JEFFERSON, BRECKINRIDGE

Cousins sought a writ directing Jefferson Family Court to enter an order granting them temporary custody of Child in the Jefferson County action, estop Cabinet from any activities inconsistent with the permanency goal of adoption, and relinquish jurisdiction concerning the custody and adoption of Child in favor of the Breckinridge Circuit Court.

In November 2019, Child was born and subsequently removed from Mother. After her release from the neo-natal intensive care unit, Child was placed with Cousins, who were approved as foster parents in November 2020. A DNA action was filed in January 2020 in the Family Court, wherein Mother later stipulated to neglect. An order entered in January 2021 by the Family Court provided that the permanency goal was to return Child to Mother and that Child was to remain in Cabinet’s custody.

Cabinet filed an involuntary termination of parental rights (TPR) action in the Family Court in August 2021 because of the length of time that Child had been in care, the relative newness of Mother’s compliance with her case plan and a lack of bonding between Mother and Child. No significant litigation occurred in that case until June 2022.

Meanwhile, the DNA action was before the Family Court for a second annual permanency review hearing. A report was filed on January 24, 2022, that documented Mother’s progress in completing her case plan and remaining sober. In February 2022, an order of permanency found that Mother was compliant and sober but had no bond with Child whatsoever, and thus, Child was to remain in Cabinet custody and be placed for adoption. Despite the goal change to adoption, Mother’s visitation continued and in April 2022, the Family Court ordered Mother could have increased supervised visitation and that Cabinet may expand to overnight visits which were not to begin prior to August 2022.

In June 2022 Cousins hired an attorney who discussed the Cousins’ desires to intervene in the TPR action with Cabinet. The following Sunday, June 29, 2022, Cabinet’s attorney emailed Cousins’ attorney to inform them that the TPR action had been dismissed. This dismissal was the result of a voluntary notice of dismissal, which Cabinet had efiled that same Sunday. Cousins immediately filed their motion to intervene, but the Family Court entered an order dismissing the TPR on June 29, 2022, without having ruled on the motion to intervene.

Cousins then filed an adoption petition in Breckinridge Circuit Court on June 30, 2022, and a Petition for Custody on July 5, 2022. Cabinet moved to dismiss these petitions on August 1, 2022. The matter was set for hearing on August 17, 2022, during which the Breckinridge Circuit Court declined to change custody of Child and scheduled the matter for an evidentiary hearing on November 28, 2022. The motions to dismiss were still pending.

Also in August 2022, a breakdown between the parties occurred when Child was to spend her first overnight with Mother. Prior to the visit’s scheduled start, Cousins contacted Cabinet to report concerns about the visit. Specifically, that Mother’s brother – who had previously been incarcerated in relation to his causing the death of a child and seriously injuring another child – was living in her home. During that phone call, Cabinet informed Cousins that it was concerned about their compliance with their foster care contract and that their adoption worker would be in contact, which Cousins perceived as a threat. Cabinet’s adoption worker subsequently closed Cousins’ home and cited Cousins’ interference of visits between Mother and Child as the reason for the closure. Until August 2022, there was no record of Cousins interfering with the relationship between Child and Mother.

On August 19, 2022, Cousins filed an ex parte motion for sole temporary custody of Child in the Breckinridge Circuit Court custody action. The motion was granted that same day and the matter was set for an evidentiary hearing. After its receipt of the Breckinridge Circuit Court’s order, on August 22, 2022, Cabinet filed its own emergency ex parte motion in the Family Court to return Child to Cabinet custody. The attached certificate of service did not indicate Cousins were notified of this motion despite their having temporary sole custody pursuant to the Breckinridge Circuit Court order. Cabinet’s motion was heard on the Family Court’s emergency docket and was granted that same day and ordered Cousins to turn over Child to Cabinet. Cousins complied and Cabinet ultimately placed Child in Mother’s care.

