Opinion
2023-CA-0683-ME
03-29-2024
G.R.C. APPELLANT v. D.J.; A.D.; AND L.C. APPELLEES
BRIEF FOR APPELLANT: RYAN BENNETT DRISKILL GREENVILLE, KENTUCKY BRIEF FOR APPELLEE D.J.: TAYLOR C. EVANS MADISONVILLE, KENTUCKY
NOT TO BE PUBLISHED
APPEAL FROM MUHLENBERG CIRCUIT COURT HONORABLE BRIAN WIGGINS, JUDGE ACTION NO. 22-AD-00045
BRIEF FOR APPELLANT: RYAN BENNETT DRISKILL GREENVILLE, KENTUCKY
BRIEF FOR APPELLEE D.J.: TAYLOR C. EVANS MADISONVILLE, KENTUCKY
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
OPINION
CALDWELL, JUDGE
Shortly after D.J. ("Adoptive Mother") adopted C.S.C., Jr. ("Child"), G.R.C. ("Grandfather") filed a motion to alter, amend, or vacate the adoption judgment and to intervene in the adoption action. The Muhlenberg Circuit Court ("the trial court") denied Grandfather's motion, and Grandfather filed a timely appeal. We affirm.
Pursuant to court policy and to protect the privacy of the minor child in this adoption proceeding, we do not refer to him or to his parents or grandparents by name. See Kentucky Rules of Appellate Procedure ("RAP") 5(B)(2), stating in pertinent part: "Initials or a descriptive term must be used instead of a name in cases involving juveniles, allegations of abuse and neglect, termination of parental rights, mental health, and expungements."
FACTS
Child was born in 2016 to A.D. ("Birth Mother") and C.S.C., Sr. ("Father"). Birth Mother became unable to provide care for Child when Child was several months old. Birth Mother has not been actively involved in Child's upbringing since that point.
Adoptive Mother was romantically involved with Father from 2017 until April 2019. The couple lived with Child at Grandfather's house for about six months in 2017. They moved out in late 2017 and moved to another residence for about a year until they broke up and discontinued living together. After the couple's April 2019 breakup, Child stayed with Adoptive Mother at her residence for at least four days a week for the first few months and then seven days a week by December 2019.
On December 1, 2019, Father was involved in an altercation with his own father, Grandfather. Father died from a gunshot wound. A few days later, the Muhlenberg District Court granted Adoptive Mother custody of Child and entered an order prohibiting Grandfather from having contact with Child.
Grandfather was charged with murder for Father's death. But a jury found Grandfather not guilty in the fall of 2021. Meanwhile, Grandfather had filed a petition for grandparent visitation. The trial court heard the visitation petition in the summer of 2022 after several agreed-upon continuances. At that point, Grandfather had not seen Child for about two and a half years. The trial court denied Grandfather's visitation petition. Grandfather appealed from the denial of visitation. We affirmed the denial of visitation in an unpublished opinion in October 2023. Grandfather filed a motion for discretionary review with the Kentucky Supreme Court, which has not been ruled upon as of February 2024.
Meanwhile, in October 2022, Adoptive Mother initiated the present case by filing a petition to adopt Child with Birth Mother's consent. The trial court entered a judgment of adoption in November 2022. Nine days later, Grandfather filed a motion to alter, amend, or vacate the adoption judgment and to intervene in the adoption action. After briefing and a hearing, the trial court entered an order denying Grandfather's motion to alter, amend, or vacate the adoption judgment and to intervene in the action. Grandfather then filed a timely appeal. Further facts will be set forth as necessary.
ANALYSIS
We Limit Review to Issue of Whether Denial of Intervention was Palpable Error Resulting in Manifest Injustice Due to the Lack of Preservation Statement and Lack of Citations to the Record in Argument Portion of Appellant Brief
Adoptive Mother asserts that Grandfather failed to cite to the record to show where Grandfather's appellate arguments were preserved for review. She also contends that Grandfather failed to preserve some appellate arguments, including those about alleged due process violations. Grandfather did not file a reply brief, so he has not responded to these assertions.
We are not required to search the record to see where issues were brought to the trial court's attention. Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). Certainly, Grandfather made clear to the trial court that he was seeking to intervene in the adoption action by filing his written intervention motion. However, we do not elect to search the record to see if or where Grandfather raised other issues to the trial court such as his appellate argument that his due process rights were violated.
The parties' appellate briefs were filed in late 2023, several months after the Kentucky Rules of Appellate Procedure took effect.
RAP 32(A)(4) requires that the argument portion of one's initial appellant brief "shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Adoptive Mother correctly points out that Grandfather's appellant brief fails to contain the required preservation statement with citations to the record showing if and where issues were preserved for review by raising such issues to the trial court.
