Moore v. Asente, 2000-SC-1127-DG.

Decision Date12 June 2003
Docket NumberNo. 2000-SC-1127-DG.,No. 2001-SC-0325-DG.,2000-SC-1127-DG.,2001-SC-0325-DG.
Citation110 S.W.3d 336
PartiesRegina MOORE and Jerry Doming Appellants v. Richard ASENTE, Cheryl Asente and Justin Lee Moore, a Minor Appellees and Richard Asente and Cheryl Asente Appellants v. Regina Moore, Jerry Doming and Justin Lee Moore Appellees
CourtUnited States State Supreme Court — District of Kentucky
Opinion of the Court by Justice KELLER.
I. ISSUES

This appeal from a child custody action, which resulted from the breakdown of a proposed private adoption, presents three (3) primary issues. Regina Moore ("Moore") and Jerry Doming ("Doming") signed consents to allow Richard and Cheryl Asente ("the Asentes") to adopt their son, Justin. The consents, by their terms, would become irrevocable twenty (20) days from the date when Justin was placed with the Asentes. Before signing the consents, however, Moore and Doming were advised by their attorney that they could revoke their consent to Justin's adoption at any time before their parental rights were terminated. Immediately before the termination of parental rights ("TPR") hearing, but more than twenty (20) days after Justin's placement with the Asentes, the birth parents announced their desire to revoke their consents. Did the consents become irrevocable twenty (20) days after Justin's placement? Because Moore and Doming were misinformed of the legal effect of the consents and relied on this misinformation in signing the consents, the consents were not knowingly given and were thus invalid and unenforceable.

After holding that the consents were invalid, the trial court held that the Asentes lacked standing to pursue custody of Justin. Did the invalidity of the consents deprive the Asentes of standing to seek Justin's custody? Because the birth parents voluntarily placed Justin with the Asentes with the intention of and for the purpose of the Asentes' adoption of Justin, and because Justin remained with the Asentes for a significant period of time before the birth parents filed a proper legal action to regain his custody, we hold that under KRS 403.420(4)(b), Justin was in the "physical custody" of the Asentes rather than his birth parents when the Asentes sought custody. Accordingly, the Asentes had standing to make a claim for custody of Justin.

The trial court ruled that the birth parents' superior rights to Justin's custody could be abrogated only by a showing of unfitness that would be sufficient to support an involuntary termination of their parental rights. Upon remand, must the Asentes demonstrate the birth parents' unfitness by clear and convincing evidence before the trial court could award them custody of Justin? Because we find that Moore and Doming waived their superior rights to Justin's custody by placing him with the Asentes for the purpose of adoption, by filing a petition for the voluntary termination of their parental rights for the purpose of allowing his adoption, by signing a consent for the purpose of allowing Justin's adoption, and by allowing Justin to remain in the physical custody of the Asentes for a period of six (6) months before filing an appropriate legal action to regain his custody, we hold that the "unfitness" standard is inapplicable in this case. We therefore hold that, upon remand, when the trial court determines whether Moore and Doming or the Asentes will have custody of Justin, the trial court should make that determination on the basis of Justin's best interest.

II. BACKGROUND

This action began as a proposed interstate adoption arrangement between the Asentes, Ohio residents, and Moore and Doming, Kentucky residents. The Asentes had previously adopted another child, Joey, born to Moore and Doming. Thus, when Moore discovered that she was pregnant again, she contacted the Asentes to see if they were interested in adopting this child as well. The Asentes responded affirmatively and agreed to adopt the yet-unborn child that would later be named Justin.

Following Justin's birth on February 28, 1997, however, Moore and Doming decided they wanted to raise him themselves. They changed their minds about the adoption and notified the Asentes of their decision. In November 1997, however, Moore and Doming again changed their minds and contacted the Asentes to determine if they still wished to adopt Justin. The Asentes once again responded affirmatively, and the proposed adoption process was set in motion.

