption absent a parent’s consent and by court
order—that effectuates the termination of the parent/child relationship. The
General Assembly created the procedure to terminate the right of a parent by
way of adoption, and a trial court hearing the proceeding carries out the
execution of that right. With such great power must come great scrutiny.
This Court, as arbiter between the awesome power of the state to eviscerate the
parent and child bond and the inherent right of parent to that bond, must
45 See, e.g., Wright v. Howard, 711 S.W.2d 492, 496 (Ky. App. 1986) (calling
dual petitions for adoption and TRP a “mistaken procedural approach.”).
46 Wright, 711 S.W.2d at 496 (holding that “the adoption itself terminates the
non-consenting parent's parental rights.”); Moore v. Asente, 110 S.W.3d 336, 351 (Ky.
2003) (recognizing that similar to “the final order in a TPR proceeding, a valid adoption
judgment terminates the parental rights of the birth parent.”); KRS 199.520(2) (“Upon
granting an adoption, all legal relationship between the adopted child and the
biological parents shall be terminated except the relationship of a biological parent
who is the spouse of an adoptive parent.”).
47 In re Smith, 77 Ohio App.3d 1, 16 (1991).
23
correct the Commonwealth when its actions are constitutionally deficient. A
correction is required here, as this case makes apparent.
To be perfectly clear, the matter under this Court’s consideration is not
about whether a parent’s rights must be terminated prior to a consensual
adoption. Nor is our review about who among the biological parent and
prospective adoptive parents is better suited to raise, provide for, and love
K.K.F.S. It is also beyond dispute that both the prospective adoptive parents
and M.S.S. love this child.
Instead, two key questions must be resolved by the issue presented in
this case. First, what level of protection is afforded to non-consenting
biological parents whose rights would be terminated by an adoption sought
pursuant to the applicable statute? Second, are those protections
constitutionally sufficient?
The General Assembly does not have the authority to create by statute
the right of a private individual to extinguish the most sensitive and deeply
rooted relationship in the human experience over the forceful and continued
protestation of the party against whom that right would be taken without the
due process owed to them.
I would, therefore, hold that it is constitutionally impermissible for a
court to terminate a parent’s rights over her protestation, without meaningful
involvement of the Cabinet, 48 and without there first being an independent
48 The Court of Appeals accurately described the Cabinet’s role in an adoption
proceeding in A.F. v. L.B., 572 S.W.3d 64, 71 (Ky. App. 2019) (stating “The Cabinet has
a role in adoptions. In accordance with KRS 199.510, the Cabinet must investigate
24
hearing to terminate her parental rights. This is, in part, because the purpose
of cabinet involvement is to verify that the adoptive parents are suitable, and
the Cabinet’s investigation is mainly focused on the prospective adoptive
parents—not on the natural parents. The report filed by the Cabinet in this
case makes that abundantly clear, as it contains only cursory information
about M.S.S. and a statement that M.S.S. did not provide a statement because
doing so may appear as if she were in agreement with the adoption.
a. Standard of Review.
The record reflects that, though filed as a dual petition for adoption and
TPR, this case was litigated under Kentucky Revised Statutes (KRS) 199.502.
Therefore, this action is an involuntary adoption proceeding in which the
adoptive parents have been granted an adoption pursuant to KRS
199.502(1)(a).
While normally appellate review of an involuntary termination or
nonconsensual adoption proceeding “is confined to the clearly erroneous
standard in Kentucky Rule of Civil Procedure (CR) 52.01 based upon clear and
convincing evidence, and the findings of the trial court will not be disturbed
and file a confidential report with the family court before a hearing can take place.
KRS 199.515 (“After . . . the report required by KRS 199.510 ha[s] been filed, the court
. . . may set a time for a hearing on the petition to be conducted in chambers in
privacy.’; Baker v. Webb, 127 S.W.3d 622, 626 (Ky. 2004) (‘KRS 199.515 allows the
court to conduct an independent hearing after the Cabinet has filed its investigation
report). KRS 199.510(2) requires that ‘[t]he report of the cabinet . . . shall be filed with
the court as soon as practicable but not later than . . . ninety (90) days after the filing
date of the petition . . ..’ Its statutory purpose is to give some assurance to the court
of the veracity of the prospective adoptive parents' allegations, that they are financially
able and morally fit to adopt the child, that adoption is in the best interest of the child,
and that the child is suitable for adoption. KRS 199.510(1).’”).
