S.J.L.S. v. T.L.S., Kentucky Court of Appeals Opinion by Judge Acree, Judge Lambert concurring and Judge Keller concurring in result only, affirming in part, reversing in part and remanding.
As part of the life plan of two women, S gave birth to a child named “Z” by artificial insemination from a donor selected by T. Six weeks after the birth of the child in 2001 T filed a petition for permanent joint custody. S was unrepresented, signed a waiver and acknowledgement and an agreed order of permanent custody was entered.
In 2003 S and T split up and 6 months later T filed an adoption petition. On a family court case information sheet T represented she was a stepparent. Although unnecessary in a stepparent’s adoption, a guardian ad litem was requested and appointed and S and T entered into an adoption agreement that recited that it in no way terminated the parental rights of S. Although no pre-petition involvement of the Cabinet for Families and Children was obtained, the court clerk notified the cabinet upon filing the petition. The Cabinet objected by letter and the court and counsel were aware of the objection. The letters were removed by someone from the court record although a copy of one had been scanned by a court clerk and was part of the record in the court of appeals. Neither party nor the Cabinet took an appeal from the judgment of adoption.
In July 2005 S filed a CR 60.02 motion to vacate the custody and adoption judgment. The court acknowledged it lacked subject matter jurisdiction when both judgments were entered but believed that KRS 199.540(2) is an absolute bar to an attack on a judgment of adoption more than one year after its entry. Because the adoption could not be set aside, custodial arrangements were necessary and thus the trial court denied the CR 60.02 motion.
All of the following issues were addressed by the Court of Appeals in the 61 page opinion and each question was answered in the negative. Quotes from the opinion are in italics.
• Is T the stepparent of Z as indicated in the judgment of adoption?
In Procrustean fashion, the lawyers and family court in this case
tortured the facts of the relationships among T, S and Z to make them fit the
requirements of KRS 199.470(4)(a) and KRS 199.520(2), and then proceeded to
cut off the legs upon which such cases stand – the approval of the Cabinet, the very
agency delegated by our Legislature with authority to carry out its statutes and
underlying public policy regarding adoption....What occurred here amounted to “reinstituting by judicial fiat
common law marriage which by expressed public policy is not recognized....We cannot ignore – and the family court should not have
ignored – the fact that the parties' relationship “simply does not exist as a
‘marriage’ of any kind.”
• Does T’s relationship with S and Z present circumstances sufficiently extraordinary as to justify application of the legal fiction that T was Z’s stepparent?
“Legal fictions” have been frowned upon generally in Kentucky,
particularly when they are misused. They have been called “charades,”....Only where a statute is clearly ambiguous or where its operation leads to an absurd result, may a court use such legal devices as “legal fictions,” and then only for the purpose of carrying out the intent of the Legislature.
• Did the family court properly order the retention of S’s parental rights vis-à-vis Z contrary to the parental rights termination provision of KRS 199.520(2)?
More distressing to this Court than either the recognition of the
parties' relationship as a de facto common law marriage, or the legal
fictionalization of a stepparent-like status, is the universal failure in this case to
properly consider the effect that carrying through with such a ruse could have on
the relationship between Z and his biological mother, S. By pretending during the
adoption proceeding that T was S's spouse and therefore Z's stepparent, the family
court and the parties' original lawyers, including Z's guardian ad litem, put at risk
Z's only familial relationship legally recognizable in this record – the relationship
between himself and the woman who gave birth to him.
Was it proper or lawful for the family court to order the retention of
S's parental rights in direct contravention of KRS 199.520(2)? The question
answers itself, and the answer, clearly, is no....
Since enunciation of public policy is the domain of the Legislature,
any desired change in a legislatively expressed public policy must originate there
and not with the Judiciary....
By what artifice then, and to what end, may this Court sanction grants
of adoption by non-spouses and also avoid the operation of KRS 199.520(2)?...
Despite our agreeing with the notion “that the more familial bonds a
child has is generally better for the child, this court is not in a position to add
words and meaning to a statute that is clear on its face. We can only enforce the
statute as it is written.”...
