Opinion
NO. 2020-CA-0178-ME NO. 2020-CA-0179-ME
04-16-2021
D.T. AND M.H. APPELLANTS v. G.W.; A.W.; CABINET FOR HEALTH AND FAMILY SERVICES; AND S.B.C., A MINOR CHILD APPELLEES AND D.T. AND M.H. APPELLANTS v. G.W.; A.W.; CABINET FOR HEALTH AND FAMILY SERVICES; AND R.E.C., A MINOR CHILD APPELLEES
BRIEFS FOR APPELLANTS: Heidi Weatherly Mt. Vernon, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES: Stephen D. Spurlock London, Kentucky BRIEF FOR APPELLEES G.W. AND A.W.: Juliana B. Coffey McKee, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JACKSON FAMILY COURT
HONORABLE CLINT J. HARRIS, JUDGE
ACTION NO. 19-AD-00019 APPEAL FROM JACKSON FAMILY COURT
HONORABLE CLINT J. HARRIS, JUDGE
ACTION NO. 19-AD-00020 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES. THOMPSON, K., JUDGE: Brothers S.B.C. and R.B.C. (the children) were adopted by G.W. and A.W. (foster parents/adoptive parents), a married couple, via orders of the Jackson Family Court. Roughly three weeks later, D.T. and M.H. (relatives), also a married couple, filed a motion to intervene in the already-concluded adoption proceedings for each child, asserting they had a right to do so because D.T. is the children's great-uncle. The Jackson Family Court denied intervention in both adoption actions. We affirm.
We shall relate the facts based upon our review of the sparse record as relatives' briefs contain no meaningful citations to the record, in contravention of Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv)-(v), which require an appellant's brief to contain "ample" references to the record. Given the importance of ensuring the children's welfare and the relative brevity of the underlying record, we have elected to review the matters on the merits without imposing sanctions. We strongly encourage all counsel to utilize the aids for appellate practitioners found on our website, which includes a handbook of basic appellate procedure and checklists for appellant's briefs, appellee's briefs and reply briefs: https://kycourts.gov/Courts/Court-of-Appeals/Documents/P56BasicAppellatePracticeHandbook.pdf; https://kycourts.gov/Courts/Court-of-Appeals/Documents/AppellantBrief.pdf; https://kycourts.gov/Courts/Court-of-Appeals/Documents/AppelleeBrief.pdf; and https://kycourts.gov/Courts/Court-of-Appeals/Documents/ReplyBrief.pdf.
In April 2015, the children were removed from their biological parents' care in Rockcastle County and placed in the Jackson County home of foster parents. The children's minor siblings were placed in different homes, with one older sibling eventually being placed with relatives. In June 2019, Rockcastle Family Court terminated the parental rights of the children's biological parents and awarded custody to the Cabinet for Health and Family Services (the Cabinet).
In August 2019, foster parents petitioned to adopt the children. Though the termination proceedings occurred in the Rockcastle Family Court, the adoption petitions were filed in Jackson Family Court where foster parents resided with the children. This venue was proper pursuant to Kentucky Revised Statutes (KRS) 199.470(1) which permits petitions for leave to adopt to be filed in the county where the petitioner resides. The Rockcastle Family Court's orders terminating the parental rights of the children's biological parents were attached as exhibits to the adoption petitions. The children's guardian ad litem (GAL) submitted a report for each child opining that granting the adoptions would be in each child's best interests, and the Cabinet submitted its written approval of both adoptions. Consequently, on September 10, 2019, the Jackson Family Court orally granted the adoption petitions and its written judgments were filed soon thereafter.
On October 4, 2019, relatives filed motions to intervene under CR 24.01, and for relief from the adoption judgments. They did not attach proposed pleadings to their motions, as is facially required by CR 24.03. We merely relate the allegations in the motions, with the proviso that almost none of the Rockcastle Family Court records are within the Jackson Family Court records presented to us.
CR 24.01 provides:
(1) Upon timely application anyone shall be permitted to intervene in an action (a) when a statute confers an unconditional right to intervene, or (b) when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless that interest is adequately represented by existing parties.
