Commonwealth of Kentucky,, Cabinet for Health and Family Services v. L. J. P. , 2010 Ky. LEXIS 120 ( 2010 )

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RENDERED : MAY 20, 2010
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COMMONWEALTH OF KENTUCKY, CABINET
FOR HEALTH AND FAMILY SERVICES APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO . 2007-CA-001783-ME
KENTON FAMILY COURT NO . 06-AD-00096
L.J .P. ; M.J.P. ; AND D .J .P ., A CHILD APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING
This case involves a termination of parental rights action in which the
court denied the paternal grandparents' motion to intervene . The
grandparents, before us as Appellees, appealed the order denying their motion
to the Court of Appeals, which reversed and held that the grandparents could
intervene as a matter of right under CR 24 .01 . Appellant, the Cabinet for
Health and Family Services, sought discretionary review, which this Court
granted . For the reasons set forth below, the Court of Appeals is reversed.
I . Background
Appellees, L.J.P. and M.J .P., are the paternal grandparents of D.J .P., a
boy born on August 28, 2005. Soon after D.J.P.'s birth, on October 4, 2005,
his birth parents lost custody of him and his two half-siblings in a dependency,
neglect, and abuse action. D .J.P. has since resided in foster care.
On November 15, 2006, the Cabinet filed a petition for involuntary
termination of parental rights. About four months later, on March 9, 2007, the
parents filed a petition to voluntarily terminate their parental rights,
conditioned on D .J.P. being placed for adoption with Appellees . That same
day, Appellees moved to intervene, claiming "The filing of the Petition for
Voluntary Termination of Parental Rights by [the birth parents] gives [them] the
right to intervene in this proceeding ." They also requested custody.
The family court denied Appellees' motion to intervene . The court
reasoned that the parents' petition for voluntary termination, the document
which purported to give Appellees standing, was invalid because the Cabinet
had previously filed a petition for involuntary termination. Appellees appealed
this decision to the Court of Appeals, which held that they could intervene as a
matter of right based on the "elevated status" given to grandparents in custody
determinations . This Court then granted the Cabinet's motion for discretionary
review .
II. Analysis
A. Timeliness
The family court first concluded that the parents could not be heard on
their petition for voluntary termination "[s]ince the Petition for Involuntary
Termination was filed by the Cabinet over three months before the birth
parents filed their Petition." Thus, the court reasoned, this petition was
untimely and could not give Appellees standing. The court reached this
conclusion because it thought the effect of the Cabinet previously filing a
petition for involuntary termination was that the parents had lost "the right to
be free from state interference in deciding who shall have custody of the[ir]
minor child ."
The petition for involuntary termination could not have had this effect,
however, because it was merely pending. Although it is clear that if the court
granted the petition parental rights would be terminated, see KRS
625 .090(6)(a), it is equally clear that if the court denied the petition parental
rights would be unaffected, see KRS 625 .090(6)(b) . That is, the filing of the
petition, by itself, cannot affect parental rights. The parents retain whatever
rights to their child they had before the petition was filed.
Among these rights is the right to be heard on a proper petition for
voluntary termination. Unless a court actually terminates their rights, the
parents have an interest in directing the care, custody, and upbringing of their
child, see Santosky v. Kramer, 455 U.S . 745, 753 (1982), and so long as all
statutory requirements were met, could consent to the adoption of their child
and to voluntarily terminate their parental rights . Their rights are not affected
by the mere filing of a petition, which contains only the Cabinet's allegations
and argument; that can only be done by a valid court order terminating their
rights, which contains "findings of fact, conclusions of law, and a decision as to
each parent-respondent ." KRS 625.090(6) . Here, the trial court had in fact
removed the children from the parents, and placed temporary custody with the
Cabinet, but the effect on parental rights came from the order of the court for
removal, not the mere filing of a petition .
Consequently, the fact that an involuntary termination of parental rights
action was pending did not prevent the parents from filing a petition for
voluntary termination of parental rights, nor did it take away their right to
consent to adoption. The fact that they did file their petition before their
parental rights were terminated makes their voluntary petition timely.
Nonetheless, this does not alone give the Appellees standing to adopt D.J.P. or
the right to intervene in the termination proceeding .
B. The Substance of the Parents' Petition
Whether the Appellees have the right to intervene in the voluntary
termination of parental rights proceeding must be determined based on their
statutory rights toward D.J.P., or the parents, if any.
To make this determination, this Court must look to the allegations of
the petition for voluntary termination . The substance of what the parents
attempted to do through their petition for voluntary termination is consent
adoption . The petition stated that they would voluntarily terminate their
parental rights, but "if and only if" parental rights were vested in the Appellees,
the paternal grandparents . This petition thus attempts to do more than merely
voluntarily terminate parental rights. While the parents clearly could
voluntarily terminate their parental rights, even in an involuntary termination
proceeding, the real question is whether given the status of their case, they
could go further and consent to adoption in a voluntary termination
proceeding.
As an initial matter, a determination as to whether consent adoption
applies in this case must be made. This Court has previously noted that
adoption only exists as a right bestowed by statute and,
furthermore, . . . there must be strict compliance with the adoption
statutes . The law of adoption is in derogation of the common law.
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 .
Day v. Day, 937 S .W.2d 717, 719 (Ky. 1997) (citing Wright v. Howard, 711
S.W.2d 492 (Ky. App. 1986), and Coonradt v. Sailors, 209 S.W .2d 859 (Tenn .
1948)) . The statutory requirements for adoption are determinative.
In most "consent" adoptions, a parent agrees to allow a new spouse, or
some other relatives, to adopt his or her child . The parent retains parental
rights when the party seeking adoption is the parent's spouse, but must
normally terminate parental rights when the child is adopted by non-spousal
parties. That is what the parents attempted to do here.
If the parents retain parental rights to their children, then KRS 199 .500
states that an adoption shall not be granted without voluntary and informed
consent of the parents. However, merely retaining parental rights does not
compel that a child be permitted to be adopted on the parents' consent alone .
Obtaining the consent of parents who retain their parental rights is but the
first step of a consent adoption . Thereafter, all the rest of the statutory
provisions governing adoption proceedings apply.
Pursuant to KRS 199 .470(3), Appellees, as parties, could not petition to
adopt D.J .P. unless the child had been placed with them by the Cabinet or
other appropriate agency, or "until [he] has resided continuously in [their]
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home . . . for at least ninety (90) days immediately prior to the filing of the
adoption petition ." In this case, D .J .P. was placed in foster care by the
Cabinet, and has resided in foster care since shortly after his birth, in order to
protect his safety. The record does not reflect that D.J.P. has at any time
resided with Appellees, and thus certainly not for 90 days consecutively.
Hence, Appellees would not have been able to adopt D .J .P. when the petition
for involuntary termination was filed .'
The 90-day residency requirement "is a prerequisite to the trial court's
exercise of jurisdiction to hear the petition for adoption . If the requirement is
not satisfied, the trial court does not have the authority to hear the matter and
any order conferred would be void ." Day, 937 S.W .2d at 719 (citing Cabinet v.
McKeehan, 672 S.W .2d 934 (Ky. App. 1984) and Bd. ofAdjustments v. Flood,
581 S.W .2d 1 (Ky. 1978)) . As the family court jurisdiction had not been
properly invoked by Appellees in this case, they cannot bypass the statutory
requirements and require the family court to entertain essentially the same
petition in an improper form presented by other parties.
Further, the petition for voluntary termination is so equivocal that it is
hardly a proper pleading, being replete with conditional language . For
example, the parents stated that they "wish to release and relinquish all
' Should an adoption proceeding be later initiated in a proper manner by the other
parties, Appellees would have a right to intervene in that proceeding . Cf. Baker v.
Webb, 127 S.W.3d 622, 625-26 (Ky. 2004) . In Baker, a child's second cousins moved
to intervene in an adoption proceeding initiated by the child's non-relative foster
parents. This Court held that the second cousins could intervene because the
Cabinet's policies and regulations, which gave relatives priority for adoption, vested
them with a "sufficient, cognizable legal interest in the adoption." Id. at 625; see also
922 KAR 1 :100, at § 3(a) .
parental rights regarding [D .J .P .] to [L.J .P.] and [M .J .P.], and to no one else but
[L.J.P.] and [M.J.P.]." (Emphasis added.) In addition, the concluding paragraph
of the petition reads:
Petitioners believe an adoptive placement with [L .J .P.] and [M.J.P.]
is in the best interest of [D .J.P.] and that a supporting order
terminating the parental rights of the biological parents is in the
best interest of [D.J.P.], if and only if all parental rights to [D.J.P.]
are vested in [L.J.P.] and [M.J.P.] and not in the Cabinet or any other
person.
(Emphasis added .) The family court could not grant the parents' requested
relief of voluntary termination under this petition without also placing D .J.P.
for adoption with Appellees.
Likewise, the intent of Appellees to bypass statutory requirements is
made clear by their "Motion to Intervene and Request for Custody." In this
motion, they stress that there is "a preference for relative placement in
adoption proceedings." (Citing Baker v. Webb, 127 S.W .3d 622, 625 (Ky. 2004)) .
They also point out that Article VII of the Interstate Compact on the Placement
of Children would not apply as this involves D .J.P. "be[ing] adopted by his
grandparents." In addition, they argue that the Cabinet does not need to
approve their request because "this is a grandparent adoption." (Emphasis
added.) While all that may be true, that does not make the parents' voluntary
termination action an adoption proceeding . Appellees were unable to petition
for adoption under KRS 199 .470(3) due to the 90-day residency requirement,
and they may not now by fiat make a termination proceeding an adoption
proceeding.
In short, the parents' petition was an improper attempt to make an end-
run around the requirements of the adoption statute. If the petition had been
a proper petition for consent adoption, then Appellees would have had to
invoke the family court's jurisdiction to proceed, and they cannot meet the
statutory grounds to do so. The Appellees thus lack standing to go forward in
an adoption proceeding.
