Opinion
2022-CA-1291-ME
09-22-2023
B.W.U. APPELLANT v. D.C.A.; B.A.; AND R.W.U. APPELLEES
BRIEF FOR APPELLANT: Timothy Denison Louisville, Kentucky BRIEF FOR APPELLEE D.C.A.: Rebecca A. Smither Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE ANGELA JOHNSON, JUDGE ACTION NO. 19-AD-500075
BRIEF FOR APPELLANT: Timothy Denison Louisville, Kentucky
BRIEF FOR APPELLEE D.C.A.: Rebecca A. Smither Louisville, Kentucky
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
OPINION
JONES, JUDGE
B.W.U. ("Father"), the biological father of the minor child R.W.U. ("Child"), appeals from an order of the Jefferson Circuit Court denying his motion to set aside the judgment allowing D.C.A. ("Stepfather") to adopt Child without Father's consent. Having reviewed the record, and being otherwise sufficiently advised in the law, we affirm.
I. Background
According to his own testimony, Father last had contact with Child in 2017, due to Father's ongoing substance abuse issues. In February 2019, Stepfather filed a petition to adopt Child with the consent of Child's biological mother. At the same time, Stepfather filed an affidavit to appoint a warning order attorney to effectuate service on Father, whose whereabouts were unknown to Stepfather. The affidavit contained Father's last known address. On March 13, 2019, the warning order attorney filed his report which indicated, in relevant part, that he had ascertained two possible addresses for Father, one of which was the address Stepfather had provided in his affidavit and we shall refer to as "Address No. 1" due to the confidential nature of this action. See Kentucky Revised Statutes (KRS) 199.570. The warning order report stated that letters mailed to Father at each address were returned to sender. The record before us indicates Stepfather's motion to set a final hearing was also mailed to Father at Address No. 1, although Father later claimed he did not receive it.
The family court conducted the final hearing, and the judgment of adoption was entered on June 4, 2019. A copy of the judgment was mailed to Father, and he later testified he received it at Address No. 1 in 2019, although he could not remember the exact date.
Even though Father admitted to receiving the judgment of adoption in 2019, he did not file a motion to set aside the adoption until September 17, 2021, over two years after entry of the adoption order. When questioned as to why he waited so long to challenge the adoption, Father testified that he wanted to get his life back together and have at least one year of sobriety before he attacked the judgment. The family court denied relief to Father for two reasons. First, the family concluded that pursuant to KRS 199.540, Father's motion to set aside the adoption was untimely. Alternatively, the family court concluded that constructive service is permissible in adoption proceedings and the warning order report was proper and sufficient. This appeal by Father followed.
II. Standard of Review
Father is essentially making a due process claim, citing lack of notice of the adoption proceedings, although he has never cited an applicable rule for this challenge. Nevertheless, the only applicable rule is Kentucky Rule of Civil Procedure (CR) 60.02. CR 60.02 is "an appropriate vehicle" for a due process claim in an adoption proceeding. Storm v. Mullins, 199 S.W.3d 156, 162 n.4 (Ky. 2006).
The decision to grant or deny a motion under CR 60.02 is within the sound discretion of the family court. In turn, we apply an abuse of discretion standard of review to rulings on CR 60.02 motions. The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012) (citations omitted).
III. Analysis
On appeal, Father argues the family court "erred in granting the judgment of adoption where notice was only given by warning order attorney." However, KRS 199.480(2) provides, in relevant part, that in adoption proceedings "[e]ach party defendant shall be brought before the court in the same manner as provided in other civil cases[.]" In turn, CR 4.05 allows constructive service of an individual whose whereabouts are unknown to the plaintiff to be constructively service via a "an order upon the complaint warning the party to appear and defend the action within 50 days."
CR 4.06 requires an affidavit from the plaintiff or plaintiff's attorney stating the reason for appointment of a warning order attorney. The affidavit must also state defendant's last known address under the rule. Stepfather fulfilled this requirement and listed Address No. 1 as Father's last known address in the affidavit.
CR 4.07 provides, in relevant part,
(1) The clerk at the time of making a warning order shall appoint, as attorney for the defendant, a practicing attorney of the court. The court may appoint another attorney as a substitute for the attorney appointed by the
clerk. Neither the plaintiff nor his attorney shall be appointed, or be permitted to suggest the name of the defendant's attorney. Such attorney must make diligent efforts to inform the defendant, by mail, concerning the pendency and nature of the action against him, and must report the result of his efforts to the court within 50 days after his appointment.
(2) If the warning order attorney cannot inform the defendant concerning the action, he shall so report to the court and shall then make a defense by answer if he can. If unable to make defense, he shall so report.
....
(5) No judgment shall be rendered against a defendant for whom a warning order is made until a report required by this rule has been filed. Failure to file a report required by this rule without good cause may be punished as a contempt of court.