25
unless there exists no substantial evidence in the record to support its
findings,”49 “[b]ecause this case concerns a matter of constitutional
construction or interpretation, we review it de novo.”50 Further, when
interpreting a statute, we have a duty to accord to
words of a statute their literal meaning unless to do so
would lead to an absurd or wholly unreasonable
conclusion. As such, we must look first to the plain
language of a statute and, if the language is clear, our
inquiry ends. We hold fast to the rule of construction
that the plain meaning of the statutory language is
presumed to be what the legislature intended, and if
the meaning is plain, then the court cannot base its
interpretation on any other method or source. In other
words, we assume that the Legislature meant exactly
what it said, and said exactly what it meant. Our
rules of statutory construction, however, do not
constrain us from commenting upon plainly-written
statutes when oddities within them are exposed by the
litigation before us.51
b. KRS 199.502, not KRS 625.050, controls.
“The law of adoption is in derogation of the common law. Nothing can be
assumed, presumed, or inferred and what is not found in the statute is a
matter for the legislature to supply and not the courts.”52 “The right of
adoption being purely of legislative origin, the courts will not, under our three-
division system of government, disturb the legislative arrangement, unless a
49 V.S. v. Commonwealth, Cab. for Human Res., 706 S.W.2d 420, 424 (Ky. App.
1986).
Pinto v. Robison, 607 S.W.3d 669, 672 (Ky. 2020) (citing Greene v.
50
Commonwealth, 349 S.W.3d 892, 898 (Ky. 2011)).
51 Commonwealth v. Moore, 545 S.W.3d 848, 851 (Ky. 2018) (citation omitted).
52 Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997) (citing Coonradt v. Sailors, 209
S.W.2d 859 (Tenn. 1948)).
26
constitutional right is violated or it is repugnant to public policy.”53 “We begin,
as we always do, with the text of the statute.”54
Under the current statutory scheme, the Commonwealth has established
two methods by which a natural parent’s rights may be terminated without
their consent.
The first method is contained in KRS 625.050. As this Court recently
opined,
[t]he right of every parent to raise his or her own child
is a fundamental right of utmost constitutional
concern. While the Commonwealth of Kentucky may
deprive a parent of this right when the circumstances
require, KRS 625.090 ensures this right is protected
by measures of due process. Namely, the statute
establishes three substantive elements necessary for
TPR, all of which the Commonwealth must prove by
clear and convincing evidence, (a) starting with a
finding of abuse or neglect by the parents, (b) then
determining that TPR is in the child's best interest,
and finally (c) that any one of the grounds for
termination listed in KRS 625.090(2)(a)–(j) exists.55
Standing to bring suit pursuant to this statute is limited to “the cabinet, any
child-placing agency licensed by the cabinet, any county or Commonwealth's
attorney or parent.”56
The second method is contained in KRS 199.500, et. seq., which permits
adoption without the consent of the natural parent only in limited
53 Roark v. Yarbrough, 411 S.W.2d 916, 918 (Ky. 1966).
54 Cab. for Health & Family Servs. v. K.S., 610 S.W.3d 205, 210 (Ky. 2020).
55 R. M. v. Cab. for Health & Fam. Servs., 620 S.W.3d 32, 38 (Ky. 2021) (internal
citations and quotation marks omitted).
56 KRS 625.050(3).
27
circumstances. KRS 199.500 mandates that parental consent is essential in
an adoption action, unless certain conditions are met, and states in pertinent
part:
(1) An adoption shall not be granted without the
voluntary and informed consent [ . . . ] except that the
consent of the living parent or parents shall not be
required if:
(a) The parent or parents have been adjudged mentally
disabled and the judgment shall have been in effect for
not less than one (1) year prior to the filing of the
petition for adoption;
(b) The parental rights of the parents have been
terminated under KRS Chapter 625;
(c) The living parents are divorced and the parental
rights of one (1) parent have been terminated under
KRS Chapter 625 and consent has been given by the
parent having custody and control of the child; or
(d) The biological parent has not established parental
rights as required by KRS 625.065.57
KRS 199.502(1)(a)-(j) further expounds upon the consent exception created by
KRS 199.500(1), and states in pertinent part that: “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” certain conditions are met.
For completeness, KRS 199.502(1)(a)-(j) states in full:
(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:
57 Emphasis added.
28
(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 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;
(h) That:
1. The parent's parental rights to another child have
been involuntarily terminated;
2. The child named in the present adoption
proceeding was born subsequent to or during the
pendency of the previous termination; and
3. The condition or factor which was the basis for the
previous termination finding has not been
corrected;
29
(i) That the parent has been convicted in a criminal
proceeding of having caused or contributed to the
death of another child as a result of physical or sexual
abuse or neglect; or
(j) That the parent is a putative father, as defined in
KRS 199.503, who fails to register as the minor's
putative father with the putative father registry
established under KRS 199.503 or the court finds,
after proper service of notice and hearing, that:
1. The putative father is not the father of the minor;
2. The putative father has willfully abandoned or
willfully failed to care for and support the minor; or
3. The putative father has willfully abandoned the
mother of the minor during her pregnancy and up
to the time of her surrender of the minor, or the
minor's placement in the home of the petitioner,
whichever occurs first.
These conditions are—word for word—the same grounds for involuntary TPR
found in KRS 625.090(2)(a)-(j).58
Thus, KRS 199.500(4) and KRS 199.502(1) allow an involuntary adoption
if the grounds for involuntary termination of parental rights are met, and both
statutes by either direct reference or by exact language contemplate that there
is some relationship between the adoption statute and KRS Chapter 625.
However, the protections afforded to non-consenting parents under KRS
199.502 are significantly lower than those afforded to parents whose rights are
sought to be terminated pursuant to KRS Chapter 625.
KRS 625.090 provides for a tripartite test which allows
for parental rights to be involuntarily terminated only
upon a finding, based on clear and convincing
58 KRS 625.090(2) differs only to the extent that it contains an eleventh
condition.
30
evidence, that the following three prongs are satisfied:
(1) the child is found or has been adjudged to be an
abused or neglected child as defined in KRS
600.020(1); (2) termination of the parent's rights is in
the child's best interests; and (3) at least one of the
termination grounds enumerated in KRS
625.090(2)(a)-(j) exists.59
There is no such tri-partite test for an involuntary adoption—the only question
that was and has been addressed in the instant case was whether the mother
abandoned her child for ninety days in 2014—approximately five years before
the TPR via adoption.
The statute that governs TPR “in all of its forms” is a general statute, and
the statute that governs non-consensual adoption—a discreet subset of TPR—
is a specific statute.60
Thus, since a petition seeking adoption of a child
against the child's biological parent’s wishes is a
discrete subset of involuntary termination of parental
rights cases, then the statute allowing appeals from
adoption proceedings (KRS 199.560) is controlling
because it is more narrowly focused than is the
general statute forbidding appeals of orders denying
involuntary termination of parental rights petitions
(KRS 625.110).61
However, absent from the conditions enumerated by KRS 199.502 is the
requirement that a proceeding to terminate parental rights take place and
conclude before a petition of adoption is granted. That condition is present in
KRS 199.500. Therefore, were the case to precede under KRS 199.500(1)
59 K.H., 423 S.W.3d at 209.
60 C.M.C. v. A.L.W., 180 S.W.3d 485, 489 (Ky. App. 2005).
61 Id. at 490 (citing DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952, 959
(Ky.1999); 73 Am. Jur. 2d Statutes § 170 (2001)).
31
rather than KRS 199.502, then the procedural protections of KRS Chapter 625
would be in full force. The result is a constitutional end-run created by a
statutory loophole.
Contrary to the majority’s contention that we have failed to identify how
there is any meaningful procedural difference between the two actions, this
case creates a precedent that any person who has custody of a child can
prevent that child’s natural parent from seeing the child for ninety days and
then seek to sever the legal and emotional tie between parent and child without
a showing of unfitness beyond parental absence for a ninety-day period and
without any meaningful input from the Cabinet. Whereas, if the case were to
proceed as a TPR, only the designated state actor may seek to terminate
parental rights. Then there must be a determination as to the parent’s
unfitness to care for the child before that parent’s rights to the child are
extinguished. The majority’s opinion today crafts the path for avoiding the
careful work of the state in investigating and verifying when or if a parent is
unfit. This path runs roughshod over the individual liberty rights of biological
parents.
c. KRS 199.502 impermissibly denies natural parents due process
under the Kentucky Constitution.
A statute carries a strong presumption that it is constitutional.62 When
faced with a challenge to the constitutionality of a statute, it is the appellate
court's responsibility to “draw all reasonable inferences and implications from
62 Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998).
32
the act as a whole and thereby if possible sustain the validity of the act.”63 Of
course, statutes must be constitutionally sufficient to withstand the review of
this Court.64
While the U.S. Constitution and federal courts’ interpretation of the U.S.
Constitution are useful guideposts in my analysis, my dissent is based on the
additional rights that flow from the Kentucky Constitution. The United States
Constitution recognizes the minimum protections afforded to individual rights.
Our Constitution supplies protection above and beyond that federal floor.65
Nevertheless, guidance from the U.S. Supreme Court proves useful to our
review of this issue.
Several principles emerge from the federal framework. A natural parent’s
right is a fundamental liberty interest, and shall not be disturbed by the state
“absent a powerful countervailing interest[.]”66 When fundamental liberty
interests are implicated, the due process clause of the Fourteenth Amendment
63 Graham v. Mills, 694 S.W.2d 698, 701 (Ky. 1985).
64 Rose v. Council for Better Educ., Inc., 790 S.W.2d 186, 209 (Ky. 1989).
65 See, e.g., Commonwealth v. Wasson, 842 S.W.2d 487, 492 (Ky. 1992),
overruled on equal protection grounds by Calloway Cnty. Sheriff's Dep't v. Woodall, 607
S.W.3d 557 (Ky. 2020) (stating “under our system of dual sovereignty, it is our
responsibility to interpret and apply our state constitution independently. We are not
bound by decisions of the United States Supreme Court when deciding whether a state
statute impermissibly infringes upon individual rights guaranteed in the State
Constitution so long as state constitutional protection does not fall below the federal
floor, meaning the minimum guarantee of individual rights under the United States
Constitution as interpreted by the United States Supreme Court.” (internal citations
omitted)).
66 Stanley, 405 U.S. at 651.
33
“guarantees more than fair process.”67 The due process clause also has a
substantive aspect, which protects “individual liberty against certain
government actions regardless of the fairness of procedures used to implement
them.”68 Therefore, “the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children.”69 And, “[t]he 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.”70
While the U.S. Supreme Court has not articulated a clear standard of
review in the context of parental rights cases, when fundamental rights such as
these are implicated strict scrutiny is the generally employed standard.71
However, the great weight of the protections of the due process clause are only
67 Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997) (holding that the due
process clause of the Fourteenth Amendment contains a substantive component that
“provides heightened protection against government interference with certain
fundamental rights and liberty interests”).
68Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal quotation
marks and citation omitted).
69 Troxel v. Granville, 530 U.S. 57, 66 (2000).
70 Santosky, 455 U.S. at 753–54.
71 Troxel, 530 U.S. at 80 (Thomas, J., concurring) (stating “[t]he opinions of the
plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously
none of them articulates the appropriate standard of review. I would apply strict
scrutiny to infringements of fundamental rights.”); Reno v. Flores, 507 U.S. 292, 301–
302 (1993) (reaffirming that due process “forbids the government to infringe certain
fundamental liberty interests [. . .] unless the infringement is narrowly tailored to
serve a compelling state interest”); Cf. Troxel, 530 U.S. at 69 (holding only that judges
must give some, undefined “special weight” to the views of fit parents before overriding
their judgment).
34
in full effect when a parent has developed the relationship between parent and
child and where a parent has not been deemed unfit.72 In the context of
termination proceedings, before a state may impair a natural parent’s right to
the custody, care, and control of this child, there must be an independent
adjudication of unfitness.73
With these overarching principles in mind, I now turn to the protections
afforded by our state constitution.
The Kentucky Constitution provides that all Kentuckians “are, by nature,
free and equal, and have certain inherent and inalienable rights,” including
“the right of enjoying and defending their lives and liberties.”74 Section 2 of the
Kentucky Constitution further guarantees individual liberty by forbidding the
Commonwealth from exercising “absolute and arbitrary power over the lives,
liberty and property” of its citizens. This Court has recognized that the right to
parent is jealously guarded by the Kentucky Constitution.75 While the current
statutory scheme for TPR offers adequate constitutional protections, the lack of
the same level of protection offered in non-consensual adoption is
constitutionally untenable.
72 Lehr v. Robertson, 463 U.S. 248, 260-61 (1983).
73 Stanley, 405 U.S. at 657–58 (holding “[t]he State's interest in caring for
Stanley's children is de minimis if Stanley is shown to be a fit father. It insists on
presuming rather than proving Stanley's unfitness solely because it is more
convenient to presume than to prove. Under the Due Process Clause that advantage
is insufficient to justify refusing a father a hearing when the issue at stake is the
dismemberment of his family.”).
74 KY Const. § 1.
75 See, e.g., K.S., 610 S.W.3d at 211.
35
As this Court recently stated, “the fact that the General Assembly
decided to supply litigants with more process than is constitutionally required
in one context does not” preclude this Court’s review of the protections offered
in another.76 The duty of this Court to do so is deeply rooted in our history:
The judiciary has the ultimate power, and the duty, to
apply, interpret, define, [and] construe all words,
phrases, sentences and sections of the Kentucky
Constitution as necessitated by the controversies
before it. It is solely the function of the judiciary to so
do. This duty must be exercised even when such
action serves as a check on the activities of another
branch of government or when the court's view of the
constitution is contrary to that of other branches, or
even that of the public.77
While I am mindful of the fact that “[a]s the judicial branch, we are not at
liberty to write into a statute that which does not exist,”78 we are empowered to
recognize and call out statutory gaps and their constitutional deficits.
This Court has had rare occasion to address the interrelationship
between these two statutes and of resulting inequitable dichotomy, and has
never considered the constitutionality of the statute.
In Smith v. Wilson, our predecessor Court was faced with the same type
of dual TPR/adoption petition now before this Court.79 Adoptive parents
sought to terminate the rights of a child’s mother without her consent, and the
Jefferson Circuit Court ordered termination pursuant to KRS 199.600(1)—the
76 Id. at 213.
77 Rose, 790 S.W.2d at 209.
78 Blackaby v. Barnes, 614 S.W.3d 897, 903 (Ky. 2021).
79 269 S.W.2d 255 (Ky. App. 1954).
36
predecessor statute to KRS Chapter 625—and adoption pursuant to KRS
199.500.80 The Court held that the adoptive parents lacked standing to pursue
the action to terminate the parental rights without the consent of the mother.81
The Smith Court further held that the adoption, which had the same result as a
TPR action, was permissible.82 The Court stated:
The case was primarily and purposefully instituted to
adopt the child, KRS 199.470, although it was coupled
with a proceeding for the involuntary termination of
parental rights. KRS 199.600. As we have held above,
this latter proceeding could not be maintained by the
private individuals. But the judgment of adoption in
this particular case substantially accomplishes the
same end, for KRS 199.530 declares, inter alia, that an
adopted child ‘shall be considered, for purposes of
inheritance and succession and for all other legal
considerations, the natural, legitimate child of the
parents adopting it’ and the child is freed from all legal
obligations of maintenance and obedience to its natural
parents. KRS 199.530(2).83
Justice Stewart’s dissent makes clear the absurdity of such a result. He stated
in full:
KRS 199.600(5) specifies the persons who may
institute an action to terminate parental rights under
KRS 199.600(1), and the majority opinion correctly
80 Id. at 256.
81Id. at 257 (stating “[w]hen the extreme character of the present action is
considered—interference with or severance of the natural rights of a parent and
making the child the ward of the State—we think that in providing that the action
‘may be instituted’ the legislative intent was to vest exclusive discretionary power in
the designated public officers. This is a matter of public and not private concern.
