B.L. v. J.S. - 434 S.W.3d 61 (Ky. Ct. App. 2014)

Rule:

KRS 199.470 specifically states that any person who is eighteen (18) years of age and who is a resident of this state or who has resided in this state for twelve (12) months next before filing may file a petition for leave to adopt a child in the Circuit Court of the county in which the petitioner resides.

Facts:

B.L. (“Minor Child”) was born on December 15, 2007, to A.R. (“Biological Mother”) and Biological Father. Biological Mother and Biological Father lived together on and off after Minor Child's birth. Biological Father was incarcerated several times after Minor Child's birth. He was last incarcerated on February 9, 2011, and remained in custody throughout the remainder of the time period at issue. On April 14, 2011, Biological Mother gave birth prematurely to R.J.P., Minor Child's half-brother. After R.J.P. showed severe signs of drug withdrawal and his meconium drug screen tested positive for cocaine, methadone, and several other drugs, the Cabinet for Health and Family Services (the Cabinet) was alerted. On April 21, 2011, the Cabinet filed a non-removal Juvenile Neglect Petition for both children. The petition listed Biological Father as the biological father of Minor Child, but only Biological Mother was listed as a person responsible for neglecting Minor Child. Biological Father was properly served with a copy of the petition in jail. A hearing was held on April 29, 2011, wherein the Cabinet changed the non-removal petition to a removal petition. Also at that hearing, an attorney was appointed to represent Biological Mother and a guardian ad litem (“Guardian”) was appointed for the children. Biological Father, who was still incarcerated, was not present or represented by counsel. During the hearing, Biological Mother stipulated to neglect and both children were temporarily placed with Biological Father's mother (“Minor Child's paternal grandmother”), who agreed only to keep the children for a short time. Accordingly, the Cabinet had to secure another placement for the children. The Cabinet placed the children with J.S. and J.S. (“Adoptive Parents”) in June of 2011. The trial court conducted a disposition hearing on July 22, 2011. Biological Father was again not present or represented by counsel. During that hearing, the trial court committed Minor Child to the Cabinet's custody and directed him to remain with the Adoptive Parents until further order of the trial court. The trial court also adopted a reunification plan for Biological Mother.

The trial court conducted two additional hearings, where it was revealed that Biological Mother was not working on her case plan for reunification with the children and both the Guardian and the Cabinet recommended that the Adoptive Parentsreceive permanent relative custody of the children. Biological Father was not present or represented by counsel at either hearing. Biological Father did not have any interaction with the Cabinet and did not have a case plan. The trial court granted the Adoptive Parents "permanent relative placement" of Minor Child on January 6, 2012. The Adoptive Parents filed a Motion to Intervene in the neglect case and a Motion for Permanent Relative Custody of Minor Child on May 11, 2012. Biological Father responded to the motions, asking to be transported to the hearing and to be appointed a guardian or attorney to assist him. Biological Father was transported to the hearing. At the hearing, the trial court questioned Biological Father regarding whether he objected to the Adoptive Parents' request for custody of Minor Child. The trial court then found that the Adoptive Parents qualified as de facto custodians and that it was in Minor Child's best interests to remain in their home. The trial court awarded sole custody of Minor Child to the Adoptive Parents.

