S.T.L. v. B.M.
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RENDERED: April 2, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
1997-CA-002427-MR (Direct Appeal)
S.T.L.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
ACTION NO. 95-AD-00005
v.
B.M. and A.P.L.
AND
APPELLEES
1997-CA-002801-MR (Cross-Appeal)
B.M.
v.
CROSS-APPELLANT
CROSS-APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
ACTION NO. 95-AD-00005
A.P.L. and S.T.L.
AND
CROSS-APPELLEES
1997-CA-002756-MR
S.T.L.
v.
APPELLANT
APPEAL FROM HENDERSON CIRCUIT COURT
HON. STEPHEN HAYDEN, JUDGE
ACTION NO. 97-CI-000659
B.M.
APPELLEE
OPINION AND ORDER AFFIRMING IN
1997-CA-002427-MR AND 1997-CA-002801-MR
AND
DISMISSING APPEAL IN 1997-CA-002756-MR
* * * * * * * * * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, EMBERTON, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE:
S.T.L. appeals from an order of the Henderson
Circuit Court granting B.M. relief from a judgment terminating
B.M.’s parental rights in his daughter, A.P.L.
We affirm.
A.P.L. was conceived during a casual sexual encounter
between S.T.L. and B.M., and their contact during S.T.L.’s
pregnancy was apparently limited to a few phone calls.
A.P.L.
was born on November 27, 1994, and B.M.’s paternity was
established in the Henderson District Court a few months after
A.P.L.’s birth.
In the spring of 1995, S.T.L. retained an attorney to
contact B.M. regarding the voluntary termination of his parental
rights.
After meeting with B.M. and ascertaining his willingness
to terminate his rights, the attorney filed a joint petition on
behalf of S.T.L. and B.M. for the voluntary termination of B.M.’s
parental rights.
A guardian ad litem was appointed to represent
the child’s interest, and the guardian ad litem filed an answer
stating that A.P.L. “has not sufficient information or knowledge
to form a belief as to whether or not the termination of parental
rights would be in the best interest of the child.”
On May 15, 1995, the Henderson Circuit Court held a
hearing regarding the joint petition.
At this hearing, the
attorney and the trial court both questioned S.T.L. and B.M.
regarding their understanding of the consequences of this action
and their continued desire to proceed.
Further, S.T.L. testified
that she and her family would be able to fully support the child
without assistance from B.M.
The guardian ad litem did not
attend this hearing and never filed a report or other pleadings.
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Immediately following the hearing, the trial court entered an
order terminating B.M.’s parental rights, finding such an action
to be in the child’s best interest.
On December 31, 1996, B.M. filed a Kentucky Rule of
Civil Procedure (CR) 60.02(f) motion to set aside the judgment
terminating his parental rights, alleging that he had developed a
relationship with the child with S.T.L.’s knowledge and consent.
S.T.L. objected to this motion, arguing that B.M.’s actions at
the time of the termination were voluntary and that the judgment
terminating his parental rights was conclusive, binding, and not
subject to collateral attack upon the grounds cited by B.M.
The
trial court denied B.M.’s motion, finding that he failed to
demonstrate any circumstance of an extraordinary nature
justifying relief.
B.M. then filed a motion requesting the court to make
additional findings of fact, in particular regarding the child’s
best interest, pursuant to CR 52.02 and to reconsider its denial
of his CR 60.02 motion.
The trial court then set a hearing to
determine whether the termination of B.M.’s parental rights was
in the child’s best interest at the time of the termination and
whether the child’s best interest was appropriately represented
at the termination hearing.
A new guardian ad litem was
appointed to represent the child.
Prior to the hearing, S.T.L. filed a motion in limine
to exclude evidence pertaining to all circumstances which arose
subsequent to the termination of B.M.’s parental rights.
S.T.L.
also filed a motion in limine to exclude all evidence of whether
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the termination of B.M.’s parental rights was in the child’s best
interest.
The trial court granted the former motion, but denied
the latter.
Following the hearing, the trial court granted
B.M.’s motion to set aside the order terminating his parental
rights on the grounds that the original guardian ad litem had
failed to represent the child’s best interest during the
termination proceedings and that the termination of B.M.’s
parental rights was not in the child’s best interest.
