S.J.L.S. v. T.L.S.

• Decision Date: 12 September 2008
• Docket Number: No. 2006-CA-001731-MR.,No. 2006-CA-001730-ME.,2006-CA-001730-ME.,2006-CA-001731-MR.
• Parties: S.J.L.S., Appellant, v. T.L.S., Appellee. and S.J.L.S., Appellant, v. T.L.S., Appellee.
• Court: Kentucky Court of Appeals

265 S.W.3d 804

S.J.L.S., Appellant, v. T.L.S., Appellee. and S.J.L.S., Appellant, v. T.L.S., Appellee.

No. 2006-CA-001730-ME.

No. 2006-CA-001731-MR.

Court of Appeals of Kentucky.

September 12, 2008.

W. Waverley Townes, Kelsey A. Colvin, Louisville, KY, for appellant.

Mitchell A. Charney, Stephanie L. Morgan-White, Louisville, KY, for appellee.

Before ACREE, KELLER, and LAMBERT, Judges.

OPINION

ACREE, Judge.

In these companion cases, S.J.L.S.¹ (S) appeals the Jefferson Family Court's refusal to set aside a judgment of adoption and a joint custody order, both relating to her biological child, Z.J.S. (Z). For the following reasons, we affirm the family court's order denying Kentucky Rules of Civil Procedure (CR) 60.02 relief in the adoption case, and we reverse the family court's order denying relief in the custody case and remand that case for further proceedings.

I. Facts and Procedure

Two women, S and T.L.S. (T), met and fell in love sometime in 1997. They soon moved in together. Three years later, they formulated what they referred to as their "long-term plan" to be life partners and to create a family unit. First, S took T's surname by having hers legally changed.

Their plan included raising a child together. They decided that S would be artificially inseminated. T screened potential sperm donors who, in her opinion, embodied traits that reflected her own. S had no part in this selection process. In late 2000, S became pregnant. She gave birth to Z in June 2001.

On August 10, 2001, when Z was only six weeks old, T filed a Verified Petition for Permanent Joint Custody in Jefferson Family Court naming S as respondent. S was not represented by legal counsel. All documents requiring S's signature, including her entry of Appearance and Waiver (of legal representation), S's affidavit, and the Agreed Order granting the Petition, were prepared by T's attorney.

There is nothing in the entire record indicating any legal basis upon which joint custody was either sought or granted. In fact, as the family court eventually ruled, the parties' circumstances at that time did not support subject matter jurisdiction, much less an order of joint custody. Those circumstances never changed. The pleadings and the Agreed Order simply recite that such an order would be in the "best interest of the child." No hearing was conducted.

On August 16, 2001, the family court judge summarily entered the order tendered by T's counsel based upon, if anything, review of the six-page record. The Agreed Order awarded custody of Z jointly to T and S. Neither party took an appeal from that order.

Notwithstanding the irregularity of the family court's order, and for a time at least, T, S and Z enjoyed the benefits attendant to a familial lifestyle. Sadly, as in too many relationships, the parties' common love for the child was not enough to sustain them as a couple. In May 2003, the romantic relationship between T and S came to an end. S moved out and T and S established separate households.

Still, T had developed and retained an unquestioned and deep affection for Z. Though splitting up was not a part of the parties' "long-term plan," T's adoption of Z was. Six months after T and S split up, and without objection from S, T initiated adoption proceedings.

T's attorney, Trisha Zeller (Zeller), drafted a Petition on T's behalf naming S and Z as the only parties' respondent. Because Z's paternity had not been established, his biological father was not named as a party. Kentucky Revised Statutes (KRS) 199.490(1)(f). The biological father's identity and rights are not relevant or necessary to these appeals or the underlying actions.

Our Legislature requires that before a petition for adoption is filed by a party who is not related to the child, there must be participation by the Kentucky Cabinet for Families and Children.

No petition for adoption shall be filed unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by a child-placing institution or agency, or by the cabinet, or the child has been placed with written approval of the secretary [of the Cabinet for Families and Children.]

KRS 199.470(4). However, the statute also provides that "no approval shall be necessary in the case of [a] child sought to be adopted by a stepparent[.]" Id. Seizing upon that exception, Zeller claimed that "the Petition is akin to a stepparent adoption" so as to avoid pre-petition Cabinet oversight. Zeller also completed the "Case Data Information Sheet," incorrectly characterizing Z as T's "Step-Son." Without the Cabinet's pre-petition placement or approval of any kind, Zeller filed the Petition on November 18, 2003.

