REGINA MOORE AND JERRY DORNING V RICHARD ASENTE, CHERYL ASENTE AND JUSTIN LEE MOORE, A MINOR RICHARD ASENTE AND CHERYL V REGINA MOORE, JERRY DORNING AND JUSTIN LEE MOORE
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2000-SC-1127-DG
REGINA MOORE AND JERRY DORNING
V
ON REVIEW FROM COURT OF APPEALS
1999-CA-0363-MR AND 1999-CA-0688-MR
KENTON CIRCUIT COURT NO. 1998-CI-1610
RICHARD ASENTE, CHERYL ASENTE
AND JUSTIN LEE MOORE, A MINOR
AND
APPELLEES
2001-SC-0325-DG
RICHARD ASENTE AND CHERYL
ASENTE
V
APPELLANTS
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-0363-MR AND 1999-CA-0688-MR
KENTON CIRCUIT COURT NO . 1998-CI-1610
REGINA MOORE, JERRY DORNING
AND JUSTIN LEE MOORE
APPELLEES
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART, REVERSING AND REMANDING IN PART
I. ISSUES
This appeal from a child custody action, which resulted from the breakdown of a
proposed private adoption, presents three (3) primary issues . Regina Moore ("Moore")
and Jerry Dorning ("Dorning") signed consents to allow Richard and Cheryl Asente ("the
Asentes") to adopt their son, Justin . The consents, by their terms, would become
irrevocable twenty (20) days from the date when Justin was placed with the Asentes .
Before signing the consents, however, Moore and Doming were advised by their
attorney that they could revoke their consent to Justin's adoption at any time before
their parental rights were terminated . Immediately before the termination of parental
rights ("TPR") hearing, but more than twenty (20) days after Justin's placement with the
Asentes, the birth parents announced their desire to revoke their consents. Did the
consents become irrevocable twenty (20) days after Justin's placement? Because
Moore and Dorning were misinformed of the legal effect of the consents and relied on
this misinformation in signing the consents, the consents were not knowingly given and
were thus invalid and unenforceable.
After holding that the consents were invalid, the trial court held that the Asentes
lacked standing to pursue custody of Justin . Did the invalidity of the consents deprive
the Asentes of standing to seek Justin's custody? Because the birth parents voluntarily
placed Justin with the Asentes with the intention of and for the purpose of the Asentes'
adoption of Justin, and because Justin remained with the Asentes for a significant
period of time before the birth parents filed a proper legal action to regain his custody,
we hold that under KRS 403 .420(4)(b), Justin was in the "physical custody" of the
Asentes rather than his birth parents when the Asentes sought custody . Accordingly,
the Asentes had standing to make a claim for custody of Justin.
The trial court ruled that the birth parents' superior rights to Justin's custody
could be abrogated only by a showing of unfitness that would be sufficient to support an
involuntary termination of their parental rights . Upon remand, must the Asentes
demonstrate the birth parents' unfitness by clear and convincing evidence before the
trial court could award them custody of Justin? Because we find that Moore and
Doming waived their superior rights to Justin's custody by placing him with the Asentes
for the purpose of adoption, by filing a petition for the voluntary termination of their
parental rights for the purpose of allowing his adoption, by signing a consent for the
purpose of allowing Justin's adoption, and by allowing Justin to remain in the physical
custody of the Asentes for a period of six (6) months before filing an appropriate legal
action to regain his custody, we hold that the "unfitness" standard is inapplicable in this
case. We therefore hold that, upon remand, when the trial court determines whether
Moore and Doming or the Asentes will have custody of Justin, the trial court should
make that determination on the basis of Justin's best interest.
II . BACKGROUND
This action began as a proposed interstate adoption arrangement between the
Asentes, Ohio residents, and Moore and Doming, Kentucky residents . The Asentes
had previously adopted another child, Joey, born to Moore and Doming. Thus, when
Moore discovered that she was pregnant again, she contacted the Asentes to see if
they were interested in adopting this child as well. The Asentes responded affirmatively
and agreed to adopt the yet-unborn child that would later be named Justin .
Following Justin's birth on February 28, 1997, however, Moore and Doming
decided they wanted to raise him themselves . They changed their minds about the
adoption and notified the Asentes of their decision .
In November 1997, however,
Moore and Doming again changed their minds and contacted the Asentes to determine
if they still wished to adopt Justin . The Asentes once again responded affirmatively, and
the proposed adoption process was set in motion .
To represent their interests in this proposed adoption, Moore and Doming chose
Thomas C. Donnelly ("Donnelly"), the lawyer who had represented them in the earlier
placement of Joey with the Asentes. The Asentes agreed to pay Donnelly's fee for his
representation of Moore and Doming.
On December 16, 1997, and in accordance with their attorney's advice, Moore
and Dorning jointly signed a form captioned "Application for Permission to Receive or
Place a Child,"' which was prescribed by the Kentucky Cabinet for Family and Children
as the initiating form to be signed by persons wishing either to adopt or to place a child
for adoption in Kentucky . Moore and Doming signed as placing parents and designated
the Asentes as the persons whom they wished to adopt Justin . On January 12, 1998,
Moore and Doming signed, again jointly, a form captioned "Interstate Compact
Placement Request, ,2 which is required when a child is to be placed for adoption or
foster care in another state. Moore and Doming signed as the sending persons and
designated the Asentes as the persons with whom Justin was to be placed . Then on
January 27, 1998, Moore and Doming each separately signed a "Voluntary and
Informed Consent to Adoption ." These consents were prepared by Donnelly, executed
in his presence, and "[s]ubscribed, sworn to and verified and acknowledged to" before a
notary public by Moore, Doming and Donnelly . The consents read as follows :
' See KRS 199.473(1).
2 See KRS 615.030, Article III .
VOLUNTARY AND INFORME D CONSENT TO ADOPTION 3
1 . Comes [Regina Carol Moore/Jerry Lee Dorning], the birth
[mother/father] of Baby Justin Lee Moore and the consenting
person, and having been duly sworn does state under oath
that [she/he] has been fully informed of the legal effects of
this Consent . [She/he] understands that twenty (20) days
after signing this Consent, that it shall become final and
irrevocable .
2 . [Regina Carol Moore/Jerry Lee Doming] affirms that
[she/he] has not been given or promised anything of value,
except statutorily allowed expenses.
3. [Regina Carol Moore/Jerry Lee Doming] affirms that
[she/he] has not been coerced in any way to execute this
Consent, and that the Consent is voluntarily and knowingly
given .
4 . [Regina Carol Moore/Jerry Lee Dorning] affirms that
[she/he] is not under the influence of drugs, alcohol or any
other medication which might influence [her/his] ability to
make a decision .
5. [Regina Carol Moore/Jerry Lee Doming] has chosen to
be represented by independent legal counsel, Thomas C.
Donnelly, Esq ., 77 W. Villa Place, 1000 St. Jude Center, Ft .
Thomas, KY 41075 . (513)221-7722 .
6 . Justin Lee Moore, the child to be adopted was born on
February 28, 1997 at St. Luke West Hospital in Florence,
Kentucky and currently resides with his birth parents at 7
Indiana Drive, Covington, Kentucky 41015 .
7. The identity of the prospective adoptive parents are [sic]
Rich and Cheryl Asente, residing in the state of Ohio .
8 . It has been explained to me by Thomas C . Donnelly, Esq.
that this Consent to Adoption will be final and irrevocable
twenty (20) days after the execution of the placement which
was previously approved, if approval of a placement was
required, and that this Consent will be final and irrevocable
twenty (20) days after approval of the placement, if not
already approved .
9 . If the child is not adopted, it is my wish that I be contacted
regarding any future plans for the child .
3 Although the parties do not question the substance of this document, we would
observe that nowhere does the document explicitly state that a party signing it actually
consents to the proposed adoption . Nonetheless, the caption and the context of the
document's provisions make it abundantly clear that the document was intended to be a
consent to an adoption .
10. [Regina Carol Moore/Jerry Lee Dorning] affirms that
[she/he] has or will receive a completed and signed copy of
this Consent .
11 . [Regina Carol Moore/Jerry Lee Dorning], the consenting
person understands that this Consent may only be
withdrawn by written notification sent by certified or
registered mail, addressed to either the attorney for the
consenting person or the attorney for the adoptive parents
within twenty (20) days following the execution of the
Consent . The attorney for the consenting person is:
Thomas C. Donnelly, Esq . 77 W. Villa Place, 1000 St. Jude
Center, Ft. Thomas, KY 41075. The attorney for the
prospective adoptive parents is : John R . Gargano, Esq .,
294 Harmon, NW, PO Box 1859, Warren, Ohio 44482-1859 .
12 . This document was prepared by Thomas C. Donnelly,
Esq ., 77 W . Villa Place, 1000 St. Jude Center, Ft. Thomas,
KY 41075 .
13 . This document was explained to the consenting person
by [her/his] attorney, Thomas C . Donnelly, Esq .,
14. This Consent was executed at 3:00 p .m . on the 27 day
of Jan. , 1998 at Star Bank Latonia .
[Regina Carol Moore/Jerry Lee Dorning], the consenting
person, hereby verifies that this Consent has been reviewed
with and fully explained to [her/him].
/s/ [Regina C . Moore/Jerry Lee Dorningl
On February 17, 1998, both Kentucky and Ohio approved Justin's placement
with the Asentes under the Interstate Compact on the Placement of Children ("ICPC") . 4
On that same date : (1) the Asentes signed a document captioned "Legal Risk
Statement," which warned, "until the parental rights [of] the birthparents have been
terminated their adoption plan is at risk because the birthparents can revoke their
consents" ; and (2) Moore and Doming physically handed Justin over to the Asentes.
The Asentes then took Justin to his new home in Ohio where he has continued to live
since that time with the Asentes and his biological brother.