(2) Anyone possessing a statutory right of intervention under (1)(a) above, may move the court to intervene in a pending action and, on failure of a party to file an objection within ten (10) days to the intervention and a notice of hearing on the objection, have an order allowing the intervention without appearing in court for a hearing.
The motions stated that relatives "came forward to the Cabinet seeking placement and immediate custody with an eye toward adoption for all five natural siblings" in October 2018, shortly after the custody request of D.T.'s sister (the children's grandmother) was denied. The motions asserted that an older sibling of the children was placed with relatives in December 2018 but in January 2019 the Rockcastle Family Court denied their request to intervene in the juvenile proceedings for all five siblings. However, in May 2019, the Rockcastle Family Court granted relatives' request to intervene in the dependency, neglect and abuse (DNA) proceedings "for the limited purpose [of seeking] placement and custody of all five siblings." The motions also noted that relatives had moved for custody in Jackson Family Court in July 2019 but that court transferred the custody petition to Rockcastle Family Court in September 2019, on the same date it granted foster parents' adoption petitions without relatives' knowledge.
Relatives asserted they had a right to intervene in the adoption proceedings under Baker v. Webb, 127 S.W.3d 622 (Ky. 2004). No party filed a written response to the motions to intervene.
After some rescheduling, the Jackson Family Court held a hearing on the motions to intervene in November 2019, at which no testimony was requested or taken. The court orally denied the motions and instructed counsel for the Cabinet to prepare draft orders. The court's orders denying the motions to intervene, entered slightly more than a week after the hearing, stressed that relatives had not taken any action to seek placement or custody of the children for over three years after they were placed in foster care in 2015. The court also based its ruling on its perception that the Cabinet had considered placing the children with relatives but had not done so "because of their lack of a relationship with either child and the fact that the children had been in [foster parents' home] for several years." Finally, the court concluded relatives lacked standing to intervene.
Relatives argue that it was inappropriate for the trial court to adopt orders prepared by the Cabinet, but precedent plainly holds that it is not, standing alone, inherently improper for a court to adopt a draft ruling prepared by a party's counsel. See, e.g., Prater v. Cabinet for Human Resources, Commonwealth of Ky., 954 S.W.2d 954, 956 (Ky. 1997) (holding "[i]t is not error for the trial court to adopt findings of fact which were merely drafted by someone else.").
Relatives then filed motions to alter, amend, or vacate under CR 59.05, reiterating their belief that they had standing to intervene under Baker and asserting the orders denying intervention "contain[ed] facts which were never introduced into the record." Finally, they asserted their motions to intervene should have been granted as unopposed since no written responses in opposition had been filed within the ten days allotted by CR 24.01(2).
In December 2019, the Jackson Family Court held a hearing on relatives' CR 59.05 motions. No formal identifications occurred, and no traditional testimony was taken; however, it appears that D.T. and adoptive parents were present, and the court did swear in everyone present. Though relatives repeatedly bemoan the lack of testimony, they did not move to present additional testimony or object to the court's methodology. It was incumbent on relatives to add whatever additional evidence or testimony they deemed necessary, by avowal if needed.
At the hearing, the Jackson Family Court repeatedly stressed how relatives had not taken any action for several years after the children's removal. D.T. admitted he had not taken any action toward the children's care until 2018 even though he had known since 2015 that they had been removed from their biological parents' care but explained this was because he did not want to compete with or impede the children's grandmother's ultimately unsuccessful efforts to receive the children. He also admitted that the Cabinet had conducted a home study and determined afterwards not to place children with relatives.
The Jackson Family Court orally denied the motions to vacate and asked the Cabinet's attorney to submit proposed orders. On January 7, 2020, the Jackson Family Court issued an order denying the CR 59.05 motion. The orders reiterated the lack of action by relatives after the children were removed, highlighted their admission that the Cabinet had evaluated them and emphasized the lack of pleadings accompanying the motions to intervene. Relatives then filed these appeals, which we have consolidated.
The notices of appeal state each appeal stems from both the order denying the motion to intervene and the order denying the CR 59.05 motion. We "do not have jurisdiction over the trial court's denial of a CR 59.05 motion" since such an order is interlocutory. Ford v. Ford, 578 S.W.3d 356, 365 (Ky.App. 2019). When a party "erroneously designates" an order denying its CR 59.05 motion in its notice of appeal, "we utilize a substantial compliance analysis and consider the appeal properly taken from the final judgment that was the subject of the CR 59.05 motion." Id. at 366 (internal quotation marks, emphasis, and citation omitted).
