As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.
In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a Guardian ad Litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. This time S was represented by counsel. The GAL and both lawyers convinced the court in this non-adversarial proceeding the "stepparent-like" adoption was permissible, based on law from other jurisdictions. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.
In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.
The end result was that the adoption was not set aside and S's parental rights were not terminated. The custody issue was remanded.
A full digest of the opinion of this case will follow. Meanwhile, the decision is online here.