4 Verbal approval was given on February 17, 1998, and the written approval was
signed by the Ohio compact administrator the following day.
On the following day, February 18, 1998, the Asentes' attorney, John Gargano
("Gargano"), in a letter to Donnelly, enclosed "two (2) consent to adopt forms5 which
[he] . . . request[ed] that [Donnelly] have both [Moore and Dorning] execute so [he]
[would] have the same to file in court here," requested that he be provided certified
copies of the orders terminating the parental rights of both Moore and Dorning, and
advised Donnelly that he would proceed with the adoption process in Ohio "[o]nce I
have all of the documents in my possession . . . . ..
On March 9, 1998, Moore and Doming signed a verified TPR petition . A week
later, the petition was filed in the Kenton Circuit Court, and a hearing on the petition was
scheduled for March 26, 1998 .' At this point, it appeared, on the surface, that the
matters preliminary to the adoption were proceeding smoothly . However, this was only
the calm before the storm .
On the hearing date - actually at the courthouse prior to the scheduled hearing Moore and Doming orally informed Donnelly that they had once again changed their
minds regarding the adoption and that they wanted Justin returned to them . The
hearing in the TPR action was thus cancelled . However, the TPR action itself was not
5 Obviously, the "consent to adopt forms" referenced, and apparently enclosed, in
this letter from the Asentes' attorney to the birth parents' attorney are not the January
27, 1998 consents, which are quoted above, that Moore and Doming had signed three
weeks earlier . The forms referenced in Gargano's letter were not filed in the record as
exhibits . And, we assume, in accordance with the language of this letter, that Gargano
had contemplated using the enclosed "consent to adopt forms" for the Ohio adoption .
6 See KRS 625 .040 .
Although a copy of the TPR petition was filed in the custody action record, the
record of the TPR proceedings is not a part of this record on appeal. Nonetheless, to
the extent necessary, we have been able to glean the substance of those proceedings
from testimony and documents filed in this record .
dismissed at that time and remained pending . $ Later that same day, Moore called the
Asentes and informed them that she and Doming did not wish to proceed, and that they
wanted Justin returned to them.
Responding to Moore's phone call by letter dated that
same day, Cheryl Asente pleaded with Moore to allow the adoption but also stated that
"we understand that he is not ours until you take that final step. . . ." Then, on April 1,
1998, Moore called Virginia Smith, the Kentucky administrator of the ICPC, and
informed her that she wanted Justin returned ; however, Ms. Smith informed Moore that
the consents had already become final and irrevocable .
On May 14, 1998, after it became apparent that the Asentes would not voluntarily
return Justin, Moore and Doming filed a motion in the TPR action requesting that Justin
be returned to them .9 After excluding the Asentes from participating in the TPR action
on the grounds that they were not proper parties to that action, the trial court held a final
hearing in the TPR action on August 17, 1998.' ° Also, on that day, Moore and Doming
filed the present action, a separate and independent action captioned "Petition for
8 When birth parents change their minds prior to or at the termination hearing, a
termination case is often left pending for a period of time to allow them to make a final
decision . If the birth parents eventually decide to proceed with the termination, the cost
and time associated with preparing and refiling a'termination petition are thus avoided .
9 See infra note 10.
' o We assume that this hearing was for the purpose of finally determining
whether Moore and Doming wished to proceed with the termination of their parental
rights . See supra note 8. In a voluntary termination case, if the trial court determines
that parental rights are to be terminated, "it shall make an order terminating [the parent's
rights] . . . and vest[ ] care and custody of the child in the person, agency, or cabinet the
court believe is best qualified to receive custody ." KRS 625 .043. But, if the trial court
decides not to terminate the parent's rights, the statute contains no requirement that, or
reciprocal authorization for, the trial court to make a custody determination at that time .
As such, the trial court would simply dismiss the voluntary termination action.
Regardless, because the Asentes were not allowed to participate in the TPR action, any
order in that proceeding directing them to return Justin would be improper and
unenforceable . See infra note 14 .
Immediate Entitlement or in the Alternative Petition for Custody" ("custody action" or
"custody petition") with the Kenton Circuit Court . The Asentes were named as
respondents in the petition.
On September 4, 1998, the Asentes moved under CR 12 .02(f) to dismiss the
custody action filed by Moore and Doming on the ground that the petition "failed to state
a claim upon which relief can be granted because a claim for immediate entitlement of a
child must be based upon a `legally unwarranted deprivation' of the child ." In support of
their motion, the Asentes stated that since the child was placed with them pursuant to
irrevocable consents signed by Moore and Doming, "there has been no `legally
unwarranted deprivation ."' At the hearing on the motion, they further argued that (1)
because of the consents, Moore and Doming did not have standing to pursue the
custody action, and (2) the trial court was without jurisdiction to resolve the question
because, by placing Justin with the Asentes, Moore and Dorning had voluntarily
transferred jurisdiction over Justin to Ohio.
On September 8, 1998, the trial court dismissed the termination action . But,
subsequently, on September 24, 1998, the court, apparently sua sponte, entered an
order in the termination action and found that the adoption consents signed by Moore
and Doming had been revoked ."
We observe that: (1) the trial court's findings where somewhat obscured by the
trial court's use during the proceedings of both the term "revoked" and the term "invalid,"
apparently interchangeably, with respect to Moore and Doming's consents ; and (2)
although the trial court's jurisdiction to enter this order has not been raised as an issue
on appeal, the trial court lost jurisdiction in the termination case ten (10) days after the
entry of the final order dismissing the case, CR 59 .05, and therefore, the September 24,
1998 order was void. Commonwealth v. Gross, Ky., 936 S .W.2d 85 (1996) .
11
On October 21, 1998, the trial court12 conducted a hearing on the Asentes'
motion to dismiss, and the following day, the trial court, relying on the September 24,
1998 order in the termination action, determined that the consents previously executed
by Moore and Dorning had been revoked and that Moore and Dorning, therefore, had
standing to pursue the custody action . Finally, the trial court determined that it had
jurisdiction over the matter and denied the Asentes' motion to dismiss the action .
On February 4, 1999, when the custody action came on for trial, the trial court
announced that the consents had already been found invalid 13 in the termination action
and that it would not allow the parties to relitigate that issue . 14 The court advised the
lawyers that it would only "hear testimony on the consent issue as it goes to the
12
Because of a scheduling conflict on the part of Judge Patricia M . Summe, who
presided over all of the other matters pertaining to this custody action, Judge Steven R.
Jaeger presided at the hearing on the Asentes' motion to dismiss and entered the order
of October 22, 1998 . This was Judge Jaeger's only contact with the case.
13
Although the trial court used the term "invalid," a fair review of the complete
record of the proceeding suggests that the trial court intended to refer to her earlier
finding, during the TPR action, that Moore and Doming had "revoked" their consents.
And, although the trial court utilized the terms interchangeably, there is a clear
difference between a finding that Moore and Doming had revoked their consents and a
finding that the consents themselves were invalid . Consent, otherwise valid, may still
be revoked within the time period provided, but an invalid consent does not need to be
revoked ; it is simply invalid and without legal effect . In any event, we fail to see how the
trial court's findings regarding the earlier-executed consents were relevant to the
voluntary TPR action . Moore and Doming had not filed an "Appearance-Waiver And
Consent-To-Adopt," see KRS 625.041 (Form AOC-292), in the TPR action, and thus,
when Moore and Dorning decided not to voluntarily terminate their parental rights, that
decision, in effect, terminated the voluntary TPR action before the trial court. KRS
625.042(6).
14
Because the Asentes were not parties to (and, in fact, were excluded by the
trial court from any participation in) the voluntary TPR action, the trial court erred when it
precluded the Asentes from litigating the validity and enforceability of the consents
during the custody action . Berrier v. Bizer, Ky., 57 S.W.3d 271, 281 (2001) ("[C]ollateral
estoppel applies only if the party against whom it is sought to be applied had a
realistically full and fair opportunity to litigate the issue."). The Asentes, however, have
not raised this issue before the Court .
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standard [of proof] . "15 The trial court then heard limited additional evidence 16 regarding
the validity of the consents .
After Moore and Doming closed their proof, the Asentes began their proof by
calling one witness - of the twenty-six (26) witnesses that they had identified in pretrial
pleadings - before calling Richard Asente to testify. Before questioning Richard
Asente, however, the Asentes' lawyer, apparently as an afterthought, renewed his
motion for a judgment on the pleadings . At that point, the trial court granted a
judgment for Moore and Doming and terminated the proceeding without hearing any
further witnesses from the Asentes :
COUNSEL :
COURT:
I am going to call Mr. Asente .
Mr. Asente .
15 Apparently, the trial court ruled that, if the consents were valid, the Asentes
could retain custody of Justin by showing by a preponderance of the evidence that it
was in the "best interest of the child" to award them custody, but, if the consents were
invalid, then the Asentes would have to satisfy a much higher standard and would have
to demonstrate the birth parents' "unfitness" by clear and convincing evidence .
We say "additional evidence" because, in making its determination in the
custody action as to the validity of the consents, the trial court obviously relied on its
determination in the TPR action, or at least upon evidence introduced in that action:
"Thus, the consents executed on January 27, 1998 . . . were void as a matter of law. . . .
This determination was made, as the Court already noted, in the voluntary termination .
. . . The Court has not been persuaded by testimony that its determination was
incorrect. In fact, the Court finds the testimony has strengthened that legal finding of
fact. The Court will not procedurally reopen the consent issue for purposes of
jurisdiction ."
