L. (J.) VS. CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
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RENDERED: AUGUST 13, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000014-ME
J.L.
v.
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 07-AD-00007
CABINET FOR HEALTH AND FAMILY SERVICES,
COMMONWEALTH OF KENTUCKY; J.C.; L.C.;
AND M.G., A CHILD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND STUMBO, JUDGES.
STUMBO, JUDGE: “J.L.,”1 hereafter referred to as Grandmother, appeals from an
Order of the Lewis Circuit Court overruling her motion to set aside a Judgment of
Adoption rendered in Lewis County, Kentucky. Grandmother argues that as de
1
Pursuant to prior Order of this Court, the Record has been directed to be held as Confidential.
As such, we will use the parties’ initials.
facto custodian of the minor child “M.G.,” hereinafter “Child,” her due process
rights arising under the constitutions of the United States and of Kentucky were
violated when she was not made aware of or allowed to participate in the adoption
proceedings. She also argues that the Appellees committed a fraud upon the court
by representing that all interested parties had been notified of the adoption petition.
We agree with the circuit court’s conclusion that KRS 199.540(2) operates to bar
an attack on the Judgment occurring more than one year after entry of the
Judgment, and accordingly affirm the Order on appeal.
This matter has an extensive procedural history. On September 1,
2006, Grandmother filed a petition seeking to be declared the de facto custodian of
Child. At the time of the filing, Child was approximately 9-years old. The Cabinet
for Health and Family Services had previously been awarded temporary custody of
Child by the Fleming District Court, and a termination of parental rights action was
pending in Fleming Circuit Court. In her petition, Grandmother alleged that she
was the de facto custodian of Child because she had been the primary caregiver
and financial supporter of Child from October, 1997, through April, 2001. The
petition also stated that after April, 2001, Child had lived with his biological
mother from time to time, and later was placed in the custody of the Cabinet from
January, 2004, until the filing of the petition.
The matter proceeded in circuit court, whereupon Child’s guardian ad
litem argued that Grandmother had not demonstrated that she was the de facto
custodian. In the alternative, the guardian maintained that the lapse of time
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between April, 2001, and the September, 2006 petition indicated a waiver or
abandonment of any de facto custodian status. The Cabinet later stipulated that
Grandmother was Child’s primary caregiver and financial supporter for at least six
months.
On March 27, 2007, the circuit court rendered Findings of Fact,
Conclusions of Law and Judgment in which it determined that Grandmother
demonstrated by clear and convincing evidence that she was the de facto custodian
of Child pursuant to KRS 403.270. On May, 24, 2007, the court rendered separate
Findings of Fact, Conclusions of Law and Judgment in the combined custody and
termination of parental right proceeding. The court found in relevant part that
Grandmother was the de facto custodian of Child prior to June, 2001, but that she
had not served as custodian after that date. It went on to conclude that while
Grandmother expressed a sincere desire to care for Child, her daughter and Child’s
mother “has been shown to live an extraordinarily unstable life.” The court
determined that it would be virtually impossible for Grandmother to care for Child
without allowing Child’s mother to be in frequent contact with Child. It opined
that Child would have no chance of a normal childhood if his mother were allowed
contact with him. The court concluded that it was not in the best interest of Child
that Grandmother be awarded permanent custody of Child. Rather, the court found
that Child’s best interests were served by continued placement with the Cabinet,
which had placed Child with foster parents.
3
On June 6, 2007, Grandmother filed a motion to reconsider. Though
the record does not so state, it appears that the motion was overruled.
Grandmother then prosecuted an appeal to this Court.
The matter proceeded before a panel of this Court in August, 2009.
She argued that the Fleming Circuit Court erred when it dismissed her petition for
custody after it had declared her to be a de facto custodian by a prior Order. She
also claimed that the circuit court erred in failing to treat her as equal to a parent in
determining custody, by failing to grant her custody of Child, by conducting the
termination and custody hearings simultaneously, and by taking into account
Child’s opinion that he wanted to stay with his foster parents. Citing a March 27,
2007 Order which ruled that Grandmother was a de facto custodian of Child
pursuant to KRS 403.270, the panel of this Court determined that the circuit court
erred in failing to grant Grandmother the same standing in custody matters as a
parent. It reversed and remanded the matter to the circuit court for further
adjudication.
During the pendency of the foregoing appeal, Appellees “J.C.” and
“L.C.” – who were Child’s foster parents, and to whom we now refer to as
Adoptive Parents - filed a Petition to adopt Child. The Petition was granted on
February 7, 2008. Grandmother would later claim that she was never made aware
of the Petition, and was not named as a party to the proceedings despite having a
custodial interest in Child. On November 13, 2009 – some 21 months after the
Adoptive Parents adopted Child - Grandmother moved to intervene in the adoption
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proceeding and to set aside the adoption. As a basis for the motion, she claimed
that the adoption proceedings were hidden from her, that she has a custodial
interest in Child by virtue of her status as de facto custodian, and that the adoption
should be set aside.
The Adoptive Parents pointed to KRS 199.540(2), which provides that
an adoption is not subject to direct or collateral attack after the expiration of one
year from the date of entry of judgment. Conversely, Grandmother argued that
Storm v. Mullins, 199 S.W.3d 156 (Ky. 2006), operated to support her argument
because there was a due process violation resulting from the Adoptive Parents’
failure to serve or otherwise notify her of the proceedings. The circuit court
overruled the motion upon determining that KRS 199.540(2) was controlling. It
found that Grandmother knew that an adoption proceeding was under way because
she was a party to the termination of parental rights action in Fleming County,
Kentucky. The court went on to opine that Grandmother and the Adoptive Parents
should undergo custody litigation, if at all, in Fleming Circuit Court where the joint
termination and custody proceeding was adjudicated. This appeal followed.