Both KRS 199.510 and the Jefferson Family Court Rules of Procedure (JFRP)² also require the Cabinet's post-petition participation. Post-petition participation is initiated by the Jefferson Circuit Clerk when that office sends a copy of every adoption petition to the Cabinet. According to the record, the clerk carried out this duty on the very day Zeller filed the Petition. The same statute also requires the Cabinet to respond to every adoption petition by "investigat[ing] and report[ing] in writing to the court . . . not later than ninety (90) days . . . after the filing date of the petition[.]" As described in more detail infra, the Cabinet also complied with this statutory duty.

The appointment of a guardian ad litem to represent Z was unnecessary because Z's biological mother was named as a party defendant. KRS 199.480(3). Nevertheless, simultaneous with the filing of the Petition, Zeller tendered a motion and proposed order seeking such an appointment. On November 25, 2003, the family court appointed Dana Kellerman (Kellerman) as Z's guardian ad litem.

There was no activity in the case for nearly two months after the petition was filed, but on January 21, 2004, Zeller filed a motion for a pre-hearing conference and served S's recently engaged counsel, Bryan Gatewood (Gatewood). According to the record, the motion to schedule a pre-hearing conference was never heard, the tendered order for a conference was never signed, and no pre-hearing conference ever took place. Instead, a final adoption hearing was scheduled for 9:00 a.m. on February 18, 2004. Before the hearing, however, Cabinet representatives complied with the Cabinet's duty under KRS 199.510 by sending two separate letters to the family court expressing the Cabinet's objection to the adoption.

Bill Nusz, identified by the family court as a Cabinet worker assigned to Jefferson County, sent a letter to the family court stating that T could not legally adopt Z because T and S were not married. While the letter is referenced during a videotaped hearing as having once been a part of the record, it has been missing from the physical file since shortly after it was sent. The videotape transcript shows that at least the family court, the guardian ad litem, and T's counsel were aware of Mr. Nusz's letter and its express disapproval of the adoption.

On January 28, 2004, the Cabinet's Assistant Counsel, Jon R. Klein, sent a second letter clarifying the Cabinet's position. He said,

By operation of law, the result of this adoption, if granted, will be that "all legal relationships between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of the adoptive parent." KRS 199.520(2). Strict compliance with KRS Chapter 199 is required in all adoption proceedings. Failure to do so may result in an invalid judgment.

This letter was addressed to Zeller and copied to the Jefferson Circuit Clerk and Bill Nusz. The copy sent to the clerk was removed from the record before anyone else involved in the case could see it. Only Zeller knew what happened to the Cabinet's written response.³

Zeller's litigation strategy reveals that, like the Cabinet, she was aware of the effect of KRS 199.520(2) on S's parental rights. As previously noted, she sought to avoid that effect by claiming legal entitlement to the statute's sole exception that maintains "the relationship of a biological parent who is the spouse of an adoptive parent." KRS 199.520(2). Facing the legal impossibility of T's actual marriage to S, Zeller planned to urge the family court's recognition of the parties' relationship as its equivalent. Representing that Z was T's "Step-Son" on the Case Data Information Sheet was also part of that plan.

Revealing her own lack of full confidence that what she was attempting was legally "akin to a stepparent adoption," Zeller undertook a precaution that would be unnecessary in a true stepparent adoption. She prepared an Adoption Agreement providing that "[T's] adoption of [Z] is not intended and in no way terminates the parental rights of [S]." Zeller and Gatewood had their clients sign the agreement only moments before the adoption hearing commenced.

When Gatewood had S sign the Adoption Agreement, he also had her sign a "Voluntary and Informed Consent to Adoption." But the consent was clearly conditional and included language clarifying that

[S] believes the adoption of [Z by T], without termination of your Affiant's [S's] parental rights, to be in the child's best interests and hereby consents under those circumstances, as in any stepparent adoption pursuant to KRS 199.520(2). [Emphasis added].

Beyond this precaution, Gatewood revealed his own skepticism of the legality of "stepparent-like" adoption at the February 18, 2004 adoption hearing. Before allowing the family court to grant the adoption, he interrupted to emphasize S's and his own "understanding that my client's parental rights will not be terminated as this is indeed a stepparent adoption." The family court immediately replied, "That's correct and the court also views it that way." (VR No. 1: 2/18/04; 9:01:42 to 9:02:05). Gatewood did not further challenge Zeller's assertion that this was a stepparent...