16
17 By labeling his motion one for "judgment of the pleadings" the Asentes'
counsel likely misspoke. More than likely, the Asentes' lawyer was moving for an
involuntary dismissal under CR 41 .02(2), which is similar to a motion for a directed
verdict, CR 50.01, but utilized in actions "tried by the court without a jury . . . . .. CR
41 .02(2) . Although a trial court may grant judgment for the defendant if "upon the facts
and the law the plaintiff has shown no right to relief," _Id ., a judgment for the plaintiff
would not be appropriate at this point in the proceedings because the defendant has not
yet completed his proof. See _id . ("[T]he defendant, without waiving his right to offer
evidence in the event the motion is not granted, may move for a dismissal . . . . "
(emphasis added)) .
COUNSEL :
COURT:
COUNSEL :
COURT:
Judge, before I call Mr. Asente I would like
to renew my motion for a judgment on the
pleadings based on the testimony that's
already been given here today.
I am inclined to grant your judgment on the
testimony that's been given but I don't believe
it's in your favor. I think that the consent was
not informed and not voluntary, so your motion
is granted . These young individuals were not
informed of what this consent did. The issue
as it relates to how that would or would not
react in a different forum I think begs the
question of whether I think that there needs to
be scrutiny within the terms of the third branch
of government which I think that it does. But
the true question becomes what is the meaning
of an informed and voluntary consent and I
have heard nothing from anyone including the
expert and how those consents are signed that
have changed the facts that these individuals
did not make an informed and voluntary
consent . My opinion with reference to that has
not changed from the basis I utilize in voluntary
termination but I would agree that now the
choice of words is that the consent itself is not
voluntary and therefore is not a valid consent
as opposed to a revoked consent . So your
motion is granted .
Does that mean that the proceedings are over
for today?
Based on your motion, your proceedings are
over for today .
Following the hearing, the trial court, on February 11, 1999, entered its "Findings
of Fact and Conclusions of Law, Judgment of Immediate Entitlement" ("immediate
entitlement judgment") . In its findings of fact, the trial court accepted the testimony of
Moore, Dorning, and Donnelly to the effect that Donnelly had informed (or, to be more
accurate, misinformed) Moore and Doming that they could change their minds about the
adoption until the final hearing in the TPR action . Additionally, the court found that
Donna Womack, the family services clinician who had interviewed Moore and Dorning
on the day they signed the adoption consents, indicated to them that they "could change
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their minds about agreeing to the adoption either before twenty (20) days passed after
they signed consents to the adoption or until their parental rights were terminated by
Circuit Court action, whichever their attorney and they chose to pursue." And, based on
the February 18, 1998 letter from the Asentes' attorney to Donnelly, the trial court found
"that the chosen procedure was to terminate the parental rights in Kentucky and
proceed with the adoption in Ohio after the termination ." The trial court then held that
Moore and Dorning had not knowingly and voluntarily given their consents :
Because Petitioners were made to believe that their
consent to the placement and adoption would not be final
until their parental rights were terminated in a court
proceeding, they never understood the consequences of
executing the consent . Therefore, Petitioners never gave a
knowing and voluntary consent to the termination or
adoption . Thus, the consents executed on January 27,
1998, relying on this misinformation were void as a matter of
law. As the consents are void, any acts taken on authority of
those consents [are] likewise void, including the approval of
the placement of the child with Respondents.
Accordingly, the trial court held that the consents were invalid for purposes of the
custody action as well, concluded that Moore and Dorning were entitled to custody of
Justin, entered a judgment granting "the petition for the immediate entitlement to the
care, custody, and control of Justin," and assigned a hearing date, March 16, 1999, "to
hear testimony regarding the fitness of the [Moore and Dorning] . . . . ..
At the "fitness" hearing, the court again heard only limited testimony before
terminating the hearing . The court then entered a judgment holding that the Asentes
did not have standing to pursue custody of Justin:
The Court determines, pursuant to KRS Chapter 403 and
KRS 405 .020, natural parents are presumed to be fit and are
entitled to custody of their children, and although the
[Asentes] currently have physical possession of Justin they
have no standing to present evidence of unfitness . In the
February 9, [sic] 1999 hearing before this Court, [Moore and
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Dorning] were granted immediate custody, the [Asentes] had
no established legal interests in Justin but merely a physical
possession which the Court ordered continued pending its
experts' advice on transfer concerns for Justin. Any such
evidence concerning unfitness must be presented by one
with legal custody, such as the Cabinet for Families and
Children .
To further complicate this matter, on June 5, 1998, during the pendency of the
Kentucky actions, the Asentes filed an adoption action in Ohio with the Trumbull County
Court of Common Pleas, Probate Division ("Probate Court") . The issue that dominated
the Ohio adoption action was whether Kentucky or Ohio had jurisdiction over Justin .
On July 6, 1998, the Kentucky trial court in the TPR action ruled that it had jurisdiction,
and on July 8, 1998, the Ohio Probate Court dismissed the adoption action pending
before it on the basis that the Kentucky trial court had jurisdiction over whether the
parental rights of Moore and Dorning were properly terminated under Kentucky law. An
appeal was filed by the Asentes from the dismissal but subsequently dismissed by
them.
In the meantime, the Asentes had filed a motion in the Probate Court for
reconsideration of its dismissal of the adoption action, and after the dismissal of their
appeal, the motion was granted. The Asentes then filed a supplemental petition as well
as a new petition for adoption in the Ohio Probate Court . On April 8, 1999, the Probate
Court entered a judgment holding: (1) that Kentucky lacked jurisdiction; (2) that under
the Uniform Child Custody Jurisdiction Act ("UCCJA" )18 and the Parental Kidnapping
Prevention Act ("PKPA"), 19 that Ohio was properly exercising adoption jurisdiction; and
(3) that the February 11, 1999 judgment for immediate entitlement issued by the
18
UNIF. CHILD CUSTODY JURISDICTION ACT
19
Parent Kidnapping Prevention Act (PKPA), 8 U.S .C . 1738(x) (1980) .
-14-
(1968) (hereinafter "UCCJA") .
Kentucky trial court "is not entitled to full faith and credit by the courts of the State of
Ohio ." The Probate Court then scheduled a hearing on the Asentes' adoption petitions .
Moore and Dorning appealed this judgment, and the Court of Appeals for Trumbull
County reversed the Probate Court and held that the Kentucky trial court's judgment "is
entitled to full faith and credit in Ohio and is valid until such time as Kentucky
determines that it no longer has jurisdiction or determines that [Moore and Dorning's]
consent[s] to [the] adoption is no longer necessary. ,2° The Supreme Court of Ohio
subsequently affirmed this holding.
The Asentes appealed from the Kenton Circuit Court's final judgment.
Kentucky's Court of Appeals first addressed the jurisdictional issue and affirmed the trial
court's determination that it had jurisdiction to enter its judgments and orders . Next, the
Court of Appeals addressed the issue of whether the trial court erred in granting custody
of Justin to Moore and Dorning . After concluding that Moore and Doming signed
informed consents, the Court of Appeals found "that the trial court clearly erred when it
determined that the consents were invalid," and "reversed in part and remanded for
entry of an order dismissing Moore and Doming's custody action."
Moore and Doming filed a motion for discretionary review in this Court, and we
granted both that motion and the Asentes' cross-motion for discretionary review, which
argued that the Court of Appeals erred in its analysis of the jurisdictional issue and that
the Court of Appeals's holding was supported by additional grounds that it did not reach
on appeal. We affirm the Court of Appeals's holding that Kenton Circuit Court properly
See In re Adoption of Asente , 734 N .E.2d 1224, 1235 (Ohio 2000) (citation
omitted) (adopting and attaching Ohio Court of Appeals's opinion as an appendix).
2°
21
Id .
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exercised jurisdiction in this matter, but find substantial evidence to support the trial
court's ruling that Moore and Dorning did not knowingly sign their consents, and we
therefore reverse the Court of Appeals's holding, which directed the trial court to dismiss
Moore and Dorning's custody action. As to the issues presented in the Asente's crossappeal, however, we agree that the trial court erred when it held that the Asentes lacked
standing to seek custody of Justin, and we thus vacate the trial court's order that
directed the Asentes to return Justin to Moore and Dorning, and remand the case to the
Kenton Circuit Court for a hearing on Moore and Dorning's custody action . Because we
find that Moore and Dorning have waived their superior rights to custody of Justin, we
direct the trial court to adjudicate the rival custody claims under the best interest
standard .
III. ANALYSIS
A. JURISDICTION
The Asentes assert that Kentucky does not have jurisdiction over this matter and
argue that jurisdiction properly lies with Ohio. This issue has been extensively litigated
on both sides of the river - so much so, in fact, that trial courts, intermediate appellate
courts and the Supreme Courts of both states will have now ruled on it. Both the
Kenton Circuit Court and the Kentucky Court of Appeals ruled that jurisdiction was
properly in the Kenton Circuit Court. Additionally, one Ohio Probate Court judge, Ohio's
Court of Appeals for Trumbull County and the Supreme Court of Ohio ruled that a
Kentucky court was "the proper forum in which to assert jurisdiction over this matter . ,22
We agree with these decisions .
22
Id . at 1234.
- 1 6-
The Asentes first argue that Moore and Doming transferred jurisdiction to Ohio
under Article V of the ICPC, which provides in relevant part:
RETENTION OF JURISDICTION
(a) The sending agency shall retain jurisdiction over the
child sufficient to determine all matters in relation to the
custody, supervision, care, treatment and disposition of the
child which it would have had if the child had remained in the
sending agency's state , until the child is adopted, reaches
majority, becomes self-supporting or is discharged with the
concurrence of the appropriate authority in the receiving
state . Such jurisdiction shall also include the power to effect
or cause the return of the child or its transfer to another
location and custody pursuant to law. The sending agency
shall continue to have financial responsibility for support and
maintenance of the child during the period of the placement .
Nothing contained herein shall defeat a claim of jurisdiction
by a receiving state sufficient to deal with an act of
delinquency or crime committed therein .