On August 25, 2022, Cousins filed this original action and motion for immediate relief, which was granted on September 2, 2022. Cousins were also given temporary custody of Child pending disposition of the writ petition. On September 6, 2022, Cabinet filed its own petition for writ of prohibition, initiating Case No. 2022-CA-1059-OA., which was denied by separate opinion and order.

On September 15, 2022 the Jefferson Family Court conducted a hearing on Mother’s motion for return of custody in the DNA action. No testimony or evidence was introduced and there was no consideration as to Child’s best interest aside from recitation by the Cabinet and the Jefferson County GAL that they believed it was in Child’s best interest to be returned to Mother. Cousins attempted to bring up an alleged burn mark that Child received while in the care of Mother in August 2022, but Cabinet asserted that no DNA petition had been filed and that the incident was irrelevant. The Family Court then ordered – in contravention of the Court of Appeals amended order dated September 3, 2022 –that custody of Child be returned to Mother. The orders entered by the Jefferson Family Court on September 15, 2022, contained limited findings of fact and conclusions of law, and there were no written findings of fact regarding the best interests of Child.

Petitioners then filed a second motion for intermediate relief with the Court of Appeals requesting a stay of the Family Court’s September 15, 2022, order. That same day, the Court of Appeals entered an order requiring parties to maintain the status quo as set forth in its amended September 3, 2022, order. The parties responded to the Cousins’ motion to stay: Mother requested the Court deny it; Cabinet had no objection to maintaining the status quo; the Breckinridge County GAL supported the stay in a response that reflected positively on Cousins and detailed Child’s worsened mood, behavior and temperament after having been in Mother’s home for only a few days earlier in the year. Cousins’ motion for a stay was granted on September 20, 2022, and the Court of Appeals addressed the writ of prohibition.

The Court of appeals determined that this case sub judice qualified for a writ under the special cases exception which recognizes a subcategory of writs in cases where “a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and a correction of the record is necessary and appropriate in the interest of orderly judicial administration.” Bender v. Eaton, 343 S.W.2d 799, 801 (Ky. 1961). The Court of Appeals held that the Family Court acted erroneously in dismissing the TPR action without having ruled on Cousins’ motion to intervene in June 2022, despite them having a right to intervene. Without such a ruling, Cousins had no way in which to appeal. The Court disagreed with Cabinet’s argument that its voluntary dismissal of the TPR meant the permanency goal automatically reverted to reunification. The Court of Appeals concluded that a decision as to permanency must be documented according to the Adoption and Family Safety Act of 1997 (ASFA) which requires Cabinet to file a TPR action if a child has been in foster care for 15 out of the most recent 22 months unless – among other reasons –  a state agency has documented in the case plan a compelling reason for determining that filing such a petition would not be in the best interest of the child. 42 U.S.C. 675(5)(E)(ii). Cabinet’s own administrative guidelines reiterates in 922 KAR 1:140, Section6(2) that Cabinet must document why termination is no longer in the child’s best interest and request an exception. The Court of Appeals admonished the Family Court for allowing Cabinet to act inconsistently with the law.

The Court of Appeals acknowledged that without a mechanism to appeal, Cousins felt their only choice was to move for ex parte emergency custody in the custody action, prompting Cabinet to file their own ex parte emergency motion to return Child to cabinet custody. However, Cabinet did not elaborate on what the substantial risk to Child was, and thus, the Family Court did not appropriately utilize KRS 620.060, which authorizes the use of emergency custody orders when the custodian is unwilling or unable to protect the child, it is in the child’s best interest and if the child is in serious danger of physical or sexual abuse or imminent death, the parent has repeatedly inflicted or allow to be inflicted physical or emotional injury, or the child is in immediate danger due to the parent’s refusal or failure to provide for the safety or needs of the child. None of the grounds listed by Cabinet in its motion warranted the relief it sought.

