Opinion
NO. 2018-CA-001476-ME
06-21-2019
A.N.T. APPELLANT v. A.G.; T. G.; S. R., NATURAL FATHER; AND R.R.R., A MINOR CHILD APPELLEES
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Jason A. Bowman Louisville, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE: Julia B. Barry Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 15-AD-00006 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, GOODWINE, AND KRAMER, JUDGES. GOODWINE, JUDGE: Appellant, A.N.T. ("Mother"), challenges findings of fact and conclusions of law entered by the Bullitt Circuit Court, Family Division, on September 5, 2018. After careful review, we vacate the findings of fact, conclusions of law, and judgment of adoption and remand with instructions to dismiss the petition without prejudice. Appellees, A.G. and T.G., lacked standing to file the petition.
Mother does not include the judgment of adoption in the notice of appeal nor does she attach it to her brief. It is, however, filed in the record at pp. 167-68.
BACKGROUND
R.R.R. ("Child") was born on December 1, 2012, in Fayette County with illicit drugs in her system. Mother and Appellee, S.R. ("Father"), are the natural parents of Child. Despite notice, Father failed to appear, or otherwise plead, in the underlying action. The Cabinet for Health and Family Services, Department for Community Based Services ("Cabinet"), became involved with the family, placing Child in A.G.'s home when she was four days old. Mother referred the Cabinet to A.G. to avoid Child being placed in foster care. The Cabinet filed a dependency, neglect, and abuse action in Fayette County, 12-J-01878-001.
Only a few pages of the Fayette County confidential file are in the record on appeal.
The Fayette Family Court found Mother and Father neglected Child. Neither parent successfully worked a case plan, such that Child could be safely returned to their care. The Fayette Family Court entered an order dated July 15, 2013, granting permanent custody of Child to A.G., denoting her as Child's "maternal grandmother." (R. at 153-54). Child has remained in A.G.'s home since she was four days old and is thriving.
The record does not indicate whether the Fayette Family Court knew Mother was adopted in March of 1991, resulting in the termination of A.G.'s parental rights. In 2012, Mother returned to Kentucky from Florida to find A.G. Shortly thereafter, Mother learned she was pregnant.
On February 25, 2015, A.G. and T.G., a married couple, filed a petition to adopt Child. Unlike A.G., T.G. is not biologically related to Child. Mother, Father, and Child, were named defendants. The Cabinet was not a named defendant. Simultaneously with filing the petition, A.G. and T.G. filed a motion to appoint a guardian ad litem. The family court appointed one the next day. A month later, Mother filed a motion to dismiss, arguing A.G. and T.G. lacked standing to initiate the adoption proceeding. Mother argued, due to her adoption, A.G. had no legal relationship with her, and, consequently, no legal relationship with Child. The record is void of any hearing or order adjudicating the motion to dismiss.
Mother filed an original action with this Court, asserting immediate and irreparable injury should the adoption action proceed because her parental rights to Child could be terminated. Mother's original action was dismissed December 11, 2015.
The Cabinet filed its report on May 26, 2015, stating:
Based on the information gathered throughout this investigation, the contents in the petition appear to be true and accurate per KRS 199.490. [T.G. and A.G.] seem sincere in their motivation to make [Child] their legal daughter. However, it is unknown to this worker whether or not a termination of parental rights has officially occurred regarding the biological mother and father. Due to this the Cabinet is unable to make a
recommendation regarding the adoption of [Child] by [T.G. and A.G.] at this time. A complete evaluation of this family was completed; however, and there were no other concerns noted that would cause the Cabinet to refrain from making a recommendation in favor of the adoption as long as all legal requirements have been met.(R. at 49). The guardian ad litem filed her report on December 23, 2015, stating she was in favor of granting the petition. She never changed her assessment of the matter.
On March 21, 2016, a copy of the January 14, 2013, adjudication order was filed in the record. That order placed Child in A.G.'s home and listed A.G. as Child's maternal grandmother. (R. at 102). The Fayette Family Court granted permanent custody to A.G. on July 15, 2013. (R. at 153-54).
The adoption hearing was held on June 16, 2016. After hearing proof, the court took the case under submission. On November 9, 2016, A.G. filed a motion with the family court to name T.G. as a co-guardian of Child. There is nothing in the record to indicate the family court ever ruled on said motion. Instead, two years and three months later, the family court entered findings of fact, conclusions of law, and a judgment of adoption in favor of A.G. and T. G.
As previously noted, only a few pages of the juvenile record are in the record on appeal. However, the family court made findings of fact that "[t]he entire juvenile proceeding was conducted by all parties with full knowledge of the fact that A.G.'s legal relationship to Mother was terminated many years prior." (R. at 157). It is undisputed A.G.'s parental rights and legal relationship with Mother were severed by a 1991 judgment of adoption after A.G. voluntarily terminated her parental rights. Despite that, the family court found A.G. to be Child's grandmother and allowed the adoption to go forward. After the family court entered the judgment of adoption, this appeal followed.
