2026 CA ADMIN - NON-CONFIDENTIAL OPINION - 003 — NOT TO BE PUBLISHED - OPINION AFFIRMING

RENDERED: OCTOBER 9, 2026; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-1307-ME D.U.S., II APPELLANT v. APPEAL FROM ANDERSON FAMILY COURT HONORABLE CASEY CHEESMAN, JUDGE ACTION NO. 24-AD-00019 J.S.C.; M.A.R.; AND N.B.T.R. (A CHILD) APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CALDWELL, L. JONES, AND KAREM, JUDGES. JONES, L., JUDGE: Biological father, D.U.S., II (D.U.S.) appeals the October 3, 2025 judgment of the Anderson Family Court (family court), which granted the petition of J.S.C. for adoption of N.B.T.R. (Child) without consent of D.U.S. and terminated D.U.S.’s parental rights. In accordance with A.C. v. Cabinet for Health and Fam. Servs., 362 S.W.3d 361 (Ky. App. 2012), D.U.S.’s counsel filed an

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-2- Anders1 brief conceding no meritorious assignment of error exists to present to this Court. D.U.S.’s counsel accompanied the brief with a motion to withdraw which was passed to this merits panel. By separate order, we have granted counsel’s motion to withdraw. D.U.S. filed a pro se supplemental brief. As all briefs have been filed, we must “fully examine the record and decide whether the appeal is wholly frivolous[.]” A.C., 362 S.W.3d at 371. Having independently reviewed the record as well as having fully considered the briefs, we affirm the family court’s judgment. I. FACTUAL AND PROCEDURAL BACKGROUND This matter was initiated by J.S.C.’s Petition for Adoption filed July 30, 2024. J.S.C. is Child’s stepfather, having married the child’s mother, M.A.R. Coincident to the Petition for Adoption, M.A.R. filed a verified Appearance, Waiver and Consent to Adoption utilizing form AOC2-292. D.U.S. and M.A.R. were never married. On September 20, 2016, M.A.R. was awarded sole custody of Child through a separate action in the family court (2016 Order).3 The 2016 Order further provided that D.U.S. “complete a 1 Anders v. California, 386 U.S. 738 (1967). 2 Administrative Office of the Courts. 3 The 2016 Order does not appear in the record in this appeal but was instead attached as an exhibit to J.S.C.’s brief. See Appellee’s Brief, Exhibit A. We can take judicial notice of the

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-3- mental health assessment, an anger management assessment, anger management classes, and parenting classes.” Appellee’s Brief, Ex. A at 4. D.U.S. was granted supervised visitation at the Sunshine Center in Frankfort. And “[u]ntil such time as [D.U.S.] has completed the above-mentioned classes and treatment and properly brought this matter back before [the Anderson Family Court], visitation shall occur at [M.A.R.’s] discretion and shall not be required to occur more than once every other week.” Appellee’s Brief, Ex. A at 4-5. In 2017, the Anderson Family Court ordered those visits were to occur at an establishment known as the Butterfly House instead of the Sunshine Center, but otherwise the terms of the September 2016 Order remained in place.4 It is undisputed that no visits ever took place, 2016 Order under Kentucky Rule of Evidence (KRE) 201, though we do so reluctantly. We note, of course, it is entirely appropriate for a trial court to take judicial notice of its own records. See Adkins v. Adkins, 574 S.W.2d 898, 899 (Ky. App. 1978). This also allows a family court to take judicial notice of records in related actions. See M.A.B. v. Cabinet for Health and Fam. Servs., 456 S.W.3d 407, 412 (Ky. 2015) (concluding it was proper for family court to take judicial notice of prior orders in related case that child was neglected to satisfy requirement in Kentucky Revised Statutes (KRS) 625.090(1)(a) for termination of parental rights). However, the Court of Appeals is not the same court as the Anderson Family Court. That having been said, because D.U.S.’s counsel in his Anders brief makes references to orders in the separate Anderson Family Court action, as does D.U.S. himself in his supplemental brief, coupled with the fact that there was extensive testimony about the requirements of the September 2016 Order we think it would be appropriate in this case to take judicial notice of the September 2016 Order. Even so, we must stress to both the bench and bar that even if it is appropriate for a trial court to take judicial notice of its own records in separate cases, if a party wants us to review those records in a case like this, the far better practice is to make sure those records are part of the record on appeal. 4 No such order is in the record; however, the parties agree that visits were to occur at the Butterfly House instead of the Sunshine Center.