Finally, the Court of Appeals held that the Family Court’s final error was in awarding full custody of Child to Mother in the DNA action with no findings of fact or conclusions of law that doing so was in Child’s best interest, choosing instead to focus heavily on Mother’s improvement on her case plan and the court’s frustrations with Cousins. Worse, the Family Court awarded custody of Child to Mother will full knowledge of this pending original action and in contravention of the Court of Appeals order temporarily awarding custody to Cousins while the action was pending, despite acknowledging that the ruling would cause a bigger mess still, believing that it had original and continuous jurisdiction in the DNA action to make such an order.

The Court of Appeals stated that the erroneous actions of parties, counsel, and the Family Court illustrated why correction was necessary and appropriate for the orderly administration of justice. The Family Court believed that it was the only court that could make custody determinations regarding Child. However, pursuant to KRS 199.470(1), adoption petitions must be filed in the county where the petitioner resides; in this case, in Breckinridge County where Cousins reside. Ideally, only one county will hear all matters regarding one child, but in this case, transferring the DNA and TPR cases to Breckenridge would make little sense since Breckinridge County lacks a family court. Thus, though the separate actions in separate counties are proper, the parties have shown that when one court makes a decision it disagrees with, the other court may make an alternate decision. This is not beneficial for the administration of justice and more importantly, such action is not in line with Child’s best interests.

Finally, the Court of Appeals held that a writ is appropriate because Cousins have no adequate remedy by appeal: no appeal was possible on their behalf in the TPR action because the Family Court never ruled on their motions to intervene; Cousins are not parties to the DNA action and thus cannot appeal from orders entered therein by the Family Court; Cousins were not aggrieved by the Breckenridge Circuit Court’s orders and thus cannot appeal because they are temporary custody orders and are as such, unappealable.

The Court denied Cousins’ request as to the adoption issue as moot because the Family Court never had jurisdiction over the adoption. However, Cousins’ request was granted to the extent that the Breckinridge Circuit Court shall make all further determinations regarding custody of Child in the civil custody action, unless it determines Cousins lacked standing to bring that action and it is dismissed. If the custody action is dismissed, then all custody decisions shall be made by the Breckinridge Circuit Court in the adoption action. If the adoption action is dismissed, then the Family Court may resume making custody determinations.

The Court further ordered that the Family Court DNA action was stayed pending a ruling by the Breckinridge Circuit Court on whether Cousins have standing to bring the custody and adoption actions. Cousins’ request for an order granting them temporary custody Child was granted, but their request to estop Cabinet from any activities inconsistent with the permanency goal of adoption was denied.

Carter Anderson

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Relatives filed custody and adoption actions related to their 3-year-old cousin, S.M.H., in Breckinridge Circuit Court. S.M.H. had been in the custody of the Cabinet nearly all her life, after she was born and tested positive for illicit substances and Hepatitis C in November 2019. One year after her birth, the Cabinet filed a DNA petition in Jefferson Family Court, which remains active and pending. In June 2022, Relatives filed a petition for adoption in Breckinridge Circuit Court, and in July 2022, Relatives filed a petition for custody in Breckinridge Circuit Court. The Cabinet filed motions to dismiss arguing Breckinridge Circuit Court lacked particular case jurisdiction and that Relatives lacked standing to bring the lawsuits. The motions were scheduled for hearing on November 28, 2022.

The Cabinet filed for a writ of prohibition and a motion for immediate relief on September 6, 2022. Immediate relief was denied for lack of irreparable injury warranting extraordinary relief resulting from the Circuit Court’s conducting a hearing, and a three-judge panel was appointed for consideration on the merits.

The Cabinet argued that it was entitled to a writ because the Circuit Court was acting or about to act erroneously, there was no adequate remedy by appeal, and the Cabinet would suffer irreparable harm if the hearing was held in the Circuit Court.