S.T.L.
then filed a motion for reconsideration, which was denied by the
trial court.
These appeals followed.
1997-CA-002427-MR and 1997-CA-002801-MR
S.T.L.’s first argument is that B.M. lacked standing to
bring a motion to set aside the termination of his parental
rights based on the ground that the child’s interests were not
properly protected during the original proceedings.
She argues
that this issue could properly be raised only by the child, the
child’s guardian, or the child’s next friend, and that B.M. could
not raise the issue as he was a stranger to the child in the eyes
of the law following the termination of his parental rights.
S.T.L. also takes issue with the trial court’s finding that B.M.
had standing based upon his being a party to the termination
action, contending that “the law is clear that one does not have
standing to challenge a decision which was rendered at his
request and in his favor” and citing Looney v. Justice, 299 Ky.
729, 730, 187 S.W.2d 289 (1945).
Although the trial court ultimately ruled that
CR 60.02(f) relief should be granted because the child’s
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interests were not properly protected during the original
proceedings, we agree with B.M. that his motion was brought on
his own behalf, rather than on behalf of the child.
B.M. had an
interest in whether or not his parental rights were terminated,
which would give him standing to move to vacate the termination
order.
See Stevens v. Stevens, Ky., 798 S.W.2d 136, 139 (1990),
wherein the court stated that “[t]he requirement of standing is
satisfied if it can be said that the plaintiff has a real and
substantial interest in the subject matter of the litigation” and
held that as a party to a contract, a mother had standing to sue
her ex-husband and father of her child for breach of agreement to
pay the child’s college expenses despite the fact that the child,
rather than the mother, was injured by the father’s breach.
In
other words, B.M. had standing to bring his motion, and the trial
court had the discretion to enter its ruling based upon whatever
ground it found persuasive.
S.T.L.’s second argument is that an order for voluntary
termination of parental rights is “conclusive and binding on all
parties,” Kentucky Revised Statute (KRS) 625.046, and that the
order is res judicata as to the issue of the child’s best
interest, BTC Leasing, Inc. v. Martin, Ky. App., 685 S.W.2d 191,
197 (1984).
She also argues that the trial court’s reopening of
the best interest determination “completely undermined the
public’s interest in bringing an end to litigation . . . .”
While we do not question the res judicata effect of the trial
court’s initial judgment terminating B.M.’s parental rights, a
judgment which is conclusive and binding and which would
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otherwise be given res judicata effect may be vacated and the
issues relitigated, provided one of the grounds listed in
CR 60.02 is proved to the satisfaction of the trial court.
Furthermore, other compelling interests may sometimes outweigh
the interest in putting an end to litigation after a final
judgment.
See Spears v. Spears, Ky. App., 784 S.W.2d 605, 607
(1990) (reversing denial of a CR 60.02 motion to reopen a divorce
decree’s finding of paternity where later blood tests showed that
the ex-husband was not the biological father of the child).
We
conclude that, under the facts of this case, the child’s interest
in being properly represented in a voluntary termination of
parental rights proceeding constitutes a sufficiently compelling
reason to override the normally conclusive res judicata effect of
a voluntary termination judgment.
S.T.L.’s third argument is that B.M.’s testimony at the
original hearing and his signing of the verified petition of
voluntary termination wherein he stated that termination would be
in the child’s best interest constitute judicial admissions which
preclude him from contending otherwise in a subsequent attack on
the judgment terminating his rights.
B.M.’s opinion and
testimony concerning the child’s best interest was not
dispositive of the issue, however.
Rather, this determination
was one to be made solely by the trial court.
While the position
that B.M. took in the original proceeding concerning the best
interest of the child may be a judicial admission which precludes
him from contending otherwise, that does not preclude the trial
court from determining the child’s best interest in accordance
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with all the evidence.
The trial court had a responsibility to
act in the best interest of the child regardless of the opinions
and testimony of the parties, notwithstanding admissions by any
parties.
S.T.L.’s fourth argument is that the guardian ad litem
adequately represented the interest of the child in the initial
termination proceeding.