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-4- though the reasons behind the lack of visits was disputed as will be described below. D.U.S. was also ordered to pay child support, though the order setting the amount is not in the record, nor was there any testimony regarding the amount of child support ordered. However, it is undisputed from child support payments entered into the record5 that D.U.S. had an arrearage of $26,077.28 as of August 26, 2025. Any and all child support was paid from wage withholding with many months seeing only nominal amounts collected. It is undisputed that there were several periods where no child support was paid during a 90-day period. It is also undisputed that D.U.S. neither provided any direct payments to M.A.R nor paid any expense related to Child. The matter came for a bench trial on August 27, 2025.6 In addition to the facts as set forth, supra, M.A.R. testified D.U.S. had only met with Child once when Child was five months old.7 M.A.R. also testified D.U.S. subjected her to domestic abuse, leading to the end of their relationship, and factoring into the 5 Petitioner’s Exhibit 1. 6 The bench trial was delayed because the original family court judge recused, requiring appointment of a special judge, and the child’s original Guardian ad Litem (GAL) died prior to trial, necessitating appointment of a new GAL. 7 Child was nine years old at the time of the bench trial.

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-5- September 2016 Order granting her sole custody and allowing D.U.S. only supervised visitation. As to supervised visitation, M.A.R. testified it was her understanding that the Butterfly House would reach out to her to start supervised visitation, but it never did. In any event, M.A.R. testified D.U.S. never contacted her nor requested any further action by the court for some seven years, until just prior to the filing of the adoption petition. M.A.R. also testified about the positive bond between Child and J.S.C. J.S.C. testified he had lived in the same home with the Child and M.A.R. for five years and had bonded with Child by playing video games, going fishing, hiking, and watching anime cartoons. In addition, J.S.C. testified that he contributed to Child’s food, clothing, medical care, and education. J.S.C. also testified that he never saw any interaction between Child and D.U.S., and J.S.C. never spoke to D.U.S. D.U.S. testified he opposed adoption because he wanted a relationship with Child and he wanted Child to know his siblings.8 D.U.S. acknowledged his child support arrears, but claimed the arrearage was partly due to an injury that left him unable to work for some time and partly due to the need to support his other children. However, D.U.S. testified he would soon be medically cleared to return 8 D.U.S. testified he had seven other children.

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-6- to work and had a job waiting for him. D.U.S. also testified that he had continuously been employed and was a certified heavy equipment operator. Regarding visitation with Child, D.U.S. testified that he completed all the requisite classes and assessments in 2018 and called the Butterfly House to set up supervised visitation in accordance with the September 2016 Order. D.U.S. testified the Butterfly House never called him back, but D.U.S. admitted he never followed up with Butterfly House, nor did he ever contact M.A.R.’s counsel during the seven years prior to filing a motion to seek visitation until immediately before the adoption petition was filed. Following the bench trial, the family court took the case under advisement. On October 3, 2025, the family court entered judgment containing findings of fact and conclusions of law terminating D.U.S.’s parental rights under KRS 199.502 and granting J.S.C.’s petition to adopt Child. In that order, the family court found that: (1) J.S.C. was of “good moral character, of reputable standing in the community, and has the ability to properly maintain and educate the child”;9 (2) J.S.C. established by clear and convincing evidence under KRS 199.502(1)(a) that D.U.S abandoned Child, and under KRS 199.502(1)(g), that, “for reasons other than poverty alone,” D.U.S. “continuously or repeatedly failed to provide or is incapable of providing essential food, clothing, shelter, medical 9 Trial Record (TR) at 183.

