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COMMONWEALTH OF KENTUCKY, CABINET

FOR HEALTH AND FAMILY SERVICES APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. CASE NO. 2007-CA-001783-ME

KENTON FAMILY COURT NO. 06-AD-00096

L.J .P. ; M.J.P. ; AND D.J .P., A CHILD APPELLEES

OPINION OF THE COURT BY JUSTICE NOBLE

REVERSING

RENDERED : MAY 20, 2010

TO BE PUBLISHED

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This case involves a termination of parental rights action in which the

court denied the paternal grandparents' motion to intervene . The

grandparents, before us as Appellees, appealed the order denying their motion

to the Court of Appeals, which reversed and held that the grandparents could

intervene as a matter of right under CR 24 .01 . Appellant, the Cabinet for

Health and Family Services, sought discretionary review, which this Court

granted. For the reasons set forth below, the Court of Appeals is reversed.

I. Background

Appellees, L.J.P. and M.J .P., are the paternal grandparents of D.J .P., a

boy born on August 28, 2005. Soon after D.J.P.'s birth, on October 4, 2005,

his birth parents lost custody of him and his two half-siblings in a dependency,

neglect, and abuse action. D.J.P. has since resided in foster care.
On November 15, 2006, the Cabinet filed a petition for involuntary

termination of parental rights. About four months later, on March 9, 2007, the

parents filed a petition to voluntarily terminate their parental rights,

conditioned on D.J.P. being placed for adoption with Appellees . That same

day, Appellees moved to intervene, claiming "The filing of the Petition for

Voluntary Termination of Parental Rights by [the birth parents] gives [them] the

right to intervene in this proceeding ." They also requested custody.

The family court denied Appellees' motion to intervene . The court

reasoned that the parents' petition for voluntary termination, the document

which purported to give Appellees standing, was invalid because the Cabinet

had previously filed a petition for involuntary termination. Appellees appealed

this decision to the Court of Appeals, which held that they could intervene as a

matter of right based on the "elevated status" given to grandparents in custody

determinations . This Court then granted the Cabinet's motion for discretionary

review.

II. Analysis

A. Timeliness

The family court first concluded that the parents could not be heard on

their petition for voluntary termination "[s]ince the Petition for Involuntary

Termination was filed by the Cabinet over three months before the birth

parents filed their Petition." Thus, the court reasoned, this petition was

untimely and could not give Appellees standing. The court reached this

conclusion because it thought the effect of the Cabinet previously filing a
petition for involuntary termination was that the parents had lost "the right to

be free from state interference in deciding who shall have custody of the[ir]

minor child."

The petition for involuntary termination could not have had this effect,

however, because it was merely pending. Although it is clear that if the court

granted the petition parental rights would be terminated, see KRS

625.090(6)(a), it is equally clear that if the court denied the petition parental

rights would be unaffected, see KRS 625.090(6)(b) . That is, the filing of the

petition, by itself, cannot affect parental rights. The parents retain whatever

rights to their child they had before the petition was filed.

Among these rights is the right to be heard on a proper petition for

voluntary termination. Unless a court actually terminates their rights, the

parents have an interest in directing the care, custody, and upbringing of their

child, see Santosky v. Kramer, 455 U.S . 745, 753 (1982), and so long as all

statutory requirements were met, could consent to the adoption of their child

and to voluntarily terminate their parental rights. Their rights are not affected

by the mere filing of a petition, which contains only the Cabinet's allegations

and argument; that can only be done by a valid court order terminating their

rights, which contains "findings of fact, conclusions of law, and a decision as to

each parent-respondent." KRS 625.090(6) . Here, the trial court had in fact

removed the children from the parents, and placed temporary custody with the

Cabinet, but the effect on parental rights came from the order of the court for

removal, not the mere filing of a petition .
Consequently, the fact that an involuntary termination of parental rights

action was pending did not prevent the parents from filing a petition for

voluntary termination of parental rights, nor did it take away their right to

consent to adoption. The fact that they did file their petition before their

parental rights were terminated makes their voluntary petition timely.

Nonetheless, this does not alone give the Appellees standing to adopt D.J.P. or

the right to intervene in the termination proceeding .

B. The Substance of the Parents' Petition

Whether the Appellees have the right to intervene in the voluntary

termination of parental rights proceeding must be determined based on their

statutory rights toward D.J.P., or the parents, if any.

To make this determination, this Court must look to the allegations of

the petition for voluntary termination . The substance of what the parents

attempted to do through their petition for voluntary termination is consent

adoption . The petition stated that they would voluntarily terminate their

parental rights, but "if and only if" parental rights were vested in the Appellees,

the paternal grandparents . This petition thus attempts to do more than merely

voluntarily terminate parental rights. While the parents clearly could

voluntarily terminate their parental rights, even in an involuntary termination

proceeding, the real question is whether given the status of their case, they

could go further and consent to adoption in a voluntary termination

proceeding.
As an initial matter, a determination as to whether consent adoption

applies in this case must be made. This Court has previously noted that

adoption only exists as a right bestowed by statute and,

furthermore, . . . there must be strict compliance with the adoption

statutes . The law of adoption is in derogation of the common law.