Therefore, we are of [the] opinion the court should have sustained the plea of absence
of authority in the plaintiffs to maintain this part of the two-fold action.”).
82 Id. at 258 (stating “[t]he welfare of a child such as this is the manifest
objective of the statute under which the proceeding has been maintained. That
objective is attained by the judgment of adoption.”).
83 Id.37
holds that plaintiffs are excluded from those named in
the first-mentioned subsection and therefore could not
maintain the action in this respect. The inevitable
result is that the parental rights of the mother,
defendant below, were not and have not been severed
as to the child. However, the opinion proceeds to hold
that plaintiffs may nevertheless adopt the child and
this can only mean that the adoption is approved by
this Court with the natural parent still retaining all of
the rights of parenthood in and to the child. Such a
result is repugnant to the plain requirements of KRS
199.600, which control the procedure in this case,
and, more than that, the letter and spirit of the
statutory provisions controlling adoptions under the
Division of Child Welfare of the Kentucky Children's
Bureau have been summarily brushed aside.84
In Roark v. Yarbrough, our predecessor Court—again faced by dual
petition for adoption and TPR—acknowledged the statutory loophole, and
stated as follows:
the plaintiffs are not entitled to the relief sought of
terminating the parental rights as such because they
do not belong to that class of persons set out in KRS
199.600(1), but that they are entitled to adopt the
children as they have alleged and proven pursuant to
KRS 199.500(4) that certain facts set out in KRS
199.600(1) exist with respect to the said children.
Thus, it is apparent counsel for the grandparents and
the judgment of the circuit court have threaded the
needle of our adoption laws. The right of adoption
being purely of legislative origin, the courts will not,
under our three-division system of government,
disturb the legislative arrangement, unless a
constitutional right is violated or it is repugnant to
public policy. Adoption may be harsh and drastic in
some instances where a parent is deprived of his child
in violation of his sacred and enduring natural rights,
but the legislature has recognized the supremacy of
guardianship of the State over that of the parent.85
84 Id. at 258-59 (internal citations omitted).
85 411 S.W.2d at 918 (emphasis added).
38
Of course, at the time Roark was under consideration, the contours of federal
due process rights had just begun to take shape.
Decisions from the Court of Appeals concerning dual petitions for TPR
and adoption likewise have not contemplated the constitutional nature of these
cases. In O.S. v. C.F., the Court acknowledged the applicability of the Santosky
standard of proof, and held:
Parental rights are so fundamentally esteemed under
our system that they are accorded due process
protection under the 14th Amendment to the United
States Constitution, when sought to be severed at the
instance of the state. Under Santosky, the 14th
Amendment prescribes the standard controlling the
judgment of the “fact-finders” in severing the rights.
That standard is one of “clear and convincing
evidence.” It is this standard which Santosky imposes
upon the states. States may have a more rigid or
higher standard but they may not have a less stringent
test. In Santosky, the U.S. Supreme Court set the
minimum.86
However, the Court stopped short of articulating what protections are afforded
to parents who are contesting an adoption.
In Wright v. Howard, the Court of Appeals was once again faced with a
dual petition for TPR and adoption.87 The Court determined that when such
dual petitions are filed, they were to be treated only as a petition for adoption,
since adoption terminated the rights of the natural parents as recognized in
86 655 S.W.2d 32, 33 (Ky. App. 1983).
87 Wright, 711 S.W.2d at 495.
39
Jouett v. Rhorer.88 However, the constitutional aspect of the effect of the
termination was not raised and was not considered.
