SHARON LYNN STORM (F/K/A SHARON LYNN MULLINS) FAMILY COURT DIVISION v. JERRY R. MULLINS; LORRAINE MULLINS; A.R.M., A MINOR; AND B.L.M., A MINOR
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000647-ME
SHARON LYNN STORM (F/K/A SHARON
LYNN MULLINS)
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE JULIE PAXTON, JUDGE
ACTION NO. 02-AD-00007
v.
JERRY R. MULLINS; LORRAINE
MULLINS; A.R.M., A MINOR;
AND B.L.M., A MINOR
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
Sharon Lynn Storm (f/k/a Sharon Lynn Mullins)
has appealed from the Floyd Family Court’s March 8, 2005, order
denying her CR 60.02 motion to set aside a Judgment of Adoption
and to grant her custody of two minor children.
Despite the
fact that the Judgment of Adoption should never have been
1
Senior Judge John W. Potter, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
entered for reasons we shall address in this opinion, we
reluctantly affirm the family court’s decision because Sharon
did not attack the validity of the judgment within one year of
its entry.
Sharon and her former husband, Preston Mullins, are
the natural parents of sisters B.L.M. and A.R.M., who were born
on January 11, 1999, and December 25, 2000, respectively.
Jerry
and Lorraine Mullins are the girls’ paternal grandparents.
While B.L.M. had lived with Jerry and Lorraine since her birth,
A.R.M. only lived with them on and off for her first year of
life, and did not live with them on a permanent basis until
after her first birthday.
On March 27, 2002, Sharon and Preston
both signed a Consent to Custody form.
Sharon’s document read
as follows:
SHARON LYNN MULLINS, states that she is
the Respondent in the above styled and
number (sic) action; that she has read a
copy of the Petition for Custody filed
herein by the Petitioner (sic) in said
action and hereby enters her appearance to
said action for all intents and purposes and
declines to plead further and hereby waives
all future proceedings herein or notices or
hearings that might be necessary or
incidental to this action.
The Respondent further states that she
is the natural mother of said child (sic),
[A.R.M.] and [B.L.M.], and consents to
custody being placed with the Petitioner
(sic) as placement with the Petitioner (sic)
would be in the best interest of the minor
children.
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Almost two months later, on May 17, 2002, Jerry and
Lorraine filed a Petition for Adoption with the family court, in
which they sought to adopt B.L.M. and A.R.M.
It does not appear
that Sharon was served with a copy of the petition.
However,
the Consent to Custody forms signed by Sharon and Preston the
previous March were attached to the petition.
The family court
appointed John Chafin as the guardian ad litem for the children,
who after interviewing Jerry and Lorraine stated that it would
be in the best interest of the children to grant the adoption.
The Cabinet for Families and Children prepared a
Confidential Report dated June 18, 2002, which was filed with
the family court a few days later.
Based upon an interview with
Jerry and Lorraine, during which they stated that the birth
parents were able to see the children anytime they wished and
this would not change if the adoption petition were granted, the
Cabinet recommended granting the adoption, provided that all of
the legal requirements had been met.
In the two-page letter
accompanying the report, Family Services Office Supervisor
Kathleen Bohr made the following statement:
“The petition
states that both parents have consented to the adoption,
however, there were no Affidavits of Consent attached to the
petition.
The birth mother and birth father have completed the
DSS-191 and DSS-192; pages four and six of the DSS-191 and the
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DSS-192 are attached to this report.”
Attached to the report
were unsigned forms, which were to be completed by the birth
mother only, regarding background information for each
pregnancy, as well as a Medical Background form completed on the
birth mother.
Also attached were two unwitnessed DSS-192
Cabinet forms entitled “Biological Parent Statement Regarding
Future Contact and/or Inspection of Records”, presumably
completed and signed by Sharon and Preston on June 13, 2002.
The form specifically provides:
consent to the adoption.”
“Please note this is not a
The record does not contain a Consent
to Adoption signed by either Sharon or Preston, or an order
voluntarily or involuntarily terminating their parental rights.
The family court held a brief, three-minute hearing on
June 20, 2002, 2 where only Jerry and Lorraine’s attorney was
listed as being in attendance.