Therefore, affirming the Judgment of Adoption will mean
that if S is to retain her parental rights with regard to Z, that retention must have a
legal basis other than the words contained in KRS 199.520(2).
• May a party waive the parental rights termination provision contained in KRS 199.520(2)?
The adoption and its effect on S's retention of parental rights are
inextricably related. Even if we held that S waived her right to object to the
adoption, we cannot treat S's reservation of parental rights as a waiver. The subject
statute, KRS 199.520(2), does not create a right personal to either party so as to
allow its waiver by either of them....
We find, as a matter of law, that S cannot waive the public policybased
requirement of KRS 199.520(2) that “[u]pon granting an adoption, all legal
relationship between the adopted child and the biological parents shall be
• Does estoppel apply here to maintain S’s parental rights contrary to the parental rights termination provision of KRS 199.520(2)?
The family court should have dispensed with the estoppel argument
by citation to Nussbaum v. General Acc., Fire & Life Assur. Corp., Ltd., of Perth,
Scotland, 238 Ky. 348, 38 S.W.2d 1 (Ky. 1931). Nussbaum holds that “[a]n
estoppel too is only available to a person who is h[er]self innocent and mislead
[sic] by the other party.”...
Additionally, where parties enter into an agreement with the intention
of avoiding the operation of “clear, legislative requirements, the legal
consequences of the statute cannot be avoided by estoppel.”
• Does the concept of “stepparent-like adoption” exist in harmony with Kentucky’s adoption laws?
No, no, and no.
The parties have used the term “stepparent-like” adoption in this case
to mean the adoption of a child by the same-sex partner of that child's biological
parent without the termination of the biological parent's parental rights.11
Philosophically speaking, if “stepparent-like” adoption, as a comprehensive and
acceptable extension of Kentucky's adoption laws, could somehow be incorporated
into our jurisprudence, the specific operation of KRS 199.520(2) terminating S's
parental rights could be avoided. In essence, the family court determined precisely that – that stepparent-like adoption can exist in harmony with our adoption laws,
specifically KRS 199.520(2). We disagree.
After discussing and dismissing all the foreign cases raised in support of the propriety of stepparent-like adoptions without termination of S's parental rights, the court concluded: However, we also find,
within the context of these unique facts, that S's parental rights were not terminated
by operation of KRS 199.520(2).
• Could a valid judgment of adoption be entered in this case without Cabinet consent?
While the court said initially that all these issues are answered in the negative, there was no separate discussion of this issue. However at the end of the opinion the Court said, We trust that this opinion has eliminated the possibility of future attempts at stepparent-like adoptions under our current law. However,
should similar circumstances ever present themselves again, it is our hope that the
Cabinet would exercise its right to intervene in the action for the proper purpose of
establishing the proceeding as adversarial and presenting its relevant position on
the law and the facts of the particular adoption case. Had the Cabinet done so in
this case, a timely appeal could have remedied the numerous errors in this case
before they became indelible.
• Is KRS 199.540(2) – the limitations statue relative to adoptions inapplicable where a judgment of adoption is void ab initio because the family court lacked subject matter jurisdiction to enter it?
Again, while the prelude says all that "no" applies to each of these issues, the opinion upheld the adoption only because of the one year limitation to contest it.
• If the adoption stands, are S’s parental rights terminated as required by KRS 199.520(2)?
In the discussion the court frames the issue and resolution as A Balancing of Competing Public Policies Necessitates S's Retention of Parental Rights
An erroneous judgment, once final, is no less binding than one that is correct in every way....Among the errors in this judgment is the family court's determination,
contrary to KRS 199.520(2), that S retained her parental rights as to Z. “The
strong and sensible policy of the law in favor of the finality of judgments has
historically been overcome only in the presence of the most compelling equities.”
Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). That policy was properly
expressed by our judicial branch19 to preclude parties to a judgment, and those in
privity with them, from relitigating the same issues. We believe that, by enacting
KRS 199.540(2), the Legislature intended not only to ratify this judicial expression
of policy, but to expand it in adoption cases, as a matter of public policy, to be
effective as to all persons without regard to their lack of participation in the
adoption proceeding itself.
However, the public policy expressed in KRS 199.540(2), as applied
to S's retention of parental rights in this case, directly conflicts with the public
policy expressed in KRS 199.520(2) that those same rights must terminate.
Resolution of this case, then, necessarily requires a balancing of these competing
public policies. We will do so, however, we also believe that a third public policy,
expressed in KRS 402.040(2) and Section 223A of Kentucky's Constitution
prohibiting same-sex marriage, has no place in our analysis. Our analysis would
result in an identical outcome if T had been S's heterosexual male partner.
While both expressions of public policy are equally significant, we
conclude under the facts of this case that equities weigh in favor of allowing this judgment of adoption, as erroneous as it is, to stand....
This opinion should not be interpreted as an invitation by other
practitioners, nor authorization of the family courts, to intentionally evade any
aspect of the adoption laws by replicating the facts or practice of this case. We
believe we have made it clear that this case should never have proceeded as far as
it has and trust that no others will.
• Did the family court properly deny S’s CR 60.02 motion in the custody case?
We have already held that S's CR 60.02 motion in the adoption case is
untimely because of the operation of KRS 199.540(2). But KRS 199.540(2) does
not apply to custody orders. Our consideration of the family court's denial of CR
60.02 relief in the custody matter remains.
The basis for that denial was “[S's] failure to file her motion in a
reasonable time; [her] full knowledge of all facts at the time the agreed order was
entered; and clean hands doctrine.” As previously noted, we review a lower court's
denial of relief pursuant to CR 60.02 for abuse of discretion.... In the custody
case, we believe the court abused its discretion.
The family court's order acknowledged that it lacked subject matter
jurisdiction when it entered the custody order. For reasons set forth in the family
court's order denying CR 60.02 relief, we agree.
A judgment entered by a court without subject matter jurisdiction is
void ab initio.... It is “a legal nullity, and a court has no
discretion in determining whether it should be set aside.” Foremost Ins. Co. v.
Whitaker, 892 S.W.2d 607, 610 (Ky.App. 1995). In addition, since subject matter
jurisdiction concerns the very nature and origins of a court's power to act at all, it
“cannot be born of waiver, consent or estoppel[,]” Nordike v. Nordike, 231 S.W.3d
733, 738 (Ky. 2007)(internal quotation marks and citation omitted).
Because “the question of subject matter jurisdiction may be raised at
any time and is open for the consideration of the reviewing court whenever it is
raised by any party,” Gullett v. Gullett, 992 S.W.2d 866, 869 (Ky.App. 1999), S
was entitled to challenge it when she did. And, since the family court had no
discretion with regard to setting that order aside, Foremost at 610, the exercise of
any discretion declining to do so was an obvious abuse of the court's discretion.
We therefore reverse the Jefferson Family Court's order denying S's motion to set
aside the custody order.
Upon remand Though
utilization of KRS 403.270 and the rest of Chapter 403 is not mandated, it provides
the family court with the best guidance for determining appropriate custody,
visitation and support, even in this unusual, we pray unique, case. The family
court may entertain a motion to modify the original petition in this case, or one or
both of the parties may initiate a new action in which to seek these determinations.
The courts concluding words were meant to be heard:
Legal Questions versus Political Questions; Justice in the Abstract versus Justice According to Law
We pause at this juncture to highlight the common element that runs
through all of the cases from the various jurisdictions addressing the general issue
of stepparent-like, second-parent, or similar adoptions. It is the same “elephant in
the room” in this case. The function of the Judiciary is to answer the legal
question whether “stepparent-like” adoptions are permitted under Kentucky law.
Courts are constitutionally prohibited from addressing the political question, “Why
not?” Furthermore, judges sitting on those courts are prohibited from allowing
their own abstract view of the political question to affect in any degree the proper
determination of the legal question.