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-7- care, or education reasonably necessary and available for [Child’s] well-being and that there is no reasonable expectation of significant improvement in [D.U.S.’s] conduct in the immediately foreseeable future, considering the age of the child”;10 and (3) termination of D.U.S.’s parental rights and adoption by J.S.C. were in Child’s best interest. From that judgment, D.U.S. filed a timely appeal. II. STANDARD OF REVIEW Under KRS 199.520(1)(a), a family court is required to enter a judgment of adoption if: “1. The facts in the petition were established; 2. [a]ll legal requirements, including jurisdiction relating to the adoption have been complied with; 3. [t]he petitioners are of good moral character of reputable standing in the community and of ability to properly maintain and educate the child; and 4. [t]he best interest of the child will be promoted by the adoption and that the child is suitable for adoption.” Furthermore, “[u]pon 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.” KRS 199.520(2)(g). Consequently, “[a]n adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent’s parental rights.” B.L. v. J.S., 434 S.W.3d 61, 65 (Ky. App. 2014) (citation omitted). Thus, 10 TR at 184.

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-8- “[t]he standard of review . . . is confined to the clearly erroneous standard in CR[11] 52.01 based upon clear and convincing evidence” and “[t]he findings of the [family court] will not be disturbed unless there exists no substantial evidence in the record to support its findings.” B.L., 434 S.W.3d at 65. “Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Kentucky Ret. Sys. v. Bowens, 281 S.W.3d 776, 780 (Ky. 2009) (internal quotation marks and citations omitted). As mentioned, supra, because D.U.S.’s counsel filed an Anders brief, we are required to undertake our own independent review of the record to determine if this appeal is frivolous. However, in doing so, “our review is akin to palpable error review requiring us only to ascertain error which ‘affects the substantial rights of a party.’” A.C., 362 S.W.3d at 370 (quoting CR 61.02). With these principles in mind, we turn to the parties’ arguments.12 11 Kentucky Rules of Civil Procedure. 12 J.S.C. asks that we strike D.U.S.’s supplemental brief for failure to comply with the Rules of Appellate Procedure (RAP). Indeed, D.U.S.’s brief lacks: (1) an introduction of the nature of the case and statement concerning oral argument (RAP 32(A)(1)); (2) a statement of points and authorities (RAP 32(A)(2)); (3) citations to the record (RAP 32(A)(3)-(4)); (4) a statement of preservation (RAP 32(A)(4)); or (5) an appendix (RAP 32(A)(7)). While we do have the option to strike D.U.S.’s brief, RAP 10(B)(3); RAP 31(H)(1), we choose not to do so because of our obligation to independently review the record for palpable error.

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-9- III. ANALYSIS As part of our review, “we must review the record for compliance with the adoption statutes.” C.J. v. M.S., 572 S.W.3d 492, 497 (Ky. App. 2019). This is because there are “two basic rules regarding adoptions: [(1)] the right of adoption exists only by statute; and [(2)] there must be strict compliance with adoption statutes. Failure to do so results in an invalid judgment.” Wright v. Howard, 711 S.W.2d 492, 494 (Ky. App. 1986). KRS 199.470 sets forth the requirements for an adoption petition. The petitioner must be a person “who is eighteen (18) years of age and who is a resident of this state or who has resided in this state for twelve (12) months next before filing” and must file the adoption petition “in the Circuit Court of the county in which the petitioner resides.” KRS 199.470(1). Furthermore, because Child was not placed with J.S.C. by the Cabinet for Health and Family Services (Cabinet) or an agency licensed by the Cabinet or with written approval by the secretary of the Cabinet, Child must have lived continuously with J.S.C. for at least 90 days prior to the filing of the adoption petition. KRS 199.470(3). J.S.C.’s adoption petition averred that he was a lifelong resident of Kentucky, resided in Anderson County, and was over 18 years of age. The adoption petition also averred that Child had resided continually with J.S.C. since 2020.

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-10- Because J.S.C. is married to M.A.R., she is not required to join in the petition as a party plaintiff. KRS 199.470(2). Also, Child was not required to be placed with J.S.C. by the Cabinet, an adoption agency, or written approval by the secretary of the Cabinet prior to the filing of the adoption petition because J.S.C. is Child’s stepfather. KRS 199.470(4)(a). Service of the adoption petition is governed by KRS 199.480. Child, M.A.R. and D.U.S. were required to be made parties-defendant. KRS 199.480(1)(a)-(b). Mother entered a waiver of appearance. D.U.S. was personally served with petition. A GAL was appointed for Child who accepted service for him. KRS 199.510(1) requires the Cabinet to conduct an investigation and provide a written report to the family court as to its findings. That report must address: “(a) [w]hether the contents of the petition required by KRS 199.490 are true; (b) [w]hether the proposed adoptive parents are financially able and morally fit to have the care, custody, and training of the child; and (c) [w]hether the adoption is to the best interest of the child and the child is suitable for adoption.” KRS 199.510(1). The Cabinet’s report was properly filed. The Cabinet determined the contents of the adoption petition were true, the family was financially able and morally fit to have the care, custody, and training of Child; adoption was in Child’s best interest; Child was suitable for adoption.