On July 1, 2002, the family
court entered a Judgment of Adoption, specifically finding that
the facts in the petition were true, that the statutory
requirements under the adoption law had been met, that Jerry and
Lorraine were of good moral character and could properly
maintain and educate the children, and that it would be in the
children’s best interest to grant the adoption.
The Judgment of
Adoption was not served on Sharon.
2
The videotaped record of this hearing is not in the certified record.
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Almost two and one-half years later, Sharon filed a
Verified Petition to Open Adoption Records and Notice pursuant
to KRS 199.570.
In the petition, Sharon, through her attorney,
indicated that she lived in Georgia with her current husband and
infant child, that until recently Jerry and Lorraine had
permitted her to visit with at least one of the girls on a semiregular basis, and that she did not believe she executed a
consent to the adoption.
Sharon’s request was granted, and she
then filed a Motion to Set Aside Judgment of Adoption and Motion
to Grant Respondent Custody and Notice pursuant to CR 60.02 with
the family court on January 13, 2005.
In the motion, Sharon
argued that she never consented to the adoption, meaning that
the judgment was void, and that she should be awarded custody.
In a response filed January 14, 2005, 3 Jerry and Lorraine agreed
that the document filed in the adoption proceeding would
necessitate a reopening to determine if it should be converted
to an involuntary adoption proceeding.
They stated that Sharon
had had no contact with the girls for two years, that she had
failed to support them, and that they had exercised exclusive
custody and had been the girls’ sole caretakers for two years.
If the petition for adoption were to be denied, they moved the
family court to amend the Judgment of Adoption to a judgment of
3
A motion hour hearing was presumably held the same day, although the record
of this was not certified or included in the record on appeal.
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custody and to set child support, citing the de facto custodian
statutes.
In a later response, Jerry and Lorraine asserted that
it was too late for Sharon to collaterally attack the Judgment
of Adoption, citing KRS 199.540(2).
Sharon argued that their
reliance on the statute was misplaced, because the Judgment of
Adoption was void as her parental rights were never terminated,
she never consented to the adoption, and she was never served
with process.
On March 9, 2005, the family court entered an
order denying Sharon’s motion as time barred by operation of KRS
199.540(2) because it was filed past the one-year time
limitation following the entry of the Judgment of Adoption.
This expedited appeal followed.
On appeal, Sharon continues to argue that the
limitation contained in KRS 199.540(2) does not apply to a void
judgment, while Jerry, Lorraine, and the guardian ad litem all
argue that the time limitation bars Sharon’s attack and that in
any event the Judgment of Adoption was properly entered.
KRS 199.470(1) permits anyone over the age of eighteen
who has been a resident of the state for over twelve months to
file a petition to adopt a child in the circuit court in which
the petitioner lives.
Pursuant to KRS 199.500(1), “[a]n
adoption shall not be granted without the voluntary and informed
consent, as defined in KRS 199.011, of the living parent or
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parents of a child born in lawful wedlock. . . .”
None of the
exceptions to the consent requirement apply in the present case.
KRS 199.011(14) defines “voluntary and informed consent” as:
[A]t the time of the execution of the
consent the consenting person was fully
informed of the legal effect of the consent,
that the consenting person was not given or
promised anything of value except those
expenses allowable under KRS 199.590(6),
that the consenting person was not coerced
in any way to execute the consent, and that
the consent was voluntarily and knowingly
given.
The statute also requires the consent to be in writing, to be
signed and sworn to, and to include the date, time and place of
execution; the name of the child to be adopted along with the
child’s date and place of birth; the consenting person’s
relationship to the child; the identity of the proposed adoptive
parents (or that the information does not want to be known); a
statement of the understanding that the consent will be final
and irrevocable unless withdrawn under KRS 199.011(14)(3); the
disposition of the child if adoption is denied; a statement that
a copy of the signed consent was received at the time it was
executed; the name and address of the person who prepared the
consent and who explained the consent, along with a verified
statement from the consenting person that the consent had been
fully explained; and the amount of legal fees incurred by the
consenting person related to the execution of the consent.
