Opinion
2023-CA-0727-ME
01-26-2024
K.C. APPELLANT v. A.C. AND B.R.C., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANT: Brian Titgemeyer Newport, Kentucky BRIEF FOR APPELLEE A.C.: Stephanie A. Dietz Jonathan D. Thiel Edgewood, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT HONORABLE ACENA JOHNSON BECK, JUDGE ACTION NO. 18-AD-00038
BRIEFS FOR APPELLANT: Brian Titgemeyer Newport, Kentucky
BRIEF FOR APPELLEE A.C.: Stephanie A. Dietz Jonathan D. Thiel Edgewood, Kentucky
BEFORE: GOODWINE, KAREM, AND MCNEILL, JUDGES.
OPINION
GOODWINE, JUDGE:
K.C. ("Grandfather") appeals from the order of the Kenton Circuit Court setting aside his adoption of his grandchild, B.R.C. ("Child"). After careful review of the record, briefs, and applicable law, we reverse and remand.
BACKGROUND
On June 17, 2017, Grandfather was granted temporary custody of Child stemming from proceedings in Kenton Circuit Court involving dependency, neglect, or abuse ("DNA") allegations. On November 20, 2017, Grandfather was granted permanent custody by agreed order signed by A.C. ("Mother") in the DNA proceedings. Grandfather filed a petition to adopt Child on April 2, 2018, which was granted by the circuit court on August 1, 2018 after a hearing at which Mother was not present.
Honorable Judge Dawn M. Gentry presided over the adoption hearing, and the case was subsequently assumed by her successor, Honorable Judge Acena Johnson Beck.
On October 10, 2018, Mother filed, pro se, an AOC-290 form "Petition to Inspect Adoption Records" with an attached handwritten statement. The circuit court denied the petition by written order entered on October 15, 2018. No post-judgment motion or appeal was filed challenging that order. On August 10, 2021, Mother filed, pro se, a handwritten request to inspect the adoption records, which was denied. Mother ultimately retained an attorney who, on December 17, 2021, filed a motion to inspect the adoption records, which the circuit court granted. On March 21, 2022, Mother filed a motion to set aside the adoption alleging she did not give informed consent as defined under KRS 199.011(17). Grandfather filed a response countering that KRS 199.540 prevented Mother's challenge after one year of the entry of the judgment. Mother filed a memorandum of law in reply.
Kentucky Revised Statutes.
The circuit court held an evidentiary hearing on the motion to set aside the adoption. The hearing was conducted over two days, during which Mother; Grandfather; Grandfather's attorney, Honorable David Drake; and Grandfather's wife, J.C., testified. The court entered an order setting aside the adoption on May 17, 2023, and this appeal followed. Additional facts will be discussed below as necessary.
The August 10, 2022 hearing was continued to December 20, 2022 to allow Honorable David Drake an opportunity to seek ethical guidance regarding any potential conflict of interest posed by his acting as legal counsel for Grandfather and a testifying witness.
STANDARD OF REVIEW
Though the motion filed by Mother's counsel does not cite a specific rule, CR 60.02 is most applicable to the request to set aside or otherwise vacate the underlying judgment three years after the entry date. A denial of a CR 60.02 motion is reviewed for abuse of discretion. See Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011) (citation omitted). "The test for abuse of discretion is whether the trial court's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. (internal quotation marks and citation omitted). "[T]he law favors the finality of judgments. Therefore, relief may be granted under CR 60.02 only with extreme caution and only under the most unusual and compelling circumstances." Id. (citation omitted).
Kentucky Rules of Civil Procedure.
ANALYSIS
Grandfather asserts three issues on appeal: 1) KRS 199.540 precludes setting aside the adoption more than one year after the entry date based upon an error under KRS 199.470 to 199.520; 2) Mother's October 10th petition was not a sufficient challenge to the adoption satisfying that one-year limit; and 3) Mother's due process rights were not violated in the lead up to the entry of adoption. Due to the interwoven nature of the facts concerning Grandfather's first two claims, we address those jointly.