RAP 31(H)(1) states: "A brief may be stricken for failure to substantially comply with the requirements of these rules." (Emphasis added.) In other words, we have discretion whether to strike a brief for failure to substantially comply with our appellate briefing rules. We decline to exercise our discretion to strike Grandfather's brief for any substantial non-compliance with appellate briefing rules.
In addition to Grandfather's appellant brief's lack of preservation statement, neither party complied with the requirement that an index to an appendix to a brief "shall set forth where each document may be found in the record." RAP 32(E)(1)(d). We leniently elect not to sanction either party for failing to identify in the index to the appendix where items in the appendix are located in the record.
But given the lack of compliance with preservation statement requirements, we also have the discretion to review solely for palpable error resulting in manifest injustice rather than under otherwise applicable standards of review. See Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) ("[T]he manifest injustice standard of review is reserved only for errors in appellate briefing related to the statement of preservation. If a party fails to inform the appellate court of where in the record his issue is preserved, the appellate court can treat that issue as unpreserved."). (Emphasis added.) See also CR 61.02 (An appellate court may consider a palpable error affecting parties' substantial rights "even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."). (Emphasis added.)
Kentucky Rules of Civil Procedure.
In this appeal, we elect to review the denial of intervention solely for palpable error resulting in manifest injustice rather than under otherwise applicable standards of review - especially since Grandfather failed to rectify the lack of preservation statement or supporting citations to the record even after Adoptive Mother pointed out this deficiency in her appellee brief. Furthermore, we consider only the main issue about the denial of intervention and need not address other sub-issues which Grandfather's appellant brief failed to substantively argue with cites to supporting legal authority and to portions of the record in which such subissues were raised. See Prescott v. Commonwealth, 572 S.W.3d 913, 919 (Ky. App. 2019) (Declining to strike brief or dismiss appeal but limiting review of unpreserved arguments to those "supported by careful and correct citation to the record" and electing "to simply include either no analysis or a truncated one of unsupported matters asserted in the offending portions of [pro se appellant's] arguments.").
Denial of Intervention Was Not Palpable Error Resulting in Manifest Injustice Under the Facts and Circumstances of this Case
CR 24.01 (Intervention of right) states in pertinent part:
(1) Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the
applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties.
The trial court determined that there was no statute conferring an unconditional right to intervene, so CR 24.01(1)(a) does not apply. And Grandfather's brief does not explicitly challenge this determination that CR 24.01(1)(a) does not apply.
Also, despite a brief reference to permissive intervention in his appellate brief, Grandfather does not even cite to CR 24.02 (governing permissive intervention). And neither party substantively argues whether the trial court erred in denying permissive intervention under CR 24.02. Instead, the primary focus of both parties' appellate arguments is on CR 24.01(1)(b).
Adoptive Mother notes the trial court discussed CR 24.02 as well as CR 24.01 in denying intervention in her counterstatement of the facts. However, the argument portion of her brief focuses on CR 24.01 and does not expressly discuss CR 24.02 or permissive intervention.
The trial court recognized that it could only grant intervention as a matter of right under CR 24.01(1)(b) if Grandfather "claims an interest relating to the subject of the case that is so situated that disposing of the action without his participation in the proceedings would inhibit his ability to protect his interest." As noted by the trial court, precedent construes CR 24.01(1)(b) to require more than an expectancy or contingent interest to warrant intervention. Instead, one must show that a present, substantial interest will be impaired if intervention is denied. See, e.g., D.B. v. T.C.W., 674 S.W.3d 776, 779 (Ky. App. 2023). The trial court found that Grandfather had no present, substantial interest which would be impaired if intervention were denied, so it denied intervention.
The trial court noted that Grandfather had sought to protect his interest in grandparent rights in a separate action seeking visitation. But the court had denied the visitation petition because it found visitation with Grandfather not in Child's best interest. The trial court stated in its order denying intervention that Grandfather might again file a petition for visitation even if he lost his appeal of the prior denial of visitation.
Perhaps the trial court was simply noting Grandfather's intent to file another petition for visitation if he lost his appeal without opining on whether Grandfather had a legal right to do so. Grandfather stated his intent to file another petition for visitation if he lost his visitation appeal in his intervening answer and petition.
Ultimately, however, the trial court determined that Grandfather had no present, cognizable legal interest which would be impaired by the adoption and warrant CR 24.01 intervention, but only an expectancy or contingent interest. Grandfather challenges the trial court's assessment of his having only an expectancy or contingent interest rather than a present, substantial interest which would be impaired if intervention is denied. But Adoptive Mother agrees with the trial court.