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It is obvious to this Court that the family court
never should have entered the Judgment of Adoption in this
proceeding.
There is absolutely no indication that either
Sharon’s or Preston’s parental rights had been terminated,
either voluntarily or involuntarily.
Furthermore, neither
Sharon nor Preston ever consented to the adoption, as is
required by KRS 199.500.
Rather, they completed forms entitled
“CONSENT BY MOTHER TO CUSTODY BY THE PETITIONER” and “CONSENT BY
FATHER TO CUSTODY BY THE PETITIONER”, both of which reference
the reading of a Petition for Custody, which was never filed.
Clearly, neither of them consented to the adoption.
Even if the
Consent to Custody forms were construed to be consents to the
proposed adoption, they do not meet the statutory requirements
as defined in KRS 199.011(14).
The form signed by Sharon does
not contain the time or place of its execution, the place of the
children’s birth, a statement that she understood the consent
would be final and irrevocable unless withdrawn within twenty
days after the execution of the consent, the disposition of the
children if adoption was not granted, a statement that she
received a copy of the form upon its execution, the name of the
person who prepared and explained the consent to her, or the
total amount of the legal fees she incurred, if any.
The
statement in the Judgment of Adoption “that all legal
requirements under the adoption statutes have been complied
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with” is clearly in error and is not supported by the record, as
Sharon never consented to the adoption pursuant to KRS 199.500.
Furthermore, Jerry and Lorraine agreed that this finding was
incorrect.
Additionally, we also disagree with the statement in
the Petition for Adoption, which was found to be true in the
Judgment of Adoption, that both children had lived with Jerry
and Lorraine since birth.
In the Confidential Report, the
Cabinet indicated that pursuant to Jerry and Lorraine’s
statement during the interview, A.R.M. had only lived with them
off and on for the first year of her life.
We also take issue with several statements made in the
briefs filed by counsel for Jerry and Lorraine and by the
guardian ad litem.
Both briefs incorrectly relate to the Court
that Sharon signed the Consent to Custody form after she had
read the Petition for Adoption, when in actuality the Consent to
Custody indicates that Sharon read the Petition for Custody, a
document that apparently does not exist or at least was never
filed.
The only support from the record Jerry and Lorraine
point to regarding Sharon’s “knowledge” of the adoption
proceeding was her signing of the DSS-192 form.
However, we
have already indicated that the DSS-192 form presumably
completed by Sharon was not witnessed.
The guardian ad litem’s
brief incorrectly states that both children had lived with Jerry
and Lorraine since birth, that the Consent to Custody forms were
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signed and the Petition for Adoption was filed on the same day
(the Consent to Custody forms were signed on March 27, while the
Petition for Adoption was filed May 17), and that “[t]he
interview of [Sharon] by the Cabinet clearly establishes that
she was well aware of the adoption proceeding.”
There is no
indication in the record that the Cabinet ever interviewed
Sharon.
Despite our reservations about the adoption
proceeding, we are compelled to affirm the family court’s order
in the present matter.
KRS 199.540, which allows for the
annulment of an adoption, provides as follows:
(2)
After the expiration of one (1) year
from the date of the entry of judgment
of adoption, the validity thereof shall
not be subject to attack in any action,
collateral or direct, by reason of any
irregularity or failure to comply with
KRS 199.470 to 199.520, either
procedurally or substantively.
Court cases construing a previous version of this statute,
providing for a two-year limitations period, have held that the
time limitation applies to block attacks other than for fraud. 4
In this case, there is no dispute that Sharon filed her
collateral attack on the Judgment of Adoption one and one-half
years too late or that the attack centered on a failure to
comply with KRS 199.500.
Furthermore, Sharon never alleged that
4
See Jones v. Sutton, 255 S.W.2d 658 (Ky. 1953); Allen v. Martin, 735 S.W.2d
332 (Ky.App. 1987).
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there was any fraud involved, only that a mistake was made or
that the consent form was misconstrued.
Because Sharon’s
collateral attack was filed outside of the one-year limitation
provided in KRS 199.540(2), the family court properly denied her
motion to vacate pursuant to CR 60.02.