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-11- Because D.U.S. did not consent to the adoption, he had a right to appointed counsel if indigent. KRS 199.502(3). Upon finding D.U.S. indigent, the family court did appoint counsel to represent him. In sum, following our independent review of the record, we are satisfied the statutory prerequisites were followed in this case. We now examine the family court’s decision to grant adoption without D.U.S.’s consent. KRS 199.502(1) addresses when a family court may grant adoption without the consent of a child’s biological living parent. In relevant part, KRS 199.502 provides: (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: (a) That the parent has abandoned the child for a period of not less than ninety (90) days; . . . (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[.]

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-12- Because the family court made findings under KRS 199.502(1)(a) and KRS 199.502(1)(g), we must determine whether substantial evidence supports those findings. In the context of this case, “abandonment is demonstrated by facts or circumstances that evince a settled purpose to forego all parental duties and relinquish all parental claims to the child.” O.S. v. C.F., 655 S.W.2d 32, 34 (Ky. App. 1983). D.U.S. appears to argue that he always wanted a relationship with Child, but any efforts were frustrated by the fact M.A.R retained discretion as to his visitation with Child under the September 2016 Order, and the Butterfly House never contacted him following completion of the requisite classes and assessments in 2018. We acknowledge there may have been some communication breakdown between D.U.S., M.A.R., and the Butterfly House. However, the 2016 Order did not permanently condition visitation on M.A.R.’s discretion; instead, the order provided that “[u]ntil such time as [D.U.S.] has completed [the ordered] classes and treatment and has properly brought the matter back before the [family court,] visitation shall occur at [MA.R’s] discretion and shall not be required to occur more than once every other week.” Appellee’s Brief, App. A at 4-5. Thus, D.U.S. had the ability to revisit the 2016 Order once he had completed his required classes and assessments. He did not do so. And the family court could not

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-13-

overlook that D.U.S. made absolutely no effort to follow up with the Butterfly

House when he did not hear back from them. Instead, D.U.S. waited

approximately seven years to take any affirmative action.

Nor can we overlook D.U.S.’s lack of financial support. “Payment of

support, though significant, is but one factor to consider among the totality of

circumstances when determining parental abandonment.” S.B.B. v. J.W.B., 304

S.W.3d 712, 717 (Ky. App. 2010). D.U.S. did not wholly fail to provide financial

support for Child, but his support was sporadic, and at times, de minimus. Further,

as the trial court noted, there were three periods where D.U.S. made no child

support payments at all, each period spanning five months to almost a year.13

Finally, the evidence adduced at the bench trial showed D.U.S. never

paid a medical bill, never provided any birthday or Christmas presents, and never

wrote any letters to Child. Considering all the circumstances, the family court’s

13 As noted by the family court:

9. That child support records were provided to the Court, which

document that on no fewer than three (3) occasions, [D.U.S.] made

no child support payments for the minor child herein and had no

other contact of any sort with the minor child for periods more than

90 days. That testimony showed these three date ranges to be:

1. 10/16/2018 to 9/39/2019 – a period of 350 days;
2. 10/7/2019 to 3/13/2020 – a period of 159 days; and
3. 07/24/2023 to 05/23/2024 – a period of 305 days.

TR at 179.

