Whittington v. Cunnagin on Behalf of Englert, 94-SC-327-DG

• Decision Date: 25 July 1996
• Docket Number: No. 94-SC-327-DG,94-SC-327-DG
• Citation: 925 S.W.2d 455
• Parties: Kristen Clark WHITTINGTON, Appellant, v. Elmer CUNNAGIN, Laurel County, Kentucky, Attorney on Behalf of Jennifer Marie ENGLERT, an Infant; Joan Leslie Englert; Commonwealth of Kentucky, Cabinet for Human Resources and Adoptive Parents, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 455

925 S.W.2d 455

Kristen Clark WHITTINGTON, Appellant, v. Elmer CUNNAGIN, Laurel County, Kentucky, Attorney on Behalf of Jennifer Marie ENGLERT, an Infant; Joan Leslie Englert Commonwealth of Kentucky, Cabinet for Human Resources and Adoptive Parents, Appellees.

No. 94-SC-327-DG.

Supreme Court of Kentucky.

July 25, 1996.

As Modified July 31, 1996.

James E. Morreau, Jr., Bruce A. Brightwell, Kruger, Schwartz & Morreau, Louisville, for Appellant.

Elmer Cunnagin, Jr., London, Edward D. Klatte, Cabinet for Human Resources, Frankfort, Mitchell A. Charney, Mary A. Maple, Goldberg & Simpson, P.S.C., Louisville, for Appellees.

ROBERT M. SPRAGENS, Sr., Special Justice.

This is the second time this case has been before this Court. An order of the Laurel Circuit Court terminating Appellant's parental rights was entered on February 9, 1983. On September 10, 1984, Appellant filed a motion to set aside that order. After a hearing, the trial court denied the motion. The facts surrounding the termination proceedings and subsequent judgment of adoption are detailed in the opinion of this Court affirming the lower court and need not be repeated here. See Unknown Person on Behalf of Englert v. Whittington, Ky., 737 S.W.2d 676 (1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1276, 99 L.Ed.2d 487 (1988).

A second CR 60.02 motion seeking to set aside that termination order was filed in the trial court on March 31, 1992. Filed with that motion was an affidavit of the biological mother of the child who was present in the courtroom when a hearing on the first CR 60.02 motion was held in 1984. At that time she was not called as a witness. Her affidavit contained, along with other allegations, the statement that when the termination petition was filed in 1982, she knew the Appellant had moved to Texas, that she knew his address and telephone number and that she would have provided this information to the attorneys who filed the petition if they had inquired. This affidavit was obviously an attempt to resurrect the attack on the validity of the warning order issued in the termination proceeding and was the only additional evidence proffered by Appellant which was not in the record at the time the first CR 60.02 motion was overruled. The lower court did not find this affidavit to be either persuasive or timely. The trial court further held that all other reasons advanced by Appellant in support of his motion should have been raised on appeal or were decided adversely to him on the first appeal.

The only issue to be determined on this appeal is whether the refusal of the trial court to grant Appellant's CR 60.02 motion constituted an abuse of discretion, Bethlehem Minerals Company v. Church and Mullins, Corporation, Ky., 887 S.W.2d 327 (1994).

The child of Appellant is now more than thirteen years of age. She has been with her adoptive parents virtually all of her life. To interfere with that relationship at this late date could have an adverse emotional impact not only on the child, but also the adoptive parents. As the Court of Appeals observed, if the lower court had set aside the order terminating Appellant's parental rights, an absurd situation would have been created. He would have reacquired rights equal to those of the adoptive parents. We agree with the Court of Appeals that there was no abuse of discretion by the lower court.

Although Appellant obviously feels, and perhaps with some justification, that he has been the victim of a miscarriage of justice we agree with the following excerpt from Fortney v. Mahan, Ky., 302 S.W.2d 842, 843 (1957): "The desire that justice be accorded the parties clashes on some occasions with the principle that litigation must end within a reasonable time." It is time that the validity of the termination order be finally laid to rest.

The opinions of the Court of Appeals and the Laurel Circuit Court are affirmed.