Had Sharon’s motion been
timely filed, we have no doubt that a different result would
have been reached.
For the foregoing reasons, the order of the Floyd
Family Court is affirmed.
HENRY, JUDGE, CONCURS.
POTTER, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
POTTER, SENIOR JUDGE, DISSENTING.
I respectfully
dissent from the majority’s affirmance of a judgment which can
be characterized only as constitutionally infirm and void.
Courts have been quick to give effect to the public
policy that adoptions, more than other legal proceedings, need
to provide certainty and finality for the child, as well as the
adoptive parents.
Annot. 83 A.L.R.2d 945 (1962).
However, a
line must be drawn somewhere, and I am convinced that the facts
as stated by the majority place this case clearly over that
line.
Squarely facing the issues, the majority recites with
clarity the adoption proceeding’s shortcomings.
It candidly
acknowledges that on the present record Sharon did not consent
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to the adoption.
That fact alone makes the judgment void and
deprives this Court of authority to validate it.
Subject to
certain enumerated exceptions not pertinent to this case, KRS
199.500(1) states that “[A]n adoption shall not be granted
without the voluntary and informed consent . . . of the living
parent or parents. . . .” 5
The effect of failure to comply with
the mandatory requirements of the adoption statutes was
succinctly stated by this Court in Wright v. Howard: 6
It is appropriate for the sake of efficiency
to first recite two basic rules regarding
adoptions: 1) the right of adoption exists
only by statute; and, 2) there must be
strict compliance with the adoption
statutes. Failure to do so results in an
invalid judgment. Goldfuss v. Goldfuss,
Ky., 565 S.W.2d 441 (1978); Juett v. Rhorer,
Ky., 339 S.W.2d 865 (1960); Higgason v.
Henry, Ky., 313 S.W.2d 275 (1958).
The consequences attached to the entry of an invalid judgment
are clearly explained in Foremost Ins. Co. v. Whitaker: 7
A void judgment is not entitled to any
respect or deference by the courts. . . .
void judgment is a legal nullity, and a
court has no discretion in determining
whether it should be set aside.
A
This Court is not at liberty to ignore this principle by
condoning the flagrant disregard of the most essential element
set by the legislature in regard to the granting of adoptions.
5
Emphasis added.
6
711 S.W.2d 492, 494 (Ky.App. 1986).
7
892 S.W.2d 607, 610 (Ky.App. 1995).
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Citing Jones v. Sutton 8 and Allen v. Martin, 9 the majority
acknowledges that an out-of-time challenge may be granted in the
case of an adoption obtained by fraud.
be entitled to greater deference.
A void judgment cannot
In my opinion, to the extent
that KRS 199.540(2) is construed as permitting the enforcement
of a void judgment, it is no doubt unconstitutional. 10
This is not a case in which the courts must look the
other way in order to protect the best interests of the child.
This is an intra-family adoption.
Setting it aside will not
automatically return the children to Sharon, and upholding it
does not remove her completely from the children’s lives.
Because the trial court dismissed Sharon’s motion without a
hearing, it is impossible to determine whether additional
evidence exists to support the judgment.
In any event, the
trial court retains the power to award custody in the children’s
best interest or, if the facts warrant it, involuntarily
terminate the mother’s parental rights.
I would reverse the dismissal of Sharon’s motion as
time-barred and remand the case for a hearing on her motion.
8
255 S.W.2d 658 (Ky. 1953).
9
735 S.W.2d 332 (Ky.App. 1987).
10
See, In re Adoption of Knipper, 30 Ohio App.3d 214, 507 N.E.2d 436 (Ohio
App. 1986), and White v. Davis, 163 Colo. 122, 428 P.2d 909 (Colo. 1967).
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BRIEFS FOR APPELLANT:
Stephen L. Hogg
Pikeville, KY
BRIEF FOR APPELLEES, JERRY
MULLINS AND LORRAINE MULLINS:
Jimmy C. Webb
Prestonsburg, KY
BRIEF OF GUARDIAN AD LITEM FOR
APPELLEES, A.R.M. AND B.L.M.:
John T. Chafin
Prestonsburg, KY
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