Whittington v. Cunnagin , 925 S.W.2d 455 ( 1996 )

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.