Nothing can be assumed, presumed, or inferred and what is not

found in the statute is a matter for the legislature to supply and

not the courts .

Day v. Day, 937 S.W.2d 717, 719 (Ky. 1997) (citing Wright v. Howard, 711

S.W.2d 492 (Ky. App. 1986), and Coonradt v. Sailors, 209 S.W .2d 859 (Tenn.

1948)) . The statutory requirements for adoption are determinative.

In most "consent" adoptions, a parent agrees to allow a new spouse, or

some other relatives, to adopt his or her child . The parent retains parental

rights when the party seeking adoption is the parent's spouse, but must

normally terminate parental rights when the child is adopted by non-spousal

parties. That is what the parents attempted to do here.

If the parents retain parental rights to their children, then KRS 199.500

states that an adoption shall not be granted without voluntary and informed

consent of the parents. However, merely retaining parental rights does not

compel that a child be permitted to be adopted on the parents' consent alone .

Obtaining the consent of parents who retain their parental rights is but the

first step of a consent adoption . Thereafter, all the rest of the statutory

provisions governing adoption proceedings apply.

Pursuant to KRS 199.470(3), Appellees, as parties, could not petition to

adopt D.J .P. unless the child had been placed with them by the Cabinet or

other appropriate agency, or "until [he] has resided continuously in [their]

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home . . . for at least ninety (90) days immediately prior to the filing of the

adoption petition." In this case, D.J .P. was placed in foster care by the

Cabinet, and has resided in foster care since shortly after his birth, in order to

protect his safety. The record does not reflect that D.J.P. has at any time

resided with Appellees, and thus certainly not for 90 days consecutively.

Hence, Appellees would not have been able to adopt D.J .P. when the petition

for involuntary termination was filed .'

The 90-day residency requirement "is a prerequisite to the trial court's

exercise of jurisdiction to hear the petition for adoption . If the requirement is

not satisfied, the trial court does not have the authority to hear the matter and

any order conferred would be void ." Day, 937 S.W .2d at 719 (citing Cabinet v.

McKeehan, 672 S.W .2d 934 (Ky. App. 1984) and Bd. ofAdjustments v. Flood,

581 S.W.2d 1 (Ky. 1978)) . As the family court jurisdiction had not been

properly invoked by Appellees in this case, they cannot bypass the statutory

requirements and require the family court to entertain essentially the same

petition in an improper form presented by other parties.

Further, the petition for voluntary termination is so equivocal that it is

hardly a proper pleading, being replete with conditional language . For

example, the parents stated that they "wish to release and relinquish all

' Should an adoption proceeding be later initiated in a proper manner by the other

parties, Appellees would have a right to intervene in that proceeding . Cf. Baker v.

Webb, 127 S.W.3d 622, 625-26 (Ky. 2004) . In Baker, a child's second cousins moved

to intervene in an adoption proceeding initiated by the child's non-relative foster

parents. This Court held that the second cousins could intervene because the

Cabinet's policies and regulations, which gave relatives priority for adoption, vested them with a "sufficient, cognizable legal interest in the adoption." Id. at 625; see also

922 KAR 1 :100, at § 3(a) .
parental rights regarding [D .J .P.] to [L.J .P.] and [M .J .P.], and to no one else but

[L.J.P.] and [M.J.P.]." (Emphasis added.) In addition, the concluding paragraph

of the petition reads:

Petitioners believe an adoptive placement with [L .J .P.] and [M.J.P.]

is in the best interest of [D.J.P.] and that a supporting order

terminating the parental rights of the biological parents is in the

best interest of [D.J.P.], if and only if all parental rights to [D.J.P.]

are vested in [L.J.P.] and [M.J.P.] and not in the Cabinet or any other

person.

(Emphasis added.) The family court could not grant the parents' requested

relief of voluntary termination under this petition without also placing D.J.P.

for adoption with Appellees.

Likewise, the intent of Appellees to bypass statutory requirements is

made clear by their "Motion to Intervene and Request for Custody." In this

motion, they stress that there is "a preference for relative placement in

adoption proceedings." (Citing Baker v. Webb, 127 S.W .3d 622, 625 (Ky. 2004)) .

They also point out that Article VII of the Interstate Compact on the Placement

of Children would not apply as this involves D.J.P. "be[ing] adopted by his

grandparents." In addition, they argue that the Cabinet does not need to

approve their request because "this is a grandparent adoption." (Emphasis

added.) While all that may be true, that does not make the parents' voluntary

termination action an adoption proceeding . Appellees were unable to petition

for adoption under KRS 199.470(3) due to the 90-day residency requirement,

and they may not now by fiat make a termination proceeding an adoption

proceeding.
In short, the parents' petition was an improper attempt to make an endrun around the requirements of the adoption statute. If the petition had been

a proper petition for consent adoption, then Appellees would have had to

invoke the family court's jurisdiction to proceed, and they cannot meet the

statutory grounds to do so. The Appellees thus lack standing to go forward in

an adoption proceeding.

