Opinion
NO. 2020-CA-1306-ME
05-14-2021
C.S.R. APPELLANT v. M.K.B.; N.J.B.; B.P.; AND D.B.J., A CHILD APPELLEES
BRIEF FOR APPELLANT: Wesley V. Milliken Bowling Green, Kentucky BRIEF FOR APPELLEES: Michael R. Voorhees Cincinnati, Ohio
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 19-AD-00057 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES. DIXON, JUDGE: C.S.R. appeals the Campbell Circuit Court's order, entered March 16, 2020, denying his motion to intervene. After careful review of the briefs, record, and law, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
D.J.B. ("Child") was born to B.P. ("Mother") on July 18, 2019. On July 22, 2019, Mother executed a Voluntary and Informed Consent to Adoption and Waiver of Service, which was duly notarized. By separate affidavit, Mother averred that Child was born out of wedlock and that she had not voluntarily identified the biological father. Mother further stated that she and biological father were never married and that biological father was not on the child's birth certificate, had not commenced a judicial proceeding claiming parental rights to Child, had not contributed financially to the support of Child, and did not reside with Child or Mother.
Child was placed with M.K.B. and N.J.B. (collectively, "Adoptive Parents"), and on August 23, 2019, they petitioned for adoption. In the petition, Adoptive Parents asserted that the identity of the biological father had not been disclosed, that there was no legal father, and that none of the qualifications set forth in KRS 199.480(1)(b) for naming a putative father were met. Further, as required by KRS 199.505, Adoptive Parents submitted the Cabinet for Health and Family Services' Affidavit of Diligent Search, averring that no one had filed with the putative father registry claiming a paternity interest in Child. Accordingly, only Mother and Child were named as defendants. After a final hearing, the circuit court entered a judgment of adoption on October 18, 2019.
Kentucky Revised Statutes.
Thereafter, on December 23, 2019, C.S.R. moved to intervene pursuant to CR 24.01 and, in accordance with CR 24.03, included a CR 60.02 motion to vacate the judgment setting forth the claims for which intervention was sought. In support of both motions, C.S.R. asserted he was Child's biological father and, having initiated paternity and custody proceedings against Mother in Simpson County on August 26, 2019, (a mere three days after the adoption petition was filed) was a mandatory party to the adoption pursuant to KRS 199.480(1)(b)(4). C.S.R. argued Mother had committed fraud by hiding Child's birth from him and further committed fraud upon the court when she failed to advise of the paternity action. Adoptive Parents objected to the motions, the court denied intervention, and this appeal timely followed. Additional facts will be introduced as they become relevant.
Kentucky Rules of Civil Procedure.
STANDARD OF REVIEW
Generally, a circuit court has broad discretion in permitting intervention. Wood v. Tax Ease Lien Investments 1, LLC, 425 S.W.3d 897, 901 (Ky. App. 2014). Accordingly, we review the circuit court's order relating to intervention for clear error. Id.
ANALYSIS
CR 24.01(1) provides:
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.
Without citing this rule or addressing the timeliness of the motion, the circuit court found that while C.S.R. was a putative father, due to his failure to register with the putative father registry or to file a paternity action prior to the adoption petition, he had no right to intervene. On appeal, C.S.R. argues the circuit court erred in denying him intervention where he was a mandatory party to the adoption pursuant to KRS 199.480(1)(b). We agree.
KRS Chapter 199 governs adoption actions, and though the chapter does not address intervention, KRS 199.480 does specifically enumerate those who shall be named as defendants and, ergo, have a statutorily recognized interest in the proceedings. Clearly, C.S.R. qualified as such a person when he commenced a paternity action regarding Child. KRS 199.480(1)(b)(4). The court found otherwise, however, asserting that the statute was ambiguous because C.S.R.'s petition was filed after the adoption petition. We disagree. While C.S.R.'s filing of the paternity action three days after the adoption action wholly excused Adoptive Parents from naming him in the petition, nothing in KRS 199.480 indicates that it constituted a forfeiture of C.S.R.'s interest in the adoption action.