If the Appellees have no standing to go forward in their own right to
adopt D.J .P., then can they intervene in the termination proceedings? There
are two ways a party may intervene : First, if "a statute confers an
unconditional right to intervene ." CR 24
. And second, if "the applicant
.01(1)(a)
claims an interest . . . which is the subject of the action and is so situated that
the disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless that interest is adequately
represented by existing parties." CR 24 .01(1) (b) . To be sufficient, the
applicant's "interest relating to the transaction must be a present substantial
interest in the subject matter of the lawsuit, rather than an expectancy or
contingent interest." Baker, 127 S .W.3d at 624 (internal quotation omitted) . In
this case, neither of these two situations applies .
With respect to whether a statute confers an unconditional right to
intervene, nowhere in the termination statutes is intervention mentioned . No
party has cited any other statute that could confer on Appellees an
unconditional right to intervene here.
In fact, the parties to the termination proceedings are specifically
enumerated . For involuntary terminations, they are the child, the petitioner,
the Cabinet (if not the petitioner), the birth parents, and qualifying putative
fathers . KRS 625.060 . For voluntary terminations, they are "the parent
seeking termination" and "a guardian ad litem to represent the best interest of
the child." KRS 625.041 . Nobody else is listed as possible parties . In addition,
KRS 625 .070 does not require non-parental relatives or potential custodians to
be given notice of involuntary termination proceedings. To put it simply, non-
parental relatives or potential custodians such as Appellees are not mentioned
or considered in the termination statutes, and thus it cannot be said that a
statute confers an unconditional right to intervene.
Despite this, the Court of Appeals concluded that Appellees had
substantial interest in this case, giving them a right to intervene under CR
24 .01 . They based this conclusion on KRS 625.100, which does not require
Cabinet approval for certain relative placement; KRS 405 .021, which provides
for grandparent visitation post-termination; and Baker v. Webb, 127 S .W.3d
622 (Ky. 2004), which held that second cousins could intervene in an adoption
proceeding . But these authorities do not create a substantial interest in a
termination proceeding.
A termination proceeding concerns the relationship between parent and
child, and not any other party. The Appellees, as grandparents, simply have no
cognizable rights to protect or enforce in a termination proceeding. As the
Court of Appeals aptly stated in an unpublished opinion:
Understandably, movants are concerned that if . . . parental rights
are terminated, this legal result could jeopardize (or result in the
severing of) the bond between grandparent and child[] . If the
legislature permitted extended family members, grandparents,
aunts, uncles, adult siblings, cousins, and others to intervene in
[termination of parental rights] cases, however, the goals and
policies of the Adoption and Safe Families Act (AFSA) and
Kentucky law, to provide efficient and timely justice for children
and their families and to facilitate children's rights to a safe,
healthy childhood with a nurturing, permanent family would be
severely delayed.
D.P. v. Commonwealth, 2005 WL 3246168, at *3 (Ky. App . 2005) (unpublished
opinion) .
To the extent that Appellees' interest is in receiving custody post-
termination, it would not be a "present substantial interest" but merely "an
expectancy or contingent interest," Baker, 127 S .W.3d at 644, and thus
insufficient to warrant their intervention as a matter of right. The family court
is obligated, upon issuing an order terminating parental rights, to "vest care
and custody of the child in such person, agency, or cabinet as the court
believes best qualified." KRS 625.100(1) . Thus, Appellees would be entitled to
custody only if the court finds they are the "best qualified" among all potential
custodians, something which is purely speculative at this point, especially
since parental rights have not been terminated .
At that point in time, Appellees have further options . The record
indicates that much of the procedural problems in this case arose because the
Cabinet did not consider the Appellees for relative placement, or the Appellees
did not proceed under the appropriate statutes to seek custody of D .J.P. This
Court takes no position as to whether placing D .J.P. with his grandparents
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would be in the best interest of the child, for that is a question best determined
on proper hearing by the trier of fact . Here, it suffices to say that Appellees,
being the only party on appeal, do not at present meet the statutory
requirements to have standing to adopt D.J.P. nor do they have a right to
intervene in the parents' termination proceedings.
III. Conclusion
Given that the proceeding before the court was for termination, and not
adoption, Appellees' motion to intervene was correctly denied, and they have no
statutory standing to proceed with an adoption at this point. For these
reasons, the Court of Appeals is reversed, and the order of the Family Court is
reinstated .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Cynthia Kloeker
Cabinet for Human Resources
624 Madison Avenue
Third Floor
Covington, Kentucky 41011
COUNSEL FOR APPELLEES, L.J .P. AND M .J .P . :
Michael Ryan Voorhees
Voorhees 8v Levy, LLC
11159 Kenwood Road
Cincinnati, Ohio 45242
COUNSEL FOR APPELLEE, D .J.P., A CHILD:
Mary Miller Salyer
27 E. 4th Street
Covington, Kentucky 41011