Court of Appeals Upholds Contested Stepparent Adoption

Father contested adoption of child by Step-Father. When Father and Mother divorced, Family Court awarded Mother sole custody of Child and Ordered Father to undergo substance abuse and mental health assessments and to attend a parenting clinic. Father failed to comply, and the Family Court ordered Father to have no contact with Child. Father failed to pay court ordered child support, and failed to complete the mental health assessment. Step-father filed a Petition to adopt Child, which the Family Court granted.

Father filed an appeal claiming he was never advised of any right to appointed counsel. The Court of Appeals reversed the adoption due to the Family Court’s inadequate explanation of the right of an indigent person to appointed counsel. The Family Court was instructed to inform Father more plainly that he was entitled to have free counsel if he requested it, filed an affidavit of indigency, and provided sufficient qualifying evidence. The Family Court provided Father with this information on remand. Father admitted to the Family Court that he made over $70,000 per year and his request for appointed counsel was denied for lack of indigency.

A second trial took place and Father appeared pro se. The Family Court explained that Father did not qualify financially for appointed counsel. Father said only one attorney offered to represent him and that he believed the amount quoted was out of his price range. The Family Court took judicial notice of the prior adoption hearing to which neither party objected. Father testified and was able to cross examine Step-Father’s witnesses. The Family Court granted the adoption. Father appealed.

On appeal, Father argued that the Family Court denied him due process by failing to provide an attorney to him at no cost. Father argued that Kentucky law provides for appointment of counsel in termination of parental actions, but not for adoption. The Court of Appeals disagreed, holding that both types of proceedings clearly allow for appointed counsel for indigent parties, KRS 199.502(3) for adoption proceedings and KRS 625.080(3) for termination of parental rights proceedings.

Father also argued that there was insubstantial evidence produced at trial to support the Family Court’s Findings of Fact. The Court of Appeals held that the evidence presented at trial was overwhelming that Father had voluntarily abandoned Child for a period not less than 90 days as Father admitted the last time he had contact with Child was over six years ago and had accrued over $25,000 in child support arrearages.

Digested by Emily T. Cecconi