STEPHENS, C.J., and BAKER and WINTERSHEIMER, JJ., concur.

KING, J., dissents by separate opinion in which GRAVES and STUMBO, JJ., join.

LAMBERT, J., not sitting.

KING, Justice, dissenting.

Respectfully, I dissent.

This case has a long and arduous history. It has brought pain to the parties and their counsel, aroused judicial passion, and sullied our system of justice.

The trial court erred in not granting Whittington's request for an evidentiary hearing on his CR 60.02 motion to vacate the judgment terminating his parental rights. In order to put the matter in context and understand the deleterious impact of today's decision, an extended description of the facts is necessary.

Joan Englert, an unmarried seventeen-year-old, gave birth to a daughter in Louisville, Kentucky, in 1982. The appellant, Kristen Clark Whittington, is the child's biological father. Shortly after the child's birth, Englert executed a consent to adoption. Three days after the birth of his child, Whittington filed a petition in the Jefferson Circuit Court opposing the adoption and asserting his parental rights to the child. He sought a restraining order preventing the hospital from releasing the child to anyone other than the child's mother.

An immediate hearing was conducted on Whittington's motion for a temporary restraining order. His request was denied with assurances that he would be notified of any legal action to terminate his parental rights. This was not done, resulting in a substantial injustice.

Two months after the child's birth, a petition for termination of parental rights was filed in the Laurel Circuit Court against both natural parents, Englert and Whittington. Service of process was attempted by certified mail and alias summons at the Louisville address listed in the action previously filed by Whittington in the Jefferson Circuit Court. Because Whittington could not be located, a warning order attorney was appointed. The warning order attorney merely forwarded a certified letter to Whittington at the same address the previous certified mail and alias summons were sent. Whittington was not notified of the action. No attempt was made to contact his attorneys in the Jefferson Circuit Court action to find his correct address, even though that action was still pending and the attorneys for the adoptive parents participated in that action.

A judgment terminating the parental rights of Englert and Whittington was entered one month later. At the time the judgments were entered, there was nothing in the Laurel Circuit Court record which would have alerted the trial court of Whittington's desire to retain parental rights, the existence of the Jefferson Circuit action, or the identity of his attorney. In determining that involuntary termination of Whittington's parental rights was in the best interest of the child, the trial court "considered the deposition of record in this case of Mary Lou Cissell," the mother of Englert. Cissell testified that Whittington was physically abusive to Englert, that he had abandoned the child, and that she did not know where Whittington could be located.

In September, 1984, Whittington filed a motion to set aside the order terminating his parental rights. A hearing was conducted and Whittington testified that he had moved to Texas but that his attorney was fully informed of his whereabouts. Furthermore, Whittington testified that one week after moving from the Louisville address, he telephoned the attorney for the adoptive parents. During that conversation he provided his Texas address and was told no legal action was pending. Four months later he telephoned the same lawyer and was again told no legal action had been filed. At the hearing, the lawyer for the adoptive parents acknowledged these telephone calls and admitted that he did not inform Whittington of the pending action to terminate his parental rights. However, he denied being provided with Whittington's address. He provided no insight into why Whittington called nor the contents of their discussion. Despite this vague testimony, the trial court believed the attorney and overruled the motion.

On the first appeal, Unknown Person on Behalf of Englert v. Whittington, Ky., 737 S.W.2d 676 (1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1276, 99 L.Ed.2d 487 (1988), this court affirmed the trial court's judgment of termination of parental rights on the basis that the affidavit for a warning order and the warning order attorney's actions were in accord with the rules. "We cannot find in the record any suggestion that either [Whittington's lawyer or Englert] knew Whittington's address in Texas, or that he was in Texas." Id. at 678. "If there had been a showing that the attorney making the affidavit knew or should have known of someone who knew Whittington's whereabouts, then there would be a duty to make an inquiry." Id. The dissent observed that "the effort made to serve Whittington ... was totally inadequate and inconsistent with good faith compliance" with our statutes and rules of procedure. Id. at 679. The dissent concluded:

Whittington is entitled to his day in court on the issue of whether his parental rights should be terminated. We should not tolerate...