According to the motions, when the Rockcastle Family Court granted relatives' request to intervene in the DNA proceedings, it was unable to grant relatives' request for placement of the children with them without a finding that the Cabinet's placement decision was unreasonable or arbitrary. The Cabinet denied placement based on a home study finding that relatives' house was too small, and the children had bonded with the foster parents. The relatives allege they were estopped at this point from pursuing placement of the children with them. These motions make it undeniable that the Cabinet conducted an evaluation of relatives and that relatives were either unable to show that the Cabinet's conclusions were unreasonable or arbitrary, or declined to make any attempt to do so, despite their disagreement with them.
The overarching question before us is whether the Jackson Family Court erred by denying relatives' motions to intervene. We may disturb that decision only if it was clearly erroneous. Hazel Enterprises, LLC v. Community Financial Services Bank, 382 S.W.3d 65, 67 (Ky.App. 2012). A trial court's resolution of a motion to intervene in domestic relations cases receives special deference. See A.H. v. W.R.L., 482 S.W.3d 372, 375 (Ky. 2016).
The Jackson Family Court deemed the motions to have been untimely. Under CR 24.01, "intervention is permitted only upon a timely motion" and "[t]imeliness is a question of fact, which generally should be left to the circuit court." Polis v. Unknown Heirs of Jessie C. Blair, 487 S.W.3d 901, 906 (Ky.App. 2016).
Since relatives did not move to intervene until after the adoption judgments granting were entered, they must surmount a "special burden to justify the untimeliness" because post-judgment intervention "is widely within the discretion of the circuit judge." Hazel Enterprises, LLC, 382 S.W.3d at 68 (internal quotation marks and citations omitted). We review a lower court's "evaluation of the timeliness of a motion to intervene" for abuse of discretion. Id. at 67. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The parties raise a host of arguments. We have considered them all but will address only those we deem necessary. The heart of this case is whether Baker gives relatives the right to intervene. But, before we address Baker, we must resolve the Cabinet's antecedent argument that the motions to intervene were doomed because they were unaccompanied by the requisite tendered pleadings.
CR 24.03 provides that a motion to intervene "shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Courts have repeatedly emphasized the mandatory nature of his word "shall." "'[T]he term 'shall' is a word of command and . . . must be given a compulsory meaning.' . . . Shall means shall." Vandertoll v. Commonwealth, 110 S.W.3d 789, 795-96 (Ky. 2003) (quoting BLACK'S LAW DICTIONARY 1233 (5th ed. 1979)). "'Shall' does not mean 'may' but is mandatory." Fayette County Ed. Ass'n v. Hardy, 626 S.W.2d 217, 220 (Ky.App. 1980).
Kentucky's then-highest court held nearly sixty years ago that "[a]n application to intervene must be accompanied by a pleading setting forth the claim or defense for which the intervention is sought." Mulligan v. First Nat. Bank & Tr. Co. of Lexington, 351 S.W.2d 59, 62 (Ky. 1961) (emphasis added). Nonetheless, Mulligan has been silently superseded by Baker.
The majority in Baker does not mention whether the motion to intervene was accompanied by a tendered pleading. However, the dissent in Baker argued that the motion to intervene was "procedurally void" because it was not accompanied by a tendered pleading. Baker, 127 S.W.3d at 627 (Keller, J., dissenting).
In Petition Committee by and Through a Majority of its Members v. Board of Education of Johnson County, Kentucky, 509 S.W.3d 58, 64 (Ky.App. 2016) (Petition), we concluded that notwithstanding Mulligan and the facially mandatory language of CR 24.03, the majority opinion in Baker "declined to deem the same defect as fatal to the motion to intervene."