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-14- finding of abandonment under KRS 199.502(1)(a) was supported by substantial evidence. We also conclude the family court’s findings under KRS 199.502(1)(g) are supported by substantial evidence. D.U.S. testified he was continuously employed and he supported his other children. While D.U.S. had been on medical leave for part of the time this action was proceeding in the family court, we note the child support payment records continued to show that after the adoption petition was filed, D.U.S. often paid only de minimus amounts per month towards his obligation to Child. Moreover, as to any reasonable expectation of significant improvement in the immediate future, the family court noted that: The [family court] heard testimony from [D.U.S.] that he is securing a job which he believes will allow him to provide financially for his children, including [Child], however there is no credible proof before [the family court] that this will occur or[,] in turn, that he will support [Child.] [D.U.S.’s] mere intentions alone cannot satisfy a finding that there is a reasonable expectation of significant improvement.14 As the trier of fact, it was the family court’s prerogative to weigh the testimony of the witnesses and evidence and believe or not believe such evidence in whole or in part. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). And under the clearly erroneous standard, “[i]t is not for [an appellate 14 TR at 182.

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-15- court] to determine whether or not we would have reached a different conclusion, faced with the same evidence confronting the trial court.” Church and Mullins Corp. v. Bethlehem Minerals Co., 887 S.W.2d 321, 323 (Ky. 1992). Thus, the family court’s conclusions under KRS 199.502(1)(g) were not clearly erroneous. Though we are undertaking a palpable error review, we will address some of the points raised by D.U.S. in his supplemental brief. D.U.S. asserts he was denied due process as he was “denied access to critical evidence, including school and medical records[.]” Appellant’s Supplemental Brief at 3.15 D.U.S. does not explain how those records would have affected the outcome of the bench trial or his strategy. Moreover, nothing in the record shows he actually sought those records and was rebuffed by the family court. Thus, we find no error, let alone palpable error. Secondly, D.U.S. asserts the family court should have considered lesser alternatives to termination of parental rights and adoption. In support, he cites J.W. v. Cabinet for Health and Fam. Servs., 719 S.W.3d 70 (Ky. App. 2025). D.U.S. claims J.W. expressed there is a “‘default preference against reunification’ and [a] requirement that courts exhaust reunification options before severing parental rights.” Appellant’s Supplemental Brief at 2. D.U.S. quotes part of 15 The supplemental brief is not paginated but this argument appears on the third substantive page.

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-16- J.W.’s statement regarding a default preference against reunification correctly, however, the full sentence reads: “Nevertheless, KRS 625.090 reflects a default preference against termination, which is why it states that no termination of parental rights shall be ordered unless the court makes the statutory findings based on the higher standard of proof of clear and convincing evidence.” J.W., 719 S.W.3d at 79-80. In essence, the incomplete sentence D.U.S. quoted was merely to reinforce that termination of parental rights requires clear and convincing evidence standard rather than a lower standard. Moreover, J.W. involved the Cabinet’s petition for termination of parental rights. We scrutinize reunification efforts when the Cabinet files a petition to terminate parental rights to a child in its custody because “[w]hen the Commonwealth takes custody of a child, it must undertake efforts to reunify the family as are appropriate and reasonable under the circumstances.” R.M. v. Cabinet for Health and Fam. Servs., 620 S.W.3d 32, 42 (Ky. 2021) (citation omitted). There is no such requirement for consideration of lesser alternatives or exhaustion of reunification efforts for termination as part of an adoption under KRS Chapter 199. See B.L., 434 S.W.3d at 67 (“There is simply no requirement under our current statute that the court must consider less drastic means than adoption prior to granting an adoption pursuant to the current KRS 199.500.”). Thus, it was not error, let alone palpable error, for the family court to terminate

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-17- D.U.S.’s parental rights without consideration of reunification or lesser alternatives as part of an adoption petition, so long as the requirements of KRS 199.502(1) were met. IV. CONCLUSION Upon our independent review of the record, we conclude there was no error in the family court’s judgment granting J.S.C.’s adoption petition and terminating D.U.S.’s parental rights. All statutory prerequisites were met and the family court’s findings under KRS 199.502(1)(a) and KRS 199.502(1)(g) are supported by substantial evidence. For the foregoing reasons, we affirm the October 3, 2025 judgment of the Anderson Family Court terminating D.U.S.’s parental rights to Child and granting J.S.C.’s petition to adopt Child. We view any remaining contentions of error as moot, unpersuasive, unpreserved, or without merit. ALL CONCUR. BRIEFS FOR APPELLANT: Keith R. Morgan Florence, Kentucky D.U.S., II, pro se Frankfort, Kentucky BRIEF FOR APPELLEE: Matthew L. Collins Lawrenceburg, Kentucky

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