T.G.-F. v. J.Y.
| Decision Date | 08 July 2022 |
| Docket Number | 2021-CA-1480-ME |
| Parties | T.G.-F., Appellant v. J.Y. ; A.Y. ; G.E.L.G., a Minor Child; and W.F., Appellees |
| Court | Kentucky Court of Appeals |
BRIEF FOR APPELLANT: Tammy E. Howard, Melissa C. Howard, Jackson, Kentucky.
BRIEF FOR APPELLEES: Jerry W. Gilbert, Beverly A. Brewer, Richmond, Kentucky.
BEFORE: ACREE, CETRULO, AND L. THOMPSON, JUDGES.
Appellant (Mother) appeals the Estill Circuit Court's judgment granting Appellees’ (Aunt and Uncle) petition to adopt Mother's child (Child) without her consent. We vacate and remand for further proceedings consistent with this Opinion.
Mother gave birth to Child on July 31, 2019. Child's biological father is deceased. On September 4, 2020, Aunt and Uncle filed their petition to adopt Child without Mother's consent. See KRS 1 199.502. Nothing in the record indicates the Estill Circuit Clerk complied with her statutory duty to send copies of the petition to the Cabinet.2 KRS 199.510(1) (). If so, that would explain why the Cabinet did not participate in the adoption in any way. Nevertheless, the adoption proceeded.
The circuit court conducted a final hearing on November 4, 2021, and on November 15, 2021, entered (1) a Judgment of Adoption; (2) Findings of Fact and Conclusions of Law; and (3) a Judgment Terminating Parental Rights.3
Mother's appeal presents us with four arguments. The last three challenge the sufficiency of evidence that her parental rights should be terminated. However, her first argument is a procedural challenge that the circuit court did not strictly comply with the adoption statutes before entering the judgment of adoption. We are persuaded by that argument.
A confounding fact in this case is that the petition does not identify whether the adoption is sought pursuant to KRS 199.500(4) or KRS 199.502, and neither do any of the three rulings comprising the circuit court's judgment. (Record (R.) 1-7; 894-905.) However, our review will address the adoption process under KRS 199.502 because Mother, and Aunt and Uncle, only reference that statute in their briefs. (Appellant's brief, pp. 7, 9; Appellees’ brief, pp. 2-5.)
We need not address the merits of the allegations in the petition or the sufficiency of evidence to support them. Those allegations are only "pleaded and proved as part of the adoption proceeding[.]" KRS 199.502(1) (emphasis added). " KRS 199.502 makes clear that, ‘[i]f granted, the adoption itself terminates the parental rights of the biological parents.’ " M.S.S. v. J.E.B. , 638 S.W.3d 354, 361 (Ky. 2022) (emphasis added). Because Mother is correct that the circuit court erred by failing to strictly follow the adoption laws, the court's consideration of the merits of Aunt's and Uncle's claims is also error.
"An adoption without the consent of a living biological parent is, in effect, a proceeding to terminate that parent's parental rights." B.L. v. J.S. , 434 S.W.3d 61, 65 (Ky. App. 2014) (citing Moore v. Asente , 110 S.W.3d 336 (Ky. 2003) ). Because "adoption is a statutory right which severs forever the parental relationship, Kentucky courts have required strict compliance with the procedures provided in order to protect the rights of the natural parents." Day v. Day , 937 S.W.2d 717, 719 (Ky. 1997). "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. (citing Coonradt v. Sailors , 186 Tenn. 294, 209 S.W.2d 859 (1948) ).
When the facts are not in dispute regarding the application of a statute, our review is de novo. Shinkle v. Turner , 496 S.W.3d 418, 420 (Ky. 2016) ().
Mother argues the judgment of adoption is fatally defective because it fails to strictly comply with Kentucky's adoption statutes. "Because ...KRS 199 governs the entirety of the proceeding," M.S.S. , 638 S.W.3d at 362, we restrict our review to consideration of that chapter. In doing so, we conclude the circuit court erred by entering a judgment of adoption without the Cabinet's required participation under KRS 199.510(1) or (2).
It is a fact in this case that the Cabinet did not complete an investigation or make a report for the circuit court's consideration prior to granting the adoption. Nor did the Cabinet notify the circuit court within ten (10) days of receiving copies of the petition that it would not be investigating. The onus is upon the Cabinet to do one or the other because KRS 199.510 requires it in every adoption case. This, of course, presumes the clerk performs the ministerial act of mailing copies of the petition to the Cabinet which this record suggests did not happen. The clerk's failure is the genesis of the judge's failure to strictly comply with the adoption statutes. The Cabinet cannot be blamed for not participating if it had no knowledge that a KRS 199.502 adoption was being pursued.
In any event, our review is for circuit court error. We conclude the court committed reversible error by proceeding to judgment without the Cabinet's participation as required by KRS 199.510.
To be clear, however, the Cabinet need not have participated as a party. The Kentucky Supreme Court made it clear that, "[b]ecause this is an adoption case, and KRS 199 governs the entirety of the proceeding, the Cabinet was ... not required to be joined as a party." M.S.S. , 638 S.W.3d at 362. The opinion effectively holds that KRS 199.502 abrogates the high court's prior ruling that "severance of the natural rights of a parent ... is a matter of public and not private concern" and an action to sever those rights "could not be maintained by ... private individuals." Smith v. Wilson , 269 S.W.2d 255, 257, 258 (Ky. 1954). Expressly declining to fully address constitutional issues not raised by the appeal, the Supreme Court held that KRS 199.502 empowers private individuals to utilize state authority to terminate another person's constitutionally protected parental rights. M.S.S. , 638 S.W.3d at 363 ().
The participation required of the Cabinet is defined solely within Chapter 199. The following provisions of the applicable statute are relevant:
KRS 199.510(1) - (2) (emphasis added). More than once Kentucky's appellate courts have directed attention to the unmistakable provisions of this statute. R.M. v. R.B. , 281 S.W.3d 293 (Ky. App. 2009), is an example.
The necessity of Cabinet participation became this Court's focus in R.M. v. R.B. , even though the parties only addressed the parental rights termination aspect of the adoption. As in the case now before us, the appellants in R.M. v. R.B. were the aunt and uncle of a proposed adoptive child. Id. at 294. This Court determined the Cabinet's failure to file the investigative report mandated by KRS 199.510 was the best grounds upon which to affirm the circuit court's denial of an adoption petition. Id. at 297-98 ; see Wells v. Commonwealth , 512 S.W.3d 720, 721-22 (Ky. 2017) (). We said, "Without the Cabinet's [r]eport, the circuit court could not grant the adoption as a matter of law." 281 S.W.3d at 298.
R.M. v. R.B. supports the conclusion that Cabinet participation is a prerequisite to every final hearing on an adoption petition. See id. ; see also KRS 199.515 (). (Emphasis added.) Because the record before us shows the circuit court granted the adoption in disregard of the requirement of Cabinet participation, we cannot avoid concluding the circuit court committed reversible error.
Notwithstanding our conclusion, Aunt and Uncle want this Court to interpret KRS 199.470(4)(a) as granting the circuit court sole discretion to order the Cabinet's KRS 199.510 report in all adoptions by relatives designated in...
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