In his testimony before the trial court
on B.M.’s motion, the original guardian ad litem stated that he
had not spoken with either S.T.L. or B.M. prior to the
termination hearing and that he did not conduct any sort of
independent investigation.
He also acknowledged that he did not
attend the termination hearing.
CR 17.03(3) states that “[n]o
judgment shall be rendered against an unmarried infant . . .
until the party’s . . . guardian ad litem shall have made defense
or filed a report stating that after careful examination of the
case he is unable to make defense.”
Further, in Black v.
Wiedeman, Ky., 254 S.W.2d 344, 346 (1953), the court held:
[The guardian ad litem’s] obligation is to
stand in the infant’s place and determine
what his rights are and what his interests
and defense demand. Although not having the
powers of a regular guardian, he fully
represents the infant and is endowed with
similar powers for purposes of the litigation
in hand.
Although Kentucky law concerning the duty of a guardian ad litem
in a termination case is not specific, we conclude that the trial
court did not clearly err in its determination that the guardian
ad litem in this case did not adequately represent the interest
of the child during the proceedings.
He did not talk with either
of the parents of the child, did not investigate whether the
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termination was in the best interest of the child, did not file a
report or other pleading except for an answer which stated that
he had insufficient information or knowledge to form a belief
concerning whether the termination would be in the best interest
of the child, and did not attend the hearing.
Also, we are
unpersuaded by S.T.L.’s argument citing Vanhook v. StanfordLincoln County Rescue Squad, Inc., Ky. App., 678 S.W.2d 797, 799
(1984), for the proposition that the negligence of an attorney is
imputable to the client and not ground for relief under CR
60.02(f).
We agree with the trial court that Vanhook should not
be held applicable to these facts, since the client was an infant
child incapable of comprehending or even thinking about legal
representation on a matter concerning her parentage.
S.T.L. also contends that any error regarding the
representation of the guardian ad litem in the original
termination proceeding was harmless because the evidence the
guardian ad litem would have gathered would have supported the
court’s finding that the termination was in the child’s best
interest.
Harmless error, by definition, “does not affect the
substantial rights of the parties.”
CR 61.02.
The child had a
substantial right to have a guardian ad litem to serve as an
advocate to protect her best interest before any decision was
made to terminate the parental rights of her natural father.
can only speculate as to what the guardian ad litem might have
One
discovered had he made some sort of independent investigation,
and we cannot conceive how a guardian ad litem’s failure to
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independently assess the child’s best interest can constitute
harmless error.
S.T.L.’s final argument is that the trial court erred
in granting CR 60.02(f) relief, as there was insufficient grounds
of an “extraordinary nature” sufficient to warrant setting aside
the order terminating B.M.’s parental rights.
S.T.L. notes that
the trial court found that the only grounds which could even
arguably merit relief are whether the termination was in the
child’s best interest at the time and whether the child’s
interest was adequately represented.
S.T.L. contends that the
former is res judicata and that B.M. lacks standing to argue the
latter.
We have heretofore rejected these contentions.
A trial court’s determination of whether CR 60.02(f)
relief is merited is subject to an abuse of discretion standard.
Fortney v. Mahan, Ky., 302 S.W.2d 842, 843 (1957).
Given the
complete lack of independent investigation into the child’s best
interest by the guardian ad litem, we conclude that the trial
court did not err in vacating the original judgment pursuant to
CR 60.02(f).
The judgment of the Henderson Circuit Court is
affirmed.1
1997-CA-002756-MR
S.T.L. also filed an appeal concerning an order entered
by the trial court allowing B.M. to have visitation with the
child during the pendency of the first appeal.
1
This appeal has
B.M.’s cross-appeal, 1997-CA-002801-MR, concerning the
trial court’s excluding evidence of events occurring subsequent
to the termination hearing is moot.
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now been rendered moot by our opinion in the first appeal, and it
is hereby ORDERED that this appeal be DISMISSED.
ALL CONCUR.
ENTERED:
April 2, 1999
/s/ David C. Buckingham
JUDGE, COURT OF APPEALS
BRIEFS FOR S.T.L.:
BRIEFS FOR B.M.:
John C. Morton
Laura L. Pamplin
Henderson, KY
Leslie M. Newman
Henderson, KY
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