In re: W.H.J. v. J.N.W.; J.A.W; and N.H.J., a minor child
Kentucky Court of Appeals
Warren County
Family Court granted sole custody of child to Mother and no contact with Father due to Father’s failure to comply with substance abuse and mental health treatment. Mother remarried and Stepfather filed a petition to adopt child. Father did not consent. Father appeared without counsel and the Family Court did not tell father he had a right to appointed counsel if he could not afford counsel. The Family Court granted Stepfather’s petition to adopt his stepson because it found Father had failed to provide essential parental care and protection for the child for at least six months, and there was no reasonable expectation of improvement, considering the age of the child.
Father appealed. The Court of Appeals found that the Family Court “failed to state that its conclusions were made pursuant to the clear and convincing evidence standard”. The Family Courts are typically given a wide discretion, however, this was not a normal appeal of an adoption without the consent of the natural parents because the mandatory standard of proof was not applied. The Family Courts must use the clear and convincing evidence as its standard of proof. The failure by the Warren County Family Court to apply this standard was a fundamental error warranting the Court of Appeals to vacate the Court’s decision. This failure to use the correct standard is so fundamentally wrong that it is not enough for the Family Court to issue new findings, but this error requires a new trial to be held.
Father also raised the issue of the Family Court’s failure to appoint counsel for him. The Court of Appeals briefly addresses this issue by providing guidance to Family Courts. The Family Court did not plainly state to Father that he had a right to have counsel appointed for him if he could not afford to retain one himself. The Court of Appeals encouraged all Family Court to ensure that the parties before them understand their right to counsel, and to state it plainly so that a lay person can understand.
The Court of Appeals notes the importance of counsel doing their due diligence in a case, noting what the Court calls a “blatant misstatement” from Father’s counsel. The Court of Appeals chose to be lenient with counsel, however the Court of Appeals stated they “strongly caution counsel to not make a similar mistake again.”
