v. A.H., NO. 2014-CA-001240-ME

CourtCourt of Appeals of Kentucky
Writing for the CourtACREE, CHIEF JUDGE
PartiesW.R.L. AND A.H.A. APPELLANTS v. A.H., INTERVENING PARTY; M.L.; L.M.H., A MINOR CHILD APPELLEES
Docket NumberNO. 2014-CA-001240-ME
Decision Date17 April 2015

W.R.L. AND A.H.A. APPELLANTS
v.
A.H., INTERVENING PARTY; M.L.;
L.M.H., A MINOR CHILD APPELLEES

NO. 2014-CA-001240-ME

Commonwealth of Kentucky Court of Appeals

APRIL 17, 2015


TO BE PUBLISHED

APPEAL FROM KENTON FAMILY COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 14-AD-00080

OPINION
REVERSING AND REMANDING

BEFORE: ACREE, CHIEF JUDGE; D. LAMBERT AND MAZE, JUDGES.

ACREE, CHIEF JUDGE: This is an appeal from an order of the Kenton Family Court granting the motion to intervene of A.H., a non-custodian, non-parent, in a step-parent adoption action initiated by W.R.L., and further dismissing W.R.L.'s adoption petition. For the following reasons, we reverse the family court's order

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granting intervention and dismissing, and remand this matter with instructions to reinstate the adoption petition.

Factual and Procedural Background

Beginning in 2005, A.H. and M.L. were in a committed relationship with one another. Early on, they decided to have a child together. Because A.H. could not impregnate M.L., the couple resorted to artificial insemination. M.L. drafted a document which stated:

I [sperm donor] Donated Sperm to [M.L.] and [A.H.] on January 1, 2006, with the intent for them to create a child and raise the child as their own. I will not try to interfere with the raising of the child. I would like to see the child and be a part of its life, but only as a family friend or an uncle or something in that nature, but not as a parent. [A.H.] is the other parent to the unborn baby and I will not contest that in court if in fact I ever find out that the child is mine. I understand that there is a chance that the baby could also not be mine. I sign this document of my own free will and I am of sound mind and body. By signing this document I understand that I will be relinquishing my right as the potential father to the unborn child.

A.H. and the sperm donor (a friend of M.L.'s sister) signed the document.1

M.L. became pregnant by artificial insemination. M.L. and A.H. were together during the pregnancy, and A.H. was present for the child's birth on

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September 29, 2006. The child was given A.H.'s maternal grandmother's maiden name and A.H.'s middle name and surname. A.H. took several weeks off work after the child was born. A.H. was involved in all aspects of the child's life, shared child-rearing responsibilities, and provided financial support. A.H. is listed as the second parent on medical, childcare, and school forms, and provides health insurance by identifying the child as a dependent. The child was a dependent on A.H.'s 2010 tax return. The child knows A.H. as a parent, and has familial bonds with A.H.'s extended family.

M.L., A.H., and the child lived together as a family unit in Cincinnati, Ohio, until A.H. and M.L. separated in February 2011, and M.L. and her child moved to Kentucky. Despite the separation, M.L. permitted A.H. to continue to spend time with the child. A.H. and M.L. contest the nature of the arrangement after their separation.

M.L. married appellant, W.R.L., in May 2012. M.L. allowed A.H. to see the child until she denied A.H. that privilege in February 2014 and thereafter. A.H. made repeated attempts to see the child until M.L. threatened to press criminal charges.

In March 2014, A.H. engaged legal counsel to pursue joint custody of the child. M.L. refused to respond to A.H. or to the inquiries of legal counsel. On April 15, 2014, W.R.L., as M.L.'s husband, filed a petition for step-parent adoption of the child in Kenton Family Court. A.H. was not named as a party but moved to intervene in the adoption action and to have the adoption petition dismissed.

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Kenton Family Court heard oral arguments on A.H.'s motions and, relying on Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), held that A.H. "presented a colorable claim to seek custodial rights to the child[.]" (Order, Kenton Family Court, dated July 2, 2014, Record (R.) 59). A.H.'s Mullins claim, said the family court, justified granting the motion to intervene because it represented a "present substantial interest in the subject matter of the [adoption] lawsuit rather than an expectancy or contingent interest." (Id. (citing Baker v. Webb, 127 S.W.3d 622, 624 (Ky. 2004) and Gaynor v. Packaging Serv. Corp. of Ky., 636 S.W.2d 658, 659 (Ky. App. 1982)). Because A.H.'s "legal status to the child" remained unresolved, the family court entered the order dismissing the adoption petition. (Id.). W.R.L. appeals that order.