The Court of Appeals denied the Cabinet’s writ of prohibition because the Cabinet had an adequate remedy by appeal. A hearing would be conducted in the Circuit Court to determine the merit of the Cabinet’s motions to dismiss the custody and adoption actions. The Court of Appeals stated that such a hearing is itself a forum in which the Cabinet could prove to the Circuit Court that the underlying actions should be dismissed. After the entry of a final order in the case, the Cabinet could then file a direct appeal.

Carter Anderson

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Estill Circuit Court

Mother gave birth to child and little over a year later, aunt and uncle filed their adoption petition for the minor child without mother’s consent pursuant to KRS 199.502.  At the time of the filing, the child’s natural father was deceased.  The adoption was granted, and mother appealed on four grounds—one procedural challenge and three evidentiary challenges.  The Court of Appeals found the procedural challenge persuasive and ultimately vacated the adoption judgment and remanded to Estill Circuit Court.

Mother claimed the adoption statutes were not properly followed in seeking the Cabinet for Health and Family Services’ (“Cabinet”) participation pursuant to KRS 199.510(1) or (2); therefore, mother argued the adoption was defective.  The Cabinet is required to do one of two things in every adoption case: (1) complete an investigation or make a report to the court prior to the adoption going through, or (2) notify the court within ten days of receipt of the adoption paperwork that it would not investigate the case.  Here, the Cabinet did not complete either of these actions, and presumably, this would be due to the Cabinet not receiving the adoption paperwork from the court’s clerk. 

The Court noted that silence from the Cabinet does not equate to the Cabinet satisfying its requirement that it does not plan to investigate.  Further, the Court emphasizes that if the Cabinet fails to participate in the process, the circuit court should order the Cabinet’s participation to ensure the statutory requirements are met.  As a result of the circuit court proceeding to judgment in this case absent any Cabinet participation, the Court found the circuit court committed a reversible error.  Therefore, the Court vacated the adoption judgment and remanded to the circuit court.  In finding mother’s procedural challenge persuasive, the Court determined her evidentiary challenges were moot.

Caitlin P. Kidd, Esq.

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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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Jefferson Circuit Court

Biological Father and Mother were in a relationship for approximately ten years but never married. They had two children. The relationship was tumultuous, as Biological Father abused alcohol and was often intoxicated, during which time he was often abusive to Mother, which the Children witnessed. In a custody case in Indiana, the court suspended Biological Father’s previously awarded supervised visitation after he failed to obtain someone to supervise his visitation, noted that Biological Father’s visitation had been suspended for a year, and granted sole custody to Mother.

Mother met Stepfather, and she and the Children moved to Kentucky to live with him in 2016. Mother and Stepfather married in October of 2017. Several months later, Stepfather petitioned for adoption of the Children to which Biological Father did not consent. Biological Father moved to dismiss the action, arguing Indiana had exclusive, continuing jurisdiction from the custody case, which Family Court overruled.

Family Court held a hearing on the petition. Stepfather testified that he was a part of the Children’s lives, provided for them financially, and wanted to adopt them as his own children. Mother testified regarding Biological Father’s alcohol abuse and physical abuse to her, both of which the Children witnessed. As of the time of the hearing, Biological Father had not seen the children in over three years. The Children testified that they considered Stepfather a parent and wished to be adopted by him. They had negative memories of Biological Father, and neither desired to visit with Biological Father. Biological Father testified that he did not abuse alcohol but admitted to having several DUIs. He testified that despite his absence, he had financially supported the Children but later clarified that he did not directly make child support payments but gave his mother access to his bank account for her to assist the Children. He admitted that his absence was because of his failure to follow the Indiana court’s order and had no justifiable excuse for that failure. Finally, Biological Father’s mother testified that Biological Father did not provide her money to pay child support but that she made payments to Mother from her own funds. After the hearing, Family Court, analyzing the involuntary termination of parental rights statute, granted Stepfather’s petition for adoption. Biological Father appealed.

