Opinion
2021-CA-1236-ME 2021-CA-1237-ME
05-06-2022
D.T. AND M.H. APPELLANTS v. G.W.; A.W.; CABINET FOR HEALTH AND FAMILY SERVICES AS THE DEPARTMENT FOR COMMUNITY BASED SERVICES; HAILEY FIELDS; AND R.E.C., A/K/A R.E.W., A MINOR CHILD APPELLEES AND D.T. AND M.H. APPELLANTS v. G.W.; A.W.; CABINET FOR HEALTH AND FAMILY SERVICES AS THE DEPARTMENT FOR COMMUNITY BASED SERVICES; HAILEY FIELDS; AND S.B.C., A/K/A S.B.W., 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NOT TO BE PUBLISHED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 ROCKCASTLE CIRCUIT COURT HONORABLE MARCUS L. VANOVER, JUDGE ACTION NOS. 20-AD-00011, 20-AD-00012
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
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND GOODWINE, JUDGES.
OPINION
COMBS, JUDGE:
The Appellants, D.T. and M.H. (Relatives), are the natural great-uncle and great-aunt by marriage of two siblings, Appellees R.E.C., a/k/a R.E.W.; and S.B.C., a/k/a S.B.W. (Children). In 2019, the Children were adopted by their foster parents, Appellees G.W. and A.W. (Foster/Adoptive Parents). In September 2020, Relatives filed petitions in Rockcastle Family Court to annul the adoptions. The trial court concluded that Relatives had no standing to proceed with the annulment actions and entered orders dismissing with prejudice. After our review, we affirm.
Prior to filing the petitions for annulment, Relatives had attempted to intervene in the adoption proceedings that Foster/Adoptive Parents had filed in Jackson Family Court. The Jackson Family Court denied Relatives' motions to intervene, and they appealed. This Court affirmed that denial in D.T. v. G.W., Nos. 2020-CA-0178-ME and 2020-CA-0179-ME, 2021 WL 1431613 (Ky. App. Apr. 16, 2021), discretionary review denied (Sep. 22, 2021) (the prior appeal). Our Opinion in the prior appeal outlines the relevant procedural history, which we summarize.
In April 2015, Children were removed from the care and custody of their biological parents in Rockcastle County and were placed in the home of Foster/Adoptive Parents in Jackson County.
In June 2019, Rockcastle Family Court terminated the parental rights of the biological parents and awarded custody to the Cabinet.
In August 2019, Foster/Adoptive parents filed petitions to adopt the Children in Jackson Family Court; they resided with the Children in Jackson County. In the prior appeal, this Court noted that "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." Id. at *1. The Children's guardian ad litem (GAL) submitted reports concluding that adoption would be in the best interest of each child. The Cabinet submitted its written approval of both adoptions. On September 10, 2019, Jackson Family Court orally granted the adoption petitions and filed written judgments thereafter.
Within less than a month, on October 4, 2019, Relatives moved to intervene in the Jackson Family Court adoption proceedings pursuant to CR[ 24.01, asserting that "they had a right to intervene . . . under Baker v. Webb, 127 S.W.3d 622 (Ky. 2004)." D.T. v. G.W., 2021 WL 1431613, at *2. The Jackson Family Court held a hearing on Relatives' motions to intervene, which it denied. In our prior opinion, we summarized the reasoning of the family court as follows:
Kentucky Rules of Civil Procedure.
[R]elatives 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.Id. Relatives then filed CR 59.05 motions to alter, amend, or vacate. Again, with respect to those motions, we observed as follows:
At the hearing [on the CR 59.05 motions], 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.Id. By order entered January 7, 2020, Jackson Family Court denied Relatives' CR 59.05 motions. Relatives appealed.
The Children's grandmother is D.T.'s sister.
On September 9, 2020, while the prior appeal was pending, Relatives filed the subject petitions to amend the adoption in the trial court. In October 2020, Foster/Adoptive Parents, the Cabinet, and H.F., who was the Children's GAL in the adoption proceedings, all filed motions to dismiss on numerous grounds. Foster/Adoptive Parents argued that the petitions were barred by estoppel, that Relatives' arguments had been ruled on in the appropriate forum, and that they could not contest the same issues in another circuit court. H.F. also argued that collateral estopped barred the actions. On October 16, 2020, the trial court conducted a hearing remotely on the motions to dismiss.
The petitions also named J.F. as a Petitioner. He had been the Children's GAL in the juvenile dependency, neglect, and abuse proceeding. J.F. is not a party to this appeal.
All were named as Respondents in the petitions for annulment -- as were the Children.