KRS 199.540 states:
After the expiration of one (1) year from the date of the entry of judgment of adoption, the validity thereof shall not be subject to attack in any action, collateral or direct, by reason of any irregularity or failure to comply with KRS 199.470 to 199.520, either procedurally or substantively.
(Emphasis added.) "This prohibition ensures the finality of adoption judgments, thereby minimizing the potential for traumatic changes in the lives of adoptive parents and children long after their relationship has been formalized." Storm v. Mullins, 199 S.W.3d 156, 161 (Ky. 2006); see also S.J.L.S. v. T.L.S., 265 S.W.3d 804, 829 (Ky. App. 2008) ("Even absent a statute, courts have been hesitant to upset an adoption decree for lack of requisite consent or such other procedural irregularity.") (internal quotation marks and citation omitted).
The circuit court's order concluded that Mother's consent was not "voluntary and informed" as defined by KRS 199.011(17) and as required under KRS 199.500(1). The court cited Mother's lack of representation by counsel and the fact that no "information regarding the name and address of the person who reviewed and explained the consent to her" as required under KRS 199.011(17)(h) appeared on the consent documents. Record ("R.") at 102. The order further reasoned that, while any challenges based upon this deficiency are precluded after one year, Mother's October 10th petition "alleg[ed] fraud and request[ed] the adoption 'be stopped now,'" and this "was an attack on the entry of the judgment of adoption made within one year of the entry . . . but was erroneously denied a hearing by this [c]ourt." Id. Grandfather argues that Mother's petition, "even if it does contain statements protesting the adoption," can only be construed as a request to review the adoption records. Appellant Brief at 17.
It is ultimately not necessary for us to determine whether Mother's October 10th petition was intended to be a motion to set aside the adoption. The record on appeal demonstrates that the circuit court denied the petition by written order. R. at 44. Thus, even if Mother filed the petition as an attempt to set aside the adoption based on an asserted lack of consent required under KRS 199.500(1), the circuit court's order clearly disposed of this petition and its attendant claims. See S.J.L.S., 265 S.W.3d at 832 ("An erroneous judgment, once final, is no less binding than one that is correct in every way."). There is nothing before us indicating how this claim would survive the expiration of the one-year deadline particularly after a ruling by the circuit court.
Instead, the record demonstrates that Mother's request to set aside the judgment of adoption was first raised by a motion filed by Mother's attorney on March 21, 2022, which is well over a year after the entry of the judgment on August 1, 2018. R. at 55-61. Any subsequent motions or petitions brought after the expiration of the deadline could be permitted "only in the most extraordinary cases." See S.J.L.S., 265 S.W.3d at 829. Indeed, in S.J.L.S., 265 S.W.3d at 829, a panel of this Court reasoned that the one-year provision of KRS 199.540 was "as absolute as statutory language will allow," and even a CR 60.02 motion challenging an adoption judgment on the grounds of subject matter jurisdiction is precluded if brought more than one year after its entry.
Only "the narrowest of exceptions" exist upon which a judgment of adoption may be set aside after one year of entry. S.J.L.S., 265 S.W.3d at 829. Among the identified exceptions are violations of constitutional due process and fraud upon the court. See Storm, 199 S.W.3d at 157; S.J.L.S., 265 S.W.3d at 83031. The circuit court's order concluded Mother did not receive adequate notice of the adoption proceedings because she was not served with the petition for adoption, and she was absent from the adoption hearing. R. at 103. On appeal, Grandfather argues Mother signed a consent for adoption which waived future notice to any adoption proceedings, and the circuit court did not explicitly find her signature was a forgery. Appellant Brief at 10.
"Ordinarily, notice and an opportunity to be heard are the basic requirements of due process." Storm, 199 S.W.3d at 162. However, the right to notice is subject to waiver. See D. H. Overmyer Co. Inc., of Ohio v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124 (1972) ("The due process rights to notice and hearing prior to a civil judgment are subject to waiver."); see also Storm, 199 S.W.3d at 162.
Attached to Grandfather's petition for adoption filed on April 2, 2018 is a document entitled "Consent to Adoption and Entry of Appearance" ("consent to adopt"). That document contains the following language:
3. That [Mother] hereby gives her full, voluntary and informed consent to the adoption of this child by the Petitioner. ...