Biological Father argued that Family Court lacked jurisdiction over the petition based on the UCCJEA. The Kentucky Court of Appeals held that the UCCJEA does not apply to adoption proceedings. The UCCJEA applies to child custody determinations, which are orders concerning the “legal custody, physical custody, or visitation with respect to a child”. It expressly excepts adoption proceedings in KRS 403.802. Although adoptions do in effect terminate a parent’s rights, which proceedings are covered by the UCCJEA, that fact does not convert the proceeding into a termination proceeding.

Biological Father argued that Family Court abused its discretion in finding that all the prerequisites to adoption were satisfied. The Court of Appeals disagreed. An adoption without consent involves four distinct considerations: (1) whether the petitioner complied with the jurisdictional requirements for adoptions; (2) whether any of the conditions outlined in KRS 199.502(1) had been established; (3) whether the petitioner is of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children as required by KRS 199.520(1); and (4) whether the best interest of the children would be promoted by the adoption, and whether the child is suitable for adoption.

Regarding the first consideration, the petitioner must be eighteen and a resident of Kentucky or have resided in Kentucky for 12 months next before filing. The petition must be filed in the county in which the petitioner resides. Stepfather pleaded he was a resident of Kentucky, and he filed the petition in Jefferson County where he lived with Mother and the Children. The children must have resided with the petitioner for at least 90 days prior to the petition. The Children lived continuously with Stepfather and Mother since 2016, well over 90 days.

Regarding the second consideration, KRS 199.502(1) requires a finding of the existence of one of the conditions therein, including, inter alia, that the parent has abandoned the child for a period of not less than 90 days, KRS 199.502(1)(a), and that the parent has continuously or repeatedly inflicted or allowed to be inflicted upon the child, by other than accidental means, physical injury or emotional harm, KRS 199.502(1)(c). Family Court concluded that Biological Father abandoned the Children for a period well exceeding 90 days, finding that Biological Father had not seen, cared for, or provided support for the Children in several years. Family Court also found that Biological Father emotionally harmed the children by abusing Mother in front of them.

Family Court properly found that Stepfather was of good moral character, of reputable standing in the community, and of ability to properly maintain and educate the children, satisfying the third consideration. Finally, Family Court properly found that adoption was in the Children’s best interest.

Digested by Nathan R. Hardymon

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Shelby Circuit Court

Questions Presented: Grandparent visitation. Adoption. Under circumstances involving a maternal grandmother’s adoption of a child which was being contested by the father at the time of his death, with no notice to the paternal grandfather of either the adoption proceeding or the possibility that ongoing visitation would not continue, the Court extends the stepparent adoption exception carved out in Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989).

Maternal Grandmother petitioned to adopt Child. Mother consented to the adoption, but Father contested it. Before the adoption was finalized, Father died. Family Court granted Maternal Grandmother’s petition. Prior to, during, and after the adoption, Paternal Grandfather enjoyed visitation with Child, including overnight visitation. At some point, Maternal Grandmother unilaterally stopped the visitation between Child and Paternal Grandfather. Paternal Grandfather petitioned for grandparent visitation pursuant to KRS 405.021. Family Court, after receiving briefing, dismissed the petition for lack of standing, finding that Paternal Grandfather’s grandparent rights terminated upon finalization of the adoption, because Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989), held that grandparent rights do not extend to adoption which are not stepparent adoptions. Paternal Grandfather appealed, and the Kentucky Court of Appeals affirmed Family Court. Paternal Grandfather sought discretionary review, which was granted.

The Supreme Court of Kentucky reversed Family Court and extended the stepparent exception recognized in Hicks in these particular circumstances where a grandparent’s adoption of a child which was being contested by a parent at the time of his/her death, with no notice to the other grandparent of either the adoption proceeding or the possibility that ongoing visitation would not continue. Hicks held that the termination of parental rights also terminate any grandparents’ visitation rights, except for in stepparent adoptions. KRS 405.021 was later amended to continue grandparent visitation that was established prior to the termination of parental rights. The plain meaning of the adoption statute, the grandparent visitation statute, and the holding in Hicks lead to an absurd and unreasonable result in this matter, divesting another grandparent of visitation with a child without consideration the child’s best interests. Furthermore, the grandparent does not receive notice of the adoption and cannot know that his/her visitation rights may be at risk. It would be illogical and unjust to sever the relationship in this matter without determining whether such severance would be in Child’s best interests.