Standard of Review

We review the trial court's order relating to intervention for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). "Under this standard, this Court will only set aside the findings of fact of the trial court if those findings are clearly erroneous." Cardiovascular Specialists, PSC v. Xenopoulos, 328 S.W.3d 215, 217 (Ky. App. 2010); see also CR 52.01. "The dispositive question is whether the findings are supported by substantial evidence." Id. All questions of law and application of the law to the facts are reviewed de novo. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004).

Analysis

Intervention:

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The parties conflate the legal concepts of intervention and standing. They are not entirely the same.2 The distinction has revealed itself implicitly in our cases. For example, in Heltsley v. Frogge, this Court affirmed a family court's ruling that "Grandparents were permitted to intervene" in an action to determine custody between biological parents, but "that they . . . lacked standing to pursue custody." 350 S.W.3d 807, 808 (Ky. App. 2011).

We will not engage in more analysis of the family court's ruling on intervention than necessary. We simply note that if A.H. lacked standing in this case, then the family court's grant of intervention as a matter of right under CR 24.01 constitutes error as a matter of law. On the other hand, as we discuss below, without regard to whether granting permissive intervention would be an abuse of discretion, it would be clear error to grant relief to a party who lacks standing, i.e., the "legally cognizable ability to bring a particular suit[,]" Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010), with regard to "the subject matter of the suit" we are reviewing - adoption. Bailey v. Preserve Rural Roads of Madison County, Inc.,

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394 S.W.3d 350, 362 (Ky. 2011) (quoting HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 947 (Ky. 1985)).

Therefore, we move on to W.R.L.'s challenge to A.H.'s claim of standing.

Standing:

"In order to have standing in a case, a party must show that it has 'a judicially recognizable interest in the subject matter of the suit.'" Bailey v. Preserve Rural Roads of Madison County, Inc., 394 S.W.3d 350, 362 (Ky. 2011) (quoting HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., 697 S.W.2d 946, 947 (Ky. 1985)). The subject matter of this case is adoption. A.H. argued before the family court, and convinced it, that Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010), articulates the judicially recognized interest that would give her standing in an adoption proceeding. A.H. repeats that argument before this Court.

W.R.L. argues that Mullins is distinguishable. We agree.

In Mullins, the Supreme Court determined that Picklesimer's former partner had standing to pursue custody of Picklesimer's biological child. Although Mullins was not a biological parent, Picklesimer and Mullins agreed to raise a child together and secured an agreed order identifying Mullins as a de facto custodian.3 Mullins, 317 S.W.3d at 573-77.

In Mullins, both issues of standing to seek custody and the right to obtain it were directly answered by resort to a single source: the Uniform Child Custody

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Jurisdiction and Enforcement Act (UCCJEA). Notwithstanding that the UCCJEA "was originally adopted to address issues regarding interstate custody disputes, [the Supreme] Court held in Mullins . . . that it also applied to intrastate matters." Coffey v. Wethington, 421 S.W.3d 394, 397 (Ky. 2014) (emphasis in original); but see Richard A. Revell, Diana L. Skaggs, Kentucky Divorce § 9.2 ("If jurisdiction is not an issue, the UCCJEA is not applicable, and the trial court is in error by applying it." (citing N.B. v. C.H., 351 S.W.3d 214, 221 (Ky. App. 2011)). Rejecting the limitations of KRS 403.240 and .2704 in favor of the more recently enacted UCCJEA, the Supreme Court said "KRS 403.822 would seem to permit standing in a shared custody co-parenting situation[.]" Id. at 575. This was the "judicially recognizable interest" upon which Mullins based standing in "the subject matter" of that litigation - the custody of Picklesimer's child.

As noted, the subject matter of this case is not custody, but adoption. Custody determinations do not create or terminate parental rights of the type described in Troxel v. Granville;5 adoption proceedings do. These are decisive

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distinctions.6 And so, if we turn to the UCCJEA, as did the Supreme Court in Mullins, we do get a direct answer, but it is a very different answer.

The UCCJEA explicitly states that "KRS 403.800 to 403.880 [including KRS 403.822] shall not govern an adoption proceeding . . . ." KRS 403.802 (emphasis added). While the Supreme Court could look to the UCCJEA for direct grounds for standing in a custody case, the Act itself directly prohibits the same answer in adoption cases.

We note, however, that the family court did not base its ruling directly on KRS 403.822. Rather, in the words of the family court, A.H. "presented a colorable claim to seek custodial rights to the child under Mullins . . . which, should this Court [in a separate proceeding under the "one family - one court" approach] find the proof persuasive could elevate [A.H.] to the legal status of joint custodian." (R. 59). Therefore, although direct application of KRS 403.822 cannot be the basis for standing in this adoption case, we must still ask whether Mullins provides A.H. a legal way "to make an end-run...

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