The Asentes argue that, because the "sending agency" in this case is Moore and
Dorning, 24 once the consents became final and irrevocable, Moore and Dorning did not
retain any jurisdiction over Justin . And, thus, because the Asentes did not reside in
Kentucky, the Kenton Circuit Court was divested of jurisdiction . We find this argument
without merit for two reasons . First, we hold that the ICPC does not apply to
jurisdictional conflicts, but that "the term `jurisdiction' as used in the ICPC merely refers
to which party in an adoption proceeding has `responsibility for a child's well-being .
,,25
Second, the Asentes' argument depends upon and presumes the validity of the
23
KRS 615 .030, Article V(a) (emphasis added).
24
Under the ICPC, "sending agency" includes "a person . . . which sends . . . or
causes to be sent . . . any child to another party state." KRS 615 .030, Article II(b) .
25
I n Re Adoption of Asente , sup ra note 20 at 1231 .
- 1 7-
consents, but, as discussed below in Part III(B), the trial court's finding that the consents
were invalid is supported by substantial evidence .
The Asentes cite In the Matter of the Adoption of Jarrett26 in support of their
argument that the ICPC divested the Kenton Circuit Court of jurisdiction . Although
Jarrett held that the biological mother's execution of a valid consent document in
Pennsylvania transferred both the child and jurisdiction to New York under Article V of
the ICPC, we would observe that Jarrett is clearly distinguishable . The version of the
UCCJA enacted by New York, unlike the one enacted in Kentucky, specifically excludes
proceedings for adoption . Further, we find that the UCCJA, which governs child
custody proceedings, applies to jurisdictional conflicts in adoption proceedings because
the result of an adoption is a transfer of custody.
The relevant parts of the UCCJA, as adopted by Kentucky, provide as follows :
A court of this state which is competent to decide
child custody matters has jurisdiction to make a child
custody determination by initial or modification decree
if:
(a)
This state is the home state of the child at the
time of commencement of the proceeding, or
had been the child's home state within six (6)
months before commencement of the
proceeding and the child is absent from this
state because of his removal or retention by a
person claiming his custody or for other
reasons, and a parent or person acting as
parent continues to live in this state ; or
26
660 N .Y.S .2d 916 (N .Y. App . Div. 1997) (hereinafter "Jarrett").
27
_Id. at 922 ("Parenthetically, we add that we disagree with the Pennsylvania
court's construction of the Interstate Compact and point out that the Uniform Child
Custody Jurisdiction Act, as enacted in New York (Domestic Relations Law art 5-A),
unlike Pennsylvania [and Kentucky], specifically excludes 'proceedings for adoption'
(Domestic Relations Law § 75-c [3])") .
28 KRS 403 .400 - .620.
- 1 8-
(b)
(c)
(d)
It is in the best interest of the child that a court
of this state assume jurisdiction because the
child and his parents, or the child and at least
one (1) contestant, have a significant
connection with this state, and there is
available in this state substantial evidence
concerning the child's present or future care,
protection, training, and personal relationships ;
or
The child is physically present in this state and
the child has been abandoned or it is
necessary in an emergency to protect the child
because he has been subjected to or
threatened with mistreatment or abuse or is
otherwise neglected or dependent;
It appears that no other state would have
jurisdiction under prerequisites substantially in
accordance with paragraphs (a), (b), or (c), or
another state has declined to exercise
jurisdiction on the ground that this state is the
more appropriate forum to determine the
custody of the child, and it is in the best
interest of the child that this court assume
jurisdiction .
In ruling upon the Asentes' motion to dismiss, the trial court in its October 22, 1998
order determined that Kentucky retained jurisdiction of this matter:
The instant action was filed within 6 months of the
placement of the child in Ohio. Kentucky remains the home
state of the child . It is in the best interest of the child that
Kentucky retain jurisdiction because of the significant
connections to Kentucky and the existence of substantial
evidence within this state. The Respondents have no
judicial decree or order placing the child within their custody
or control .
We agree with the Kenton Circuit Court's determination that it had jurisdiction .
The action filed by Moore and Dorning for immediate entitlement and custody is a
29 KRS 403.420(1).
- 1 9-
"custody proceeding" under the UCCJA; 3° therefore, its provisions are applicable in
determining jurisdiction. Justin was a resident of Kentucky on February 17, 1998, and
prior to that time, he had lived with Moore and Doming for more than eleven (11)
months . Accordingly, while Kentucky was not Justin's home state31 when the action
was commenced, Kentucky "had been [Justin's] home state within six (6) months before
commencement of the proceeding ." 32 Therefore, Kentucky was properly exercising
jurisdiction in this matter . Although at the time this action was commenced, Ohio could
qualify as Justin's home state, Ohio had previously yielded to Kentucky, declined to
exercise jurisdiction, 33 and recognized that Kentucky "is the proper forum in which to
assert jurisdiction over this matter . ,34 Accordingly, in addition to jurisdiction under KRS
30 KRS 403.410(3) ("Custody proceeding" includes proceedings in which a
custody determination is one (1) of several issues, such as an action for divorce or
separation, and includes child neglect and dependency proceedings[].") .
31
KRS 403 .410(5) ("`Home state' means the state in which the child immediately
preceding the time involved lived with his parents, a parent, or a person acting as
parent, for at least six (6) consecutive months, and in the case of a child less than six
(6) months old the state in which the child lived from birth with any of the persons
mentioned . Periods of temporary absence of any of the named persons are counted as
part of the six (6)-month or other period .").
32
The Asentes claim that although the petition was filed on August 17, 1998, no
summons was issued until August 18, 1998, and therefore, the action was not
commenced until that date . CR 3.01 . In support of their claim, they have attached as
an exhibit to their brief a copy of a summons dated August 18, 1998. This claim
conflicts with the Kenton Circuit Court record before this Court, and because the exhibit
was not introduced at trial or included in the appellate record, it is not part of the record
for our consideration .
33
The original Ohio probate judge declined to exercise jurisdiction over Justin
and dismissed the adoption action after ruling that the Kenton Circuit Court had
jurisdiction. He later disqualified himself from the case, and the new probate judge
assigned to preside in the case granted relief from the order that denied jurisdiction in
Ohio and ruled that Ohio was validly exercising jurisdiction in the adoption case. As
previously noted, this ruling was reversed on appeal.
34
I n Re Adoption of Asente , supra note 20 at 1234.
- 20-
403 .420(1)(a), the Kenton Circuit Court had jurisdiction under KRS 403 .420(1)(d) to
enter its judgments and orders .
B . CONSENT TO ADOPTION VERSUS TPR ACTION
The trial court focused - we feel mistakenly - on whether the "consents"
executed by the birth parents were consents for the voluntary TPR action or for the
proposed adoption action in Ohio . We observe that one of two courses is generally
followed prior to the filing of an adoption petition . In one, the birth parents' rights are
first terminated in a voluntary TPR action, 35 and the adoption petition, accompanied by a
certified copy of the order terminating the parental rights ,36 is then filed.
If this course is
followed, the birth parents are not necessary parties to the adoption action since their
parental rights have been terminated, and the adoption action thus proceeds without
further notice to the birth parents . The second course utilizes the birth parents' consent
to the proposed adoption . The birth parents sign the consent to allow the adoption, 38
they are joined as necessary parties to the adoption action ,39 and they are served with
summons . 40 Although the consents need not be filed with the adoption petition, they
must be filed prior to the entry of the adoption judgment .41 Because the consent to
35
KRS 625 .040 -.046.
36
KRS 199.490(2).
37
KRS 199.480(1)(b).
38
KRS 199 .500(1) .
39
KRS 199.480(1)(b) .
4'
KRS 199 .480(2) .
41
KRS 199 .490(2) .
- 21 -
adopt becomes irrevocable after twenty (20) days ,42 this course has become
increasingly popular in private adoptions, especially open adoptions . 43 Occasionally,
both courses are pursued simultaneously because, under the first course, a birth parent
must appear at the TPR hearing unless his or her appearance is waived ,44 and the birth
parent has until the TPR hearing, which may be up to thirty (30) days after the filing of
the petition ,45 to change his or her mind about terminating his or her parental rights and
thereby allowing the adoption .46 On the other hand, a properly executed voluntary and
informed consent to adopt becomes irrevocable after twenty (20) days, and the action
can proceed without any further action on the part of the birth parent. Accordingly, this
has the practical effect of reducing the risk that the birth parent will change his or her
mind about the adoption .
Like the final order in a TPR proceeding, a valid adoption
judgment terminates the parental rights of the birth parent .4'
42
KRS 199 .500(5).
43
Generally speaking, an "open adoption" is one where the birth parents
continue' to maintain a relationship with the child . Many private adoptions, especially
where a grandparent or other relative adopts the child, are open adoptions .
44
KRS 625 .041 (Form AOC-292) .
45
KRS 625.042(1).
46
See Van Wey v. Van Wey, Ky., 656 S .W.2d 731, 738 (1983) (Vance, J.,
dissenting) .
47
KRS 199.520(2) ("Upon granting an adoption, all legal relationship between the
adopted child and the biological parents shall be terminated except the relationship of a
biological parent who is the spouse of an adoptive parent ; Wright v. Howard , Ky.App .,
711 S .W .2d 492, 494 (1986) (holding that "a judgment of adoption in and of itself
terminates any meaningful legal relationship between the adopted child and its nonconsenting party defendant natural parent . . . .") . Of course, unless a biological
parent's parental rights have been previously terminated, see KRS 199.480(1)(b)(6), the
biological parent or parents must be made a party defendant to the proceeding, KRS
199 .480(1)(b), and a trial court may approve an adoption without the consent of the
- 22-
The trial court determined that the birth parents' consent was for the TPR action
and not for the proposed adoption . While we doubt both the correctness and the legal
relevance of this determination in the overall resolution of this case, we would note that
consent for a voluntary TPR action differs significantly from the consent executed by the
birth parents here. 48 The primary purpose of the consent provided for in a TPR action is
to allow the action to proceed without the birth parents' attendance at the voluntary TPR
hearing and this consent is required on a form (AOC-292) prescribed by the
Administrative Office of the Courts. From a careful review of the record, we believe it
more likely that the consent in this case was thought necessary to facilitate the
placement of Justin with the Asentes prior to the termination of Moore and Dorning's
parental rights in the TPR action, after which the adoption would then proceed in Ohio .
child's biological living parents only if the evidence supports the additional factual
findings required by KRS 199.502 .