As Adoptive Mother points out, there was no court order granting Grandfather custody of or visitation with Child, and Grandfather had not sought custody of Child in court prior to filing his motion for intervention and to vacate the adoption.
However, Grandfather argues in his appellant brief that he had a present, substantial interest in being considered for placement, citing Baker v. Webb, 127 S.W.3d 622 (Ky. 2004). He contends that in Baker v. Webb, the Kentucky Supreme Court "addressed the rights of grandparents to intervene in an adoption proceeding." As Adoptive Mother points out in her appellee brief, the trial court noted in its order denying intervention that Baker v. Webb "did not involve grandparents at all" - instead, the relatives seeking to intervene in Baker v. Webb were the child's second cousins. See also id. at 623. In short, Baker v. Webb did not address whether grandparents had a right to intervene in an adoption proceeding.
Grandfather's counsel's referring to Baker v. Webb as involving grandparents' attempts to intervene in adoption proceedings in the appellant brief despite the trial court pointing out this error in its order denying intervention and counsel's again failing to correct the misstatement after it was pointed out in the appellee brief is concerning. See CR 11; Kentucky Supreme Court Rules ("SCR") 3.130(3.3)(a)(1) ("A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]").
Nonetheless, Grandfather claims he was entitled to be considered for placement and adoption and that the Cabinet failed to comply with an obligation to investigate him for placement based on Baker v. Webb. We disagree.
As the trial court here pointed out in its order denying intervention, Baker v. Webb was a factually distinguishable case. In that case, relatives sought to intervene in the foster parents' adoption action after having expressed their own interest in adopting the child to the Cabinet, which failed to properly investigate or consider the relatives for placement. See Baker, 127 S.W.3d at 623-24. Our Supreme Court determined the relatives (the Bakers) had a substantial present interest in being considered for placement under applicable statutes and regulations, namely KRS 620.090(2) and 922 KAR 1:140. Baker, 127 S.W.3d at 625. KRS 620.090 concerns temporary custody orders in dependency, neglect, and abuse proceedings while 922 KAR 1:140 concerns foster care and adoption permanency services.
We also note that the motion for intervention in Baker v. Webb was filed prior to entry of the adoption judgment. 127 S.W.3d at 624 ("Appellants attended the final adoption hearing on January 14, 2002, even though their motion to intervene had been denied."). In contrast, Grandfather did not file his intervention motion until after the trial court entered the adoption judgment. It may be especially difficult to obtain post-judgment intervention since a court may perceive a post-judgment intervention motion as untimely in many factual scenarios. See generally Hazel Enterprises, LLC v. Community Financial Services Bank, 382 S.W.3d 65, 68 (Ky. App. 2012). Nonetheless, the trial court did not deny Grandfather's intervention motion based on untimeliness since Grandfather had lacked prior notice of the confidential adoption proceeding and was not a named party. See Kentucky Revised Statutes ("KRS") 199.480 (not expressly including grandparents as persons to be named as parties defendant in adoption actions).
Kentucky Administrative Regulations.
Unlike Baker v. Webb, the present case does not involve a foster parent adoption following dependency proceedings in which a child was placed in the Cabinet's temporary custody. So, KRS 620.090(2) and 922 KAR 1:140 do not apply here. Instead, this case involves the adoption of a child not in the Cabinet's custody with the consent of the Child's only living natural parent. There was nothing requiring the Cabinet to evaluate Grandfather for adoption and placement upon Adoptive Mother's filing her petition to adopt with Birth Mother's consent. Indeed, as Adoptive Mother points out, the Cabinet's role in such consensual adoptions is considerably more limited and does not include a duty to evaluate relatives for possible placement or adoption. See KRS 199.510.
In addition to Grandfather's erroneous argument that he had a cognizable legal interest in being considered for placement and/or adoption based on Baker v. Webb, Grandfather contends that he had a present, substantial interest in visitation which would be impaired by denial of intervention. He cites Blackaby v. Barnes, 614 S.W.3d 897 (Ky. 2021) to suggest this is true.
But Adoptive Mother points out factual distinctions with Blackaby -which we note did not involve a motion to intervene in an adoption action and to vacate an adoption judgment, but simply a petition for grandparent visitation. In Blackaby, the paternal grandfather filed a petition for grandparent visitation after the maternal grandmother adopted the child of the paternal grandfather's deceased son with the consent of the maternal grandmother's daughter. The paternal grandfather had previously enjoyed regular visitation with the child, including overnight visitation even after the adoption became final. But the maternal grandmother/adoptive parent later quit allowing paternal grandfather's visitation with the child.
The trial court denied the grandparent visitation petition in Blackaby, opining that the paternal grandfather lacked standing to seek grandparent visitation after the adoption. The Court of Appeals affirmed the denial of visitation. Id. at 899. But our Supreme Court reversed and remanded for the trial court to conduct an evidentiary hearing to determine if the grandparent visitation sought by the paternal grandfather would be in the child's best interest. Id. at 903.
Our Supreme Court explained why the paternal grandfather was entitled to an evidentiary hearing on his petition for grandparent visitation under the facts of that case even after the adoption. Noting the paternal grandfather had no notice of the confidential adoption proceedings, our Supreme Court determined that the facts of Blackaby demanded the extension of the "stepparent adoption exception" recognized in Hicks v. Enlow, 764 S.W.2d 68, 71 (Ky. 1989) to grandparent adoptions. Blackaby, 614 S.W.3d at 902.
In Hicks, our Supreme Court considered whether grandparents had the right to seek reasonable visitation with grandchildren under the then-current version of KRS 405.021 after their grandchildren were adopted or the grandchildren's parents' parental rights had been involuntarily terminated. 764 S.W.2d at 69-70. Ultimately, our Supreme Court determined that grandparents' rights to seek visitation under KRS 405.021 would not be cut off due to a child's adoption by a stepparent. Id. at 72-23. But otherwise, our Supreme Court generally recognized that where a parent's parental rights had been voluntarily or involuntarily terminated by adoption or otherwise, the rights of that parent's parents such as the right to seek grandparent visitation under KRS 405.021 were also cut off. Id. at 73-74. And it took note of statutory language indicating that adoption severed all ties to a child's biological parents except in cases of stepparent adoption. Id. at 71 (citing KRS 199.520(2)).
In Blackaby, our Supreme Court noted that the grandparent visitation statute (KRS 405.021) had been amended since Hicks was rendered "partially to abrogate the harsh rule established in Hicks, and now includes language preserving grandparent visitation with a grandchild even after parental rights have been legally terminated, upon a showing that the grandparent had previously been granted visitation." 614 S.W.3d at 900-01. So, it determined that the paternal grandfather (Blackaby) was entitled to seek grandparent visitation despite the maternal grandmother's adoption of the child because the adoptive parent was already a member of the child's biological family and thus did not seek to sever all ties with the child's biological family. Our Supreme Court recognized that Blackaby was not "a case of non-biological parents adopting a child and wishing to sever all ties with the child's biological family to further the stability of the adoptive family unit." Id. at 902-03. In contrast, Adoptive Mother is a non-biological parent rather than a grandparent adopting a child.
Adoptive Mother notes that upon remand, the trial court in Blackaby was specifically instructed to hold an evidentiary hearing to determine the extent of the child's relationship with the paternal grandfather and whether continuing the relationship with the paternal grandfather was in the child's best interest. Id. at 903. But she points out the trial court here had already denied Grandfather's prior petition for grandparent visitation, finding that would not be in Child's best interest. And unlike the paternal grandparents in Blackaby who had enjoyed visitation with the child even after the child was adopted by the maternal grandmother, the trial court here found in the order denying intervention that Grandfather had had no contact with Child for about half of Child's life - since the entry of the district court's no-contact order in December 2019.
Based on our review of the record and applicable law, we discern no palpable error resulting in manifest injustice from the trial court's denying intervention in the adoption action here. Grandfather points to no evidence in the record that he had come forward to seek Child's placement or custody prior to Adoptive Mother's filing her adoption petition. He did file a petition for grandparent visitation prior to the filing of the adoption petition, but the trial court denied this as not in Child's best interest. (And again, the denial of visitation was later affirmed on appeal though the appeal was still pending at the time the trial court ruled on intervention). Whether or not our Supreme Court grants discretionary review or substantive relief regarding the prior denial of visitation and regardless of whether Grandfather attempts to file another petition for grandparent visitation, the trial court's denial of intervention in the adoption action was not a palpable error resulting in manifest injustice based on the facts before it at the time of its ruling.
While Grandfather undeniably took steps to seek grandparent visitation in the years between Father's death and the adoption, he did not have contact with Child or provide financial support for Child during this time. And he points to no evidence of taking steps to become Child's primary caregiver or legal parent during this time. On the other hand, Adoptive Mother had custody and was the primary caregiver for Child for about three years before filing her adoption petition. Regardless of whether any third party might ever obtain a court order for visitation with Child, the trial court did not palpably err in denying intervention in this adoption action by a grandparent who had not previously been granted placement, custody, or visitation by court order. Thus, we affirm.
Further issues or arguments raised in the parties' briefs which we have not discussed herein lack merit or relevancy to our resolution of this appeal or were not clearly preserved sufficiently for us to overlook Grandfather's failure to comply with the preservation statement requirements of RAP 32(A)(4).
CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment.
ALL CONCUR.