Digested by Nathan R. Hardymon

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Jefferson Circuit Court

In December of 2014, Biological Father intentionally drove his car into his and Mother’s residence while Mother and Child were inside the home, which resulted in criminal charges being filed against him. He pleaded guilty to felony wanton endangerment, and a domestic violence order was also entered prohibiting him from having contact with Mother or Child. He was incarcerated; the maximum expiration of his sentence is February of 2035. He is eligible for parole in February of 2021.

Mother and Stepfather met in February of 2015, and Stepfather began residing with Mother and Child approximately a year later. Mother and Stepfather married in August of 2017. In June of 2018, Stepfather petitioned to adopt Child, which would terminate Biological Father’s parental rights. Stepfather alleged that Biological Father had not provided any support or care for Child since 2014. Mother filed an entry of appearance, consenting to the adoption. Biological Father opposed the adoption.

The petition was forwarded to the Cabinet for Health and Family Services, which completed an investigation and ultimately concluded that adoption would be in Child’s best interests and recommended the adoption. The matter was set for a hearing. On the day of the hearing, an in-chambers conference occurred where Biological Father requested the hearing be bifurcated. Family Court continued the hearing for the parties to brief the bifurcation issue. After the briefs were submitted, Family Court entered an order bifurcating the trial into a termination hearing and an adoption hearing. Following the termination hearing, Family Court entered findings of fact and conclusions of law, concluding, inter alia, that Stepfather was required to prove that Biological Father neglected or abused Child under KRS 625.090, and finding that Biological Father did not neglect or abuse Child. It then denied Stepfather’s “Motion for Termination of Parental Rights.” Stepfather appealed.

The Kentucky Court of Appeals held that Family Court erred by analyzing whether Stepfather proved Biological Father abused or neglected Child through abandonment, because the adoption statutes do not require a separate finding of abuse or neglect. Adoptions without the consent of the biological parents may be granted if one of the conditions in KRS 199.502 is pleaded and proved. If one of the conditions, and other requirements, are met, the adoption judgment itself terminates parental rights by virtue of the provisions of KRS 199.520(2). All the prongs of KRS 625.090 do not have to be met.

The Court of Appeals then addressed the proper burden of proof for an adoption proceeding, holding that the proper burden of proof is clear and convincing proof. Adoption vitiates parental rights. Termination of parental rights proceedings require clear and convincing proof. The result to the natural parent of adoption and termination of parental rights is the same.

Digested by Nathan R. Hardymon

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Livingston Circuit Court

The parties married in 2008 and divorced in July 2014. After divorce, they reconciled and began living together again but never remarried. In December 2014, S.R.V. gave birth to Older Child. In August 2016, she gave birth to Younger Child. J.S.B. helped raise the children. In February 2018, the parties separated for the final time. J.S.B. continued to be a part of the children’s lives and the parties jointly cared for the children. Due to S.R.V.’s employment, the parties often spent more overnights with J.S.B. In May 2019, domestic violence occurred between the parties, and J.S.B. took Older Child with him after the incident, which led to the involvement of the Cabinet for Health and Family Services (“the Cabinet”).

On June 5, 2019, after the Cabinet placed the children in the parties’ joint custody, S.R.V. petitioned for sole custody of the children, alleging she was the children’s biological mother, but J.S.B. was not their biological father, which was proven by DNA testing. On November 6, 2019, J.S.B. filed petitions to adopt the minor children without consent of the children’s biological living parents and a response to S.R.V.’s petition seeking de facto custodian status and reserving his right to include separate claims for custody based on waiver of superior custodial rights.