48
See KRS 625 .041(3):
(3) The parent may sign an appearance-waiver and consentto-adopt form when the parent chooses not to attend a
voluntary termination of parental rights proceedings . This
form, prescribed by the Administrative Office of the Courts,
shall :
(a) Contain a statement of acknowledgment and
agreement, regarding the appearance at the
proceeding, signed by the parent, counsel for the
parent, and the cabinet . If the parent is a minor, the
form shall also be signed by the guardian of the
minor parent ;
(b) Contain the parent's notarized signature ;
(c) Contain any address to which the parent
requests the final judgment be served .
49 Donnelly understood that "consents would be required before there would be
placement ." He advised Moore and Doming that "you will be signing a consent. It's
really for placement purposes . It's really to satisfy the interstate compact offices that
there's an intent here, and that it's with termination of parental rights that your consent
will become binding and irrevocable ."
- 2 3-
C. VOLUNTARY AND INFORMED CONSENTS
The crux of this appeal is the validity of the consents executed by Moore and
Dorning . And, the consents' validity must be determined by whether Moore and
Dorning gave voluntary and informed consents, 5° which means :
[T]hat at 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.
Moore and Dorning do not contest that they voluntarily signed the consents, and
because their own lawyer represented them, their consents are presumed to be
voluntary and informed . 51 Additionally, the consents, as drafted, include matters that
are required only in cases where a parent is not represented by counsel .52 Clearly, the
consents are facially valid.5s
5o
KRS 199 .500(1) ("An adoption shall not be granted without the voluntary and
informed consent of the living parents . . . .").
51
KRS 199.011(14) ("If at the time of the execution of the consent the consenting
person was represented by independent legal counsel, there shall be a presumption
that the consent was voluntary and informed .").
52
KRS 199 .011(14) :
In the event the person was not represented by
independent legal counsel, the consent shall be in writing,
signed and sworn to by the consenting person and include
the following:
(a)
Date, time and place of the execution of the
consent ;
(b)
Name of the child, if any, to be adopted and
the date and place of the child's birth ;
(c)
Consenting person's relationship to the child ;
(d)
Identity of the proposed adoptive parents or a
statement that the consenting person does not
-24-
(e)
(f)
(g)
(h)
(i)
(j)
desire to know the identification of the
proposed adoptive parents ;
A statement that the consenting person
understands that the consent will be final and
irrevocable twenty (20) days after the
execution of the consent if the placement was
previously approved, if approval of the
placement is required ;
Disposition of the child if the adoption is not
adjudged ;
A statement that the consenting person has
received a completed and signed copy of the
consent at the time of the execution of the
consent ;
A statement that the consenting person
understands that the consent may only be
withdrawn by written notification sent by
certified or registered mail addressed to either
the attorney for the consenting person or to the
attorney for the adoptive parents, within thirty
(30) days following the execution of the
consent;
Name and address of the person who prepared
the consent, name and address of the person
who reviewed and explained the consent to the
consenting person, and a verified statement
from the consenting person that the consent
has been reviewed with and fully explained to
the consenting person ; and
Total amount of the consenting person's legal
fees, if any, for any purpose related to the
execution of the consent and the source of
payment of the legal fees .
We would note that the thirty (30) days allowed under subsection (h) for
withdrawal of the consent is probably the result of a clerical error and that the time
period was meant to be twenty (20) days. Judge James E. Keller, Beware: Major
Changes in Private Independent Adoptions, Bench & Bar, Kentucky Bar Association,
vol . 60, no . 3 (Summer 1996). This mistake was rectified in the 2001 Session of the
General Assembly. 2001 Ky . Acts ch. 69, § 1 . Additionally, we would mention that
prior to the enactment of the "Voluntary and informed consent" provisions, KRS
199 .011(14) ; KRS 199.500(5), a biological parent was allowed to revoke consent to
adopt only upon a showing of sufficient reason for revocation. Warner v. Ward , Ky., 401
S.W .2d 62, 63 (1966), quoting Skaggs v. Gannon , 293 Ky. 795, 170 S.W.2d 12, 16
(1943)) ("If 'sufficient reason is shown there may be a revocation before final
judgment.').
Furthermore, the following facts are not disputed : (1) the consents clearly state
that they "will be final and irrevocable twenty (20) days after approval of the placement" ;
(2) Moore and Doming admitted that they read and understood the consents before
signing them ; (3) immediately before the birth parents signed the consents, Womack
explained to them that the consents were irrevocable after twenty (20) days ; 54
(4)
Moore
called Donnelly within the twenty-day revocation period and asked him about calculating
the period ; (5) Donnelly explained to Moore how the period was calculated ; and (6)
Moore and Doming did not revoke their consents during the twenty-day revocation
period .
53
Although the consents do not state that the birth parents, in fact, consent to the
proposed adoption, see supra note 3, Moore and Doming do not argue otherwise . The
Court of Appeals's mention of "the clear language of the consent forms" refers to the
provision regarding the twenty-day revocation period .
54
Moore and Doming have made reference to the investigation report Womack
filed with her employer after interviewing them. The report contained a checklist which
contained the following :
B. During your interview with the respective parent, did you:
2 . Explain that birth parents can change their minds about
agreeing to the adoption until their parental rights have been
terminated by Circuit Court action which may happen in a
separate action before the applicants petition the court to
adopt the child or as part of the court's action on the
adoption petition, but the Cabinet cannot represent the birth
parents in a legal action? YES
Womack testified, however, that this report form was outdated and that she specifically
explained to Moore and Doming that they would have twenty (20) days in which to
revoke their consents if they signed the consent forms. The report was filed by
Womack with her employer and was neither given to Moore and Doming nor made
available for their inspection . Thus, except to the extent that the report may constitute a
prior statement inconsistent with Womack's trial testimony, KRE 801-A(1)(A), this report
is of little probative value because Moore and Doming could not have relied upon it.
- 26-
Nevertheless, the trial court, relying upon the testimony of Moore, Doming, and
Donnelly, found that Donnelly unintentionally misinformed Moore and Doming as to the
legal consequences of signing the consents, that Moore and Doming relied upon
Donnelly's advice in signing the consents, and, as a result, that the consents were
invalid because they were not voluntary and informed . The Court of Appeals, however,
held "that the trial court clearly erred in its determination that the consents were not
knowingly and voluntarily given" and thus held that "the trial court clearly erred when it
determined that the consents were invalid ."
The Court of Appeals, however, was entitled to set aside the trial court's findings
only if those findings are clearly erroneous . 55 And, the dispositive question that we must
answer, therefore, is whether the trial court's findings of fact are clearly erroneous, 56 i.e.,
whether or not those findings are supported by substantial evidence .57 " [S]ubstantial
evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a
conclusion ,58 and evidence that, when "taken alone or in the light of all the evidence, . . .
55
7 KURT A. PHILIPPS, JR.,
KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE
ANNOTATED, Rule 52.01, comment 8 (5th ed . West Group 1995) (hereinafter "PHILIPPS") .
56
CR 52 .01 ("Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the credibility of
the witnesses .") ; Commonwealth v. Harrelson , Ky., 14 S .W.3d 541, 549 (2000) ("When
the trial court makes findings of fact, a reviewing court will not disturb such findings
unless clearly erroneous .").
57
Commonwealth v. Deloney, Ky., 20 S .W .3d 471, 474 (2000) ("If the trial
judge's findings of fact in the underlying action are not clearly erroneous, i .e., are
supported by substantial evidence, then the appellate court's role is confined to
determining whether those facts support the trial judge's legal conclusion .") .
58 BLACK'S LAw DICTIONARY 580 (7th ed . 1999) . See also Kentucky State Racing
Commission v. Fuller , Ky., 481 S.W .2d 298, 308 (1972), citing Blankenship v. Lloyd
Blankenship Coal Company, Inc. , Ky., 463 S .W.2d 62 (1970).
- 27-
has sufficient probative value to induce conviction in the minds of reasonable men ."59
Regardless of conflicting evidence, the weight of the evidence, or the fact that the
reviewing court would have reached a contrary finding ,62 "due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses" 63 because
judging the credibility of witnesses and weighing evidence are tasks within the exclusive
Thus, "[m]ere doubt as to the correctness of [a] finding
province of the trial court .64
[will] not justify [its] reversal, ,65 and appellate courts should not disturb trial court
findings that are supported by substantial evidence.
59 Blankenship v. Lloyd Blankenship Coal Co. , supra note 58 at 64 (emphasis in
original omitted) .
60
City of Monticello v. Rankin , Ky., 521 S .W.2d 79, 80 (1975) ("Although the city
would have us accept its version of the conflicting evidence, it appears that the findings
of fact made by the trial judge were supported by substantial evidence . They are,
therefore, binding on appeal.") ; Kentucky Commission on Human Rights v. Fraser, Ky.,
625 S.W.2d 852, 856 (1981) ("The rule in Kentucky is that if there is substantial
evidence in the record to support an agency's findings, the findings will be upheld, even
though there may be conflicting evidence in the record .") .
61
Burke v. Burke , Ky.App., 801 S .W .2d 691, 694 (1990) ("Nevertheless, `when
there is substantial evidence to support a verdict, though we of the courts may think it
outweighed, we are compelled to uphold the jury's conclusions ."') .
