Opinion
2023-CA-1399-ME
03-15-2024
G.G. AND T.S. APPELLANTS v. CABINET FOR HEALTH AND FAMILY SERVICES; A.L.V., A MINOR CHILD; AND C.L. APPELLEES
BRIEFS FOR APPELLANTS: Marsha Taylor McKee, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Juliana B. Coffey London, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JACKSON CIRCUIT COURT HONORABLE CLINT J. HARRIS, JUDGE ACTION NO. 23-AD-00018
BRIEFS FOR APPELLANTS: Marsha Taylor McKee, Kentucky
BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Juliana B. Coffey London, Kentucky
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
OPINION
COMBS, JUDGE
Appellants, G.G. and T.S., are an unmarried couple who sought to jointly adopt the biological grand-daughter of T.S. They appeal from an Order of the Jackson Circuit Court dismissing their petition.
On September 13, 2023, Petitioners, G.G. and T.S., filed a petition to adopt a child (with the mother's consent) in Jackson Circuit Court. The petition reflects that the child was born in 2017; that T.S. is the child's biological maternal grandmother; that G.G. is de facto custodian and fictive kin; and that the Madison Circuit Court had granted Petitioners permanent custody of the child on November 29, 2017.
On September 20, 2023, the Cabinet filed a confidential investigative report to the court stating that it was unable to process the petition because "KRS199.470(1) &199.520(2) does [sic] not allow for adoption of the same child by two unmarried individuals. This petition does not state that the petitioners are married." The report further states that the Cabinet will take no further action on the petition until an amended petition is filed.
Kentucky Revised Statutes.
On September 20, 2023, Petitioners filed a combined objection to the
Cabinet's rejection and a motion for an order directing the Cabinet to file its investigative report.
On October 6, 2023, the Cabinet filed a response, which provides in relevant part as follows:
The Petitioners herein [G.G. and T.S.] requested a home study and investigative report by the Cabinet at the outset of their case. Upon a review of the Petition and consultation with Petitioner's counsel, the Cabinet's Program Coordinator determined that the Petitioners [G.G. and T.S.] have filed their petition for adoption as an unmarried couple. The adoption statutes do not allow for adoption by an unmarried couple. For this reason, the Cabinet produced and sent an Error Letter notifying the Petitioners of the defect. The Cabinet also filed a
Confidential Investigative Report to the Court dated September 14, 2018, which identified the reason the Cabinet was unable to process the Petition.
On October 17, 2023, the trial court heard Petitioners' motion.
Counsel for Petitioners explained that they want to adopt the child but that they are not married. The Cabinet responded that nothing in the statute prohibits an unmarried individual or a married couple from adopting. However, the statute does not allow for joint adoption by two unmarried individuals. The Cabinet explained that it could not take further action where the petition itself was not directly authorized by the statute and that all the Cabinet could do was to file the report (which it had already filed). Noting that adoptions are creatures of statute, the trial court reviewed the applicable statute and determined that it could not go forward with the petition, directing Petitioners' counsel to prepare an order denying her motion.
On October 29, 2023, Petitioners filed a motion and accompanying memorandum asking the court to appoint a third party to perform an investigation pursuant to KRS 199.510(2) and asking for a hearing to determine if the Cabinet was arbitrarily and unreasonably withholding consent to adoption. The Cabinet filed an objection.
That motion came before the trial court on November 21, 2023. Petitioners' counsel advised that she had filed it in order to create a record for appeal. The court summarily denied the motion.
On November 27, 2023, the trial court entered its written Order and Dismissal as follows in relevant part:
FACTS
1. Petitioner's [sic] [G.G. and T.S.], filed Petition to adopt [T.S.'s] granddaughter .... Both Petitioners have had custody of [the child] through Madison County Family Court since the child was brought home from the hospital at birth, six years ago.
2. Petitioners have been together for 17 years, but are not married. 3. No father meets the requirements of KRS 199.480. 4. The biological mother consents to the adoption.
5. The Cabinet was not made a party to the case, but the matter was subsequently referred to the Cabinet pursuant to KRS 199.510, for investigation and report.
6. The Cabinet declined to process the Petition, stating KRS 199. 470(1) and KRS 199.520(2) does [sic] not allow adoptions by an unmarried couple.
7. Thereafter, Petitioners filed two Motions. The first asked the Court to Order the Cabinet to do the investigation and report. The second asked the Court to appoint a third party to do the investigation and report, pursuant to KRS 199.510(2), and to hold a hearing to determine if the Cabinet acted arbitrarily and unreasonably in withholding its consent to the Adoption.
ORDER
Having heard the arguments of both Counsel, this Court finds that the Petition for Adoption does not comply with statutory requirements since Kentucky Statutes do not permit adoption by an unmarried couple.
Therefore, Petitioners' Motions are Overruled and this matter is Dismissed. This is a Final and Appealable Order.
On December 1, 2023, G.G. and T.S. filed notice of appeal to this Court.
Appellants first argue that the trial court erred in dismissing the Petition. The facts are not in dispute. The issue presents a question of statutory interpretation, which we review de novo. A.F. v. L.B., 572 S.W.3d 64 (Ky. App. 2019).
"Since adoptions are creatures of the statute that gave them birth, we must require strict compliance with the procedures provided in order to protect the rights of the natural parents." E.K. v. T.A., 572 S.W.3d 80, 84 (Ky. App. 2019) (cleaned up). The procedures which govern the petition for adoption are set forth in KRS 199.470 and provide as follows in relevant part:
(1) Any 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 may file a petition for leave to adopt a child in the Circuit Court of the county in which the petitioner resides.
(2) If the petitioner is married, the husband or wife shall join in a petition for leave to adopt a child unless the
petitioner is married to a biological parent of the child to be adopted, except that if the court finds the requirement of a joint petition would serve to deny the child a suitable home, the requirement may be waived.
Appellants contend that nothing in either KRS 199.470 or KRS 199.520 governing the judgment of adoption addresses the matter at issue. Consequently, Appellants reason that a joint adoption by two unmarried persons must be permitted by implication. We cannot agree. As this Court stated in S.B.P. v. R.L., 567 S.W.3d 142 (Ky. App. 2018). "Practitioners are warned, the 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. at 147 (cleaned up).
We agree with the Cabinet that if the General Assembly had intended to permit a petition for the joint adoption of a child by an unmarried couple, it would have said so. However, it did not. Appellants' failure to strictly comply with the requirements of KRS 199.470 precluded the Cabinet from moving forward with the petition. We also agree with the Cabinet that the trial court did not err in dismissing the petition or in denying Appellants' motions for an evidentiary hearing and for a third-party investigator.
In its Conclusion, the Cabinet notes several options available to the Appellants: that T.S., as a single individual, could pursue adoption of the child as her biological relative and custodian: that G.G., as a single individual, could pursue adoption of the child as her fictive kin and custodian; or that Appellants could get married and then pursue a joint adoption.
Accordingly, we affirm the Orders of the Jackson Circuit Court.
ALL CONCUR.