Opinion
NO. 2013-CA-001049-ME
06-13-2014
M. L. L. APPELLANT v. S. L. H.; L. R. H.; AND W. M. L., A MINOR CHILD APPELLEES
BRIEF FOR APPELLANT: Katherine Hicks Demps Hopkinsville, Kentucky NO BRIEF FOR APPELLEES.
NOT TO BE PUBLISHED
APPEAL FROM CHRISTIAN CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE JASON S. FLEMING, JUDGE
ACTION NO. 11-AD-00045
OPINION
VACATING AND REMANDING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: M. L. L. (Father) brings this appeal from a May 14, 2013, order of the Christian Circuit Court, Family Court Division, terminating his parental rights. We vacate and remand.
Father and L. R. H. (Mother) were married on October 15, 2005. W. M. L. (Child) was born of the parties' marriage on October 2, 2006. The parties subsequently separated in 2008 and were divorced by decree of dissolution entered February 19, 2009, in the Circuit Court of Marshall County, Alabama. Mother was awarded sole custody of Child; no visitation was ordered. Father was ordered to pay child support of $50 per week.
In May 2009, Mother married S. L. H. (Step-Father). Shortly thereafter, Mother and Child relocated from Alabama to Kentucky as Step-Father was stationed at Fort Campbell in conjunction with his service in the United States Army. On July 7, 2011, Step-Father filed a Verified Petition for Adoption in the Christian Circuit Court, Family Court Division (family court). In the petition, Step-Father named Father, Mother, and Child as respondents. A guardian ad litem was appointed for Child, and a warning order attorney was appointed for Father. The warning order attorney ultimately reported that he had been unable to locate Father.
On March 16, 2012, the family court's Findings of Fact and Conclusions of Law and the Order of Adoption were entered terminating Father's parental rights and granting Step-Father's petition for adoption. Some five months later, on August 3, 2012, Father filed a Verified Motion to Alter, Amend or Vacate Under [Kentucky Rules of Civil Procedure] CR 59.05 and CR 60.02. Therein, Father alleged he never received notice of the proceedings and that Mother had knowingly provided an erroneous address. Following a hearing on the Father's motion, the family court vacated the judgment of adoption by order entered August 31, 2012. The family court specifically noted in the August 31, 2012, order:
On the Motion to Alter, Amend or Vacate, the Court took testimony of [father] who testified that while his parents live on the road listed as his address in the Petition, that that is not their address, he has never lived at the address listed on the Petition, and that the address listed on the Petition does not exist. Therefore, while warning order jurisdiction is enough for adoption, the warning order has to be reasonably calculated to provide notice, and it was not. The GAL for the child concurs. Therefore, the Court has no option but to set aside the judgment of adoption. Therefore, the judgment of adoption is vacated and this matter is continued for discovery should the Petitioners wish to pursue the case.As the judgment of adoption was vacated, Step-Father again pursued the petition for adoption. Following a second hearing, on May 14, 2013, the family court rendered its Findings of Fact, Conclusions of Law and Order Terminating Parental Rights and the Judgment of Adoption. Therein, the family court terminated Father's parental rights based upon abandonment. This appeal follows.
Father initially contends that the family court erred by granting the May 14, 2013, judgment of adoption as Step-Father failed to strictly comply with the statutory requirements for adoption. Specifically, Father asserts that StepFather failed to include Mother's sworn written statement setting forth her voluntary consent to the adoption and that such omission is fatal to Step-Father's petition for adoption under KRS 199.500(1).
We note that appellee, Step-Father, did not timely file a complying brief in this appeal, and thus this appeal is being considered without an appellee's brief. Pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c), we are permitted to employ sanctions where an appellee does not file a timely brief. However, these sanctions are not mandatory, and this Court is permitted to exercise its discretion. See Kupper v. Kentucky Bd. of Pharmacy, 666 S.W.2d 729 (Ky. 1983). Therefore, we have elected not to employ sanctions against Step-Father for his failure to timely file a brief and notwithstanding, we have considered the merits of this appeal based on the record below.
It is well-established that the right of adoption only exists by statute and that strict compliance with these statutory mandates is required. Day v. Day, 937 S.W.2d 717 (Ky. 1997); see also Wright v. Howard, 711 S.W.2d 492 (Ky. App. 1986). Thus, a party seeking to adopt must strictly follow all statutory requirements, and a party's failure to do so requires dismissal of the adoption petition. See id.
The statutory mandates outlining the requirements of a consent to adopt are found in KRS 199.500(1) and KRS 199.011(4). KRS 199.500(1) provides, in relevant part:
(1) An adoption shall not be granted without the voluntary and informed consent, as defined in KRS 199.011, of the living parent or parents of a child born in lawful wedlock . . . .And, KRS 199.011(14) defines the voluntary and informed consent of the parents, in relevant part, as:
"Voluntary and informed consent" means that at the time of the execution of the consent the consenting person was fully informed of the legal effect of the consent, that the consenting person was not given or promised anything of value except those expenses allowable under KRS 199.590(6), that the consenting person was not coerced in any way to execute the consent, and that the consent was voluntarily and knowingly given. If at the time of the execution of the consent the consenting person was represented by independent legal counsel, there shall be a presumption that the consent was voluntary and informed. The consent shall be in writing, signed and sworn to by the consenting person . . . .By juxtaposing KRS 199.500(1) and KRS 199.011(14), it is clear that the living parents of a child to be adopted must execute a written, signed, and sworn consent of adoption. See Wright, 711 S.W.2d 492. And, in a step-parent adoption, the child's natural parent that is married to the step-parent must also execute a written, signed, and sworn consent to adopt for the adoption to be valid. 5 William B. Bardenwerper, Kentucky Practice - Methods of Practice § 46:18 (2013).
In this case, Step-Father alleged in the petition that Mother would file a consent; however, no such sworn consent was ever filed of record. The family court found that Mother was "in actuality a co-petitioner in this case." Findings at p. 3. That finding is legally incorrect as Mother did not sign the petition and at all times has been a respondent in the case. The failure to strictly comply with the statutory mandate that Mother file a sworn consent to adopt is fatal to the petition for adoption. See Wright, 711 S.W.2d 492. Thus, we reluctantly conclude that the judgment of adoption must be vacated and the verified petition for adoption must be dismissed. See id.
We view any other contentions of error as moot or without merit.
For the foregoing reasons, the Order of the Christian Circuit Court, Family Court Division, is vacated and remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Katherine Hicks Demps
Hopkinsville, Kentucky
NO BRIEF FOR APPELLEES.