7. That [Mother] has received a copy of this Consent and acknowledges receipt of a copy by signing below at the time she signed the Consent.
11. That [Mother] further waives service of any additional documents relating to this adoption, and notice of an[d] attendance at any other further proceedings, including notice of Judgment of Adoption and the right to appear in Court.
R. at 8-10 (emphasis added). Below this language, the document contains a signature bearing Mother's name with the following notary certification:
COMMONWEALTH OF KENTUCKY COUNTY OF KENTON
SUBSCRIBED, ACKNOWLEDGED AND SWORN TO, before me, a Notary Public, by [Mother], on this the 21st day of March, 2018.
Id. at 9. The notarization was signed and executed with a stamp by Mr. Drake and is otherwise facially compliant with statutory requirements governing notarial acts. See KRS 423.130 et seq. This constitutes a sufficient waiver, not only of constitutional due process, but also as a matter of statute. KRS 199.515 states:
After the report of the guardian ad litem, if any, for the child and the report required by KRS 199.510 have been filed, the court at any time on motion of its own or that of any interested party may set a time for a hearing on the petition to be conducted in chambers in privacy, except as hereinafter provided. Notice of the hearing shall be given to all necessary parties at least ten (10) days in advance thereof, unless such parties shall have answered and agreed to the adoption or have failed to answer and the time for answering has expired, or shall have waived notice of the hearing. All necessary parties may be present and at least one (1) of the adopting parents and the guardian ad litem, if any, for the child must be present at the hearing.
(Emphasis added.)
Mother argues that "without clear proof that [Mother] had in fact consented to the adoption, she remained entitled to notice and opportunity under the due process clause." Appellee Brief at 8. Storm, 199 S.W.3d 156, which is cited by the circuit court's order and in Mother's arguments on appeal for support, is distinguishable. There, the Kentucky Supreme Court reversed a judgment of adoption and remanded the case to the circuit court for findings on whether a biological mother's due process rights were infringed. Id. However, the Court reasoned that because the biological mother signed a "consent to custody" containing no language at all regarding adoption, the document alone was insufficient to establish that she was provided notice of the adoption proceedings. Because there was some evidence in the record suggesting the biological mother was possibly aware of the adoption proceedings, the Court remanded the case to the circuit court for further findings of fact. Id.
By contrast in this matter, a consent to adopt with clear language is in the record. R. at 8-9. Mother did not show fraud or forgery sufficient to impeach this document. See S.J.L.S., 265 S.W.3d at 830 (citation omitted) ("[W]hen an adoption is effected by means of a fraud practiced upon the court, whether by means of a forgery or otherwise, the void nature of the adoption is sufficiently beyond mere irregularity in the adoption proceedings.") (emphasis added).
KRS 61.060 states:
No fact officially stated by an officer in respect of a matter about which he is by law required to make a statement in writing, either in the form of a certificate, return or otherwise, shall be called in question, except in a direct proceeding against the officer or his sureties, or upon the allegation of fraud in the party benefited thereby or mistake on the part of the officer.
This statute applies to a notary's certification. See Spicer v. Spicer, 314 Ky. 560, 564, 236 S.W.2d 474, 476 (1951); Fletcher v. Wilson, 500 S.W.2d 601, 605 (Ky. 1973). "[A]n officer's certificate imports absolute verity unless attacked in a direct proceeding against the officer or his surety, or unless there is an allegation of fraud in the obtention of the certificate by the party benefitted, or mistake upon the part of the officer." Spicer, 314 Ky. at 564, 236 S.W.2d at 476 (emphasis added). Mother's underlying motion does not constitute a direct proceeding against Mr. Drake in his capacity as a notary. See Fletcher, 500 S.W.2d at 605 ("[T]his language of the statute contemplates a proceeding in which some recovery is sought against the officer by reason of his dereliction, such as a suit on his bond."). As a result, Mother must establish, by clear and convincing evidence, fraud by the party benefited (Grandfather) or mistake on the part of Mr. Drake (the notary) to overcome the presumption that the signature is authentic. See id.; Conley v. Coburn, 297 Ky. 292, 296, 179 S.W.2d 668, 670 (1944) ("This certificate being in proper form, it is prima facie evidence of the true execution of the deed."); Jones v. Sutton, 255 S.W.2d 658, 660 (Ky. 1953) ("[O]nly clear and convincing parol evidence will overthrow [a signed certification of a fact].").
