Baker v. Webb

• Decision Date: 19 February 2004
• Docket Number: No. 2003-SC-0243-DG.,2003-SC-0243-DG.
• Citation: 127 S.W.3d 622
• Parties: Chris BAKER and Denise Baker, Appellants v. Ronald William WEBB and Angela Joyce Webb and J.A.J., A Minor, and Cabinet for Families and Children, Appellees.
• Court: United States State Supreme Court — District of Kentucky

127 S.W.3d 622

Chris BAKER and Denise Baker, Appellants v. Ronald William WEBB and Angela Joyce Webb and J.A.J., A Minor, and Cabinet for Families and Children, Appellees.

No. 2003-SC-0243-DG.

Supreme Court of Kentucky.

February 19, 2004.

Casey Alan Hixson, Bowling Green, Counsel for Appellants.

Bryan Lesieur, Brownsville, Mary Gaines Locke, Hodgenville, Counsel for Appellees.

STUMBO, Justice.

We took discretionary review of this case in order to determine whether the Edmonson Circuit Court erred in failing to allow the biological relatives of a minor child to intervene in an adoption proceeding instituted by the foster family with whom the child currently resides (the Webbs). Because we find that the Edmonson Circuit Court's decision denying Appellants' motion to intervene in the adoption proceeding pursuant to Civil Rule (CR) 24.01, intervention of right, was error, we vacate the circuit court's judgment of adoption in favor of the Webbs, and remand this case to the Edmonson Circuit Court with orders that Appellants' motion to intervene be granted.

The facts of this case are somewhat disputed and very little is in the record. However, it appears that in late June 2001, the Warren District Court removed the minor child, then four years old, from the custody of his father due to the biological father's arrest on pornography charges. The child was placed in the temporary custody of the Warren County Cabinet for Families and Children (hereinafter "Cabinet"), and the biological father committed suicide a few days later. On June 26, 2001, the child was placed in the Webb's foster home. Upon learning of the father's suicide, Appellants, who are second cousins to the child, contacted the Cabinet and expressed their interest in adopting the child. Appellants, who live in Ohio, contend that their first contact with the Cabinet occurred the day before the biological father's funeral. They allege that Cabinet employees told them that it was the Cabinet's policy to place children with blood relatives if possible, and that Appellants should enroll in foster parenting classes¹. Appellants claim that the Cabinet employees led them to believe that they would be receiving the child, but that any adoption proceeding could not occur until the biological mother's parental rights were terminated, which would not likely take place until the first of 2002. In the meanwhile, Appellants state, the Cabinet told them that the child should remain in the Webbs' home. Appellants claim that they attempted to contact the Cabinet numerous times by telephone and otherwise after these initial conversations, but their correspondence was never answered. Appellants eventually learned from outside sources that the mother's parental rights had been terminated and that the Webbs had filed an adoption action in the Edmonson Circuit Court.

The Cabinet contends that during the initial contacts in June 2001, it informed Appellants that they would have to complete an adoptive home study before the child could be placed in their home. The Cabinet claims that it heard nothing further from Appellants until it received an e-mail from Mrs. Baker on November 26, 2001, advising that they were obtaining an attorney.

Appellants also filed a complaint with the Cabinet's Office of the Ombudsman alleging that the Cabinet's Warren County office failed to consider Appellants as potential adoptive parents. The Ombudsman subsequently informed Appellants, by letter dated January 3, 2002, that their complaint was justified because the Cabinet's own Standards of Practice "require[ ] the Cabinet assess the possibility of a relative placement prior to placement in foster care." The Ombudsman specifically found that the Cabinet should have initiated a home study of Appellants by making a referral to the Interstate Compact Administrator once it became known that relatives were interested in adoption. The Cabinet concedes that it did not initiate such actions.

Appellants attended the final adoption hearing on January 14, 2002, even though their motion to intervene had been denied. The Cabinet withdrew its consent to the adoption by the Webbs after having been presented with the Ombudsman's findings. However, the Edmonson Circuit Court ultimately granted the adoption without the Cabinet's approval.

CR 24.01 gives parties an intervention of right and reads in pertinent part:

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.