Shortly thereafter, on July 23, 2012, the Adoptive Parents filed a Petition to Adopt Minor Child pursuant to KRS Chapter 199, et seq. Biological Father was properly served with a copy of the petition. The trial court appointed Biological Father a guardian to represent his interests in the adoption proceedings due to his continued incarceration. Biological Father filed a pro se response objecting to the adoption and his guardian filed another response objecting to the adoption on his behalf. Minor Child's Guardian and the Cabinet issued reports recommending that the adoption be granted. Biological Father filed a motion to dismiss the adoption petition, alleging that the petition must be dismissed because he was not represented by counsel during the prior neglect proceedings. After oral argument, the trial court denied Biological Father's motion to dismiss, noting that Biological Father was not named in the neglect petition. A final hearing on the adoption petition was held on February 11, 2013. Biological Father was present and represented by counsel. Biological Father testified at length during the hearing. Biological Father testified that he was aware of Biological Mother's drug use while caring for Minor Child; that he had previously used drugs while caring for Minor Child; that he had been incarcerated at least three of the five years of Minor Child's life; that he would be eligible for parole in March 2013 but he had no expectation that he would be granted parole; that he did not have employment lined up when he was released from prison; that he would likely have to live in a halfway house upon release; and that he had not participated in any medical or education choices for Minor Child. Biological Father also testified that he planned to pursue custody of Minor Child after his release from prison; that he had sent cards to Minor Child; that his mother had been in contact with Minor Child and sent him gifts; and that he had provided some supplies for Minor Child, such as diapers, on occasion prior to his incarceration. Biological Mother did not present any evidence. The Adoptive Parents also testified and presented testimony from the Cabinet. At the close of the hearing, Biological Father requested a directed verdict, alleging that the Adoptive Parents lacked the requisite familial relationship to adopt Minor Child under KRS 199.470(4). The trial court took the matter under advisement and the Adoptive Parents filed a written response. The trial court eventually denied the motion for directed verdict and issued a Judgment of Adoption on March 21, 2013.

Issue:

Did the circuit court err in granting the petition for adoption because the Adoptive Parents did not have the requisite familial relationship to adopt Minor Child?

Answer:

No.

Conclusion:

The Adoptive Parents were not initially prevented from filing a Petition of Adoption under KRS 199.470. Since the Adoptive Parents meet these requirements, the question becomes whether Minor Child was properly placed with the Adoptive Parents for adoption, either through the Cabinet's approval or through familial relationships. It is obvious in this case that Minor Child was placed with the Adoptive Parents by the Cabinet. However, Minor Child was placed for temporary and later permanent relative custody by the Cabinet. The Cabinet did not place Minor Child for adoption. It was not until after the adoption petition was filed that the Cabinet issued a report recommending the adoption. The language of the statute makes it clear that placement for adoption must occur prior to the filing of the petition. This intention was affirmed in Commonwealth, Dept. of Child Welfare v. Jarboe, which found that "[KRS 199.470] requires that before the child can be adopted [he] must have been placed in the home for the purpose of adoption." Therefore, the Adoptive Parents must qualify as a relative under the statute in order to adopt. The trial court found that the Adoptive Parents did qualify as relatives under KRS 199.470 because they are Minor Child's great-aunt and great-uncle, a category of relative specifically listed in the statute, despite the fact they are related only by marriage. Though the statute does list specific persons who may adopt as relatives, it does not mandate that those persons be blood relatives and there are no other applicable statutes defining relatives for purposes of adoption as only blood relatives. Additionally, this court previously upheld an adoption wherein the adoptive parent was a step-relative of the child. In Roark v. Yarbrough, step-grandparents were permitted to adopt their step-grandson pursuant to KRS 199.470. Also persuasive is the fact that relatives related only by marriage are consistently considered "relatives" for purposes of child placement in other contexts. The Cabinet for Health and Family Services' Standard Operating Procedures Manual specifically lists "a relative by marriage of [a child's blood relative] even if the marriage has ended" as a relative for purposes of kinship care. Cabinet Standard Operating Procedures, Chapter 4.3. An administrative agency's interpretation of its own regulations is entitled to substantial deference. It was under this interpretation of the regulation that the Adoptive Parents, relatives by marriage to Biological Mother, were considered to be relatives for placement by the Cabinet. Thus, in the absence of an express requirement that the relatives listed in KRS 199.470(4)(a) be blood relatives of the child, there is no error in allowing a great-aunt and great-uncle related by marriage to file a petition to adopt without placement for adoption by the Cabinet.