To represent their interests in this proposed adoption, Moore and Doming chose Thomas C. Donnelly ("Donnelly"), the lawyer who had represented them in the earlier placement of Joey with the Asentes. The Asentes agreed to pay Donnelly's fee for his representation of Moore and Dorning.

On December 16, 1997, and in accordance with their attorney's advice, Moore and Doming jointly signed a form captioned "Application for Permission to Receive or Place a Child,"1 which was prescribed by the Kentucky Cabinet for Family and Children as the initiating form to be signed by persons wishing either to adopt or to place a child for adoption in Kentucky. Moore and Doming signed as placing parents and designated the Asentes as the persons whom they wished to adopt Justin. On January 12, 1998, Moore and Doming signed, again jointly, a form captioned "Interstate Compact Placement Request,"2 which is required when a child is to be placed for adoption or foster care in another state. Moore and Doming signed as the sending persons and designated the Asentes as the persons with whom Justin was to be placed. Then on January 27, 1998, Moore and Doming each separately signed a "Voluntary and Informed Consent to Adoption." These consents were prepared by Donnelly, executed in his presence, and "[s]ubscribed, sworn to and verified and acknowledged to" before a notary public by Moore, Doming and Donnelly. The consents read as follows:

VOLUNTARY AND INFORMED CONSENT TO ADOPTION3

1. Comes [Regina Carol Moore/Jerry Lee Doming], the birth [mother/father] of Baby Justin Lee Moore and the consenting person, and having been duly sworn does state under oath that [she/he] has been fully informed of the legal effects of this Consent. [She/he] understands that twenty (20) days after signing this Consent, that it shall become final and irrevocable.

2. [Regina Carol Moore/Jerry Lee Doming] affirms that [she/he] has not been given or promised anything of value, except statutorily allowed expenses.

3. [Regina Carol Moore/Jerry Lee Doming] affirms that [she/he] has not been coerced in any way to execute this Consent, and that the Consent is voluntarily and knowingly given.

4. [Regina Carol Moore/Jerry Lee Doming] affirms that [she/he] is not under the influence of drugs, alcohol or any other medication which might influence [her/his] ability to make a decision.

5. [Regina Carol Moore/Jerry Lee Doming] has chosen to be represented by independent legal counsel, Thomas C. Donnelly, Esq., 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075.(513)221-7722.

6. Justin Lee Moore, the child to be adopted was born on February 28, 1997 at St. Luke West Hospital in Florence,

Kentucky and currently resides with his birth parents at 7 Indiana Drive, Covington, Kentucky 41015.

7. The identity of the prospective adoptive parents are [sic] Rich and Cheryl Asente, residing in the state of Ohio.

8. It has been explained to me by Thomas C. Donnelly, Esq. that this Consent to Adoption will be final and irrevocable twenty (20) days after the execution of the placement which was previously approved, if approval of a placement was required, and that this Consent will be final and irrevocable twenty (20) days after approval of the placement, if not already approved.

9. If the child is not adopted, it is my wish that I be contacted regarding any future plans for the child.

10. [Regina Carol Moore/Jerry Lee Doming] affirms that [she/he] has or will receive a completed and signed copy of this Consent.

11. [Regina Carol Moore/Jerry Lee Doming], the consenting person understands that this Consent may only be withdrawn by written notification sent by certified or registered mail, addressed to either the attorney for the consenting person or the attorney for the adoptive parents within twenty (20) days following the execution of the Consent. The attorney for the consenting person is: Thomas C. Donnelly, Esq. 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075. The attorney for the prospective adoptive parents is: John R. Gargano, Esq., 294 Harmon, NW, PO Box 1859, Warren, Ohio 44482-1859.

12. This document was prepared by Thomas C. Donnelly, Esq., 77 W. Villa Place, 1000 St. Jude Center, Ft. Thomas, KY 41075.

13. This document was explained to the consenting person by [her/his] attorney, Thomas C. Donnelly, Esq.,

14. This Consent was executed at...

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