Mother asserted she "[did] not have any memory of ever signing a consent to adoption or discussing an adoption with [Grandfather]." R. at 58. This alone is insufficient to establish fraud or mistake in satisfaction of KRS 61.060. See CR 9.02 ("In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity."); Skaggs v. Vaughn, 550 S.W.2d 574, 577 (Ky. App. 1977). The record does not establish how or if Grandfather, or someone on his behalf, forged Mother's signature or otherwise perpetrated a fraud in obtaining the notarization. See Grigsby v. Mosley, 297 Ky. 571, 578, 180 S.W.2d 99, 102 (1944) ("[T]o be within the exception [in KRS 61.060], the fraud must have been committed by or on behalf of the party benefited."); Skaggs, 550 S.W.2d at 576 ("Although [Appellant] denied that the signature on the deed was his, this court concludes that the pleadings are not sufficient to raise the issue of forgery.... The complaint does not allege fraud on the part of the grantees in obtaining the notary certificate, nor does the complaint allege mistake on the part of the notary. In the absence of such allegations, [Appellant] cannot allege that he did not execute the deed.").
The only explicit allegation of fraud contained in any of Mother's circuit court pleadings is the claim that "[t]he [circuit court] has been deceived by a lack of voluntary and informed consent, which is a material fact, necessary for this [c]ourt to render its judgment." R. at 80. This assertion does not invalidate the notary certification. See Hackworth v. Trimble, 293 Ky. 647, 651, 169 S.W.2d 843, 845 (1943) ("The fraud which, under the statute, will let in an inquiry into the truth of the officer's certificate must relate to the obtaining of the certificate itself, and not to the making of the instrument acknowledged."). And the record is devoid of any indication that Grandfather or Mr. Drake acted to conceal any facts or mislead the circuit court regarding whether Mother's consent did or did not satisfy the criteria defined under KRS 199.011(17). See S.J.L.S., 265 S.W.3d at 831 (citation omitted) ("To constitute fraud in procuring a judgment the court rendering the judgment must be deceived; material facts must be concealed from it which, if disclosed, would have caused it to render a different judgment. If it appears that the court was cognizant of the facts, and with those facts before it rendered a judgment, then it is a valid judgment, however erroneous it may be, and can not be canceled on the ground of fraud, unless the court intentionally participated in the fraud.").
Finally, nothing at the hearing sufficiently rebutted the presumed reliability of the notarization. Mother denied her signature was on the consent to adopt form. Video Record ("VR") at August 10, 2022, 9:41:20-41:29. She denied having any memory of being present at or involved with the signing, which was testified by Grandfather and Mr. Drake to have occurred at Mr. Drake's home on March 21, 2018. Id., 10:13:17-13:29, 11:19:12-19:20; VR at December 20, 2022, 11:05:58-06:28, 11:13:04-14:36; see Hoagland v. Fish, 238 S.W.2d 133, 135 (Ky. 1951) ("A certificate of acknowledgement is entitled to more weight than memory of witnesses after the lapse of many years[.]"); Jones, 255 S.W.2d at 660 ("Lapse of time may dim a memory, but a signed certification of a fact remains positive as long as the writing lasts."). In contrast, Grandfather and Mr. Drake both testified Mother signed the consent to adopt. VR at August 10, 2022, 11:20:18-20:40; VR at December 20, 2022, 11:05:58-06:11. We therefore conclude the circuit court abused its discretion in setting aside the judgment of adoption more than one year after its entry.
CONCLUSION
For the foregoing reasons, the Order setting aside the August 1, 2018 order granting Grandfather's adoption of Child is REVERSED, and the case is REMANDED to the Kenton Circuit Court with instructions to deny the motion to set aside the adoption.
ALL CONCUR.