62
Urella v . Kentucky Bd . of Medical Licensure , Ky., 939 S .W.2d 869, 873 (1997)
("Although fact finders may have reached differing conclusions in this case, there is
clearly substantial evidence in the record to support the Board's finding that Urella
knowingly made a false statement in view of the jointly introduced documents and
Urella's own testimony ."); Bowling v. Natural Resources and Environmental Protection
Cabinet, Ky.App., 891 S .W.2d 406 (1994) .
63
CR 52.01
64
Bowling v. Natural Resources and Environmental Protection Cabinet, supra
note 62 .
65
PHILIPPS,
supra note 55 at Rule 52 .01, comment 8 .
66
Kentucky State Racing Commission v. Fuller, supra note 58, citing H. Smith
Coal Company v. Marshall , Ky., 243 S .W.2d 40 (1951).
- 28-
In the present case, the trial court accepted the testimony of Moore, Doming and
Donnelly to the effect that, on the basis of Donnelly's advice, Moore and Doming
believed that they had until the TPR hearing to revoke their consents and have Justin
returned to them . It was within the trial court's discretion to believe these witnesses to
the exclusion of other evidence . And, because these witnesses' testimony constituted
substantial evidence to support the trial court's findings, the Court of Appeals erred, and
improperly substituted its judgment for that of the trial court, when it disturbed the trial
court's findings . As the Court of Appeals's improper factfinding regarding the validity of
the consents is inextricably intertwined with its holding reversing and remanding the
case with directions to dismiss Moore and Doming's custody action, we reverse the
holding of the Court of Appeals as to the merits of the custody action .
D . CUSTODY ACTION
1 . STANDING
Based upon its conclusion that the consents were invalid, the trial court ruled that
Moore and Doming were entitled to the immediate custody of Justin. The trial court
then, however, assigned a hearing date "to hear testimony regarding the fitness of
[Moore and Dorning] . . . ... Because the Asentes' custody claim remained pending, the
appropriateness of the trial court's ruling that Moore and Doming were entitled to
67
Although not argued, we are aware of the provisions of KRS 199 .550 that
provide for the return of a child not adopted "to the custody of the cabinet or such
individual, institution, or agency"; however, this statute is not applicable to this matter for
two reasons . First, it applies to a situation where a petition for adoption is dismissed or
an adoption judgment is annulled . Neither event occurred in Kentucky in this case.
Second, this statute "is designed to facilitate the re-establishment of the status quo
where custody of a child had been awarded in prior court proceedings ." Hill v. Poole ,
Ky., 493 S .W .2d 482, 484 (1973). That did not occur in this case either.
- 29-
immediate custody of Justin is questionable ; 68 however, the trial court allowed custody
to remain with the Asentes pending the "fitness hearing," and consequently, the status
quo of Justin's custody was maintained pending the final resolution of all custody
issues .
At the abbreviated fitness hearing, the trial court summarily ruled that the
Asentes did not have standing to pursue custody of Justin and dismissed their custody
claim . We find this ruling in error. "Standing" is "[a] party's right to make a legal claim
or seek judicial enforcement of a duty or right,
,69
or, in other words, "the right to bring an
action in the first instance . ,70 In Kentucky, a nonparent's standing to bring a custody
action is governed by KRS 403 .420(4)(b), which provides in relevant part :
(4) A child custody proceeding is commenced in the Circuit
Court :
(b) By a person other than a parent, by filing a petition for
custody of the child in the county in which he is permanently
resident or found, but only if he is not in the physical custody
of one (1) of his parents[ 1. 71
68
Moore v. Dawson , Ky., 531 S .W .2d 259, 263 (1975) ("Where a trial court has
jurisdiction to determine not only immediate entitlement to custody but under KRS
403.260 continuing custody as well, the trial court should generally resolve all custody
issues before ordering [the transfer of custody] .").
69 BLACK'S LAw DICTIONARY 1413 (7th ed . 1999) .
'° PoseV v . Powell, Ky.App ., 965 S .W.2d 836, 839 (1998) ; Williams v. Phelps ,
Ky.App., 961 S .W .2d 40, 41 (1998) ("Standing is the right to appear and seek relief in a
particular proceeding .") .
71 KRS 403.420(4)(b) . As a matter of procedure, we would observe that,
although the Asentes did not file a petition for custody of Justin, they sought custody in
their response to Moore and Doming's petition for immediate entitlement/custody . And
thus, in order to prevail on their claim for custody, the Asentes must satisfy the standing
requirements that would be necessary if they had initiated the custody proceedings
themselves .
- 30-
This language appears rather straight-forward, i .e., a nonparent has standing if the child
is not in the "physical custody" of a parent . And, in the present case, because Justin
was living with the Asentes in their home, it would seem to follow logically that they had
"physical custody" of him and therefore standing to maintain an action for his custody .
However, several courts, including the Kentucky Court of Appeals, have rejected the
argument that "physical possession" alone gives standing to the nonparent .
In Williams v. Phelps, 72 a nonparent with whom a child was residing sought
custody of the child, and the Kentucky Court of Appeals indicated that the nonparent's
mere physical possession of the child did not confer standing on her but nevertheless
held that the nonparent had standing "[b]ased upon all of these facts, under the unique
circumstances of this case." '3 In Henderson v. Henderson ,'4 the Montana Supreme
Court, in addressing a statute that authorized the commencement of a child custody
proceeding by a person other than a parent "only if [the child] is not in the physical
custody of one of his parents
,,75
held that "'[p]hysical custody' is not limited to having
actual, immediate control of the physical presence of the child . . . . but [r]ather, this
phrase relates to the custodial rights involved in the care and control of the child ." '6 In
explaining its ruling, the Court stated that "[t]o interpret this phrase otherwise would
allow a nonparent to file a petition for custody anytime the child is out of the physical
72
Ky.App., 961 S.W .2d 40 (1998) .
73
Id. at 42 .
74
568 P.2d 177 (Mont. 1977) .
75
The statute, Mont. Code Ann . § MT ST 40-4-211, was subsequently amended
to delete "but only if the child is not physically residing with one of the child's parents ."
1999 Mont . Laws Ch . 414.
76
Henderson v. Henderson , supra note 74 at 179 .
- 3 1-
presence of the parent or parents, even if for a few minutes, or under the watchful eyes
of an authorized babysitter . ,77 Twenty years later, in Girard v. Williams ,78 when the
Montana Supreme Court again addressed the issue, it followed and further explained its
earlier holding:
"'[P]hysical custody' for purposes of establishing standing
. . . is not based simply on who has actual possession of a
child at the time a custody proceeding is commenced .
"Rather, the `phrase relates to the custodial rights involved in
the care and control of the child ."' As a result, to establish
standing, a nonparent must demonstrate that the child's
parent has voluntarily relinquished his or her right to physical
custody and must present evidence as to the duration of the
separation between the parent and child .
Similarly, in In re A.W.J . , B° the court held that "[t]he determination that a parent does not
have physical custody of a child turns not on possession ; rather, it requires a showing
that the parent somehow has voluntarily and indefinitely relinquished custody of the
child . However, not every voluntary turnover of a child will deprive the parent of
physical custody .
,81
The court then set forth factors to consider in determining whether
a parent had physical custody. "[T]he court must consider such factors as (1) who was
responsible for the care and welfare of the child prior to the initiation of custody
proceedings ; (2) the manner in which physical possession of a child was acquired ; and
(3) the nature and duration of the possession ."82 The court in Webb v. Charles ,83 when
" Id . at 179 (citation omitted) .
78
966 P .2d 1155 (Mont. 1998) .
79
Id . at 1162 (citations omitted) .
8°
736 N .E.2d 716, 721 (III . App.
81
Id . (citation omitted) .
Ct. 2000) (citations omitted) .
82 Id . (citation omitted) .
- 32-
construing a subsection that mirrors KRS 403.420(4)(b) almost to the word, held that
"'[p]hysical custody' as used in the statute relates to the custodial rights involved in the
care and control of the child," 84 and "[p]hysical custody in this sense does not equate to
having actual, immediate control of the physical presence of the child, rather it is the
legal right to control the child ."85
The phrase "physical custody" first appeared in KRS Chapter 403 with
Kentucky's 1972 adoption 86 of the Uniform Marriage and Divorce Act ("UMDA") . 87 The
phrase was contained in subsection (d)(2) of the UMDA's jurisdictional section 88
(enacted in Kentucky as KRS 403.260 with subsection (d)(2) being enacted as KRS
403 .260(4)(b)) . Subsection (4)(b) of KRS 403 .260 read exactly the same as the present
KRS 403 .420(4)(b), which is set out above . In 1980, however, Kentucky adopted the
Uniform Child Custody Jurisdiction Act ("UCCJA"), 89 and the legislature repealed KRS
403.2609° in its entirety but retained the language of its subsection (4)(b), the nonparent
standing provision, as a subsection added to the UCCJA's jurisdiction section,9' but also
83 611 P.2d 562 (Ariz. Ct . App. 1980) .
84 Id . at 565.
85 Id., citing Henderson v. Henderson , supra note 74.
86
1972 Ky. Acts ch . 182, § 16 .
87
UNIF . MARRIAGE AND DIVORCE ACT
(hereinafter "UMDA") .
(amended 1973), 9A U .L.A. 159 (1990)
88 UMDA § 401 .
89 1980 Ky. Acts ch . 69 .
9°
1980 Ky. Acts ch . 69, § 25 .
91
UCCJA § 3
- 33-
adopted the remainder of the UCCJA section. Thus, subsection (4)(b) of KRS
403.260, which was enacted originally as part of the UMDA, is now contained in
subsection (4)(b) of KRS 403 .420, which was enacted as part of the UCCJA. There is
the rub .
