Opinion
NO. 2020-CA-0566-ME
04-23-2021
J.E.H. APPELLANT v. S.L.I. AND W.D.I. APPELLEES
BRIEF FOR APPELLANT: Thomas M. Denbow Louisville, Kentucky BRIEF FOR APPELLEES: Mark Hyatt Gaston Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 18-AD-500392 OPINION
VACATING
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BEFORE: ACREE, CALDWELL, AND K. THOMPSON, JUDGES. ACREE, JUDGE: J.E.H. (Father) appeals the findings of fact, conclusions of law, and judgment of adoption entered by the Jefferson Circuit Court on February 25, 2020. S.L.I. (Mother) and W.D.I. (Stepfather) filed for adoption of Mother's and Father's child. Because the adoption fails to strictly comply with the statutes, we vacate the judgment.
This case is a tragedy of errors. From the beginning, it was riddled with potholes of questionable competence.
In 2017, when the child was two-and-a-half years old, Mother initiated an action to establish paternity. DNA results showed J.M.H. was Father's biological daughter. A year later, on August 27, 2018, Father filed a motion seeking visitation, claiming Mother was preventing visits with his child. Four times Mother failed to appear and four times the family court continued Father's motion. Father was present at every court date. The court finally ordered Mother to appear on November 19, 2018. Notwithstanding that order, she still failed to appear. The family court never ruled on Father's visitation motion, but another separate action commenced in the same family court.
J.M.H. was born on July 1, 2014. Mother did not initiate the paternity action until February 2, 2017.
While Father's motion for visitation was pending in the paternity action, Mother and Stepfather circumvented Father's efforts to gain visitation by filing an adoption petition on October 5, 2018, alleging Father abandoned the child for no less than 90 days. The circuit court clerk's office failed to file stamp both the petition and the case data sheet with the date, only handwriting "10-5" in blue ink on both documents. We must, therefore, assume this was the date it was filed.
The case data sheet also includes an apparent administrative error. It seems Appellees or Appellees' counsel indicated the child is a "son." Throughout the case, and the parties' briefs, the child is referred to as a "daughter."
Additionally, the adoption petition does not include the required information. First, KRS 199.480(1)(a) and (b) require that the child to be adopted must be listed on the petition as a defendant, along with the biological mother and biological father. Appellees' counsel failed to comply. Mother is listed as a petitioner, and the child is not listed as a party. The caption does not even reference the child in any way, such as "In re: J.M.H.," as is customary in these types of actions. Second, no service was had on Mother, on J.M.H.'s behalf, as the individual having custody under KRS 199.480(2). Third, there was a failure to file Mother's sworn consent to the adoption under KRS 199.500(1). At this juncture, we pause to note that it is well-settled that adoptions require strict compliance with the statutory requirements. See Goldfuss v. Goldfuss, 565 S.W.2d 441 (Ky. 1978).
Kentucky Revised Statutes.
Alone, these errors are enough to invalidate the adoption as a matter of law. See S.B.P. v. R.L., 567 S.W.3d 142, 147 (Ky. App. 2018); Wright v. Howard, 711 S.W.2d 492, 497 (Ky. App. 1986) ("For the above reasons alone, based on non-compliance with the adoption statutes, the judgment of adoption, an integral part of which is the order terminating appellant's parental rights, should be vacated and the petition dismissed."). But there is more.
Despite the family court's and the parties' knowledge of Father's existence, and his successive visitation efforts in the same court, Appellees asked the family court to assign Thomas Klausing as warning order attorney for Father. This appointment of a warning order attorney, like other filings in this case, is not file stamped. Regardless, Klausing filed the report and the certified mail receipt, indicating his letter to Father announcing his representation and the filing of a paternity action were received by a Brenda Harris.
This brings us to the motion for a final hearing date for the adoption. On March 15, 2019, the court set this case for a hearing. At the bottom of the page is written "cc: Hon. Mark Hyatt Gaston [and] Hon. Tracy Davis." This apparently indicates service to two attorneys—the Appellees' attorney, and Tracy Davis. This is the record's first reference to Davis. There is no appointment order or entry of appearance for Davis as Father's attorney. We must assume Davis represented Father before the family court despite this record not making that very clear. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985) ("It has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.").
The next entry in the record, also not file stamped, is a letter from the Cabinet indicating the family did not participate in an adoption interview. A Cabinet report, based on that interview, is required by KRS 199.510. It is what facilitates the Cabinet's investigation to determine whether the contents of the petition are true, whether the adoptive parents are financially able and morally able to care for the child, and whether the adoption is in the child's best interest. Because there was no interview, there is no Cabinet report in violation of KRS 199.510. This, too, invalidates the adoption. See R.M. v. R.B., 281 S.W.3d 293, 298 (Ky. App. 2009); S.J.L.S. v. T.L.S., 265 S.W.3d 804, 828 (Ky. App. 2008) ("KRS 199.510 requires the Cabinet's post-petition notification and participation in every adoption.").
On the date set for the final hearing, Father appeared but his counsel, Tracy Davis, was not present. Therefore, the family court continued the trial but allowed counsel to select a date between themselves. The rescheduling order was entered and the hearing re-set for November 15, 2019. Tracy Davis was sent a copy. However, when the hearing commenced, neither Father nor his counsel was present.
Initially, the court was reluctant to hold the hearing but, after allowing Mother to speak, changed its mind and conducted the hearing in Father's absence. Ultimately, the court entered an order terminating Father's parental rights and granting the adoption on February 25, 2020.
Two months later, on April 6, 2020, Father filed a motion to alter, amend, or vacate the judgment because neither he, nor his counsel, was present. He claimed he never received notice of the new hearing date. There is no record of a ruling which, under normal circumstances, would be untimely anyway.
Father filed a notice of appeal on April 20, 2020. The notice of appeal was ruled timely by another panel of this Court.
On April 1, 2020, the Chief Justice of the Supreme Court of Kentucky entered an order extending the time to file a notice of appeal by thirty days for cases filed before the Supreme Court of Kentucky and the Kentucky Court of Appeals between March 16, 2020 and May 1, 2020. Therefore, because of this COVID-19 order, we conclude the notice of appeal was timely filed despite the judgment being entered on February 25, 2020. The presiding judge of this merits panel was an associate judge on the panel that made this ruling. --------
"The rights to conceive and to raise one's children have been deemed essential, basic civil rights of man, and rights far more precious than property rights." Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (internal quotation marks, brackets, ellipsis, and citations omitted). For this very reason, the termination of parental rights has been called "the family law equivalent of the death penalty in a criminal case." In re Smith, 601 N.E.2d 45, 55 (Ohio Ct. App. 1991). Our laws place in the hands of our family court judges the considerable power of the state to extinguish a parent's relationship with their child, notwithstanding their constitutionally recognized fundamental right to raise him or her. See Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000).
Because 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. In Higgason v. Henry, 313 S.W.2d 275 (Ky. 1958), an adoption was invalidated simply because the consent of the natural parent was not notarized. Also, Wright v. Howard, 711 S.W.2d 492 (Ky. App. 1986), held that adoption only exists as a right bestowed by statute so there must be strict compliance with the adoption statutes. "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." Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997) (citing Coonradt v. Sailors, 209 S.W.2d 859 (Tenn. 1948)).
Because this adoption had many errors along the way that did not strictly comply with the adoption statutes, we must vacate the judgment of adoption.
ALL CONCUR. BRIEF FOR APPELLANT: Thomas M. Denbow
Louisville, Kentucky BRIEF FOR APPELLEES: Mark Hyatt Gaston
Louisville, Kentucky