Baker has created confusion and criticism. Indeed, one of Kentucky's leading domestic relations law treatises (co-authored by former Justice Keller, the Baker dissent's author) contains an extended, pointed denunciation of Baker's result and methodology. See Louise Everett Graham and James E. Keller, 16 KY. PRAC. DOMESTIC RELATIONS L. § 26:2 (2020). It would thus be helpful to the bench and bar of this Commonwealth if our Supreme Court would explicitly state how it views the relationship between: (1) Mulligan and the facially mandatory language of CR 24.03; and (2) its silent, facially contrary holding in Baker. For now, though, as an intermediate appellate court we are bound by both Mulligan (which has not been explicitly overruled) and Baker. Because the two cannot be reconciled, we must follow the more recent decision, Baker, which we interpret consistently with Petition. See, e.g., 5 AM. JUR. 2D Appellate Review § 518 (2021) (explaining "[i]f decisions of the state supreme court are inconsistent, lower courts will follow the state supreme court's most recent pronouncement.").
The Baker majority deemed the lack of a tendered pleading to be so inconsequential as to be unworthy of comment. We cannot, therefore, logically accept the Cabinet's argument that relatives' motions to intervene were doomed because they failed to submit tendered pleadings.
Similarly, we reject relatives' argument that the Jackson Family Court had to grant their motions to intervene because no objections were filed within the ten-day limit set forth in CR 24.01(2) for filing objections to motions to intervene based upon alleged statutory rights of intervention. Relatives cite no applicable authority which required the court to grant their motions as unopposed. In fact, they have asserted a right to intervene based upon Baker, not statutes, which makes the provisions of CR 24.01(2) largely inapplicable. In any event, if the failure to tender an accompanying pleading with the motion to intervene may be a harmless error pursuant to Baker, so may be the failure to submit a timely response in opposition thereto.
There has been some discussion by the parties and the Jackson Family Court about whether relatives possess standing to adopt the children. However, our Supreme Court has explained, "standing to seek adoption is not a condition for intervening in an adoption proceeding." A. H., 482 S.W.3d at 374. Instead, under CR 24.01, a person seeking to "maintain[] a relational connection with the child, either through custody or visitation" has been deemed to have "a sufficient 'interest' for purposes of intervening in an adoption proceeding." A. H., 482 S.W.3d at 374.
We now turn to the heart of this case: determining whether Baker gave relatives the right to intervene. In Baker, the core question was "whether the [lower court] erred in failing to allow the biological relatives of a minor child to intervene in an adoption proceeding instituted by the foster family with whom the child [resided.]" Baker, 127 S.W.3d at 623. While that issue is the same one before us in the instant case, the facts in Baker are materially distinguishable from those at hand.
In Baker, it was uncontested that relatives of a child in foster care had contacted the Cabinet and expressed an intent to adopt the child soon after his removal from his biological father's custody and the motion to intervene was filed before the judgment of adoption was issued. Further, the Cabinet failed to conduct a home study of the child's relatives, in contravention of its internal policies and procedures. Id. at 625. A Cabinet ombudsman "specifically found that the Cabinet should have initiated a home study of Appellants by making a referral to the Interstate Compact Administrator once it became known that relatives were interested in adoption." Id. at 624.
Recognizing its serious error, the Cabinet withdrew its consent to the adoption. Thereafter, the lower court in Baker approved a nonrelative adoption without the Cabinet's consent.
That lack of consent is no trivial matter, as the Cabinet's approval is generally required for non-relative adoptions under KRS 199.470(4). See also S.J.L.S. v. T.L.S., 265 S.W.3d 804, 828 (Ky.App. 2008) (holding that "[t]he family court's grant of the adoption absent Cabinet consent was contrary to law.").
In reversing in Baker, the Kentucky Supreme Court held that the Cabinet's regulations and policies "grant a sufficient legal interest under CR 24.01 to a relative who has been denied consideration for adoptive placement in complete derogation of the Cabinet's own operating procedures[.]" Baker, 127 S.W.3d at 625. Baker further holds that the Cabinet's policies favor consideration of relatives for adoption placement, so an adoption by a nonrelative is subject to reversal if the Cabinet has failed to consider relatives for placement, and that a trial court acts improperly by granting a nonrelative adoption without the Cabinet's consent.