Father argues the warning order report is insufficient because it did not list the zip codes of the addresses used by the warning order attorney and because the warning order attorney did not attach copies of the letters sent to Father at the addresses listed. Father's arguments are without merit. The warning order report indicated that "a detailed description of the Complaint was sent by Certified Mail" to Father at two separate addresses, including Address No. 1, which had been provided by Stepfather in the affidavit, and which was also independently discovered by the warning order attorney in an internet search for Father. Further, Father testified he was living at Address No. 1 throughout the adoption proceedings. The warning order attorney also indicated he was unable to make any defense on the part of Father, thus satisfying CR 4.07(2). The rule does not require the warning order attorney to attach copies of the letters sent to Father.
We decline to address Father's argument that the second address used by the warning order attorney is not an actual address. It is rendered moot by the fact that Father admitted he lived at Address No. 1 during the adoption proceedings.
In sum, KRS 199.480(2) permits constructive service in adoption cases, but subject to the mandates of the Kentucky Rules of Civil Procedure. "A defendant constructively summoned shall be deemed to have been summoned on the 30th day after the entry of a warning order, see CR 4.08, and, therefore, he can be bound by a judgment rendered against him even though he did not have actual knowledge of the action." W.G.H. v. Cabinet for Human Resources, 708 S.W.2d 109, 110 (Ky. App. 1986); Unknown Person on Behalf of Englert v. Whittington, 737 S.W.2d 676, 678 (Ky. 1987) ("We are of the opinion from the record that the affidavit for the warning order was made in good faith and that Whittington was properly before the court after the report of the warning order attorney."). We agree with the family court that the affidavit and the warning order report filed in the instant action were proper and sufficient, and therefore, that Father is bound by the judgment of adoption.
Further, in the absence of a due process violation, Father's time for challenging the judgment of adoption is limited to one year after entry, with no regard to whether the challenge is based in procedure or substance. The purpose of the limitation is to ensure "the finality of adoption judgments, thereby minimizing the potential for traumatic changes in the lives of adoptive parents and children long after their relationship has been formalized." Storm, 199 S.W.3d at 161. KRS 199.540 provides,
The Kentucky Supreme Court has ruled that any due process violation to a defendant biological parent in contested adoption proceedings requires the judgment of adoption to be set aside and therefore, possibly prohibits strict application of KRS 199.540 in such a scenario. See Storm, 199 S.W.3d at 162.
[a]fter 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.
We have already ruled that constructive service was properly effectuated in the instant action; therefore, the time limitation of KRS 199.540 applies. To that end, Father admitted he received the final judgment in 2019. Rather than immediately pursue legal action, Father waited well over two years. Nevertheless, the family court provided Father an opportunity to be heard and present evidence in support of his motion to vacate. He testified he wanted to wait until he was clean and sober for at least a year to challenge the adoption. While we commend Father's commitment to obtain sobriety, on its face, KRS 199.540 provides no exceptions to the one-year limitation. In other words, Father's desire to "get his life back together," no matter how well-intentioned, does not defeat the one-year limitation imposed by the statute. Accordingly, his argument must fail.
IV. Conclusion
For the foregoing reasons, the judgment of the Jefferson Family Court is affirmed.
CALDWELL, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION.
TAYLOR, JUDGE, CONCURRING IN RESULT ONLY:
I concur with the result reached by the majority solely because Father failed to timely challenge the termination of his parental rights and adoption pursuant to the one-year limitation set forth in KRS 199.540(2). However, I have serious doubt that service of the petition upon Father by a warning order attorney (constructive service) passes constitutional muster in this case. Notwithstanding the constructive service, I believe it was incumbent upon the family court to have appointed counsel for Father to represent his interests at the adoption hearing, even in Father's absence, given that Father's parental rights were being terminated as provided for in KRS 199.520(2) and the family court made no determination of Father's indigency.
Adoption is a statutory right only and our Courts have long required strict compliance with those statutory procedures to protect the rights of natural parents in adoption proceedings. Day v. Day, 937 S.W.2d 717, 719 (Ky. 1977). When adoption cases include the termination of a parent's rights, this Court has held that an indigent parent is entitled to the appointment of counsel. S.S. v. Commonwealth, 537 S.W.3d 834, 836-37 (Ky. App. 2017). KRS 625.080(3) clearly contemplates that parents have the right to legal representation in termination actions, as in this case. And, the United States Supreme Court has directed that appointment of counsel must be considered on a case-by-case basis. S.S., 537 S.W.3d at 836 (citing Lassiter v. Dep't of Social Servs. of Durham Cnty., N.C. , 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640 (1981)). See also KRS 31.120(1)(b); W.H.J. v. J.N.W., 669 S.W.3d 52, 59 (Ky. App. 2023).
In this case, the family court made no attempt to determine if Father was indigent to mandate the appointment of counsel, even in Father's absence. This is the major flaw, in my opinion, in allowing constructive service to suffice in actions involving the termination of parental rights. At minimum, in termination cases involving constructive service, I believe the courts should mandate the appointment of counsel to represent the parent's rights. However, Father's failure to timely raise this issue effectively waived the same.