In order to intervene, the party's interest relating to the transaction must be a "present substantial interest in the subject matter of the lawsuit," rather than an expectancy or contingent interest. Gayner v. Packaging Service Corp. of Ky., Ky. App., 636 S.W.2d 658, 659 (1982).

This Court has never specifically addressed a party's intervention as of right in an adoption proceeding. Other courts addressing similar issues have allowed intervention for various reasons. See e.g., Bechtel v. Rose, 150 Ariz. 68, 722 P.2d 236, 241 n. 3 (1986) (holding that a grandmother has right to intervene in dependency action due to the high value Arizona law places on the integrity of the family, although not specifically granted by any statute, and specifically stating, "[n]or do we necessarily limit our decision today solely to grandparents; other relatives might also be accorded intervention should the need and propriety of their intervention be demonstrated"); In the Interest of A.G., 558 N.W.2d 400 (Iowa 1997) (holding that a grandmother could intervene by right in a child-in-need-of-assistance proceeding in juvenile court because an Iowa statute allowed "a relative or other suitable person" to be considered for custody of a child in need of assistance); In the Matter of C.G.L., 28 S.W.3d 502 (Mo.Ct.App.2000) (allowing members of an Indian tribe intervention of right in an adoption proceeding because the Indian Child Welfare Act provided that other Indian families be given preference over other adoptive families in the placement of Indian children); In the Matter of B.C., 749 P.2d 542 (Ok.1988) (holding current foster parents were allowed to intervene as of right in an adoption proceeding brought by previous foster parents due to status as "in loco parentis"). But see In the Matter of the Adoption of G.D.L., 747 P.2d 282 (Ok.1987) (holding that a grandmother did not have an interest in the adoption action by a third party because Oklahoma law did not entitle grandparents to notice in adoption proceedings, nor grant them visitation rights).

The Court of Appeals found In the Matter of the Adoption of C.C.L.B., 305 Mont. 22, 22 P.3d 646 (2001), persuasive to its decision that Appellants did not have a right to intervene in the adoption proceeding. That case also dealt with second cousins seeking to intervene in an adoption proceeding initiated by the child's foster parents. The Supreme Court of Montana held that various statutory and policy provisions favoring "extended family members" in adoption proceedings did not create a sufficient legal interest compelling intervention. Id. at 649. However, the court went on to say that there was no need to examine the policies and statutes in detail because second cousins were not included in Montana law's definition of "extended family members." Id. at 650. We believe this fact distinguishes the case from the case at bar and therefore do not find it persuasive to our current situation. Kentucky law does not attempt to define "relative" as that term is used in the adoption statutes and regulations of the Cabinet.

The Webbs argue that Kentucky Revised Statute (KRS) 199.470, which governs petitions for the adoption of children, only specifically recognizes stepparents, grandparents, sisters and brothers, and aunts and uncles; and therefore, Appellants do not have a superior right to adopt. However, KRS 199.470 merely sets out those individuals by exempting them from the requirement that anyone seeking to adopt a child obtain written approval from the Secretary of the Cabinet. The statute does not attempt to define this group of individuals as "relatives" or by any other term.

We believe that the policies and administrative regulations of the Cabinet that give priority to relatives of a child placed for adoption, in addition to the failure of Kentucky statutory and case law to define the term "relative," vest Appellants with a sufficient, cognizable legal interest in the adoption proceeding of this child.

The Cabinet's administrative regulation 922 KAR 1:140, governing foster care and adoption permanency services, states that "[p]lacement shall be [s]elected according to the least restrictive appropriate placement available, as required by KRS 620.090(2)...." KRS 620.090(2) reads:

In placing a child under an order of temporary custody, the cabinet or its designee shall use the least restrictive appropriate placement available. Preference shall be given to available and qualified relatives of the child considering the wishes of the parent or other person exercising custodial control or supervision, if known. The child may also be placed in a facility or program operated or approved by the cabinet, including a foster home, or any other appropriate available placement.

The language of this statute clearly evidences a preference for relative placement in adoption proceedings. See Williams v. Phelps, Ky.App., 961 S.W.2d 40, 42 (1998). Although the statute and regulations do not mandate that the Cabinet choose a relative placement over other options, they at the very least, require that the Cabinet...