Court holds that Cabinet not required to initiate separate action prior to the filing of a petition of non-consensual adoption – Published Opinion from the Supreme Court of Kentucky

M.S.S. V. J.E.B., et al.

Warren Circuit Court

This decision concerns the biological Mother of the Child, born in January 2011. The Mother, suffering from substance use disorder, had a criminal history starting in 2009, that had her intermittently imprisoned from then to 2017. First cousin of the Mother, J.E.B., and his wife, D.J.B (Appellees), eventually received permanent custody of Child after Mother’s voluntary granting of guardianship. Mother retained visitation rights at Appellees’ discretion. In April of 2018, Appellees filed a petition to terminate all biological parental rights of the Child and to adopt the Child without the consent of biological parents under KRS 199.502(1). Finding that the Mother had abandoned Child for a period of no less than 90 days during a period of her not being incarcerated, the family court granted the petition under KRS 199.502(1)(a). The Mother appealed the judgement, but the Court of Appeals affirmed, finding clear and convincing evidence of the family court’s finding of abandonment. The Mother subsequently requested review by the Supreme Court of Kentucky, arguing two positions: first, that the family court erred in granting the petition for adoption when the Cabinet of Health and Family Services (“the Cabinet”) did not initiate a proceeding to terminate her parental rights prior to the petition; and second, that the family court’s finding of abandonment was not supported by clear and convincing evidence. The Court granted discretionary review.

As to the first issue, the Court offered a detailed analysis of the intersectionality between KRS Chapter 625, which governs involuntary termination proceedings, and KRS 199, which governs adoptions. While KRS 199.500 demands prior parental termination before consensual adoptions (specifically citing KRS Chapter 625), the Court highlighted that non-consensual adoptions under KRS 199.502 hold no such prerequisite. Noting that the Cabinet is not inherently a required party in KRS 199 adoption matters, the Court found KRS 199.502 was a proper avenue for adoption proceedings initiated by a private party that result in the termination of parental rights. Moving on to the Mother’s second point, the Court found that the family court’s findings were supported by clear and convincing evidence. KRS 199.502(1) allows non-consensual adoption if one of nine conditions exists with respect to the child, with subsection (a) listing “[t]hat the parent has abandoned the child for a period of not less than ninety (90) days.” The family court found that between November 2014 to November 2015, the Mother w failed to have any contact with the Child, despite being out of prison and possessing visitation rights. The Court found the evidence on the record as a whole clearly and convincingly supported the family court’s abandonment finding. Accordingly, the Court affirmed the Court of Appeals decision.

In a thorough dissent, Justice Lambert objected to such a reading of KRS 199.502, deeming it a “constitutional end-run created by a statutory loophole.” Emphasizing the importance of parental rights, Justice Lambert found the majority holding allows a private party to strip a natural parents’ constitutional right away without due process. As a result, the dissent implored that because this case concerned a matter of constitutional construction or interpretation, it should have been reviewed de novo and taken as an opportunity to “recognize and call out statutory gaps and the constitutional deficits.” The majority, addressing these concerns, stated that the dissent failed to identify how those protections allotted to natural parents already are constitutionally deficient. Likewise, the majority recognized that the Mother did not raise any constitutional objections in her request for review, and that the “Court [would] not develop arguments on behalf of the parties.”

K. Spencer Pierson

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