In an unpublished opinion, the Court of Appeals broached the
constitutional question now squarely before this Court. In K.N. v. R.P., the
Court of Appeals recognized that constitutional safeguards must be
implemented. The court stated in relevant part:
Although the State did not initiate the proceedings at
issue, the nature of the parents’ and children’s
fundamental rights remain unaltered. The same
procedural safeguards mandated in Santosky apply
regardless of whether one is threatened with the loss
of his or her parental rights pursuant to . . . the
involuntary termination statute, or by adoption of his
or her child without the parent’s consent. The result
to the natural parent is the same in either proceeding,
that is, total deprivation of any legal or personal
connection with the child. Moreover, because judicial
action was required for the termination of parental
rights, it is evident that the State did have involvement
in severing these rights.
Kentucky Revised Statute 199.502 does not require
that a proceeding to terminate parental rights take
place before a petition of adoption is granted. Rather,
and as the language of the statute specifically states,
an adoption may be granted without the consent of the
biological parents of a child if it is pleaded and proved
as part of the adoption proceedings that any of a
number of conditions exists. Termination of parental
rights to the child or children sought to be adopted is
not one of the enumerated conditions. Certainly, an
adoption without the consent of living biological
parents effectively terminates the biological parents'
rights; therefore, constitutional safeguards must be
implemented.89
88 Id. (citing Jouett v. Rhorer, 339 S.W.2d 865, 868 (Ky. 1960)).
89 No. 2007-CA-000181-MR, 2008 WL 275106, at *10 (Ky. App. Feb. 1, 2008)
(internal citations, quotation marks, and brackets omitted).
40
Cases concerning the parent/child relationship strike at the core of our
society. The statutory backdoor that has empowered private individuals to
usurp the right of a natural parent is repugnant to the due process afforded by
the state constitution. I would hold that the substantive due process
guaranteed by the Kentucky Constitution requires a separate hearing on the
termination of parental rights before a court can enter an order effectuating a
non-consensual adoption. This is a logical extension of the United States
Supreme Court’s holding in Stanley v. Illinois,90 which required at least a
hearing to determine unfitness before a state could place a child in foster care
over a unwed parent’s protestation, and is rooted in the paramount nature of
the relationships at issue in the case at bar. Of course, the only parties with
standing, pursuant to KRS 625.050(3), to petition for such a hearing are “the
cabinet, any child-placing agency licensed by the cabinet, any county or
Commonwealth’s attorney or parent.” Therefore, before a prospective adoptive
parent can proceed with an involuntary adoption, a court of competent
jurisdiction must first terminate the rights of the natural parents.
d. The trial court’s determination was clearly erroneous.
Notwithstanding and beyond the constitutional issues raised by this
case, I also disagree with the majority and the majority in the Court of Appeals
in their assessment of the trial court’s findings of fact. As the majority
90 Stanley, 405 U.S. at 651.
41
correctly notes, “a termination of parental rights will be reversed only if it was
clearly erroneous and not based upon clear and convincing evidence.”91 “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.”92
The sole ground for terminating M.S.S.’s parental rights and granting the
adoption was based upon KRS 199.502(1)(a), which requires the court to find
by clear and convincing evidence that “the parent has abandoned the child for
a period of not less than ninety (90) days.” The trial court found that, because
M.S.S. did not contact the child in 2014-2015, during which time she was not
incarcerated, and because she had instead been “involved in substance use
and abuse that led her into a wretched lifestyle that did not include this child
or help her to be a capable and effective parent for this child,” she had
abandoned the child. Essentially, the trial court told M.S.S. that the vast
improvements she had made for her life in the previous five years—including
her recovery from SUD and the efforts she had undertaken to reestablish her
relationship with her child—were “too little too late.”
Abandonment is not defined by either KRS Chapter 199 or KRS Chapter
625. This Court has defined abandonment “as ‘neglect and refusal to perform
91 M.A.C. v. E.A., No. 2020-CA-0087-ME, 2021 WL 2878347, at *2 (Ky. App.
July 9, 2021) (citing Commonwealth, Cab. for Health and Family Servs. v. T.N.H., 302
S.W.3d 658, 663 (Ky. 2010); CR 52.01).
92 M.P.S. v. Cab. for Human Res., 979 S.W.2d 114, 117 (Ky. App. 1998) (citing
Rowland v. Holt, 70 S.W.2d 5, 9 (1934)).
42
natural and legal obligations to care and support, withholding of parental care,
presence, opportunity to display voluntary affection and neglect to lend support
and maintenance . . . it means also the failure to fulfill responsibility of care,
training, and guidance during the child's formative years.’”93 A finding of
abandonment must be supported by clear and convincing evidence that shows
a willful intent “to forego all parental duties and relinquish all parental claims
to the child.”94 When a parent has been incarcerated, that incarceration
should not be considered a factor in the court’s abandonment analysis, but
instead should be considered when making a determination as to the best
interests of the child.95
As the record reflects, there is no doubt that M.S.S. has struggled with
“substance abuse,” as the trial court labeled it, or SUD as it is now known.
She was incarcerated as an eighteen-year-old related to issues stemming from
SUD. She was very candid about her struggle with substance use before the
trial court and in her interviews with the guardian ad litem (GAL). There is also
no doubt that, because of her addiction, she has been incarcerated for much of
the early years of the child’s life. She would send the child letters while
93Simms v. Est. of Blake, 615 S.W.3d 14, 24 (Ky. 2021) (quoting Kimbler v.
Arms, 102 S.W.3d 517 (Ky. App. 2003)).
94 O.S., 655 S.W.2d at 34 (citing 2 Am. Jur.2d Adoption § 32 (1962)).
95 Cab. for Human Res. v. Rogeski, 909 S.W.2d 660, 661 (Ky. 1995) (holding
“[a]lthough incarceration for an isolated criminal offense may not constitute
abandonment justifying termination of parental rights, incarceration is a factor to be
considered, particularly so in a case such as this because KRS 625.090(2)(b) specifies
that ‘acts of abuse or neglect toward any child in the family’ is a factor that circuit
courts shall consider in determining the best interest of the child who is the subject of
the termination action.”).
43
incarcerated, but the prospective adoptive parents threw them away without
opening them and prevented the child from knowing of them.
In 2015, M.S.S. was convicted of promoting contraband and served two
and a half years. She testified that she has been sober since 2015, which she
credits to moving away from her family, who also have a long history of
addiction. She was released in August of 2017. Prior to her most recent
incarceration, her visitation with the child was sporadic at best. Following her
release in August 2017, M.S.S. has worked diligently to re-establish her life.
She has maintained the same job, began and maintained therapy, has
maintained a stable relationship with her significant other, and has attempted
to contact her child. Those attempts were thwarted by the prospective adoptive
parents. I can only assume from the record that as a result of those thwarted
attempts, M.S.S. resorted to filing an action to establish visitation in February
of 2018.96
The GAL submitted a thorough post-hearing report to the trial court
recommending against “the termination of parental rights” as to M.S.S. She
reported that M.S.S. has actively sought to be in her child’s life. And, the GAL
reported that Dr. Bruce Fane, a psychologist who evaluated both M.S.S. and
the child, stated that the mother could be reintroduced to the child, and that it
would be beneficial to the child to have a relationship with her mother.
96 Civil Action No. 18-CI-173.
44
I would hold that KRS 199.502 is unconstitutional to the extent that it
permits private individuals to seek to involuntarily terminate the rights of
parents, and, secondarily that the trial court erred in finding that M.S.S.
abandoned the child. Doing so would not upset the status quo: J.E.B. and
D.J.B. have permanent custody of the child through a separate order, the child
would remain in their home, and M.S.S. would still be empowered to litigate
her right to visitation with her biological child. Therefore, I dissent.
Conley, J., joins.
COUNSEL FOR APPELLANT:
Steven O. Thornton
COUNSEL FOR APPELLEES:
D. Bailey Walton
Walton Law, P.L.L.C.
45