It is not this or any court's role to judge whether the Legislature's
prohibition of same-sex marriage, or common law marriage, or bigamous marriage,
or polygamous marriage, is morally defensible or socially enlightened. Nor is it
this or any court's role, in the absence of constitutional repugnance, to craft any
means by which the legal consequences of such a prohibition may be negated or
avoided. It is simply the law. Nor does the fact that T and S are homosexual have any bearing
whatsoever on the void nature of this joint custody order and this judgment of
adoption.The merits and defects of both order and judgment exist regardless of
the parties' relationships, genetic makeup, pre-dispositions or personal choices.
The lawyers in this case obviously desired to affect the public policies
at play in this case that, in their view, negatively impact their clients. They would
have been perfectly justified in petitioning the Legislature, or encouraging their
clients to do so, for an amendment to the adoption laws that would permit an
unmarried person to adopt a non-spouse's child without terminating the nonspouse's
parental rights. But rather than taking this proper route to change, they
sought to achieve their goal through this branch of government. Their stratagem,
so clearly contrary to statute and public policy, could only succeed in a receptive
environment. The record tells us that Zeller found such an environment.
As the family court acknowledged, “stepparent-like” adoption had
been embraced by three or four divisions of Jefferson Family Court. According to
Zeller, judicial acceptance of her efforts came with a knowing “wink-wink, nodnod,
and look around[.]”Wherever this legal fiction has been used, its supposed benefactors were misled. Its proponents simply applied the fiction to evade, for a
single segment of our society, the public policy of the People of this
Commonwealth. To do so is constitutionally impermissible, regardless of the
identity of the group.
We take issue with any legal professional, and will reverse any court,
for exempting any person or group from the uniform application of our laws
merely because of their membership in a particular subset of society. Ky. Const §
1 (“All men [and women] are equal[.]”); Ky. Const § 3 (“All men are equal and no
grant of . . . privileges shall be made to any man or set of men[.]”). In short,
however, that is exactly what occurred here.
The fact that T and S are homosexual should have had no bearing on
the lawyers' representations of their clients, nor on the family court's application of
the law, at any stage of this proceeding. Unfortunately, the parties' sexuality
preference or some other unidentified factor such as sympathy for their plight,
impaired the way the legal professionals viewed the law.
Zeller, Gatewood and Kellerman unwisely participated in an adoption
by two people who were not even living together, to say nothing of the fact that
they were not married, or even committed, to one another. Would Gatewood have
thought it prudent to permit his client to consent to this adoption if T were actually
S's former husband? Would Kellerman also have failed to question Z's adoption
by a former stepfather who had already divorced her client's mother, thereby
risking the termination of the legal relationship between Z and S? We think not. It is significant that the legal professionals were all on the same page
here. Because these proceedings were carried out in “friendly suit” manner,
without the presentation of a countervailing legal position, and without even the
objective participation of the Cabinet, the parties lost all benefit of an otherwise
adversarial system. The court alone was left to question the legality of what the
parties and their lawyers sought. To the extent the family court did challenge
Zeller's theory, that challenge was inadequate.
However, with crowded dockets and limited resources, and relying to
a large degree on the attorneys to present the law and facts in conformity with CR
11, we tend to understand how the family court let down its guard. It may not have
been until attorney Zeller thanked the “family court judges who have so graciously
given to gay couples these rights” that the judge below realized what had occurred
in her court. When asked what Kentucky adoption law said about stepparent-like
adoption, too many professionals relied on the punchline of an old and bad
attorney joke and responded, “What do you want it to say?”
The Order Overruling Appellant's Motion
to Set Aside the Judgment of Adoption was AFFIRMED, and the Order Overruling
Appellant's Motion to Set Aside Custody Judgment was REVERSED. The order
awarding permanent joint custody of Z to S and T was VACATED as void ab initio.
The case was REMANDED for further orders.
Digested by Diana L. Skaggs, Diana L. Skaggs + Associates