In contrast with Baker, relatives took no steps to seek the children for roughly three years after they were removed from their biological parents' custody, despite knowing about the removals. The Cabinet conducted a home study of relatives which supported its decision not to place children with them and the Cabinet consented to the adoptions. Relatives also failed to show they had a pre-existing relationship with the children to maintain. Relatives' motions to intervene did not explicitly express their desire to adopt the children and their motions to intervene were not filed until after the adoptions had been finalized.
That home study is not in the record. The Cabinet offered to introduce a copy of the study, and other Rockcastle county records, at the hearing on the motion to intervene, but the trial court refused to allow their introduction. In fact, relatives' counsel objected to the introduction of those records. We must presume that the study supports the Cabinet's decision to deny placement with relatives. "It is the Appellant's duty to ensure that the record on appeal is sufficient to enable the court to pass on the alleged errors . . . . Moreover, [i]t has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court." Smith v. Smith, 450 S.W.3d 729, 731-32 (Ky.App. 2014) (quotation marks and citations omitted).
Relatives interpret Baker as meaning any biological relative has the right to intervene in any adoption proceeding at any time. We decline to give Baker such an all-encompassing interpretation. Precedent has long held that a trial court has inherent discretion when ruling on a motion to intervene.
Baker, as relatives construe it, would eliminate that discretion when a relative seeks to intervene in an adoption. Instead, under their theory, a family court would have to grant the motion to intervene, turning what has long been a discretionary decision into a rote, ministerial act. There is nothing in Baker which destroys the longstanding discretion of trial courts in ruling on motions to intervene.
Essentially, relatives rely solely upon D.T.'s biological relationship with the children as the basis for post-judgment intervention of right. We cannot say on the record before us that the Jackson Family Court abused its discretion by concluding that biological relationship, standing virtually alone, was insufficient to justify post-judgment standing. "If there is no relationship, the ties of blood may appeal to the popular imagination, but there is no child-centered reason to elevate those claims to a priority status, particularly if they are not brought during the very early stages." Louise Everett Graham, James E. Keller, 16 KY. PRAC. Domestic Relations L. § 26:2, n.16 (2020)). And there is not an iron rule requiring a relative to always be given placement over a non-relative. In P.W. v. Cabinet for Health and Family Services, 417 S.W.3d 758, 761 (Ky.App. 2013), the Court explained:
Significantly, although the Cabinet is required to consider any known and qualified relatives in its determination of proper placement, they do not mandate that the Cabinet choose a relative placement over other options . . . . We must agree with the family court that while relative placement is certainly preferred, at some point the best interests of the children outweigh that factor. Such is especially true in this case given the tender age of A.R.P. and A.L.P. To remove them from the only home that essentially either had known and place them with the C's, with whom they had had little contact, was simply not in their best interest.
The Jackson Family Court did not abuse its discretion in declining to allow an intervention on the basis that relatives did too little, too late.
Finally, we reject relatives' argument that the parties and/or family court erred by not informing them sooner of the adoption petitions and by transferring relatives' custody petition to the Rockcastle Family Court on the same date that it granted foster parents' petitions for adoption. While we can understand relatives' frustration about the sequence of events, KRS 199.570(1) limits access to the record in adoption cases to "parties to the proceedings, their attorneys, and representatives of the cabinet except under order of the court expressly permitting inspection." Relatives do not fall into any of these categories. Furthermore, they have not cited other relevant authority which would have required them to have been given notice. We reject relatives' reliance upon KRS 403.838(1), which generally requires pleadings in child custody cases brought under the Uniform Child Custody Jurisdiction and Enforcement Act to inform the court of other proceedings, including adoptions. Adoption proceedings, especially those conducted entirely within Kentucky, are not subject to that Uniform Act. Indeed, KRS 403.802 explicitly states that "KRS 403.800 to 403.880 shall not govern an adoption proceeding[.]" In any event, only the propriety of the motion to intervene is before us and so we need not explore the handling of the custody petitions or the adoption petitions further, notwithstanding relatives' criticisms of each.
For the foregoing reasons, the Jackson Family Court's order denying relatives' motion to intervene is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Heidi Weatherly
Mt. Vernon, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES: Stephen D. Spurlock
London, Kentucky BRIEF FOR APPELLEES G.W.
AND A.W.: Juliana B. Coffey
McKee, Kentucky