"Physical custody" was not defined in the UMDA, and accordingly, when the
phrase first appeared in KRS 403 .260(4)(b), it was not statutorily defined . However, the
UMDA's requirement that the child not be in the physical custody of a parent was
devised to protect the parental rights of custodial parents. It was therefore logical for
courts to define "physical custody" to mean more than mere physical possession . But,
the UCCJA, which was not designed to protect custodial parents' parental rights, but
rather to "avoid jurisdictional competition and conflict with courts of other states in
matters of child custody,
,94
did contain its own definition of "physical custody." Under
the UCCJA § 2(8), enacted as KRS 403 .410(8), "physical custody" is defined as "actual
possession and control of a child[
] ."95
And, thus, under a literal interpretation of the
KRS 403 .410(8) definition of "physical custody," mere possession of a child may suffice.
If this definition applies, then a nonparent with mere physical possession of a child
would have standing to seek custody. We hold, however, that simple physical
92 1980 Ky. Acts ch . 69, § 3 .
93 UMDA § 401, comment, 9A(II) U. L. A. 264 (1998) ("[T]his subsection has been
devised to protect the `parental rights' of custodial parents . . . .") ; Lawrence Schlam,
Third-Party Standing in Child Custody Disputes: Will Kentucky's New "De Facto
Guardian" Provision Help?, 27 N. Ky. L . Rev. 368 (2000).
94 UCCJA § 1 (codified as KRS 403.400).
95 KRS 403 .410(8) .
- 34-
possession, standing alone, is insufficient to confer standing to contest child custody
upon a nonparent .
Kentucky's appellate courts have recognized not only that "parents of a child
have a statutorily granted superior right to its care and custody," 96 but also "that parents
have fundamental, basic and constitutionally protected rights to raise their own
children ." 9' And, because we would necessarily abrogate those rights if we were to
resolve custody disputes on a "best interest of the child" standard after allowing the
nonparent to obtain standing by mere possession of the child, we hold that "physical
custody" for the purposes of establishing standing requires more than "actual
possession and control of a child" at the time a custody action is commenced 98 -
i .e .,
a
showing "that the parent has somehow voluntarily and indefinitely relinquished custody
96
Boatwright v. Walker, Ky.App., 715 S.W.2d 237, 244 (1986); Quisenberry v.
Quisenberry , Ky., 785 S .W.2d 485, 489 (1990) ("In Davis v. Collinsworth , Ky., 771
S.W.2d 329 (1989) . . . we upheld the statutory principle in KRS 405 .020 that a court
would not award custody to a nonparent over the rights of a parent unless it was first
proved that the parent was unfit ('unsuited to the trust'), even when to do so might be in
the best interest of the child."); Van Wey v. Van Wey, supra note 46 at 735 (1983)
("KRS 405.020 establishes the initial right of the parent to custody of her child, but not
the continuing right once custody has been relinquished .") ; KRS 405.020.
97
Davis v. Collinsworth , supra note 96 at 330 (1989) ("The due process clause of
the Fourteenth Amendment to the United States Constitution has long been recognized
to contain a substantive component that 'provides heightened protection against
government interference with certain fundamental rights and liberty interests .' The
liberty interest at issue in this case, one of the oldest and most clearly established, is
the interest of parents in the care, custody, and control of their children . Over the years,
the United States Supreme Court has jealously guarded this right, and has not
encroached on it absent some compelling reason ." citing Santosky v. Kramer, 455 U.S .
745, 102 S .Ct. 1388, 71 L .Ed .2d 599 (1982) and Stanley v. Illinois , 405 U .S. 645, 92
S.Ct. 1208, 31 L .Ed .2d 551 (1972)); Sherfey v. Sherfey , Ky.App ., 74 S.W.3d 777, 78182 (2002); Greathouse v. Shreve , Ky., 891 S .W.2d 387 (1995) .
98
Cf. Simpson v. Simpson , Ky. 586 S.W.2d 33, 35 n. 1 (1979) ("A nonparent can
not legitimately invoke the court's jurisdiction on the issue of custody by seizing a child
from a parent prior to filing a petition for custody.").
- 35-
of the child ." This does not mean that every voluntary relinquishment will deprive a
parent of physical custody and bestow standing upon a nonparent. In determining
whether parents have relinquished "physical custody" in a manner that confers standing
upon a nonparent, Kentucky trial courts - like other courts that have addressed this
issue - should consider, among other factors : (1) how possession of the child was
acquired by the nonparent, especially the intent of the parents at the time of their
relinquishment of the child to the nonparent; (2) the nature and duration of the
possession by the nonparent; (3) the age of the child when possession was acquired by
the nonparent and the child's age when the parents sought the child's return ; (4) any
visits by the parents during the nonparent's possession of the child; (5) any financial
support by the parents during the child's stay with the nonparent ; (6) the length of time
between the relinquishment and the parent's efforts to secure the child's return ; and (7)
what efforts the parents made to secure the child's return. Although we recognize that
these factors cannot be applied mechanically as a formula to generate a conclusive
answer as to the nonparent's standing, we believe these factors are useful analytical
tools. We further recognize that although factors (1) and (2) will usually have the most
importance, the other factors may also impact upon the determination .
On the facts of this case, we conclude that the trial court clearly erred when it
ruled that the Asentes lacked standing . Moore and Doming voluntarily relinquished
Justin to the Asentes for the purpose of adoption . In furtherance of the planned
adoption, they filed an action to terminate their parental rights and to transfer Justin's
custody to the Asentes. Although their consents to adopt are not enforceable and the
TPR action was dismissed, these actions undoubtedly show that, when they handed
Justin over to the Assentes, Moore and Doming intended to relinquish custody
- 36-
indefinitely . Although Moore subsequently called and sought the return of Justin, she
did not do so until over a month later, and Moore and Doming did not file this action to
regain Justin's custody until almost six (6) months after Justin's placement with the
Asentes . Based on these facts, we hold that Justin was in the "physical custody" of the
Asentes, not Moore and Doming, at the time this custody action was commenced, and
therefore, the Asentes have standing to pursue Justin's custody . Accordingly, we hold
that the trial court erred when it held that the Asentes lacked standing to pursue custody
of Justin, and we therefore remand this matter to the trial court for it to conduct a
hearing to determine custody .
2. STANDARD : "UNFITNESS" VERSUS "BEST INTEREST"
"Custody contests between a parent and a nonparent who does not fall within the
statutory rule on `de facto' custodians are determined under a standard requiring the
nonparent to prove that the case falls within one
of
two exceptions to parental
entitlement to custody . One exception to the parent's superior right to custody arises if
the parent is shown to be 'unfit' by clear and convincing evidence . A second exception
arises if the parent has waived his or her superior right to custody." 99
99
16 L. Graham & J . Keller, Kentucky Practice, Domestic Relations Law 21 .26
(2nd ed . West Group 2003 Pocket Part) (hereinafter "Graham & Keller"). In 1998, the
Kentucky legislature enacted what is commonly referred to as the "de facto custodian"
act. 1998 Ky. Acts ch. 250 (codified in substantial part as KRS 403 .270(1)) . Under the
act, "`de facto custodian' means a person who has been shown by clear and convincing
evidence to have been the primary caregiver for, and financial supporter of, a child who
has resided with the person for a period of six (6) months or more if the child is under
three (3) years of age and for a period of one (1) year or more if the child is three (3)
years of age or older or has been placed by the Department for Community Based
Services ." 1998 Ky. Acts ch . 250, § 1(1)(a) ; KRS 403.270(1)(a) . "Once a court
determines that a person meets the definition of de facto custodian, the court shall give
the person the same standing in custody matters that is given to each parent . . . ." 1998
Ky. Acts ch. 250, § 1(1)(b) ; KRS 403 .270(1)(b). Under 403.420(4)(c), a de facto
custodian has standing to commence a custody action. The effective date of the act
was July 15, 1998; therefore, whether the Asentes attained de facto custodian status
- 37-
Under the first exception, the nonparent must first show by clear and convincing
evidence that the parent has engaged in conduct similar to activity that could result in
the termination of parental rights by the state .' °° Only after making such a threshold
showing would the court determine custody in accordance with the child's best
interest.' °' Under the second exception, however, if a waiver has been shown by clear
and convincing evidence, the trial court shall determine custody between the parent and
nonparent based on the best interest of the child . 102 "Waiver requires proof of a
under the act is not an issue in this case . We would also add that estoppel has been
proposed as a concept in custody contest between a parent and nonparent . Graham &
Keller § 21 .27.
100
Graham & Keller § 21 .26 ; Fitch v. Burns, Ky., 782 S .W .2d 618, 620 (1989)
("This [parental] right may only be abrogated in an action involving a nonparent seeking
custody by a showing of unfitness sufficient to support an involuntary termination of
parental rights ."), quoting Boatwright v. Walker, supra note 96 at 244; Davis v.
Collinsworth , supra note 96 at 330 ("The type of evidence that is necessary to show
unfitness on the part of the mother in this custody battle with a third party is : (1)
evidence of inflicting or allowing to be inflicted physical injury, emotional harm or sexual
abuse; (2) moral delinquency ; (3) abandonment; (4) emotional or mental illness ; and
(5) failure, for reasons other than poverty alone, to provide essential care for the
children .").
101
McNames v. Corum, Ky., 683 S.W .2d 246, 247 (1984) ("It is our holding that,
before any court even considers the best interest of the child in an action involving
parent and non-parent, except in unusual circumstances not present here, there must
first be a showing that the parent is not a fit person to have custody.") ; Chandler v .
Chandler, Ky., 535 S .W .2d 71, 72 (1975) ("Since there appears to be some confusion
as to the nature of a parent's rights as against those of nonparents with respect to child
custody, the rule is that not only must it be shown that the child's welfare will be better
served under the custody of the nonparent, but also it must be found that the parent is
not a suitable custodian .").