Grandmother now argues that the circuit court erred in failing to set
aside the Judgment of Adoption. She maintains that at the time of the filing of the
petition, she had a custody interest in Child by virtue of her status as de facto
custodian. She also argues that the Adoptive Parents “wrongfully, knowingly, and
fraudulently represented to the court that the adoption was proper, and all
interested parties had been notified.” Grandmother then argues that because of the
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Adoptive Parents’ actions, she was wrongfully deprived of custody of her
grandchild.
As a basis for her claim of error, Grandmother maintains that she was
deprived of basic constitutional guarantees of due process. Citing Storm v.
Mullins, supra, Grandmother argues that at a minimum she was entitled to notice
and an opportunity to be heard because the deprivation of her claimed custodial
interest was tantamount to a deprivation of life, liberty or property. Specifically,
she claims that her de facto custodial interest is tantamount to a parental interest,
and parental rights in adoption proceedings are a liberty interest entitling her to due
process. The focus of her argument is that because she was de facto custodian of
Child at the time of the filing of the petition for adoption, the circuit court erred in
adjudicating the petition without providing her notice and an opportunity to be
heard.
We have closely examined the record, the law and the written
arguments, and find no basis for reversing the circuit court’s denial of
Grandmother’s motion to set aside the Judgment of Adoption. In overruling
Grandmother’s motion, the circuit court relied on KRS 199.540(2), which states
that,
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.
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The Judgment of Adoption was rendered on February 7, 2008.
Grandmother, through counsel, filed the Motion to set aside the Judgment of
Adoption on November 13, 2009, or some 21 months later after the Adoptive
Parents had been granted the status of legal parents of Child. KRS 199.540(2) is
clear and unambiguous, and its application to the facts at bar supports the circuit
court’s conclusion that the adoption at issue was no longer subject to attack.
Grandmother properly notes that the standard of review is whether the trial court’s
conclusion was clearly erroneous and/or constituted an abuse of discretion. Cherry
v. Cherry, 634 S.W.2d 423 (Ky. 1982). The uncontroverted fact that
Grandmother’s motion was filed some 21 months after the adoption demonstrates
that the circuit court’s conclusion on this issue was not clearly erroneous, nor
constituted an abuse of discretion. It is also worth noting that at the time the
adoption at issue was being adjudicated, Grandmother had no legal status as de
facto custodian. Though that status was later reinstated, or at least recognized
anew by a panel of this Court, Grandmother had no legal status of de facto
custodian when the petition for adoption was filed. As such, it cannot reasonably
be said that she was entitled to notice of the proceeding. Nevertheless, the circuit
court found that she was aware of the proceeding.
Grandmother claims that Storm v. Mullins, supra, should operate to
avoid the application of KRS 199.540(2). Storm held in relevant part that the strict
application of KRS 199.540(2) would violate a movant’s right to due process when
it can be shown that the movant did not receive proper notice of the adoption
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proceeding. In the matter at bar, the circuit court expressly found that
Grandmother “in fact, knew that an adoption proceeding was under way because
she was a party of the termination of parental rights action in Fleming County.”
This finding is supported by the record, and may not be set aside absent a showing
that it is clearly erroneous. CR 52.01. No such showing has been made. As such,
we cannot conclude that the circuit court’s refusal to apply Storm was clearly
erroneous. Cherry, supra.
While the previous panel of this Court reaffirmed Grandmother’s
legal status of de facto custodian, it is uncontroverted that Grandmother has not
served in that capacity for 9 years. Additionally, Child, who turns 13-years old this
year, has lived with the Adoptive Parents for the past 5 years. While these facts
are by no means dispositive of Grandmother’s claim of error, they do not bolster
her argument that she should be availed of the opportunity to intervene in an
adoption proceeding some 21 months after its conclusion, and well beyond the
statutory period of limitation set out in KRS 199.540(2).
In sum, we must conclude that the circuit court properly determined
that KRS 199.540(2) operated to bar Grandmother from disturbing the Judgment of
Adoption. Furthermore, because evidence exists in the record to support the circuit
court’s finding that Grandmother was aware of the adoption even in the absence of
legal notice, we agree with the circuit court’s conclusion that Storm did not
overcome or otherwise circumvent the application of KRS 199.540(2). We find no
error.
8
Grandmother’s motion to set aside was based on CR 60.02. She
contends that in overruling the motion, the circuit court erred in failing to properly
apply CR 60.02. This argument is not persuasive, as it is subsumed by the circuit
court’s proper conclusion that KRS 199.540(2) is dispositive. And finally,
Grandmother maintains that she was improperly barred from intervening in the
adoption proceeding. Setting aside the fact that Grandmother sought to intervene
some 21 months after the adoption had been finalized, we also find Grandmother’s
argument on this issue not persuasive. Grandmother’s underlying argument to set
aside the Judgment of Adoption was disposed of on its merits. So as a practical
matter, Grandmother was given leave to intervene, and her CR 60.02 argument was
presented to and rejected by the circuit court. As such, we find no error.
For the foregoing reasons, we affirm the Order of the Lewis Circuit
Court overruling Grandmother’s motion to set aside the Judgment of Adoption.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
Tasha K. Scott
Florence, Kentucky
BRIEF FOR APPELLEE,
CABINET FOR HEALTH AND
FAMILY SERVICES,
COMMONWEALTH OF
KENTUCKY:
Mona S. Womack
Deputy General Counsel
Office of Legal Services
Cabinet for Health and Family
Services
Frankfort, Kentucky
BRIEF FOR APPELLEES,
J.C. AND L.C.:
Delores Woods Baker
Maysville, Kentucky
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