If the Appellees have no standing to go forward in their own right to

adopt D.J .P., then can they intervene in the termination proceedings? There

are two ways a party may intervene : First, if "a statute confers an

unconditional right to intervene ." CR 24.01(1)(a) .And second, if "the applicant

claims an interest . . . which is the subject of the action and is so situated that

the disposition of the action may as a practical matter impair or impede the

applicant's ability to protect that interest, unless that interest is adequately

represented by existing parties." CR 24 .01(1) (b) . To be sufficient, the

applicant's "interest relating to the transaction must be a present substantial

interest in the subject matter of the lawsuit, rather than an expectancy or

contingent interest." Baker, 127 S.W.3d at 624 (internal quotation omitted) . In

this case, neither of these two situations applies .

With respect to whether a statute confers an unconditional right to

intervene, nowhere in the termination statutes is intervention mentioned . No

party has cited any other statute that could confer on Appellees an

unconditional right to intervene here.
In fact, the parties to the termination proceedings are specifically

enumerated . For involuntary terminations, they are the child, the petitioner,

the Cabinet (if not the petitioner), the birth parents, and qualifying putative

fathers . KRS 625.060 . For voluntary terminations, they are "the parent

seeking termination" and "a guardian ad litem to represent the best interest of

the child." KRS 625.041 . Nobody else is listed as possible parties . In addition,

KRS 625.070 does not require non-parental relatives or potential custodians to

be given notice of involuntary termination proceedings. To put it simply, nonparental relatives or potential custodians such as Appellees are not mentioned

or considered in the termination statutes, and thus it cannot be said that a

statute confers an unconditional right to intervene.

Despite this, the Court of Appeals concluded that Appellees had

substantial interest in this case, giving them a right to intervene under CR

24 .01 . They based this conclusion on KRS 625.100, which does not require

Cabinet approval for certain relative placement; KRS 405.021, which provides

for grandparent visitation post-termination; and Baker v. Webb, 127 S.W.3d

622 (Ky. 2004), which held that second cousins could intervene in an adoption

proceeding. But these authorities do not create a substantial interest in a

termination proceeding.

A termination proceeding concerns the relationship between parent and

child, and not any other party. The Appellees, as grandparents, simply have no

cognizable rights to protect or enforce in a termination proceeding. As the

Court of Appeals aptly stated in an unpublished opinion:
Understandably, movants are concerned that if . . . parental rights

are terminated, this legal result could jeopardize (or result in the

severing of) the bond between grandparent and child[] . If the

legislature permitted extended family members, grandparents,

aunts, uncles, adult siblings, cousins, and others to intervene in

[termination of parental rights] cases, however, the goals and

policies of the Adoption and Safe Families Act (AFSA) and

Kentucky law, to provide efficient and timely justice for children

and their families and to facilitate children's rights to a safe,

healthy childhood with a nurturing, permanent family would be

severely delayed.

D.P. v. Commonwealth, 2005 WL 3246168, at *3 (Ky. App. 2005) (unpublished

opinion) .

To the extent that Appellees' interest is in receiving custody posttermination, it would not be a "present substantial interest" but merely "an

expectancy or contingent interest," Baker, 127 S.W.3d at 644, and thus

insufficient to warrant their intervention as a matter of right. The family court

is obligated, upon issuing an order terminating parental rights, to "vest care

and custody of the child in such person, agency, or cabinet as the court

believes best qualified." KRS 625.100(1) . Thus, Appellees would be entitled to

custody only if the court finds they are the "best qualified" among all potential

custodians, something which is purely speculative at this point, especially

since parental rights have not been terminated .

At that point in time, Appellees have further options . The record

indicates that much of the procedural problems in this case arose because the

Cabinet did not consider the Appellees for relative placement, or the Appellees

did not proceed under the appropriate statutes to seek custody of D.J.P. This

Court takes no position as to whether placing D.J.P. with his grandparents

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would be in the best interest of the child, for that is a question best determined

on proper hearing by the trier of fact . Here, it suffices to say that Appellees,

being the only party on appeal, do not at present meet the statutory

requirements to have standing to adopt D.J.P. nor do they have a right to

intervene in the parents' termination proceedings.

III. Conclusion

Given that the proceeding before the court was for termination, and not

adoption, Appellees' motion to intervene was correctly denied, and they have no

statutory standing to proceed with an adoption at this point. For these

reasons, the Court of Appeals is reversed, and the order of the Family Court is

reinstated .

All sitting. All concur.
COUNSEL FOR APPELLANT:

Cynthia Kloeker

Cabinet for Human Resources

624 Madison Avenue

Third Floor

Covington, Kentucky 41011

COUNSEL FOR APPELLEES, L.J .P. AND M.J .P. :

Michael Ryan Voorhees

Voorhees 8v Levy, LLC

11159 Kenwood Road

Cincinnati, Ohio 45242

COUNSEL FOR APPELLEE, D.J.P., A CHILD:

Mary Miller Salyer

27 E. 4th Street

Covington, Kentucky 41011