102
Greathouse v. Shreve , supra note 97 at 390 ("[O]nly if the trial court is
persuaded the evidence is clear and convincing that the natural father waived his
superior custodial right under KRS 405 .020, shall custody between the natural father
and the maternal grandmother be decided based on what is in the best interests of the
child .") ; Shifflet v. Shifflet, Ky., 891 S .W.2d 392 (1995).
- 38-
`knowing and voluntary surrender or relinquishment of a known right .' ,,103 However,
waiver may be implied "by a party's decisive, unequivocal conduct reasonably inferring
the intent to waive,"' 04 as long as "statements and supporting circumstances [are]
equivalent to an express waiver." 105
Kentucky's appellate courts have recognized two circumstances that constitute a
knowing and voluntary waiver of a parent's superior right to custody . Van Wey v . Van
We
106
and Boatwright v. Walker' 07 held, respectively, that once (1) a voluntary petition
to terminate parental rights to permit an adoption or (2) a voluntary, knowing consent to
adoption, have "been executed, withdrawal, while permissible, nevertheless waives the
parent's superior right to child custody, `and the best interests of the child [then] takes
precedence."" 08 Whether a parent has waived his or her superior right to custody under
103
Greathouse v. Shreve , supra note 97 at 391 .
104
BLACK'S
105
Greathouse v. Shreve , supra note 97 at 391 .
LAw DICTIONARY 1.574 (7th ed . 1999) .
106
Supra note 46 at 734 ("We agree with the trial court that, having found that the
petition was initially voluntary, when the mother later attempted to revoke her consent,
the court had a responsibility to consider the overall welfare of the child in deciding
whether or not to permit such revocation .").
107
Supra note 96 at 244 (in a case where the natural mother sought to withdraw
her sworn written consent to allow the adoption of her child and his return, the court
held "[a]s both James rv. James, Ky., 457 S.W.2d 261, 263 (1970)] and Bond v.
Shepard , Ky., 509 S .W.2d 528, 529 (1974)] point out, however, this superior right may
be contracted away. Once such a contract has been executed, the natural parent has
waived its superior right, and the best interests of the child take precedence as provided
for in Van Wey. " (citations omitted)).
108
Greathouse v . Shreve , supra note 97 at 391 (1995) (brackets in original) . KRS
199 .500(5)'s statutory cut-off for revocation of consent does not change the rule
judicially formulated by this Court that, when consent has been given (even if it is
subsequently revoked), custody should be evaluated under the best interest standard .
See Graham & Keller § 26 .7. Under Ohio law, a consent to adopt may be withdrawn
prior to the entry of a decree of adoption if the court finds that the withdrawal is in the
-39-
KRS 405.020 is a fact-specific determination that should be made after consideration of
all relevant factors.
Here, based on the undisputed material facts in this case, we conclude that
Moore and Dorning waived their superior rights to custody of Justin. Although their
consents to Justin's adoption were held invalid because of their mistaken belief that
they had until the TPR hearing to withdraw them, the consents were otherwise
voluntarily and knowingly signed by them . Their mistake as to when they could revoke
their consent was cured when the trial court, in effect, allowed them to revoke their
consents to the adoption . But the fact remains that Moore and Doming voluntarily
signed consents with the knowledge and the intent that the consents would facilitate
Justin's adoption . That was their intention when they signed the consents and it was
their intention when they signed the petition to terminate their parental rights. Even if
they had effectively revoked their consents within the statutory twenty-day cut-off
period, under the circumstances of this case, we would hold that Moore and Dorning
had waived their superior rights because they contacted the Asentes, not once but twice
(and on occasions that were several months apart), about the adoption . This was
neither a spur of the moment nor a coerced decision by Moore and Dorning . They
signed the necessary forms for Justin's placement with the Asentes for the express
purpose of his adoption by them, and when placement was finally approved, they
delivered Justin to the Asentes . At that time, the intentions of Moore and Dorning to
best interest of the child . See Ohio Revised Code § 3107.08 .4 . Because Donnelly
practices in Ohio as well as Kentucky, this difference might explain why he advised
Moore and Dorning that they had until the TPR hearing to withdraw their consents .
- 40-
permanently change the legal custody of Justin to the Asentes were clearly defined . 109
Moore and Doming were unquestionably and knowingly proceeding with a course of
action that would result in Justin being "considered for purposes of inheritance and
succession and for all other legal considerations, the natural child of the [Asentes], the
same as if born of their bodies," and terminating "all legal relationship[s] between [Justin
and Moore and Dorning] ." 110 Thereafter, they voluntarily and knowingly signed a petition
for the termination of their parental rights and for the transfer of custody to the Asentes
for the purpose of his adoption upon the termination of their parental rights . Moore did
not notify the Asentes of her change of heart regarding Justin's adoption until 37 days
after Justin had physically been delivered to the Asentes . And, Moore and Doming did
not file this action to regain Justin's custody until almost six (6) months after turning him
over to the Asentes . Under the circumstances, Moore and Doming not only waived
their superior right to the custody of Justin but are estopped from claiming otherwise ."'
We therefore hold that, upon remand, the trial court shall determine custody in
accordance with Justin's present best interest .
109 Day v. Day, Ky., 937 S.W .2d 717, 718 (1997) (holding that "[t]he initiation of
. . . formal legal proceedings establishes a clearly defined point of time when the
adoptive parents sought exclusive legal custody of [the child] and the termination of the
parental rights of the biological parents .").
110
KRS 199 .520(2).
111
See Graham & Keller § 21 .27 ("[A] party who leaves a child with another
person for a lengthy period of time can expect that child to develop a strong relationship
with the third party . Surely, . . . the child's bonding and attachment to the third party
should not be irrelevant to the outcome of the case. Parental rights are constitutionally
protected from state interference on the assumption that the parent and child have
congruent rights . When the rights of the parent and child diverge, however, the state's
normal role is to guarantee the protection of the child's rights .").
- 41-
IV. CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals's holding that the trial
court properly exercised jurisdiction in this case, but reverse its holding as to the merits
of the underlying custody action . We remand this matter to the Kenton Circuit Court for
it to determine, based on Justin's best interest, whether custody of Justin should be
vested in Moore and Doming or the Asentes.
All concur. Wintersheimer, J., also concurs by separate opinion in which Graves,
J ., joins .
COUNSEL FOR APPELLANTS/CROSS APPELLEES,
REGINA MOORE AND JERRY DORNING :
Glenda Harrison
Northern Kentucky Legal Aid Society, Inc .
302 Greenup Street
Covington, Kentucky 41011
Stephanie Dietz
O'Hara, Ruberg, Taylor, Sloan & Sergent
25 Crestview Hills Mall Road
Suite 201
Crestview Hills, Kentucky 41017-0411
COUNSEL FOR APPELLEES/CROSS APPELLANTS,
RICHARD ASENTE AND CHERYL ASENTE :
Mitchell A. Charney
Goldberg & Simpson, PSC
3000 National City Tower
101 South Fifth Street
Louisville, Kentucky 40202
Stephanie Morgan-White
Goldberg & Simpson, PSC
3000 National City Tower
101 South Fifth Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE, JUSTIN LEE MOORE :
Thomas R. Willenborg
130 Park Place
Covington, Kentucky 41011
COUNSEL FOR APPELLEE/CROSS APPELLANT, AMICUS CURIAE,
KENTUCKY CABINET FOR FAMILIES AND CHILDREN :
W. Kimble Moore, Jr.
General Counsel
Office of Counsel
Cabinet for Families and Children
275 East Main Street
4-W-C
Frankfort, Kentucky 40621
- 43-
COUNSEL FOR APPELLEE/CROSS APPELLANT, AMICUS CURIAE,
AMERICAN ACADEMY OF ADOPTION ATTORNEYS :
William Waverly Townes
Ackerson, Mosley & Yann
1200 One Riverfront Plaza
Louisville, Kentucky 40202
COUNSEL FOR APPELLEEICROSS APPELLANT, AMICUS CURIAE,
JUSTICE FOR CHILDREN PROJECT:
Andrew J . Ruzicho
Security Trust Building
271 West Short Street
Suite 500
Lexington, Kentucky 40507
COUNSEL FOR APPELLEE/CROSS APPELLANT, AMICUS CURIAE,
HEAR MY VOICE :
Michael Ryan Voorhees
Phillips Law Firm, Inc.
9521 Montgomery Road
Cincinnati, Ohio 45242
Suellyn Scarnecchia
University of Michigan Law School
625 S . State Street
Ann Arbor, Michigan 48109-1215
RENDERED : JUNE 12, 2003
TO BE PUBLISHED
~u~rremE (gourf of 'pirnfuckg
2000-SC-1127-DG
REGINA MOORE AND JERRY
DORNING
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-0363-MR AND 1999-CA-0688-MR
KENTON CIRCUIT COURT NO . 1998-CI-1610
RICHARD ASENTE, CHERYL ASENTE
AND JUSTIN LEE MOORE, A MINOR
AND
2001-SC-0325-DG
RICHARD ASENTE AND CHERYL
ASENTE
V.
APPELLEES
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1999-CA-0363-MR AND 1999-CA-0688-MR
KENTON CIRCUIT COURT NO . 1998-CI-1610
REGINA MOORE, JERRY DORNING
AND JUSTIN LEE MOORE
CONCURRING OPINION BY JUSTICE WINTERSHEIMER
APPELLEES
I concur with the result achieved by the majority opinion, but I wish to state my
additional views separately.
Many judges in the system have agonized over this case and sincerely applied
their very best efforts to this matter. There may be genuine disagreement as to the law
applicable to any set of facts . Judges and legal authorities of good will can legitimately
disagree . The law is not a stagnant body of ancient wisdom, but rather a growing and
developing tool used to govern our daily conduct in contemporary society with fairness
and impartiality. Although caution must always be employed in applying the standard to
individual circumstances, the application of the best interest of the child standard here is
a positive step in the right direction.
Graves, J., joins this concurring opinion
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