STANDARD OF REVIEW
The trial court's findings of fact are entitled to great deference on appeal. Accordingly, this Court applies the clearly erroneous standard of review. CR 52.01 ("Findings of Fact shall not be set aside unless clearly erroneous. . . ."); M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Where the record contains substantial evidence to support the trial court's findings, we will not disturb them on appeal. Id. Application of the law to the facts will be reviewed de novo. D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 113 (Ky. 2012) (citing S.B.B. v. J.W.B., 304 S.W.3d 712, 716 (Ky. App. 2010) (internal citations omitted)).
Kentucky Rule of Civil Procedure.
"Since adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided to protect the rights of the natural parents." Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997). Terminating parental rights can be analogized as capital punishment of the family unit because it is "so severe and irreversible." R.P., Jr. v. T.A.C., 469 S.W.3d 425, 426-27 (Ky. App. 2015) (citing Santosky v. Kramer, 455 U.S. 753, 759 (1982)).
ANALYSIS
Before we address the issue of standing, we reiterate the two basic rules governing adoptions: (1) the right of adoption exists only by statute; and (2) there must be strict compliance with the adoption statutes. Failure to strictly comply with the adoption statute results in an invalid judgment. Wright v. Howard, 711 S.W.2d 492, 494 (Ky. App. 1986) (internal citations omitted). "In an adoption setting, strict compliance is essential 'to protect the rights of the natural parents.'" S.B.P. v. R.L., 567 S.W.3d 142 (Ky. App. 2018) (quoting R.M. v. R.B., 281 S.W.3d 293 (Ky. App. 2009)). Practitioners beware:
[t]he law of adoption is in derogation of the common law. Nothing can be assumed, presumed, or inferred and what is not found in the statute is a matter for the legislature to supply and not the courts.Id. (quoting Day, 937 S.W.2d at 719 (citation omitted)).
Before a petition for adoption is filed by a party who is not related to the child, there must be participation by the Cabinet. Under Kentucky law:
No petition for adoption shall be filed unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by a child-placing institution or agency, or by the cabinet, or the child has been placed with written approval of the secretary [of the Cabinet.]KRS 199.470(4) (emphasis added). Child was not placed with A.G. for purposes of adoption.
Kentucky Revised Statute.
However, the statute also provides, "but no approval shall be necessary in the case of [a] child sought to be adopted by a . . . grandparent[.]" Id. Seizing upon that exception, A.G. claimed that she was Child's grandparent, thus, avoiding pre-petition Cabinet oversight. But KRS 199.510 requires the Cabinet's post-petition participation. Post-petition participation was initiated by the Bullitt Circuit Clerk when that office sent a copy of the adoption petition to the Cabinet. According to the record, the clerk carried out this duty. The same statute requires the Cabinet to respond to the adoption petition by "investigat[ing] and report[ing] in writing to the court . . . no later than ninety (90) days . . . after the filing date of the petition[.]" KRS 199.510. The Cabinet complied with this statutory duty.
The appointment of a guardian ad litem to represent Child was unnecessary because Child's natural parents were both named party defendants. KRS 199.480(3). Nevertheless, on February 25, 2015, A.G. and T.G. filed a motion to appoint a guardian ad litem. The next day, the family court appointed Amanda Spalding ("Spalding") as Child's guardian ad litem. Though her appointment was unnecessary, once Spalding was appointed in that capacity, she had a special duty to perform. She filed her report on December 23, 2015.
The Local Rules for Bullitt Family Court, Section 3 (302) defer to Kentucky law, stating "[i]n all actions for adoption or termination of parental rights which requires appointment of a guardian ad litem, counsel shall make a motion and tender an order for appointment of a guardian ad litem for the child(ren)."
When A.G. and T.G. filed the petition, they did not seek approval of the secretary of the Cabinet nor the secretary's designee. Child was not placed with A.G. for adoption by a child-placing institution or agency, or by the Cabinet. Instead, she was placed with A.G. by the Fayette Family Court, following a finding of neglect. She was later granted permanent custody.
If A.G.'s legal status as a grandparent still existed, she would have standing to file the petition for adoption in reliance on KRS 199.470. However, the Fayette Family Court's notation of "maternal grandmother" does not bestow back upon her that which the law removed when her parental rights to Mother were voluntarily terminated in 1991. A.G. does not otherwise qualify as a relative entitled to the exemption listed in KRS 199.470(4)(a). T.G. is not biologically related to Child and, likewise, does not otherwise qualify as a relative entitled to the exemption listed in KRS 199.470(4)(a).
We note, however, KRS 199.470(4)(a) was amended on June 14, 2018, to include fictive kin, but said amendment was not in effect when A.G. and T.G. filed the petition. We cannot apply the amendment retroactively. "It is [a] well-settled rule of construction that no law can properly be held retroactive unless such legislative intent is clearly expressed or necessarily implied. Otherwise the presumption is conclusive that the law was intended to operate only in the future and upon future transactions." Greene v. Frankfort Distillery Co., 209 Ky. 427, 273 S.W. 28, 29 (1925).