On April 16, 2021, this Court rendered its decision in the prior appeal, analyzing whether Baker, supra, upon which Relatives principally relied, gave them the right to intervene in the adoption proceeding. Although the issue in Baker was the same, this Court held that "the facts in Baker are materially distinguishable from those at hand." D.T. v. G.W., 2021 WL 1431613, at *5 (emphasis added). This Court reasoned as follows:
In Baker, it was uncontested that [cousins] 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 . . . .
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.
. . . [T]he Cabinet's approval is generally required for non-relative adoptions under KRS 199.470(4). . . .
. . . [I]n 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, [R]elatives 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 [R]elatives 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.
. . . .
Baker, as [R]elatives construe it, would eliminate [the trial court's] discretion when a relative seeks to intervene in an adoption. . . . There is nothing in Baker which destroys the longstanding discretion of trial courts in ruling on motions to intervene.
Essentially, [R]elatives 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.D.T. v. G.W., 2021 WL 1431613, at *5-6 (emphases added).
On June 25, 2021, the trial court entered the subject orders dismissing the petition for annulment, reciting as follows:
Petitioners . . . reiterate that they have standing based upon the language in Baker v. Webb. . . .
The Petitioners can point to no legal support other than Baker v. Webb to establish their standing to bring this annulment. The Court of Appeals has determined that the Jackson Family Court[']s denial of their right to intervene was appropriate and the right of a family member to seek placement is not absolute . . . .
This court can identify no other grounds upon which the Petitioner[s] would have standing to bring an annulment of an adoption. Their standing is not expressly stated in the annulment of adoption statute [KRS 199.540 . Their intervention in the original
adoption was discretionary and not mandatory. Their intervention was appropriately denied by the Jackson Family Court in the adoption action. As shown in the Court of Appeals, the circumstances of this matter are distinguishable from Baker v. Webb. The adoption has been finalized with a finding that [t]he adoption was in the best interest of the child. Further, the placement with relatives in the juvenile action was discretionary and not mandatory, which was also denied. Therefore, the court must conclude that the [Petitioner Relatives] have no standings [sic] to proceed with this action and cannot state other relief to which they may be entitled.(Original footnotes omitted.) In addition to finding absence of standing, the Rockcastle Family Court held that it was not the proper venue for the annulment action. The trial court explained that KRS Chapter 199 governs adoptions and that it can be inferred that actions to annul under KRS Chapter 199 "should also be brought in the county in which the children reside, or the court where the adoption was filed." The family court dismissed the matter with prejudice.
KRS 199.540(2) (now KRS 199.540) simply provides that: "After the expiration of one (1) year from the date of the entry of judgment of adoption, the validity thereof shall not be subject to attack in any action, collateral or direct, by reason of any irregularity or failure to comply with KRS 199.470 to 199.520, either procedurally or substantively." Effective April 1, 2022, the statute was amended and the language of subparagraph (1) -- which had no application to the case before us -- was deleted.
Previously, Relatives were permitted to intervene in the juvenile DNA proceeding for the limited purpose of seeking placement. In January 2019, the Cabinet conducted an evaluation of Relatives' home. The trial court attached copies of the evaluation and order in the DNA action denying placement to its orders dismissing and incorporated them by reference. The evaluation reflects that there was not adequate space in Relatives' home for all of the siblings. The evaluation denied placement in regard to the Children, noting that they were very attached to the foster family, that they had been in the same foster home for nearly four years, and that Relatives had no current attachments or relationship with the Children. The evaluator expected significant regression in behavior and emotional distress if Children were removed from current placement.
On July 7, 2021, Relatives filed motions to alter, amend, or vacate, which the court denied by orders on entered September 21, 2021.
On October 20, 2021, Relatives filed notices of appeal to this Court. They raise numerous issues on appeal. As this Court stated in the prior appeal, "[w]e have considered them all but will address only those we deem necessary." D.T. v. G.W., 2021 WL 1431613, at *3.
At the outset, we note that there are scant references to the record in Appellants' statement of the case as required by CR 76.12(4)(c)(iv). Instead, most references are to exhibits appended to Appellants' briefs. Foster/Adoptive Parents correctly contend that many of those exhibits are not part of the lower court's record. Attaching such documents "is an improper attempt to introduce evidence outside the record. . . . [O]ur review is limited to the pleadings and evidence considered by the circuit court[.]" White v. White, 883 S.W.2d 502, 505 (Ky. App. 1994).
In the prior appeal, this Court noted that "[R]elatives' 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." D.T. v. G.W., 2021 WL 1431613, at *1 n.1. Although this Court declined to impose sanctions, it "strongly encouraged 'all counsel to utilize the aids for appellate practitioners found on our website[.]'" Id.
Disregarding this admonition, Relatives have instead engaged in an acrimonious diatribe without properly citing to a legal basis on which to substantiate their allegations. It is not readily apparent which of Appellants' sixteen (16) exhibits were properly included in the record below -- with the exception of exhibit 1 and 2, which are the trial court's order denying the CR 59.05 motion and its June 25, 2021, order dismissing, and exhibits 5 and 14, which are attachments to the order dismissing as noted above. We decline to search for or consider them. Nor may we consider any statements or arguments in Appellants' briefs which are not properly supported by reference to the record as mandated by CR 76.12(4)(c)(iv)-(v).
We turn now to Relatives' first argument; i.e., that the trial court erred when it held that Baker was not applicable. Relatives argue that intervention is mandatory for consideration of a "relative" in an adoption and that pursuant to Baker and CR 24.01, they "had, and continue to have, a legal, cognizable right to intervene in these adoptions."
However, in the prior appeal, this Court clearly and specifically held that Baker is materially distinguishable on its facts; that nothing in Baker destroys the trial court's discretion in ruling on motions to intervene; that there is no "iron rule" requiring relative placement over a non-relative; and that the Jackson Family Court did not abuse its discretion in denying Relatives' motions to intervene. D.T. v. G.W., 2021 WL 1431613, at *6. The trial court explained that Relatives could point to no legal support other than Baker to establish their standing, and the trial court itself could identify none. Consequently, the court concluded that Relatives had no standing to proceed with the annulment action. We wholly agree with that analysis.
Moreover, the doctrine of collateral estoppel precludes Relatives from relitigating the issues of Baker's applicability and whether Relatives had a legal, cognizable right to intervene in the adoptions pursuant to Baker and CR 24.01.
"[A] close cousin to the doctrine of res judicata is the theory of collateral estoppel, or issue preclusion." Moore v. Commonwealth, 954 S.W.2d 317, 318 (Ky. 1997) (footnote omitted). "Collateral estoppel . . . precludes the relitigation of issues from a prior adjudication." Rosenbalm v. Commercial Bank of Middlesboro, 838 S.W.2d 423, 429 (Ky. App. 1992).
The essential elements of issue preclusion/collateral estoppel are: "(1) identity of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with the estopped party given a full and fair opportunity to litigate; (4) a prior losing litigant." Moore, 954 S.W.2d at 319.
Under the doctrine of issue preclusion the parties do not have to be identical in each action. "[A] party is bound by a prior adjudication against it on an issue if the prior issue was an essential component of that action, even though the parties were not completely identical in each
action."Miller v. Administrative Office of Courts, 361 S.W.3d 867, 872-73 (Ky. 2011) (quoting Jellinick v. Capitol Indem. Corp., 210 S.W.3d 168, 171 (Ky. App. 2006)).
Here, there is identity of issues. There was a final decision on the merits -- the Jackson Family Court's orders denying Relatives' motions to intervene as subsequently affirmed on appeal. Relatives are the estopped parties, and they had a full and fair opportunity to litigate the necessary issue as this Court's Opinion in the prior appeal reflects. Relatives are the prior losing litigants. All of the essential elements of collateral estoppel are met.
"Kentucky follows the federal common law rule that the pendency of an appeal does not destroy the finality of the judgment for the purposes of issue preclusion[.]" Epps Chevrolet Co. v. Nissan North America, Inc., 99 F.Supp.3d 692, 701-02 (E.D. Ky. 2015) (internal quotation marks and citations omitted).
Collateral estoppel also bars Relatives from relitigating the issue that they raise on page 23 of their brief: that KRS 403.838(1)(4) required some sort of notice of the adoption proceeding. In the prior appeal, this Court rejected Appellants' reliance on that statute:
KRS 403.838(1) . . . generally requires pleadings in child custody cases . . . under the Uniform Child Custody Jurisdiction and Enforcement Act to inform the court of other proceedings . . . . Adoption proceedings . . . 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[.]"D.T. v. G.W., 2021 WL 1431613, at *6.
Relatives contend that the trial court erred when it applied the wrong standard to venue. However, their argument is wholly conclusory and fails to articulate a legal argument in support of its bare allegation. "It is not our function as an appellate court to research and construct a party's legal arguments, and we decline to do so here." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
Finally, Relatives argue that the trial court erred in denying their motion to alter, amend, or vacate. However, our review is limited to the trial court's orders dismissing.
[A]s we recently explained, orders denying CR 59.05 motions are inherently interlocutory and, thus, "there is no appeal from the denial of a CR 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion." Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). Consequently, "even if we did believe the trial court erred in some fashion in connection with its denial of CR 59.05 relief, we could not provide a remedy for the simple reason that we do not have jurisdiction over the trial court's denial of a CR 59.05 motion." Id. at 365.Cabinet for Health and Family Services v. Marshall, 606 S.W.3d 99, 103 (Ky. App. 2020).
The reasoning of the Rockcastle Circuit Court was both sound and thorough, and we affirm its order denying and dismissing Appellants' petition to annul the adoption.
ALL CONCUR.