Relevantly, KRS 199.480(1)(b) states that:
[i]f the child is born out of wedlock, its mother; and its father [shall be named as a defendant], if one (1) of the following requirements is met:
1. He is known and voluntarily identified by the mother by affidavit;
2. He has registered with the cabinet pursuant to KRS 199.503 as a putative father prior to the birth of the child, or if he did not have notice prior to the birth of the child, within twenty-one (21) days after the birth of the child;
3. He has caused his name to be affixed to the birth certificate of the child;
4. He has commenced a judicial proceeding claiming [a] parental right;
5. He has contributed financially to the support of the child, either by paying the medical or hospital bills associated with the birth of the child or financially contributed to the child's support; or
6. He has married the mother of the child or has lived openly or is living openly with the child or the person designated on the birth certificate as the biological mother of the child.
A putative father shall not be made a party defendant if none of the requirements set forth above have been met[.]
Likewise, we disagree with the court's determination that C.S.R.'s failure to file with the putative father registry, as established by KRS 199.503, extinguished his interest in this matter. The putative father registry serves the stated purpose of determining the name and address of fathers, who are not identified by the mothers, of children placed for adoption so that they may be afforded notice of the proceedings. KRS 199.503(1). As such, a putative father is more broadly defined in that the statute permits any male who believes he may be a father, excepting only men who have already established legal acknowledgment of their paternity, to receive notice in adoption proceedings without taking any formal legal steps to assert paternal rights or undertaking parental obligations. Indeed, the legislature's inclusion of putative father registrants in KRS 199.480(1)(b)(2) demonstrates that the registry is merely an additional way by which a putative father could be included in the proceedings, not the only way. Accordingly, the court's determination that the failure to register curtailed C.S.R.'s interest in the litigation is contrary to the purpose of the registry and the plain language of KRS 199.480.
KRS 199.503(2) defines putative father as:
a male who may be a child's father, but who:
(a) Is not married to the child's mother on or before the date that the child is born;
(b) Has not established paternity of the child in a court or agency proceeding in this or another state before the filing of a petition for adoption of the child; or
(c) Has not completed an acknowledgment of paternity affidavit before the filing of a petition for adoption of the child.
Moreover, even if we were not satisfied that C.S.R. had a statutory right to intervene, we would be compelled to hold he had the necessary interest to do so under CR 24.01(b). The Kentucky Supreme Court has held that the requirements of CR 24.01 were met where the movant claimed a custody or visitation right regarding the child. See A.H. v. W.R.L., 482 S.W.3d 372 (Ky. 2016); Baker v. Webb, 127 S.W.3d 622 (Ky. 2004). Herein, as the adoption judgment would sever all legal relationship between Child and C.S.R., C.S.R.'s interest in asserting paternal rights to Child is inextricably related to the results of the proceedings.
KRS 199.520. --------
As we have determined that C.S.R. has demonstrated the necessary interest in the adoption action to merit intervention, the circuit court order must be reversed. On remand, the court must determine if C.S.R. has satisfied the remaining requirements of CR 24.01, including whether his motion was timely. Whether a motion to intervene is timely is a question of fact that is committed to the sound discretion of the court. Rosenbalm v. Commercial Bank of Middlesboro, 838 S.W.2d 423, 427 (Ky. App. 1992). When necessary to preserve a right that cannot be protected otherwise, post-judgment intervention is permissible; however, the movant has a heavy burden to justify the apparent lack of timeliness. Id.; Arnold v. Com. ex rel. Chandler, 62 S.W.3d 366, 369 (Ky. 2001). The following factors are relevant:
(1) [t]he point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor's failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.Carter v. Smith, 170 S.W.3d 402, 408 (Ky. App. 2004). If the court finds that the motion was timely, C.S.R.'s motion to intervene should be granted, and the court shall then consider the CR 60.02 motion on its merits.
CONCLUSION
The Campbell Circuit Court's Order denying C.S.R. intervention is REVERSED, and the matter is REMANDED for further proceedings consistent with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Wesley V. Milliken
Bowling Green, Kentucky BRIEF FOR APPELLEES: Michael R. Voorhees
Cincinnati, Ohio