"'Fictive kin' means an individual who is not related by birth, adoption, or marriage to a child, but who has an emotionally significant relationship with the child.'" KRS 199.011(9), as amended on July 14, 2018.
Two years and three months after the adoption hearing, the family court entered findings of fact and conclusions of law, as well as a judgment of adoption, erroneously finding A.G. was Child's grandmother and, as such, satisfied the requisites of KRS 199.470. The family court ruled, "[t]he Court finds that grandparent, as it pertains to questions arising under KRS 199.470(4)(a), refers to any grandparent whose relationship to a child is legal, by blood, or by marriage." (R. at 160). A relationship by blood or marriage is a legal relationship unless by law it has been severed.
In accordance with KRS 199.520(2), A.G.'s relationship to Mother was completely severed:
[u]pon entry of the judgment of adoption, from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the parents adopting it the same as if born of their bodies. Upon 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) (emphasis added). "The plain meaning of the statutory language is presumed to be what the legislature intended, and if the meaning is plain, then the court cannot base its interpretation on any other method or source." Revenue Cabinet v. O'Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (internal citations omitted).
Words must be given their plain meaning. Grandmother is defined as "the mother of either of one's parents." Grandmother, BLACK'S LAW DICTIONARY, 10th ed. 2014. A.G. is no longer the legal mother of either of Child's parents. Thus, she cannot be Child's grandmother. The family court's interpretation of KRS 199.470 is incompatible with KRS 199.520 because it leads to an absurd result—A.G. is not Mother's mother but is Child's grandmother.
Legal and biological relationships are parallel until the law distinguishes them. The statutory language explains the new relationship between the adoptive parent and the child to be "as if born of their bodies." KRS 199.520(2). The legislature used those words to explain that adoption unifies the adoptive parent and adoptive child in a biological way. It is not our role to expand the legislature's language.
In March of 1991, A.G.'s parental rights to Mother were terminated by a judgment of adoption. Termination of parental rights constitutes a permanent severance of the parent-child relationship. D.G.R. v. Cabinet for Health and Family Services, 364 S.W.3d 106, 115 (Ky. 2012).
The effect of a voluntary termination is sweeping: it "terminat[es] all parental rights and obligations of the parent and releas[es] the child from all legal obligations to the parent and vest[s] care and custody of the child in the person . . . the court believes is best qualified to receive custody." KRS 625.043. "In effect, if parental rights are terminated, it is as if the parents of a child suddenly died, as there is no longer a legal right to contact between the parents and child."Palmer v. Burnett, 384 S.W.3d 204, 206 (Ky. App. 2012) (quoting D.G.R., 364 S.W.3d at 115). Moreover, "the subsequent adoption of the child vests all parental rights in the adoptive parent." Id. When A.G. voluntarily terminated her parental rights to Mother, she gave up all the parental rights and obligations she had once possessed as Mother's biological parent. KRS 625.043. This included a future right to a relationship with Child.
Assuming, arguendo, the law afforded extended biological family members some "biological or emotional" relationship following adoption, there would be no end to the arguments as to the "remaining" rights of the former biological extended family members. As previously noted, this is an absurd result, which we decline to extend.
In accordance with strict compliance with the adoption statute, we interpret the familial relationships in KRS 199.470(4)(a) to be only those recognized as a matter of law. Day, 937 S.W.2d at 720. "If the legislature had wished to maintain grandparent rights despite the loss of one's parental rights to the grandchild's parent, it could easily have provided as much. It did not." Palmer, 384 S.W.3d at 207. When A.G. voluntarily terminated her legal relationship to Mother, she waived all rights dependent upon that relationship. She is no longer legally recognized as Child's grandmother. Consequently, she lacked standing to file the petition for adoption. T.G. also lacked standing both individually and by marriage to A.G.
The family court erred, as a matter of law, when it failed to dismiss the petition for adoption and instead found A.G. was Child's grandmother. Our decision does not impact A.G.'s role as Child's current permanent custodian nor does it preclude A.G. and T.G. from filing another petition for adoption under KRS 199.470(4)(a), as amended.
Mother filed a petition for custody, which has been stayed, pending the outcome of this appeal.
A.G. and T.G. qualify as fictive kin under KRS 199.011(9). --------
Mother alleges additional error. However, because we vacate the judgment of adoption, we decline to review the merits of her additional arguments.
CONCLUSION
Based on the foregoing analysis, we vacate the September 5, 2018, findings of fact, conclusions of law, and judgment of adoption of the Bullitt Family Court and direct it to dismiss the verified petition for adoption without prejudice.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: Jason A. Bowman
Louisville, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEE: Julia B. Barry
Louisville, Kentucky