Family Court held one evidentiary hearing addressing all three petitions in January 2020. Regarding the adoptions, Family Court held that J.S.B. was fictive kin and authorized to file adoption without the Cabinet’s pre-filing approval. Furthermore, Family Court found that J.S.B. did not seek to terminate S.R.V.’s parental rights, only those of the unknown fathers. Family Court terminated the rights of the unknown fathers but did not terminate S.R.V.’s parental rights.

By separate order, Family Court addressed S.R.V.’s petition for sole custody. It treated the adoption has having preceded the custody ruling and found that the parties had two children. Family Court then concluded that Mother had not rebutted the presumption of joint custody and equally shared parenting time, and J.S.B. was designated as the primary residential custodian and awarded timesharing. S.R.V. appealed from all three orders.

The Kentucky Court of Appeals held that KRS 199.520 requires the termination of both parents’ parental rights before adoption may proceed. An adoption without the consent of the living biological parent is essentially a proceeding to terminate that parent’s parental rights. Despite KRS 446.020(1) allowing the Court to interpret plural words as singular, support for the reading of parents as plural in KRS 199.520 is also found in KRS 199.500, allowing adoption to proceed without the consent of the biological parents if their rights have been terminated, and KRS 199.502, allowing adoption without the consent of the living parents only if the adoption petitioner pleads and proves as to each parent that he or she allowed to exist at least one of the conditions set out in KRS 199.502(1)(a)-(j). J.S.B. neither pleaded nor proved any condition sufficient to terminate S.R.V.’s parental rights. Thus, the Court reversed the adoption judgments.

The Court of Appeals held that J.S.B. was not entitled to joint custody of the children. J.S.B. did not become the adoptive father of the children. Thus, the custody action was litigated between a parent and non-parent, entitling the parent, S.R.V., to sole custody.

The Court of Appeals held that S.R.V. did not waive her superior rights to custody. Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) established a new legal ground to challenge a parent’s fundamental right to parent her child—waiver. The factors a court must consider to determine whether a waiver of superior rights to custody has occurred “leaves the strong impression” that waiver of superior custodial rights is limited to instances in which the child was conceived by artificial insemination with the intent that the child would be co-parented by the parent and her same-sex partner. There was no proof of those factors in this matter. Thus, there was no waiver of S.R.V.’s superior rights to custody. The Court reversed and directed Family Court to award sole custody of the children to S.R.V.

Digested by Nathan R. Hardymon

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Adoptive parents filed a dual petition seeking to terminate biological mother’s parental rights and to adopt minor child. Following a full evidentiary hearing, the family court entered simultaneous, separate orders terminating Biological mother’s parental rights and granting adoptive parents’ petition to adopt child. The parties characterized the action primarily as a termination action, citing to and relying on the termination of parental rights statute, KRS 625.090.

The Court Appeals clarified that, although a dual petition was filed, the case was an adoption case governed by KRS Chapter 199 and not a termination of parental rights case governed by KRS Chapter 625. The Court emphasized that the distinction is important because the parties, style, manner of service, and jurisdictional prerequisites are different under each of the two statutes. The Court of Appeals ultimately found that all the requirements of the Adoption Statute were satisfied.

Digested by: Emily T. Cecconi

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Father filed a petition for (1) adoption under KRS 199.502 and (2) involuntary termination of natural mother’s rights under KRS 625.050. Father did not join the Cabinet as a party. The minor child resided with Father and Step-Mother. Mother argued the petition should be dismissed because the Petition failed to join the Cabinet as an indispensable party as required by KRS 199.510. Trial Court found the Cabinet was an indispensable party and dismissed the petition.

The Court of Appeals held that KRS 199 governed the entire petition stating that “when there is a dual petition involving an adoption and involuntary termination of parental rights, the adoption supersedes the termination because KRS 199 encompasses KRS 625.” The Court further held that the Cabinet was not required to be named as a party because the child was not in its “care, custody, and control.”

Digested by: Emily T. Cecconi

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