Cabinet for Health and Family Services v.
Cabinet for Health and Family Services v. L.J.P., M.J.P., and D.J.P, 2008-SC-000950-DGE
Issue: Grandparents’ Right to Intervene in Termination of Parental Rights and Adoption Proceedings
Cabinet appealed CA’s reversal of FC’s denial of paternal grandparents’ motion to intervene in termination of parental rights action, where CA held that the grandparents could intervene as a matter of right under CR 24.01. SC held that, given that the proceeding before FC was for termination, and not adoption, grandparents' motion to intervene was correctly denied, and they had no statutory standing to proceed with an adoption.
Soon after Grandchild's birth, his birth parents lost custody of him in a dependency, neglect, and abuse action. Grandchild has since resided in foster care. When Grandchild was about one, Cabinet filed a petition for involuntary termination of parental rights. About four months later, parents filed a petition to voluntarily terminate their parental rights, conditioned on Grandchild being placed for adoption with grandparents, and contemporaneously filed moved to intervene, claiming the filing of the Voluntary Termination Petition gave them standing to do so. FC denied their motion to intervene, finding the voluntary termination petition to be invalid because the involuntary petition was filed first. CA found that grandparents could intervene as a matter of right based on the “elevated status” given to grandparents in custody determinations
SC held that FC incorrectly believed that the effect of the Cabinet’s previously filed petition for involuntary termination was to cause the parents to lose the right to be free from state interference in deciding who shall have custody of Grandchild. Thus, FC believed Voluntary Petition was untimely and could not give grandparents standing. SC held that Involuntary Petition was merely pending as the parents’ rights were not affected until an order issued terminating their rights. The fact that they did file their petition before their parental rights were terminated makes their voluntary petition timely. This alone, however, did not give grandparents standing.
B. The Substance of the Parents' Petition
While the parents clearly could voluntarily terminate their parental rights, even in an involuntary termination proceeding, the real question is whether given the status of their case, they could go further and consent to adoption in a voluntary termination proceeding. Obtaining the consent of parents who retain their parental rights is but the first step of a consent adoption. Pursuant to KRS 199 .470(3), grandparents could not petition to adopt Grandchild unless the Grandchild had been placed with them by the Cabinet or until he had resided with them for at least ninety (90) days immediately prior to the filing of the adoption petition. In this case, Grandchild had never resided with Grandparents. The 90 day residence requirement is a jurisdictional prerequisite so they could not adopt him at that time. Further, SC found voluntary termination petition’s conditional language would have required FC to place Grandchild for adoption with Grandparents, which FC found to be an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been a proper petition for consent adoption, then Grandparents would have had to invoke FC's jurisdiction to proceed, and they could not meet the statutory grounds to do so. Nonparental relatives or potential custodians such as Grandparents are not mentioned or considered in the termination statutes, and thus it cannot be said that a statute confers an unconditional right to intervene. Furthermore, to the extent that Grandparents' interest is in receiving custody post-termination, it would not be a "present substantial interest" but merely "an expectancy or contingent interest," and thus insufficient to warrant their intervention as a matter of right. FC is statutorily obligated, upon issuing an order terminating parental rights, to "vest care and custody of the child in such person, agency, or cabinet as FC believes best qualified." Thus, Grandparents would be entitled to custody only if the court finds they are the "best qualified" among all potential custodians, something which is purely speculative at this point, especially since parental rights have not been terminated.
CA reversed, and FC order reinstated.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates