Adoption Statutes Annotated – KRS CHAPTER 199






























































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        Adoption Statutes Annotated – KRS CHAPTER 199 – PAGE TWO


                       krs 199.470 thru krs 199.590 26 statutes                 Petition for adoption of child, Denial of adoption on religious, ethnic, or racial grounds, Adoption of children regulated, Placement of children by private person, Prohibition against payment of attorney’s fees of biological parent without court approval, Investigation and report, Hearing ? Notice, Judgment — Prerequisites ? Orders, Annulment, Disposition of child if adoption not adjudged, Federal Title IV-E adoption assistance, Statewide swift adoption procedures, Adoption records confidential — Exception — New birth certificate, Prohibited acts and practices in adoption of children


KRS 199.470 Petition for adoption of child — Parties — Residence requirement,exception — Approval of secretary


KRS  199.471 Denial of adoption on religious, ethnic, or racial grounds


KRS 199.472 Adoption of children regulated.


KRS 199.473 Placement of children by private person — Temporary custody — Removal.


KRS 199.475 Petition by army post resident


KRS 199.480 Parties defendant in an adoption proceeding — Process — Guardian ad litem.


KRS 199.490 Contents of adoption petition — Accompanying papers.


KRS 199.492 Attorney not to represent both biological and adoptive parents — Penalty


KRS 199.493 Prohibition against payment of attorney’s fees of biological parent without court approval — Penalty


KRS 199.500 Consent to adoption.


KRS 199.502 Conditions necessary for adoption without consent of child’s biological living parents.


KRS 199.510 Investigation and report


KRS 199.515 Hearing — Notice.


KRS 199.520 Judgment — Prerequisites — Orders — Name and legal status of child –Health history and other nonidentifying information of biological parents and relatives to be given to adoptive parents.


KRS 199.525 Dissemination of post-adoption information about medical or genetic condition affecting an adopted person.


KRS 199.530 Repealed, 1956.


KRS 199.540 Annulment of adoption — Period after which adoption not subject to attack.


KRS 199.550 Disposition of child if adoption not adjudged.


KRS 199.555 Payment of subsidy to adoptive parents — Conditions


KRS 199.557 Federal Title IV-E adoption assistance.


KRS 199.560 Appeal.


KRS 199.565 Statewide swift adoption procedures — Protocol — Teams ? Quarterly report.


KRS 199.570 Adoption records confidential — Exception — New birth certificate.


KRS 199.572 Inspection of adoption records — Limitations.


KRS 199.575 Procedure whereby adopted person may seek to locate preadoptive sibling.


KRS 199.580 Repealed, 1968


KRS 199.590 Prohibited acts and practices in adoption of children — Expenses paid by prospective adoptive parents to be submitted to court.


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KRS .470 Petition for adoption of child — Parties — Residence requirement,


exception — Approval of secretary.


(1) 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.


(2) If the petitioner is married, the husband or wife shall join in a petition for leave to


adopt a child unless the petitioner is married to a biological parent of the child to be


adopted, except that if the court finds the requirement of a joint petition would serve


to deny the child a suitable home, the requirement may be waived.


(3) If a child is placed for adoption by the cabinet, by an agency licensed by the cabinet,


or with written approval by the secretary of the cabinet, the petition may be filed at


the time of placement. In all other adoptions, the petition shall not be filed until the


child has resided continuously in the home of the petitioner for at least ninety (90)


days immediately prior to the filing of the adoption petition.


(4) No petition for adoption shall be filed unless prior to the filing of the petition the


child sought to be adopted has been placed for adoption by a child-placing institution


or agency, or by the cabinet, or the child has been placed with written approval of


the secretary; but no approval shall be necessary in the case of:


(a) A child sought to be adopted by a stepparent, grandparent, sister, brother,


aunt, or uncle; or


(b) A child received by the proposed adopting parent or parents from an agency


without this state with the written consent of the secretary.


(5) Subsection (4) of this section shall not apply to children placed for adoption prior to


June 14, 1962.


Effective: July 15, 1994


History: Amended 1994 Ky. Acts ch. 242, sec. 2, effective July 15, 1994. — Amended


1974 Ky. Acts ch. 74, Art. VI, sec. 107(21); and ch. 121, sec. 1. — Amended 1968


Ky. Acts ch. 100, sec. 3. — Amended 1964 Ky. Acts ch. 182, sec. 1(1) to (5). —


Amended 1962 Ky. Acts ch. 211, sec. 3. — Created 1950 Ky. Acts ch. 125, sec. 10.


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ANNOTATIONS:


KY     Day v. Day, 937 S.W.2d 717 (Ky. 01/30/1997) We hereby reverse the decision of the Court of Appeals and reinstate the judgment of the trial court which held the adoption to be void for lack of jurisdiction. If a petition is not filed in compliance with KRS 199.470(3), it follows that the petition must be dismissed. If so, KRS 199.550(1) mandates that the child “shall be returned” to the custody of the individual having custody at the time the petition was filed; otherwise, KRS 199.550(2) mandates that custody shall be determined by the juvenile court.

KY     
Commonwealth of Kentucky v. Lorenz, 407 S.W.2d 699 (Ky.App. 10/28/1966) It will be observed that the impact of this section is to foreclose the filing of a petition for adoption unless the Commissioner of Child Welfare has given written consent (with exceptions not applicable to these appellees).


It is our view that these decisions teach that no constitutional principle precludes the administrative procedures, reviewable by the courts, which are established in KRS 199.470(6). On the contrary, the judicial review of administrative action within the limits iterated in the cited cases assures the constitutionality of the procedure.

KY     
Commonwealth of Kentucky v. Jarboe, 464 S.W.2d 287 (Ky.App. 01/15/1971)  The fact that the Department did not make a motion to dismiss does not in any way abrogate the legislative intent found in KRS 199.470 and will not permit the court to thwart that intent. The general rule covering this proposition is stated in 2 Am.Jur.2d, Adoption, ? 39, p. 891, as follows:


[32]    “Under many adoption statutes when a child has been placed in a foundling hospital, orphan asylum, or child-care agency, consent of the institution is essential to the validity of a decree of adoption of the child. While it has been held that a court does not have jurisdiction to grant a decree of adoption without the consent of the institution to whose guardianship the child was committed, a petition for adoption may be granted notwithstanding refusal of consent by the state board having control of the child where such consent is unreasonably withheld.”


[33]    This court has previously held under a former statute that a court may properly authorize an adoption without the consent of the Department where that consent is unreasonably or arbitrarily withheld. See McKinney v. Quertermous, 306 Ky. 169, 206 S.W.2d 473. We have also held that the Department cannot be forced to approve an adoption unless the withholding of the approval is arbitrary or unreasonable. See Lewis v. Louisville and Jefferson County Children’s Home, 309 Ky. 655, 218 S.W.2d 683. It would thus appear that a trial court could not properly allow the adoption without the permission of the Department unless that permission was arbitrarily or unreasonably withheld. We have examined the evidence in this case and are unable to say that the refusal of the Department to approve this adoption was either arbitrary or unreasonable.


KY     J. v. E. B., 672 S.W.2d 937 (Ky.App. 05/18/1984) In Commonwealth, Dept. of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287 (1971), a situation was described with facts similar to the present case. In that case the foster care parents filed a petition for adoption and the then Department of Child Welfare (now cabinet) did not approve or give consent pursuant to statute. The trial court, granting the adoption, made findings of fact which concluded that the child was being cared for properly and that it would be a shock to have the child removed from where it had been for three years. The Jarboe court noted that the statute required that the child be placed in the home of the persons to adopt for the purposes of adoption. And as in this case, the Jarboe court noted that the foster parents had violated the boarding-home contract with the department (cabinet), by attempting to adopt without complying with K.R.S. 199.470. We conclude that Jarboe is controlling in this instance

KY     
Roark v. Yarbrough, 411 S.W.2d 916 (Ky.App. 11/18/1966) The Child Welfare Department recommended and approved the placement by the county court, which amounted to a placement by the department. Such action of the department may also constitute a waiver by the department of the right to supervise the placement of children for adoption. One of the chief reasons for placing children in homes three months before filing of suit for adoption is to enable the department to study and observe the arrangement to determine whether the adoption appears feasible. The purpose of the statute was served. Furthermore, it is doubtful that KRS 199.470 applies in proceedings pertaining to “neglected” or “abandoned” children. Subsection (1) of KRS 199.600 empowers the circuit court to terminate all parental rights of parents of neglected or abandoned children. By implication, the court may “place” the children in the custody of some person or institution at the time the parents are divested of their custody.

KY     
Smith v. Wilson, 269 S.W.2d 255 (Ky.App. 06/23/1954)  any adult person or husband and wife possessing certain qualifications may petition the circuit court for leave to adopt any child under stated conditions. KRS 199.470. It is provided in KRS 199.500 that no adoption shall be granted without the consent of the mother of a child born out of wedlock except, inter alia, that such consent shall not be required, subsection (1)(b), if “The parental rights of such parents have been terminated under KRS 199.600 to 199.630.’ But subsection (4) provides:


[17]    “Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.’


[18]    We emphasize that the condition is not, as in subsection (1)(b), that parental rights have been in fact terminated. It is upon pleading and proof “that any of the provisions’ of the sections cited “exist with respect to such child.’ The adoption proceedings thus by reference merely use provisions which would authorize the termination of the parental rights without consent. The primary condition, KRS 199.600(1), is that the child shall be a “neglected or abandoned child as defined in KRS 199.011.’


KY     Surrogate Parenting Associates Inc. v. Commonwealth of Kentucky, 704 S.W.2d 209 (Ky. 02/06/1986) The wife of the biological father, if there is one, is not party to these contractual arrangements. Of course, after entry of a judgment terminating the parental rights of the surrogate mother, the wife of the biological father can avail herself of the legal procedure available for adoption by a stepparent. KRS 199.470(4)(a).


[19]    Before being artificially inseminated, the prospective surrogate mother agrees with the prospective father that she will voluntarily terminate all parental rights subsequent to the birth, thereby extinguishing any rights she might have to participate in any subsequent adoptive proceeding by the biological father’s wife.


[20]    The surrogate mother receives a fee from the biological father, part of which is paid before delivery of the child and the remainder of which is paid after entry of a judgment terminating the parental rights of the surrogate mother. In addition, the father assumes responsibility for medical, hospital, travel, laboratory and other necessary expenses of the pregnancy.


[21]    Each party must be represented by independent counsel, and the father’s counsel is to prepare all agreements and documents in connection with the surrogate parenting process. The biological father pays the attorneys’ fees.


KY     Hinton v. Byerly, 483 S.W.2d 138 (Ky.App. 03/17/1972) [Note for example, KRS 199.470(4), providing (subject to certain exceptions not applicable in this instance) that no petition for adoption shall be filed unless prior thereto the child has been placed for adoption by a licensed agency or the Department of Child Welfare, or has been placed with written approval of the Commissioner of Child Welfare. See also Commonwealth, Dept. of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287, 290-292 (1971).]

KY     
Stanfield v. Willoughby, 286 S.W.2d 908 (Ky.App. 02/03/1956) The following are legal requirements and principles involved in an adoption action: Both the husband and wife must join in the proceeding where the adoption of a minor is sought, unless the one or the other is the natural parent. See KRS 199.470(2). Termination of all parental rights is necessary when a child is to be adopted. See KRS 199.600 to 199.630. This latter section provides in this regard that “all legal relationships between the parents and child shall cease to exist, the same as if the relationship of parent and child had never existed, except that the child shall retain the right to inherit from its parents under the laws of descent and distribution.” Furthermore, pursuant to KRS 199.530, an adopted child may inherit not only from but through the adoptive parents just as may a natural child. See also Kolb v. Ruhl’s Adm’r, 303 Ky. 604, 198 S.W.2d 326. The lower court shall not enter an order of adoption unless it finds “the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child, and that the best interest of the child will be promoted by the adoption and that the child is suitable for the adoption.” See KRS 199.520

KY     
Hicks v. Enlow, 764 S.W.2d 68 (Ky. 01/19/1989) The grandparents’ visitation statute was an appropriate response to the change in the demographics of domestic relations, mirrored by the dramatic increase in the divorce rate and in the number of children born to unmarried parents, and the increasing independence and alienation within the extended family inherent in a mobile society. The United States Supreme Court recognized the shift in the domestic relations scene in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We now recognize the rights of the natural, unmarried father and require “clear and convincing proof that [the natural father] had abandoned or substantially or continuously or repeatedly neglected or abused” the child before terminating his parental rights. Wright v. Howard, Ky.App., 711 S.W.2d 492, 497 (1986).

KY     
Jouett v. Rhorer, 339 S.W.2d 865 (Ky.App. 10/14/1960) As heretofore mentioned, the petition which asks an adjudication that the parental rights of the natural father be terminated sets forth the allegation in substance that the infant is a “neglected child” in the sense that “parental care or control of any sort by the defendant father will injure or endanger the morals, health or welfare of said child.” The language last quoted was lifted from KRS 199.011 (5), the subsection that sets forth the definition of a neglected or dependent child within the meaning of the Adoption Act. This averment is relied upon as the sole ground, if proven, for the entry of an order divesting the natural father of his rights in the child. Actually, the allegation in question states as a basis for severing the parental rights of the natural father a reason which is not contained in KRS 199.600(1). Bare neglect is not a sufficient statutory ground for such a severing.

KY     
Higgason v. Henry, 313 S.W.2d 275 (Ky.App. 05/09/1958) There is a contrariety of testimony as to whether the mother did or did not consent, but the record discloses beyond doubt that the consent, if any, was not given under oath. This is a statutory requisite to the granting of an adoption in this state, and we adhere to the rule of strict compliance with statutes pertaining to adoption. Carter v. Capshaw, 249 Ky. 483, 60 S.W.2d 959. To reduce uncertainty of consent to a minimum is one obvious reason for the rule.

KY     
Moore v. Dawson, 531 S.W.2d 259 (Ky.App. 11/26/1975) Litigation concerning the custody of a child may involve the question of immediate entitlement to custody only, the question of continuing, long-term custody only, or it may involve both questions. Under various statutes custody may be determined by circuit courts (KRS 403.260 generally; KRS 199.600 relating to termination of parental rights; KRS 199.470 relating to adoption) and by county courts sitting in juvenile session. (KRS 208.020).


[34]    Under KRS 208.020 the juvenile session of county court is granted exclusive jurisdiction of proceedings concerning any child living or found within the county who has not reached his eighteenth birthday (a) who has committed a public offense, (b) who does not subject himself to the reasonable control of his parents, teachers, guardian or custodian, (c) who is an habitual truant from home or school, or (d) who is found to be dependent, neglected, needy or abandoned.


KY     Edmands v. Tice, 324 S.W.2d 491 (Ky.App. 06/20/1958) Any child adopted pursuant to the provisions of KRS 199.470 to 199.520 shall be considered, for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it. *

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KY     Cabinet for Human Resources Commonwealth of Kentucky v. McKeehan, 672 S.W.2d 934 (Ky.App. 05/02/1984) KRS 199.470(4) specifically provides: “No petition for adoption shall be filed unless prior to the filing of the petition the child sought to be adopted has been placed for adoption by a licensed childplacing institution or agency or by the Cabinet, or the child has been placed with written approval of the secretary;…” (emphasis added). The child has never been placed with the custodial couple for adoption. Their misunderstanding, perhaps based upon representations of local agents of the petitioner, is unfortunate but does not change the simple fact that the child has never been placed for adoption.

KY     
Welsh v. Young, 240 S.W.2d 584 (Ky.App. 06/12/1951) Two recent cases in which this Court discussed this specific question are Lee v. Thomas, supra, and Skaggs v. Gannon, 293 Ky. 795, 170 S.W.2d 12. In the Skaggs’ case the natural mother was permitted to withdraw the written consent previously given. In the Thomas case she was not permitted to withdraw her consent. An examination of the two cases will disclose that the decision in each case was based on the particular facts shown by the record.

KY     
Commonwealth of Kentucky v. Hallahan, 391 S.W.2d 378 (Ky.App. 05/28/1965) There are numerous statutory references to “infants,” “minors” and “adults” to which it has possible application. Cf. KRS 199.470 (petition for adoption may be filed by any “adult person”), KRS 387.020 (appointment and removal of, and settlement of accounts by, “guardians to minors”), KRS 391.020 (descent of real estate on death of an “infant” without issue), KRS 405.010, 405.020, and 405.080 (rights and duties of parent and child, in which the terms “minor child,” “dependent adult children,” and “adult person” are used), and KRS 411.150 (giving a right of action to the widow and “minor child” of a person killed by wrongful use of a deadly weapon). See also KRS 402.080, which says that a marriage license must issue in the county in which the female resides unless she is “of full age” or a widow.


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ANNOTATIONS:


KRS  199.471 Denial of adoption on religious, ethnic, or racial grounds.


Petitions for adoption of children placed for adoption by the cabinet or a licensed child placing


institution or agency shall not be denied on the basis of the religious, ethnic, racial,


or interfaith background of the adoptive applicant, unless contrary to the expressed wishes


of the biological parent(s).


History: Created 1972 Ky. Acts ch. 231, sec. 2.


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ANNOTATIONS:


KY     Clarke v. Kelly, 707 S.W.2d 358 (Ky.App. 04/04/1986) Petitions for adoption of children placed for adoption by the cabinet or a licensed child-placing institution or agency shall not be denied on the basis of the religious, ethnic, racial or interfaith background of the adoptive applicant, unless contrary to the expressed wishes of the natural parent(s).



KRS 199.472 Adoption of children regulated.


(1) The cabinet shall establish criteria to be followed for the adoption of children and


promulgate this criteria by administrative regulations.


(2) The cabinet shall file the regulations as provided for in KRS Chapter 13A with the


Legislative Research Commission.


History: Created 1972 Ky. Acts ch. 231, sec. 3.


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ANNOTATIONS:


KY     Department for Human Resources v. R.G. and J.G. and S.H., 664 S.W.2d 519 (Ky. 02/16/1984)


Pursuant to this authority, which authority is not questioned by the respondents herein, the Department has promulgated such regulations in 905 KAR 1:010, et seq. These regulations thoroughly cover the procedure for an individual to apply for the adoption of a child, including a specific child which has been previously committed to the Department for Human Resources. The respondents herein attempted to proceed under KRS 199.473, which is entitled “Placement of Children by Private Person, Procedure.” This statute then goes on to provide, as it relates to this case, that any person who desires to receive a child can make written application to the Secretary of the Department for permission to receive the child, that upon receipt of the application investigation shall be made, that if the application is denied a hearing shall be held in the circuit court, upon appeal, to determine whether the Department has acted arbitrarily, unlawfully, or has abused its discretion, etc. However, of principal emphasis, in our opinion, is KRS 199.473(5) which provides:


[20]    Nothing in this statute shall be construed to limit the authority of the Cabinet or a licensed child placing institution or agency to determine the proper disposition of a child committed to it by the juvenile session of district court or the circuit court, prior to the filing of an application to place or receive.


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KRS 199.473 Placement of children by private person — Temporary custody — Removal.


(1) All persons other than a child-placing agency or institution, the department, or


persons excepted by KRS 199.470(4) or (5) who wish to place or receive a child


shall make written application to the secretary for permission to place or receive a


child. Prior to the approval of an application to place or receive a child, together


with the fee required pursuant to subsection (6) of this section, the secretary shall


cause the investigation to be made by a Cabinet for Families and Children social


worker unless the applicant specifies in the application that the investigation shall be


done by an adoption worker of the home and the background of the person or


persons wishing to receive the child. The portion of the investigation pertaining to


the home and family background shall be valid for one (1) year following the date of


its completion by an adoption worker. The purpose of the investigation shall be to


determine the suitability of the applicants to receive a child, taking into account at all


times the best interest of the child for whom application to receive has been made.


The adoption worker making the investigation shall make a finding in writing


recommending either that the application be granted or that the application be


denied. In either case, reasons for the adoption worker’s recommendation shall be


given in writing. The recommendation of the adoption worker shall then be reviewed


by the secretary. Based on the report and recommendation of the adoption worker


making the investigation, the secretary shall grant or refuse permission for the


applicant to place or receive a child as early as practicable, but, in any case, the


decision shall be made within sixty (60) days after the receipt of the application. In


reaching a decision, the secretary shall be guided by the ability of the persons


wishing to receive the child to give the child a suitable home, and shall at all times


consider the best interest of the child from a financial, medical, psychological, and


psychiatric standpoint. If the application is refused, the secretary shall in general


terms furnish in writing the reasons for his refusal.


(2) Upon a finding by the Circuit Court that the child should be placed prior to the


secretary’s ruling on the application, the Circuit Court may grant the applicant


temporary custody of the child pending the decision of the secretary. If the


application is denied, the temporary custody order shall be set aside and, upon


motion of the cabinet or of the child’s parent or parents, the Circuit Court may order


the child returned to the biological parent or parents or the child’s custody may be


awarded to the cabinet, another licensed child-placing agency, or other individuals


deemed appropriate by the court. This section shall not be deemed to permit the


completion of any adoption proceeding without the approval of the secretary and


compliance with KRS 615.030, if required.


(3) In any case where the cabinet refuses to approve the placement of a child for


adoption when requested by the parent or parents of the child, or refuses the request


of any person or persons that a child be placed with that person or those persons for


adoption, the decision of the secretary in so refusing shall be final unless within ten


(10) days after notice of refusal, the biological or proposed adopting parent or


parents shall appeal to the Circuit Court of the county in which the adoption is


proposed. No placement shall be disapproved on the basis of the religious, ethnic,


racial, or interfaith background of the adoptive applicant, if the placement is made


with the consent of the parent. The cabinet may refuse to approve the placement of a


child for adoption if the child’s custodial parent is unwilling for the child to be placed


for adoption with the proposed adoptive family. The cabinet may approve or deny


the placement, in spite of the fact that the custodial parent or parents are unwilling to


be interviewed by the cabinet or other approving entity, or if, after diligent efforts


have been made, the adoption worker is unable to locate or interview the custodial


parent or parents. The cabinet shall be made a party defendant to the appeal. In the


hearing of an appeal, the court shall review the findings of the secretary and shall


determine if the secretary has acted arbitrarily, unlawfully, or in a manner that


constitutes an abuse of discretion.


(4) If a child who does not fall within the exception provided for in KRS 199.470(4) or


(5) is placed or received in a home without the permission of the secretary for


families and children, or if permission to receive a child has been denied, a


representative of the cabinet may petition the juvenile session of District Court of the


county in which the child is found setting out the facts concerning the child. When


the petition has been filed, the court shall take jurisdiction of the child and shall


provide for it as it would provide for a dependent, neglected, or abused child under


KRS Chapter 620, except that the child may not be placed in the home of the


applicants who are to receive the child unless permission to do so is granted by the


secretary or the action is ordered by a Kentucky court of competent jurisdiction.


(5) When either the custodial parent or parents of the child to be placed or the persons


wishing to receive the child reside out-of-state, the requirement of KRS 615.030,


Interstate Compact on the Placement of Children, shall be met before the cabinet


gives approval for the child’s placement.


(6) The secretary of the Cabinet for Families and Children shall be paid a nonrefundable


fee of one hundred fifty dollars ($150) upon the filing of the written application for


permission to place or receive a child. Payment shall be made by certified or cashier’s


check only. All funds collected under this section shall be deposited in a restricted


account, which is hereby created, for the purpose of subsidizing an adoptive parent


for suitable care of a special-needs child as authorized in KRS 199.555.


(7) Nothing in this statute shall be construed to limit the authority of the cabinet or a


child-placing institution or agency to determine the proper disposition of a child


committed to it by the juvenile session of District Court or the Circuit Court, prior


to the filing of an application to place or receive.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 140, effective July 15, 1998. —


Amended 1994 Ky. Acts ch. 242, sec. 3, effective July 15, 1994. — Amended 1990


Ky. Acts ch. 247, sec. 1, effective July 13, 1990. — Amended 1986 Ky. Acts


ch. 423, sec. 187, effective July 1, 1987. — Amended 1980 Ky. Acts ch. 188,


sec. 154, effective July 15, 1980 — Amended 1978 Ky. Acts ch. 137, sec. 6, effective


June 17, 1978. — Amended 1976 Ky. Acts ch. 62, sec. 98. — Amended 1974 Ky.


Acts ch. 74, Art. VI, sec. 107(1), (14) and (21). — Amended 1972 Ky. Acts ch. 231,


sec. 1. — Amended 1964 Ky. Acts ch. 182, sec. 1 (6) to (9). — Created 1962 Ky.


Acts ch. 211, sec. 3.


Note: This section was amended by 1980 Ky. Acts ch. 280, sec. 144, which was to have


become effective July 1, 1982. Thereafter, 1982 Ky. Acts ch. 284 changed the


effective date of that act to July 15, 1984. Then, 1984 Ky. Acts ch. 184 repealed


both 1980 Ky. Acts ch. 280, and 1982 Ky. Acts ch. 284.


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ANNOTATIONS


 KY     Department for Human Resources v. R.G. and J.G. and S.H., 664 S.W.2d 519 (Ky. 02/16/1984)


It is our opinion that Paragraph (5) clearly differentiates between a child who has been committed to the Department prior to application being made by a private individual and one who has not been committed to the Department. The Department has had a long practice of utilizing the procedures provided for in 905 KAR 1:010 for children who had been committed to the Department for reasons of abuse, neglect, abandonment, etc., and utilized KRS 199.473 for those cases in which no commitment was necessary or justified by the facts. Examples of the latter utilization would be adoption by a stepparent of the spouse’s child where the other parent was deceased, adoption by relatives where both parents were deceased, and other situations which would obviate the necessity of a commitment to the Department which would be a useless function. We see no reason to disturb this procedure. We do not believe that the statutes and regulations executed pursuant to statute provide two methods for attaining the same goal, which would result only in confusion. It is therefore our opinion, as heretofore set out, that KRS 199.473 does not pertain to adoption of children whose parental rights have been previously terminated and/or who have been committed to the Department prior to application under that statute. In the instant case, the parental rights of this child’s parents were terminated in 1971 and the child had been committed to the Department in April of that year. This was some ten and one-half years prior to the application by the respondents herein.


[22]    The respondents herein must fail even should KRS 199.473 apply to a child previously committed to the Department. Paragraph (2) of that statute provides for appeal of the refusal to the circuit court. Herein, the grounds for the refusal were clearly stated to be that, due to a previous placement in an approved home, the child was simply not available. The lower court has heard arguments and found, in its Findings of Fact and Conclusions of Law, that this was true, that the child was not available, and that the denial was not “arbitrary, capricious, unreasonable or predicated upon erroneous factual determination.” This is all that KRS 199.473(2) requires, even should it pertain. The thrust of respondents’ argument, when the chaff is blown away, is that they were denied an opportunity to prove that theirs was an excellent home for the child, possibly better than that of Lynea Pollock. However, this is not the criterion. We quake at the thought of the additional burden upon overloaded courts if they were required to engage in qualitative comparisons in instances where one home has already been approved before another even applies.


KY     Department for Human Resources v. Basham, 540 S.W.2d 6 (Ky. 01/23/1976) KRS 199.473(1) requires the secretary to cause an investigation to be made of the home and the background of the persons wishing to receive a child for adoption for the purpose of determining the suitability of the applicants to receive a child, taking into account at all times the best interest of the child.

KY     
Hinton v. Byerly, 483 S.W.2d 138 (Ky.App. 03/17/1972) It should be noted that KRS 199.473 makes no provision for an approval “by default.”]

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KRS 199.475 Petition by army post resident.


Any person who has been a resident of any United States Army post, military reservation


or fort within the State of Kentucky for sixty (60) days, or a resident of this state who has


resided on such United States Army post, military reservation or fort together aggregating


sixty (60) days before filing the petition, may bring an action for adoption of a child in any


county adjacent to said army post or military reservation.


History: Amended 1976 Ky. Acts ch. 352, sec. 1. — Created 1958 Ky. Acts ch. 76,


sec. 1.


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NO CITATIONS FOR THIS STATUTE                         


KRS 199.480 Parties defendant in an adoption proceeding — Process — Guardian ad


litem.


(1) The following persons shall be made parties defendant in an action for leave to adopt


a child:


(a) The child to be adopted;


(b) The biological living parents of a child under eighteen (18), if the child is born


in lawful wedlock. If the child is born out of wedlock, its mother; and its


father, if one (1) of the following requirements is met:


1. He is known and voluntarily identified by the mother by affidavit;


2. Prior to the entry of a final order in a termination proceeding, he has


acknowledged the child as his own by affirmatively asserting paternity in


the action or to the custodial agency or the party bringing the action


within sixty (60) days after the birth of the child;


3. He has caused his name to be affixed to the birth certificate of the child;


4. He has commenced a judicial proceeding claiming parental right;


5. He has contributed financially to the support of the child, either by


paying the medical or hospital bills associated with the birth of the child


or financially contributed to the child’s support; or


6. He has married the mother of the child or has lived openly or is living


openly with the child or the person designated on the birth certificate as


the biological mother of the child.


A putative father shall not be made a party defendant if none of the


requirements set forth above have been met, and a biological parent shall not


be made a party defendant if the parental rights of that parent have been


terminated under KRS Chapter 625, or under a comparable statute of another


jurisdiction;


(c) The child’s guardian, if it has one.


(d) If the care, custody, and control of the child has been transferred to the


cabinet, or any other individual or individuals, institution, or agency, then the


cabinet, the other individual or individuals, institution, or agency shall be


named a party defendant, unless the individual or individuals, or the institution


or agency is also the petitioner.


(2) Each party defendant shall be brought before the court in the same manner as


provided in other civil cases except that if the child to be adopted is under fourteen


(14) years of age and the cabinet, individual, institution, or agency has custody of the


child, the service of process upon the child shall be had by serving a copy of the


summons in the action upon the cabinet, individual, institution or agency, any


provision of CR 4.04(3) to the contrary notwithstanding.


(3) If the child’s biological living parents, if the child is born in lawful wedlock, or if the


child is born out of wedlock, its mother, and if paternity is established in legal action


or if an affidavit is filed stating that the affiant is father of the child, its father, are


parties defendant, no guardian ad litem need be appointed to represent the child to


be adopted.


Effective: July 15, 1994


History: Amended 1994 Ky. Acts ch. 242, sec. 4, effective July 15, 1994. — Amended


1986 Ky. Acts ch. 423, sec. 188, effective July 1, 1987. — Amended 1984 Ky. Acts


ch. 16, sec. 3, effective July 13, 1984. — Amended 1980 Ky. Acts ch. 188, sec. 183,


effective July 15, 1980. — Amended 1974 Ky. Acts ch. 51, sec. 1; and ch. 386,


sec. 35. — Amended 1962 Ky. Acts ch. 210, sec. 27; and ch. 211, sec. 4. — Created


1950 Ky. Acts ch. 125, sec. 11.


Note: This section was amended by 1980 Ky. Acts ch. 280, sec. 145, which was to have


become effective July 1, 1982. Thereafter, 1982 Ky. Acts ch. 284 changed the


effective date of that act to July 15, 1984. Then, 1984 Ky. Acts ch. 184 repealed


both 1980 Ky. Acts ch. 280, and 1982 Ky. Acts ch. 284.


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ANNOTATIONS:


KY     Wright v. Howard, 711 S.W.2d 492 (Ky.App. 05/23/1986) In providing the subsection (4) substitute for consent, the legislature obviously was not concerned with terminating the non-consenting parent’s parental rights. This could have been done independently of the adoption action and later bringing into play the above subsection 1(b) exception of KRS 199.500.


The integrity of our entire system for handling adoptions has been challenged by Mr. and Mrs. Jarboe. First, they violated the boarding-home contract. Second, they attempt to adopt a child without complying with KRS 199.470. Third, they would have a court determine that their facts, conclusions and philosophies are correct as opposed to all the professionals who are in the pay of the state to carry out the state policy. The judicial branch is only one branch of the government. It must respect the actions of the other branches when they are performing with good faith in a field that is peculiarly within their knowledge and experience.

KY     
Goldfuss v. Goldfuss, 565 S.W.2d 441 (Ky. 04/11/1978) It is conceded that the child whose adoption is sought is legitimate and that the natural father of the child is known. The parental rights of the natural father have not been terminated. The plain provisions of the adoption statute mandatorily require that he be made a party defendant in the action for adoption and that “[he] shall be brought before the court in the same manner as provided in other civil cases….” KRS 199.480(2).

KY     
Hill v. Garner, 561 S.W.2d 106 (Ky.App. 12/16/1977) 1)… if paternity is established in legal action or if an affidavit is filed stating that the affiant is father of the child, the father may present to the judge of any circuit court of this state a written petition setting forth facts alleging that such parents or parent as the case may be (a) is unable to provide proper parental care for such child, and (b) is willing to relinquish all parental rights to such child, and alleging… some suitable person is willing to accept the care of the child.


[27]    (3)… if it is proved to the satisfaction of the court that termination of parental rights and commitment to the… suitable person will be for the benefit of the child, the court may order the child to be so committed and the parental rights of the natural parents terminated. (Emphasis added)


 


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KRS 199.490 Contents of adoption petition — Accompanying papers.


(1) The petition shall allege:


(a) The name, date, place of birth, place of residence, and mailing address of each


petitioner, and, if married, the date and place of their marriage;


(b) The name, date, place of birth, place of residence, and mailing address, if


known, of the child sought to be adopted;


(c) Relationship, if any, of the child to each petitioner;


(d) Full name by which the child shall be known after adoption;


(e) A full description of the property, if any, of the child so far as it is known to


the petitioner;


(f) The names of the parents of the child and the address of each living parent, if


known. The name of the biological father of a child born out of wedlock shall


not be given unless paternity is established in a legal action, or unless an


affidavit is filed stating that the affiant is the father of the child. If certified


copies of orders terminating parental rights are filed as provided in subsection


(2) of this section, the name of any parent whose rights have been terminated


shall not be given;


(g) The name and address of the child’s guardian, if any, or of the cabinet,


institution, or agency having legal custody of the child;


(h) Any further facts necessary for the location of the person or persons whose


consent to the adoption is required, or whom KRS 199.480 requires to be


made a party to or notified of the proceeding; and


(i) If any fact required by this subsection to be alleged is unknown to the


petitioners, the lack of knowledge shall be alleged.


(2) There shall be filed with the petition certified copies of any orders terminating


parental rights. Any consent to adoption shall be filed prior to the entry of the


adoption judgment.


(3) If the petitioner was not excepted by KRS 199.470(4) or (5), a copy of the written


approval of the secretary of the Cabinet for Families and Children or the secretary’s


designee shall be filed with the petition.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 141, effective July 15, 1998. —


Amended 1994 Ky. Acts ch. 242, sec. 5, effective July 15, 1994. — Amended 1976


Ky. Acts ch. 243, sec. 1. — Amended 1974 Ky. Acts ch. 386, sec. 36. — Created


1950 Ky. Acts ch. 125, sec. 12.


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KRS 199.492 Attorney not to represent both biological and adoptive parents — Penalty.


(1) In an adoption proceeding, an attorney shall not represent both the biological parents


and the prospective adoptive parents.


(2) Any person who violates subsection (1) of this section shall be guilty of a Class A


misdemeanor.


Effective: July 15, 1994


History: Created 1994 Ky. Acts ch. 242, sec. 20, effective July 15, 1994.


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NO CITATIONS FOR THIS STATUTE                         


KRS 199.493 Prohibition against payment of attorney’s fees of biological parent without


court approval — Penalty.


(1) No adoptive parent, proposed adoptive parent, agency, or intermediary shall pay the


attorney’s fees of a biological parent for any purpose related to an adoption action


except as approved by the court.


(2) Any person who violates subsection (1) of this section shall be guilty of a Class A


misdemeanor.


Effective: July 15, 1994


History: Created 1994 Ky. Acts ch. 242, sec. 21, effective July 15, 1994.


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KRS 199.500 Consent to adoption.


(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 or the mother of the child born out of wedlock, or the father of the child


born out of wedlock if paternity is established in a legal action or if an affidavit is


filed stating that the affiant is the father of the child, except that the consent of the


living parent or parents shall not be required if:


(a) The parent or parents have been adjudged mentally disabled and the judgment


shall have been in effect for not less than one (1) year prior to the filing of the


petition for adoption;


(b) The parental rights of the parents have been terminated under KRS Chapter


625;


(c) The living parents are divorced and the parental rights of one (1) parent have


been terminated under KRS Chapter 625 and consent has been given by the


parent having custody and control of the child; or


(d) The biological parent has not established parental rights as required by KRS


625.065.


(2) A minor parent who is a party defendant may consent to an adoption but a guardian


ad litem for the parent shall be appointed.


(3) In the case of a child twelve (12) years of age or older, the consent of the child shall


be given in court. The court in its discretion may waive this requirement.


(4) Notwithstanding the provisions of subsection (1) of this section, an adoption may be


granted without the consent of the biological living parents of a child if it is pleaded


and proved as a part of the adoption proceedings that any of the provisions of KRS


625.090 exist with respect to the child.


(5) An adoption shall not be granted or a consent for adoption be held valid if the


consent for adoption is given prior to seventy-two (72) hours after the birth of the


child. A voluntary and informed consent may be taken at seventy-two (72) hours


after the birth of the child and shall become final and irrevocable under paragraphs


(a) and (b) of this subsection.


(a) If placement approval by the secretary is required, the voluntary and informed


consent shall become final and irrevocable twenty (20) days after the later of


the placement approval or the execution of the voluntary and informed


consent.


(b) If placement approval by the secretary is not required, the voluntary and


informed consent shall become final and irrevocable twenty (20) days after the


execution of the voluntary and informed consent.


Effective: June 21, 2001


History: Amended 2001 Ky. Acts ch. 69, sec. 2, effective June 21, 2001. — Amended


1998 Ky. Acts ch. 426, sec. 142, effective July 15, 1998. — Amended 1994 Ky. Acts


ch. 242, sec. 6, effective July 15, 1994. — Amended 1986 Ky. Acts ch. 423,


sec. 189, effective July 1, 1987. — Amended 1984 Ky. Acts ch. 16, sec. 4, effective


July 13, 1984. — Amended 1982 Ky. Acts ch. 141, sec. 65, effective July 1, 1982. —


Amended 1980 Ky. Acts ch. 188, sec. 184, effective July 15, 1980; and ch. 396,


sec. 20, effective July 1, 1982. — Amended 1978 Ky. Acts ch. 137, sec. 7, effective


June 17, 1978. — Amended 1974 Ky. Acts ch. 386, sec. 37. — Created 1950 Ky.


Acts ch. 125, sec. 13.


Note: This section was amended by 1980 Ky. Acts ch. 280, sec. 146, which was to have


become effective July 1, 1982. Thereafter, 1982 Ky. Acts ch. 284 changed the


effective date of that act to July 15, 1984. Then, 1984 Ky. Acts ch. 184 repealed


both 1980 Ky. Acts ch. 280, and 1982 Ky. Acts ch. 284.


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ANNOTATIONS:


KY     Wright v. Howard, 711 S.W.2d 492 (Ky.App. 05/23/1986) In providing the subsection (4) substitute for consent, the legislature obviously was not concerned with terminating the non-consenting parent’s parental rights. This could have been done independently of the adoption action and later bringing into play the above subsection 1(b) exception of KRS 199.500.


[39]    Besides, the adoption judgment itself terminates parental rights by virtue of the provisions of KRS 199.520(2) which provides:


[40]    (2) Upon entry of the judgment of adoption, from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal consideration, the natural, legitimate child of the parents adopting it the same as if born of their bodies. Except where a natural parent is the spouse of an adoptive parent an adopted child from the time of adoption shall have no legal relationship to its birth parents in respect to either personal or property rights. (Emphasis added).


KY     Asente v. Moore, No. 1999-CA-000363-MR (Ky.App. 09/15/2000) Further, KRS 199.500(5) provides in relevant part that A voluntary and informed consent . . . shall become final and irrevocable twenty (20) days after either the interstate or intrastate placement approval by the Secretary of the Cabinet for Families and Services, or twenty (20) days after the execution of the consent if placement approval was given prior to the signing of the consent, if approval is required.

KY     
Hill v. Poole, 493 S.W.2d 482 (Ky.App. 03/02/1973) KRS 199.500 requires the sworn consent of a parent to an adoption with certain exceptions, one of them being Subsection (4) which states that an adoption may be granted without consent if it is pleaded and proved as a part of the adoption proceeding that any of the provisions of Subsection (1) or (2) of KRS 199.600 exist with respect to such child. KRS 199.600 provides for the involuntary termination of parental rights where an infant has been neglected or abandoned, or the parent or parents have substantially, continuously, or repeatedly refused to give the child parental care. The Hills’ effort to plead the existence of the grounds as set out in KRS 199.500(4) is at best an afterthought seeking to “shore up” a losing cause. We have examined the entire record, the evidence, and the interrogatories filed and find that there is absolutely no substantial evidence that would justify an adoption without consent under KRS 199.500(4). The findings of the lower court bear out this conclusion.

KY     
Roark v. Yarbrough, 411 S.W.2d 916 (Ky.App. 11/18/1966) Ordinarily, consent of the parents must be obtained before adoption may be granted. KRS 199.500. But there are exceptions, one being found in KRS 199.500(4) which we quote:


[17]    “Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.”


KY     Kantorowicz v. Reams, 332 S.W.2d 269 (Ky.App. 10/16/1959) “No adoption shall be granted without the sworn consent of the living parent or parents of a legitimate child * * * except that such consent of the living parent or parents shall not be required if” the parental rights of the nonconsenting parent have been terminated under KRS 199.600. Subsection (4) of KRS 199.500, however, reads: “Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.” That statute, KRS 199.600, specifically relates to the involuntary termination of all parental rights, the primary condition as defined in subsection (1) being that the child shall be a “neglected or abandoned child, as defined in KRS 199.011,” and subsection (2) provides that the rights of one parent only may be terminated. KRS 199.011, as amended in 1952, Ch. 83, defines a neglected or dependent child as one who is under such improper parental care and control or guardianship as to injure or endanger the morals, health, or welfare of the child or others. Abandoned child is defined as one who by reason of the desertion of his parents or guardian is in destitute circumstances.

KY     
Surrogate Parenting Associates Inc. v. Commonwealth of Kentucky, 704 S.W.2d 209 (Ky. 02/06/1986) KRS 199.500(5), which specifies that a “consent for adoption” shall not “be held valid if such consent for adoption is given prior to the fifth day after the birth of the child.”

KY     
D.S. v. F.A.H. and M.A.H., 684 S.W.2d 320 (Ky.App. 02/08/1985) Although the appellees have no standing to bring an action to terminate D.S.’s parental rights, K.R.S. 199.603(7), their petition to adopt D.M.S., if granted, would have the same legal effect. K.R.S. 199.520(2); K.R.S. 199.570(3); and Jouett v. Rhorer, Ky., 339 S.W.2d 865 (1970). Their entitlement to such relief must, however, be predicated on clear and convincing evidence that D.S. has either abandoned the child or “substantially or continuously or repeatedly neglected or abused” the child. K.R.S. 199.603(1)(a)(b); K.R.S. 199.500(4); and Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

KY     
Pierce v. Pierce, 522 S.W.2d 435 (Ky.App. 04/25/1975) KRS 199.500(1) states, “No adoption shall be granted without the sworn consent of * * * the mother of the child born out of wedlock * * *.” No “sworn consent” was ever filed, unless by verifying under oath the petition for adoption Dana complied with this statute. That petition did not allege that Dana had consented, although it is obvious that her consent was extant. We held in Higgason v. Henry, supra, that “* * * the consent * * * was not given under oath * * *” and “* * * in the absence of sworn consent, the judgment granting adoption is erroneous and must be reversed.” In Hill v. Poole, Ky., 493 S.W.2d 482 (1973), we concluded that testimony by the father under oath that he had executed an unfiled written consent (apparently not sworn to) did not cure the failure to comply with KRS 199.500, and we reiterated the strict statutory compliance rule announced in Higgason.


[34]    The clerk of the court was required by KRS 199.510 to forward two copies of the petition for adoption, when filed, to the Department of Child Welfare; whereupon, the department was required to investigate various matters and report to the court. There was no compliance with this statute. However, we approved a judgment of adoption in Keeling v. Minton, Ky., 339 S.W.2d 464 (1960), even though the department had not reported, but the trial court used “* * * a hearing as his method of investigation.” No investigative hearing was conducted in the case before us.


KY     Lester v. Looney, 461 S.W.2d 81 (Ky.App. 12/18/1970) Appellant recognizes that under the provisions of KRS 199.500(4) and KRS 199.600(1) if a parent is guilty of the neglect and abandonment of a child as provided in the statute, adoption may be granted without consent. We so held in Roark v. Yarbrough, Ky., 411 S.W.2d 916 (1966), wherein we pointed out that while ordinarily consent of the living parents of a child is necessary before adoption an exception is provided for in KRS 199.500(4). We discussed the statutes in Roark so it is unnecessary to do so here.


[19]    In Smith v. Wilson, Ky., 269 S.W.2d 255 (1954) and in Williams v. Neumann, Ky., 405 S.W.2d 556 (1966), both adoption cases, we pointed out that the manifest objective of the adoption statutes is to promote the welfare of the child. Here the chancellor found facts which bring this case within the exception provided for in KRS 199.500(4). His decision was based upon substantial evidence of probative value which we do not find to be clearly or at all erroneous. We cannot and would not disturb it. CR 52.01. Bickel v. Bickel, Ky., 442 S.W.2d 575 (1969).


KY     Warner v. Ward, 401 S.W.2d 62 (Ky.App. 03/25/1966) The point is made that Shirley Ann’s husband, Parrish, did not join and is not a party to the proceeding. This is no infirmity to Shirley Ann’s case. On the contrary, it would seem fatal to the Warners’ position, because when the natural father of an illegitimate child marries the mother and acknowledges the child as his, the child is ipso facto legitimized. Cf. KRS 391.090(3); Jackson‘s Adm’rs. v. Moore, 38 Ky. (8 Dana) 170 (1839); Dudley‘s Admr. v. Fidelity & Deposit Co., Ky., 240 S.W.2d 76, 79 (1951). Parrish having married Shirley Ann and admitted in this proceeding that he was Alisa’s father, he became one of the “parents of a legitimate child” within the meaning of KRS 199.500(1), and the adoption could not have been granted without his consent or a termination of his parental rights.

KY     
Stanfield v. Willoughby, 269 S.W.2d 270 (Ky.App. 06/23/1954) The second question requires a construction of certain sections of KRS Chapter 199, relating to adoption. KRS 199.500(1) and its subsections applicable to the present situation provide in substance that no adoption shall be granted without the sworn consent of the living parent or parents of a legitimate child or the mother of a child born out of wedlock, except that such consent of the living parent or parents shall not be required if the parental rights of such parents have been terminated under KRS 199.600 to 199.630, or the living parents are divorced and the parental rights of one parent have been terminated and consent has been given by the parent having custody and control of the child. KRS 199.500(4) provides that notwithstanding the provisions of subsection (1), an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.

KY     
J. v. E. B., 672 S.W.2d 937 (Ky.App. 05/18/1984) It is our observation that the cabinet, once the foster parents demonstrated aggressive interest and commenced litigation, abandoned its duty and obligation to L.S.J. and her daughter by failing to fulfill its duties as set out in its own regulations. It is apparent to us that once the foster parents were committed to the course of keeping A.R.S., the cabinet cut L.S.J. adrift in a sea of very choppy waters. As we glean from the statutes and regulations, the primary duty and function of the cabinet and its staff is to attempt an upgrading of familial relationships, to strive to keep together parents and children who are committed to their charge, and to offer all support reasonable to that end. See 905 KAR 1:005 et. seq.

KY     
Commonwealth of Kentucky v. Helton, 411 S.W.2d 932 (Ky.App. 02/24/1967) Although we are fully mindful of the claims which may be made in behalf of a mother’s rights to her child, we are equally aware of the salutary purpose underlying the laws of adoption. Occasions do arise when parents realize the unhappy necessity of their surrendering parental rights, sometimes involuntarily (as prescribed by KRS 199.600), and sometimes voluntarily (as prescribed by KRS 199.620). The entire adoption program would be utterly frustrated if judgments terminating parental rights were to be lightly regarded. The prospective adoptive parents, the Department, and indeed the parents whose rights have been terminated would have no assurance of when or if an adoption could be effected if the termination were regarded as revocable. That this condition would militate against the best interests of the child and the public at large hardly needs elaboration.

KY     
Jouett v. Rhorer, 339 S.W.2d 865 (Ky.App. 10/14/1960) There has been no consent given to the adoption of the infant upon the part of his natural father, with the result that this is an adversary proceeding which undertakes to secure an order of adoption of such infant based upon a finding of the trial court that there has been an involuntary termination of the parental rights of the natural father within the purview of KRS 199.600 (1). Hence it follows that the order of adoption granted is valid only in the event that at least one of the three conditions mentioned in this subsection, and denominated (a), (b) and (c), has been established, which conditions constitute exceptions to the fundamental requirement of a sworn written consent of the parent in question.

KY     
Smith v. Wilson, 269 S.W.2d 255 (Ky.App. 06/23/1954)


The mother’s challenge of the right of the plaintiffs to maintain the action was overruled. This was doubtless based upon the conclusion that the phrase “may be instituted’ by the public officials is permissive but not exclusive. Ordinarily, “may’ is regarded as a word conferring permission or discretion to act. But the word is frequently construed to be the equivalent of “shall’ or “must’ by the consideration of the general provisions and scope of the statute in which it is used. It is especially so where the act authorized to be done concerns the public interest or the performance or non-performance of a duty of a public officer which affects the rights of others. Its particular meaning must be determined upon the apparent intent of the statute as gathered from the context, regard being had to the evil intended to be remedied and the object sought to be accomplished. Ocean Accident & Guarantee Corp. v. Milford Bank, 236 Ky. 457, 33 S.W.2d 312; City of Middlesboro v. Terrell, 259 Ky. 47, 81 S.W.2d 865.


[14]    When the extreme character of the present action is considered — interference with or severance of the natural rights of a parent and making the child the ward of the State — we think that in providing that the action “may be instituted’ the legislative intent was to vest exclusive discretionary power in the designated public officers. This is a matter of public and not private concern. Therefore, we are of opinion the court should have sustained the plea of absence of authority in the plaintiffs to maintain this part of the two-fold action.


KY     Higgason v. Henry, 313 S.W.2d 275 (Ky.App. 05/09/1958) Notwithstanding the provisions of subsection (1) of this section, an adoption may be granted without the consent of the natural living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of subsections (1) or (2) of KRS 199.600 exist with respect to such child.”



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KRS 199.502 Conditions necessary for adoption without consent of child’s biological


living parents.


(1) Notwithstanding the provisions of KRS 199.500(1), an adoption may be granted


without the consent of the biological living parents of a child if it is pleaded and


proved as part of the adoption proceeding that any of the following conditions exist


with respect to the child:


(a) That the parent has abandoned the child for a period of not less than ninety


(90) days;


(b) That the parent had inflicted or allowed to be inflicted upon the child, by other


than accidental means, serious physical injury;


(c) 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;


(d) That the parent has been convicted of a felony that involved the infliction of


serious physical injury to a child named in the present adoption proceeding;


(e) That the parent, for a period of not less than six (6) months, has continuously


or repeatedly failed or refused to provide or has been substantially incapable of


providing essential parental care and protection for the child, and that there is


no reasonable expectation of improvement in parental care and protection,


considering the age of the child;


(f) That the parent has caused or allowed the child to be sexually abused or


exploited;


(g) That the parent, for reasons other than poverty alone, has continuously or


repeatedly failed to provide or is incapable of providing essential food,


clothing, shelter, medical care, or education reasonably necessary and available


for the child’s well-being and that there is no reasonable expectation of


significant improvement in the parent’s conduct in the immediately foreseeable


future, considering the age of the child;


(h) That:


1. The parent’s parental rights to another child have been involuntarily


terminated;


2. The child named in the present adoption proceeding was born subsequent


to or during the pendency of the previous termination; and


3. The condition or factor which was the basis for the previous termination


finding has not been corrected; or


(i) That the parent has been convicted in a criminal proceeding of having caused


or contributed to the death of another child as a result of physical or sexual


abuse or neglect.


(2) Upon the conclusion of proof and argument of counsel, the Circuit Court shall enter


findings of fact, conclusions of law, and a decision either:


(a) Granting the adoption without the biological parent’s consent; or


 (b) Dismissing the adoption petition, and stating whether the child shall be


returned to the biological parent or the child’s custody granted to the state,


another agency, or the petitioner.


Effective: March 17, 1998


History: Amended 1998 Ky. Acts ch. 57, sec. 18, effective March 17, 1998. — Created


1994 Ky. Acts ch. 242, sec. 10, effective July 15, 1994.


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KRS 199.510 Investigation and report.


(1) Upon filing a petition for the adoption of a minor child, the clerk of the court shall


forward two (2) copies of the petition to the cabinet. The cabinet, or any person,


agency or institution designated by it or the court shall, to the extent of available


facilities, investigate and report in writing to the court:


(a) Whether the contents of the petition required by KRS 199.490 are true;


(b) Whether the proposed adoptive parents are financially able and morally fit to


have the care, custody and training of the child; and


(c) Whether the adoption is to the best interest of the child and the child is suitable


for adoption.


(2) The report of the cabinet or the designated person, agency or institution shall be filed


with the court as soon as practicable but not later than ninety (90) days from the


placement of the child or ninety (90) days after the filing date of the petition,


whichever is longer, unless for good cause the court by written order extends the


period of time for filing the report. If the cabinet or the designated person, agency or


institution is unable to make the report, it shall within ten (10) days of receipt of the


petition notify the court of its inability to conduct the investigation, and the court


may designate some other person, agency or institution to make the necessary


investigation. If the court designates some other person, agency or institution, the


clerk shall forward one (1) copy of the petition to such person, agency or institution


and shall notify the cabinet of such other designation at the time he forwards the


petition to the cabinet.


(3) If the cabinet is a party defendant, its reports, if it files no other pleadings, shall be


considered its answer to the petition.


(4) The clerk’s fee for copying and forwarding the copies of the petitions required by


this section shall be taxed as a cost of the action.


Effective: July 15, 1994


History: Amended 1994 Ky. Acts ch. 242, sec. 7, effective July 15, 1994. — Amended


1974 Ky. Acts ch. 121, sec. 2. — Amended 1956 Ky. Acts ch. 157, sec. 12. —


Created 1950 Ky. Acts ch. 125, sec. 14.


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ANNOTATIONS:


KY     Pierce v. Pierce, 522 S.W.2d 435 (Ky.App. 04/25/1975) The clerk of the court was required by KRS 199.510 to forward two copies of the petition for adoption, when filed, to the Department of Child Welfare; whereupon, the department was required to investigate various matters and report to the court. There was no compliance with this statute. However, we approved a judgment of adoption in Keeling v. Minton, Ky., 339 S.W.2d 464 (1960), even though the department had not reported, but the trial court used “* * * a hearing as his method of investigation.” No investigative hearing was conducted in the case before us.


[35]    KRS 199.515 provides:   “After the report of the guardian ad litem, * * * and the report required by KRS 199.510 have been filed, the court at any time on motion of its own or that of any interested party may set a time for a hearing on the petition to be conducted in chambers in privacy, except as hereinafter provided. Notice of the hearing shall be given to all necessary parties at least ten (10) days in advance thereof, unless such parties shall have answered and agreed to the adoption or have failed to answer and the time for answering has expired, or shall have waived notice of the hearing. All necessary parties may be present and at least one (1) of the adopting parents and the guardian ad litem, if any, for the child must be present at the hearing.”


KY     Warner v. Ward, 401 S.W.2d 62 (Ky.App. 03/25/1966) We do not know how the first of these objections could be eliminated without invading the province of the legislature, which by KRS 199.510 has provided that the report be made and submitted to the court. “It is well settled that the legislature of a state has the power to prescribe new, and alter existing, rules of evidence or to prescribe methods of proof.” 20 Am.Jur. 38 (Evidence, ? 8). The reliability of the report is a matter within the competence of a qualified trial judge to weigh and determine.

KY     
Keeling v. Minton, 339 S.W.2d 464 (Ky.App. 10/21/1960) She further complains that there has not been strict compliance with the adoption statutes as required by the previous rulings of this Court. See Higgason v. Henry, Ky., 313 S.W.2d 275. It is her contention that KRS 199.510(2) makes it mandatory upon the trial court to appoint another investigating agency upon the department’s failure to investigate. We note however that the statute says the court “may” refer the matter to another person or agency for investigation. It is not mandatory. In this case he chose rather to use a hearing as his method of investigation. It appears to have been rather thorough. The rule of strict compliance was not violated.

KY     
Dickey v. Boxley, 481 S.W.2d 283 (Ky.App. 05/26/1972) It will be noted that a strict construction of the statute would mandatorily require the court to allow the adoption if the facts required by the statute exist. It does not prohibit the court from allowing the adoption if one or more of the facts do not exist as long as the court is of the opinion that the welfare of the child will be served by the adoption. KRS 199.510 provides for an investigation and report to the court by the Department of Child Welfare. We have previously held that these findings must be accepted by the court unless they are arbitrary or unreasonable. Commonwealth, Dept. of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287; McKinney v. Quertermous, 306 Ky. 169, 206 S.W.2d 743. However, KRS 199.515 provides that the court can upon motion of the parties or upon its own motion conduct an independent hearing, bring in its own witnesses and take testimony. When this is done the court is then free to make such findings as are warranted by the evidence before it. And, when from this testimony the court finds that the adoption is for the best interest of the child, it may allow the petition. Naturally, if the findings are to the contrary, the petition would be denied. If all facts required under KRS 199.520 are found in the affirmative, then the court must enter a judgment of adoption. The fact that the trial court in this case found one of the elements enumerated in that statute in the negative does not prevent the court from allowing adoption.



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KRS 199.515 Hearing — Notice.


After the report of the guardian ad litem, if any, for the child and the report required by


KRS 199.510 have been filed, the court at any time on motion of its own or that of any


interested party may set a time for a hearing on the petition to be conducted in chambers


in privacy, except as hereinafter provided. Notice of the hearing shall be given to all


necessary parties at least ten (10) days in advance thereof, unless such parties shall have


answered and agreed to the adoption or have failed to answer and the time for answering


has expired, or shall have waived notice of the hearing. All necessary parties may be


present and at least one (1) of the adopting parents and the guardian ad litem, if any, for


the child must be present at the hearing.


Effective: February 27, 1956


History: Created 1956 Ky. Acts ch. 157, sec. 13, effective February 27, 1956.


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ANNOTATIONS:


KY     Pierce v. Pierce, 522 S.W.2d 435 (Ky.App. 04/25/1975)  Strict compliance with the statutes pertaining to adoptions is required. Higgason v. Henry, Ky., 313 S.W.2d 275 (1958). KRS 199.480(2) provides, in pertinent part, that “Each party defendant shall be brought before the court in the same manner as provided in other civil cases * * *.” CR 4.04(3) relates how unmarried infants are to be served with process. No summons was issued for either of the two respondents, Dana or her child. Dana says that serving her with a summons was unnecessary because she signed the petition and swore that its allegations were true. She claims that issuing a summons for serving it on Michael was useless. David cites Smith v. Canada, Ky., 290 S.W.2d 463 (1956), in which we wrote, “* * * where infants under fourteen years of age were not summoned in the manner prescribed by the above provisions a judgment against them, directing a sale of their land, is void.” Almost one year after the original judgment of adoption was entered, the court ordered the clerk “* * * to issue two summons for the infant defendant, one to be served * * * upon * * * the mother * * * and one to be served upon * * * Guardian ad Litem for the infant defendant.” These summonses were served as directed in that order. The guardian ad litem was not appointed until October 3, 1973.


[33]    KRS 199.500(1) states, “No adoption shall be granted without the sworn consent of * * * the mother of the child born out of wedlock * * *.” No “sworn consent” was ever filed, unless by verifying under oath the petition for adoption Dana complied with this statute. That petition did not allege that Dana had consented, although it is obvious that her consent was extant. We held in Higgason v. Henry, supra, that “* * * the consent * * * was not given under oath * * *” and “* * * in the absence of sworn consent, the judgment granting adoption is erroneous and must be reversed.” In Hill v. Poole, Ky., 493 S.W.2d 482 (1973), we concluded that testimony by the father under oath that he had executed an unfiled written consent (apparently not sworn to) did not cure the failure to comply with KRS 199.500, and we reiterated the strict statutory compliance rule announced in Higgason.


[34]    The clerk of the court was required by KRS 199.510 to forward two copies of the petition for adoption, when filed, to the Department of Child Welfare; whereupon, the department was required to investigate various matters and report to the court. There was no compliance with this statute. However, we approved a judgment of adoption in Keeling v. Minton, Ky., 339 S.W.2d 464 (1960), even though the department had not reported, but the trial court used “* * * a hearing as his method of investigation.” No investigative hearing was conducted in the case before us.



KY     
Dickey v. Boxley, 481 S.W.2d 283 (Ky.App. 05/26/1972) It will be noted that a strict construction of the statute would mandatorily require the court to allow the adoption if the facts required by the statute exist. It does not prohibit the court from allowing the adoption if one or more of the facts do not exist as long as the court is of the opinion that the welfare of the child will be served by the adoption. KRS 199.510 provides for an investigation and report to the court by the Department of Child Welfare. We have previously held that these findings must be accepted by the court unless they are arbitrary or unreasonable. Commonwealth, Dept. of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287; McKinney v. Quertermous, 306 Ky. 169, 206 S.W.2d 743. However, KRS 199.515 provides that the court can upon motion of the parties or upon its own motion conduct an independent hearing, bring in its own witnesses and take testimony. When this is done the court is then free to make such findings as are warranted by the evidence before it. And, when from this testimony the court finds that the adoption is for the best interest of the child, it may allow the petition. Naturally, if the findings are to the contrary, the petition would be denied. If all facts required under KRS 199.520 are found in the affirmative, then the court must enter a judgment of adoption. The fact that the trial court in this case found one of the elements enumerated in that statute in the negative does not prevent the court from allowing adoption.

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KRS 199.520 Judgment — Prerequisites — Orders — Name and legal status of child —


Health history and other nonidentifying information of biological parents and


relatives to be given to adoptive parents.


(1) After hearing the case, the court shall enter a judgment of adoption, if it finds that


the facts stated in the petition were established; that all legal requirements, including


jurisdiction, relating to the adoption have been complied with; that the petitioners


are of good moral character, of reputable standing in the community and of ability to


properly maintain and educate the child; and that the best interest of the child will be


promoted by the adoption and that the child is suitable for adoption. In the


judgment, the name of the child shall be changed to conform with the prayer of the


petition. The judgment and all orders required to be entered and recorded in the


order book, including the caption, shall contain only the names of the petitioners and


the proposed adopted name of the child, without any reference to its former name or


the names of its birth parents.


(2) Upon entry of the judgment of adoption, from and after the date of the filing of the


petition, the child shall be deemed the child of petitioners and shall be considered for


purposes of inheritance and succession and for all other legal considerations, the


natural child of the parents adopting it the same as if born of their bodies. Upon


granting an adoption, all legal relationship between the adopted child and the


biological parents shall be terminated except the relationship of a biological parent


who is the spouse of an adoptive parent.


(3) The clerk of the court shall notify the cabinet of any action of the court with respect


to entering a judgment granting an adoption, the amendment of an adoption, or the


denial or dismissal of a petition for adoption.


(4) (a) The health history and other nonidentifying background information of


biological parents and blood relatives of the adopted person, in writing, on a


standardized form, provided by the cabinet, if known, shall be given by the


cabinet or child-placing agency which has the information to the adoptive


parents and to the Circuit Court not later than the date of finalization of the


adoption proceedings. This information shall include the results of any tests for


HIV or hepatitis A, B, and C; and


(b) The information provided for in paragraph (a) of this subsection, if known,


shall, upon the request in person or in writing of the adult adopted person be


made available in writing to that person. The information shall not be made


available if it is of a nature that would tend to identify the biological parents of


the adopted person except as provided in KRS 199.570 and 199.572.


Effective: June 24, 2003


History: Amended 2003 Ky. Acts ch. 166, sec. 2, effective June 24, 2003. — Amended


2000 Ky. Acts ch. 432, sec. 1, effective July 14, 2000. — Amended 1994 Ky. Acts


ch. 242, sec. 8, effective July 15, 1994. — Amended 1986 Ky. Acts ch. 43, sec. 2,


effective July 15, 1986. — Amended 1984 Ky. Acts ch. 16, sec. 5, effective July 13,


1984. — Amended 1974 Ky. Acts ch. 121, sec. 3. — Amended 1956 Ky. Acts


ch. 157, sec. 14, effective February 27, 1956. — Created 1950 Ky. Acts ch. 125,


sec. 15.


 


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ANNOTATIONS:


KY     Hicks v. Enlow, 764 S.W.2d 68 (Ky. 01/19/1989) The sum and substance of the termination statute is to “terminate” all parental connection with no exceptions such as provided in KRS 199.520(2) for stepparent adoptions. There was good reason for making no exceptions in involuntary termination cases in that involuntary termination required a finding by a clear and convincing evidence that the child “has been abandoned” or “substantially or continuously or repeatedly neglected or abused.” KRS 199.603(1)(a) and (b).

KY     
Dickey v. Boxley, 481 S.W.2d 283 (Ky.App. 05/26/1972) After hearing the case the court shall enter a judgment of adoption, if it finds that the facts stated in the petition were established; that all legal requirements, including jurisdiction, relating to the adoption have been complied with; that the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child, and that the best interest of the child will be promoted by the adoption and that the child is suitable for adoption.”

KY     
Wright v. Howard, 711 S.W.2d 492 (Ky.App. 05/23/1986) From the foregoing provisions of law it seems clear to us the Legislature intended that the adoption of a child necessarily brings to an end all connections, legal and personal, with any natural parent. If a child is subject to the parental control of two families – which are alien and often hostile to each other – the resulting injuries to the child’s emotions and future well-being are a matter of deep concern to the public. It is for this reason so many courts have held that public policy demands that an adoption shall carry with it a complete breaking off of old ties. We believe this is a sound view and we hereby adopt it. Therefore we conclude the retention by the natural parent, by virtue of court sanction, of any semblance of parental authority over an adopted child, which is taken from such parent by judicial decree, is repugnant to the very spirit of the Adoption Act. (Emphasis added).

KY     
Pierce v. Pierce, 522 S.W.2d 435 (Ky.App. 04/25/1975)  (STANDARD OF REVIEW FOR UNDUE INFLUENCE RE: ADOPTION)


To warrant a finding of undue influence in inducing the adoption of a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about was not, in reality, that of the person whose act it was in form, but rather, was that of the person exercising the influence. Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, error dismd. 216 U.S. 616, 30 S.Ct. 577, 54 L.Ed. 639.


[20]    In our view David had the burden to demonstrate by clear and convincing evidence the existence of undue influence. If this can be accomplished, it would clearly demonstrate that the annulment of the adoption judgment would be in the best interest of the infant child. The case is remanded with instructions to the trial court to make findings upon these questions which compose the real issue in the case.


KY     Stanfield v. Willoughby, 286 S.W.2d 908 (Ky.App. 02/03/1956) In 1940, the Legislature enacted a law that was intended to be a comprehensive and all-inclusive statute on the subject of adoption. This was Chapter 94, Acts of 1940, formerly KRS 405.140 to 405.240, inclusive, now KRS 199.470 to 199.990, inclusive. Even a casual reading of this Act in its original form will convince one that the legislative intent in the passage of the Act was to place a minor when adopted on the same basis as a child born into the family. Amendments of the Act from time to time have not done away with this central idea.


[15]    The following are legal requirements and principles involved in an adoption action: Both the husband and wife must join in the proceeding where the adoption of a minor is sought, unless the one or the other is the natural parent. See KRS 199.470(2). Termination of all parental rights is necessary when a child is to be adopted. See KRS 199.600 to 199.630. This latter section provides in this regard that “all legal relationships between the parents and child shall cease to exist, the same as if the relationship of parent and child had never existed, except that the child shall retain the right to inherit from its parents under the laws of descent and distribution.” Furthermore, pursuant to KRS 199.530, an adopted child may inherit not only from but through the adoptive parents just as may a natural child. See also Kolb v. Ruhl’s Adm’r, 303 Ky. 604, 198 S.W.2d 326. The lower court shall not enter an order of adoption unless it finds “the petitioners are of good moral character, of reputable standing in the community and of ability to properly maintain and educate the child, and that the best interest of the child will be promoted by the adoption and that the child is suitable for the adoption.” See KRS 199.520.


[16]    In view of the above provisions, we conclude it is clear when the adoption of a child is consummated under the Adoption Act the Legislature intended that the surname of the child be altered to that of the adoptive parents, if such is the prayer of the complaint. We are fortified in this belief for the reason also that, after the change of name in the adoption proceeding, KRS 199.570(2) directs the clerk of the circuit court to promptly report such fact to the Division of Vital Statistics of Kentucky, in order that the Division “shall cause to be made a new record of the birth in the new name”.


KY     Pyles v. Russell, No. 1999-SC-0448-DG (Ky. 02/22/2001)   Upon entry of the judgment of adoption from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the parents adopting it the same as if born of their bodies. Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent.


[26]    With all due respect to the district court, we must conclude that the proper analysis of the relationship between Hicks. supra and Arciero is the view taken by the circuit court and the Court of Appeals. Although Hicks overruled Arciero as to grandparent visitation, the question of which state law would apply in determining the inheritance status of an adopted child was not before the Hicks court, and consequently, never ruled upon by the Court. Hicks was a compilation of three separate cases heard together because of a common question of law involving reasonable visitation by grandparents pursuant to KRS 405.021 in legal adoption and involuntary termination situations. There is language in Hicks which could easily mislead an unwary reader, such as, “Of course, when Arciero was written, there was no grandparents’ rights statute on the books to be considered in weighing the meaning of the exception clause.”


[27]    The three actions comprising the Hicks case are distinguishable from this action because of particular facts. As correctly stated in Arciero, the rights of inheritance of an adopted child are generally governed by the law of the state in which the property is situated, if real property or the domicile of the decedent, if personal. Arciero properly cited to 2 Am. Jur. 2d Adoption 9114 and 115 for the following:


[28]    The fact that an adopted child can inherit under the law of the state of his adoption will not enable the child to inherit property in another state under the laws of which a child, if adopted in that state, cannot inherit or can inherit only to a limited extent.


KY     Smith v. Dixie Fuel Co., 566 S.W.2d 156 (Ky.App. 03/11/1977) The Board found, and the circuit court affirmed, that since the minor child did not live in the deceased’s household, the resolution of the question rested on whether or not the minor was in the relationship of “child” to the employee under KRS 342.075(3). The Board concluded that the adoption of Larry terminated his legal relationship of child to his natural parent, citing KRS 199.520(2), and that therefore, Larry was not the “child” of the employee under the Workmen’s Compensation Act.


[14]    We are in agreement. While this decision may appear to work a hardship, we believe the language and intent of the legislature is clear under KRS 342.075(3):


[15]    No person shall be considered a dependent in any degree unless he is living in the household of the employee at the time of the accident, or unless such person bears to the employee the relationship of father, mother, husband, or wife, father-in-law or mother-in-law, grandfather or grandmother, child or grandchild, or brother or sister of the whole or half blood. (Emphasis ours.)


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KY     Arciero v. Hager, 397 S.W.2d 50 (Ky.App. 12/10/1965) In order to resolve the question before us we need to determine whether the law of New York or the law of Kentucky controls. If the Kentucky law controls, then we must ascertain which Kentucky law controls – the law as it was in 1946, when the adoption occurred, or the law as it was in 1959 when the great-uncle died.


[13]    It seems to be well settled that the status of the adopted person is determined by the law of the forum of the adoption proceedings, unless the status so created or the rights flowing from the status are repugnant to the public policy of another state in which they are sought to be enforced. Commonwealth v. Kirk, 212 Ky. 646, 279 S.W. 1091, 44 A.L.R. 816; Pyle v. Fischer, 278 Ky. 287, 128 S.W.2d 726; Restatement, Conflict of Laws, ? 142; 2 Am.Jur.2d Adoption, ? 12. But the rights of inheritance of the adopted child are generally governed by the law of the state in which the property is situated, if real property, or the domicil of the decedent if personal. This principle is thus phrased in 2 Am.Jur.2d Adoption, ? 12, p. 870:


[14]    “However, the extraterritorial effect of a foreign adoption decree is limited by the principle that the descent of real property is to be governed by the law of the situs of the property, and the descent of personal property by the law of the domicil of the decedent.”


[15]    The problem is dealt with in greater depth in 2 Am.Jur.2d Adoption, ?? 114, 115. In the latter section the following expression appears:


[16]    “According to the better view and weight of authority the rights of inheritance of the child as an adopted child, and the extent of such right of inheritance, will be determined, not by the law of the state where the adoption took place, but in the case of real property by the law of the state where the property is located, and in the distribution of personal property by the law of the domicil of the intestate owner, at the time of his death. This rule is applied regardless of whether the local law enlarges the rights of the adopted child as fixed by the law of the state where the adoption took place and confers rights of inheritance where none existed in the state of adoption or diminishes such rights. The fact that an adopted child can inherit under the law of the state of his adoption will not enable the child to inherit property in another state under the laws of which a child, if adopted in that state, cannot inherit or can inherit only to a limited extent.” 2 Am.Jur.2d Adoption, ? 115, pp. 957, 958.


KY     D.S. v. F.A.H. and M.A.H., 684 S.W.2d 320 (Ky.App. 02/08/1985) The case of Santosky v. Kramer, supra, clearly sets forth the degree of protection the law affords parental rights. We believe the same procedural safeguards mandated therein should apply regardless of whether one is threatened with the loss of his or her parental rights pursuant to K.R.S. 199.603, the involuntary termination statute, or by adoption of his or her child without his consent. The result to the natural parent is the same in either proceeding, that is, total deprivation of any legal or personal connection with the child. For that matter, we believe it incumbent upon the court when considering a petition to adopt pursuant to K.R.S. 199.500(4) to not only require clear and convincing evidence of abandonment or neglect, but to also consider any less drastic measures to accomplish the child’s best interest. See E. Chemerinsky, Defining the “Best Interests”: Constitutional Protections in Involuntary Adoptions, 18 J. Fam. L. 108-13 (1979). We think it would be rare when a child’s best interest would be served, in a battle between family members, by sustaining a petition for its adoption rather than awarding custody to the nonparent, if appropriate, and allowing for visitation between the parent and child. In the instant case the judgment does not reflect whether the trial court even considered this possibility.

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KY     Warner v. Ward, 401 S.W.2d 62 (Ky.App. 03/25/1966) It is not seriously contended that Shirley Ann could not legally withdraw her consent. If “sufficient reason is shown there may be a revocation before final judgment.” Skaggs v. Gannon, 293 Ky. 795, 170 S.W.2d 12, 16 (1943). That the act of relinquishment or consent was performed under circumstances of temporary distress or discouragement is a sufficient reason. Cf. Ferguson v. Klein, 273 Ky. 473, 116 S.W.2d 950 (1938). In the instant case it seems to us, under the traditional principle that an infant may avoid his commitments, that Shirley Ann’s age when she executed the consent was enough in itself to establish a right of disaffirmance. Moreover, even if she had not changed her mind it was not incumbent on the court to grant the adoption. Parental consent is but one of several statutory prerequisites of an adoption, principal among which is “the best interest of the child.” Cf. KRS 199.520(1).

KY     
Jouett v. Rhorer, 339 S.W.2d 865 (Ky.App. 10/14/1960) According to KRS 199.530(2) a child when adopted shall be freed from all legal obligation of obedience to the parents or parent from whom it is severed. KRS 199.520 reads in part: “* * * In the judgment the name of the child shall be changed to conform with the prayer of the petition. The judgment and all orders required to be entered and recorded in the order book, including the caption, shall contain only the names of the petitioners and the proposed adopted name of the child, without any reference whatsoever to its former name or the names of its birth parents.” Also, KRS 199.570(3) provides for a new birth certificate to be issued, with the new name of the child, and which shows the child to be the actual child of the adopting parents the same as if born to their bodies.

KY     
Vega v. Kosair Charities Committee Inc., 832 S.W.2d 895 (Ky.App. 06/12/1992) Adopted children are presumed to be within the class designated in a will as “children,” “heirs,” or “heirs at law,” unless a contrary intent is shown. Breckinridge v. Skillman’s Trustee, Ky., 330 S.W.2d 726 (1959). KRS 199.520(2) states that an adopted child “shall be deemed the child of the petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the parents adopting it the same as if born of their bodies.” However, the principle that a person is permitted to pass on his property as he sees fit takes precedence over the policy expressed in KRS 199.520(2). Minary v. Citizens Fidelity Bank & Trust Co., Ky., 419 S.W.2d 340, 344 (1967). Use of the term “issue of the body” in a will shows an intent to exclude adopted children. See Heller v. Chapman, Ky., 452 S.W.2d 615, 616 (1970); Moore v. McAlester, 428 P.2d 266, 270 (Okla. 1967). As a matter of law, for the purposes of Julius Schmutz’s will, Brian was not the issue of the body of Julianne.

KY     
Wilson v. Johnson, 389 S.W.2d 634 (Ky.App. 02/05/1965) (husband adopts wife, to include her in his mother?s will ) The Major case!stands for the proposition that an adopted child may inherit through as well as from the adoptive parent and is to be considered as included within the designation of “heirs” or “heirs at law” of the adoptive parent unless a contrary intention is apparent.


[25]    In Bedinger v. Graybill’s Ex’r, Ky., 302 S.W.2d 594 (1957), the Court was concerned with a situation where a husband had adopted his wife. Although shocked at an adoption so bizarre, the Court held the statute authorizing the adoption of an adult permitted a husband to adopt his wife and thus make her his heir within the provision of his mother’s will that the corpus of a testamentary trust should go at his death to his “heirs at law.”


 


By our statutes an adult may be adopted in the same manner as a child. But by virtue of such fact he does not ipso facto become a child. True, the legal effect of adoption is that he shall be considered for all legal considerations the natural child of the adopting parents. But, except for strict legal considerations, an adopted adult is not ordinarily considered a child of the adopting parents. On the other hand, a child adopted before he becomes an adult is considered for all purposes a child of the adopting parents. He ordinarily moves into the household and becomes one of the children in fact as well as by law.


[30]    We conclude that, when a testator uses the classification “children,” he is thinking of and intends to use the word in its commonly accepted meaning. He is thinking of those persons who were actually born of the parents, or, if adopted, were adopted as children. The two occupy the same status, and it matters not whether they have reached maturity at the time the estate is settled.


It is reasonable to conclude that, when the testator employs the classification “children,” he does not wish persons other than children to be included. If he desired to include other persons, he could employ the classification “heirs” or “heirs at law,” which would include not only children but uncles, aunts, cousins, et cetera, and not only children who had been adopted as minors but also those persons adopted after they had reached their maturity. To the extent that Edmands v. Tice, Ky., 324 S.W.2d 491 (1959), expresses a contrary view, it is expressly overruled.


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KY     Breckinridge v. Henry M. Skillman’s Trustee, 330 S.W.2d 726 (Ky.App. 11/20/1959)     The life estate of A. Winston Skillman terminated in 1957 and KRS 199.520 (2) then provided and still provides that an adopted child


[19]    “* * * shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural, legitimate child of the parents adopting it the same as if born of their bodies.” Under that statutory mandate Laura Skillman Dunavent must be considered as the child and issue of A. Winston Skillman. As such she is clearly entitled, under the plain terms of the will, to the remaining corpus of the trust estate created by the terms of the present will she was entitled to take as an heir of the testator. Edmands v. Tice, Ky., 324 S.W.2d 491. That being true, it is unnecessary to consider whether under the terms of the present will she was entitled to take as an heir of the testator.


KY     Edmands v. Tice, 324 S.W.2d 491 (Ky.App. 06/20/1958) The appellees contend that the Kentucky statute is not applicable, because by its express terms it applies only to children adopted in Kentucky, and that the Washington statute cannot be operative to govern the devolution of Kentucky real estate under a will. However, in Pyle v. Fischer, 278 Ky. 287, 128 S.W.2d 726, this Court adopted what is stated to be the majority rule, that “the status acquired by adoption in one state will be recognized in another, and the rights of the child to inherit will be given effect as to property located in the latter state, provided such rights are not inconsistent with those incident to the status of adoption created in such state, or with the laws and policies of such state.” 128 S.W.2d 726. The rights of an adopted child under the Washington statute clearly are not inconsistent with those incident to the status of adoption in Kentucky, nor with the laws and policies of Kentucky. So, under the rule stated in the Pyle case, the status and rights conferred upon Herbert Hall Edmands by the Washington statute would be given effect as to Kentucky property.

KY     
Walton v. Lee, 634 S.W.2d 159 (Ky. 05/25/1982) Men and women are presumed capable of having children as long as they live, and this presumption in a case like this may not be rebutted by evidence.” Rand v. Smith, 153 Ky. 516, 155 S.W. 1134 (1913).


[19]    Its last reiteration appears in the case of Owings v. Owings, 247 S.W.2d 221 (1952) wherein the language, though different, reaches the same succinct conclusion:


[20]    “Citations of a few of our opinions will show that we have strictly applied the rule of law, property and evidence to the effect that there is a legal presumption that as long as there is life there is possibility of issue.”


KY     Davis v. Davis, 619 S.W.2d 727 (Ky.App. 08/21/1981) Upon entry of the judgment of adoption, from and after the date of filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal consideration, the natural, legitimate child of the parents adopting it as if born of their bodies. (Emphasis added).


[40]    Under this statute, we are required to treat appellant and appellee equally, that is, to ignore the fact of adoption and make our decision as if appellee were the natural father of appellant’s child.


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KY     Murray v. Murray, 549 S.W.2d 839 (Ky. 01/31/1978) In the absence of a “different disposition” in Dr. Murray’s will, the property originally devised to Fred must pass under KRS 394.400 or 394.410 to Fred’s “issue” or “descendants.” Hershell, as Fred’s natural grandson, and Jane and Judith, as Fred’s adoptive granddaughters, see KRS 199.520, all clearly qualify under either statute and are accordingly each entitled to one-third of the share devised to Fred, or one-twelfth of Dr. Murray’s estate.

KY     
Minary v. Citizens Fidelity Bank & Trust Co., 419 S.W.2d 340 (Ky.App. 06/09/1967) (adoption of wife) At this point in the evolution of the question in our court we seem to have accomplished a complete 180 degrees turn from the position which we held in 1945 in Copeland v. State Bank and Trust Company, supra. However, our agonies did not cease here, for in 1965 in the case of Wilson v. Johnson, Ky., 389 S.W.2d 634, we overruled Edmands v. Tice, supra, holding that where the word “children” was used in a will the testator uses it in its natural sense or “he is thinking of and [intending] to use the word in its commonly accepted meaning,” and thereby restricts the class to those persons who are actually born of the parent or if adopted, were adopted as children.


[18]    From the foregoing we conclude that when Amelia S. Minary used the phrase, “my then surviving heirs according to the laws of descent and distribution then in force in Kentucky,” she included the adoptive children of her sons. This leaves us with the extremely bothersome question of: “Does the fact that Myra Minary was an adult and the wife of Alfred at the time she was adopted affect her status as an ‘heir’ under the will?” KRS 405.390 provides: “An adult person * * * may be adopted in the same manner as provided by law for the adoption of a child and with the same legal effect * * *.”


 


It would appear from examination of the authorities that the adoption of an adult for the purpose of making him an heir has been an accepted practice in our law for many years. However, here it should be pointed out that the practice in its ancient form made the person so adopted the legal heir of the adopting party only. This court has dealt with the problem of adopting adults for the purpose of making them heirs on several occasions. In Woods v. Crump, 283 Ky. 675, 142 S.W.2d 680, a grantor by deed conveyed certain property to his daughter during her natural life then to her “heirs” for the consideration of natural love and affection. The deed was executed in 1893. In 1933, approximately forty years after the execution of the deed and after the death of the grantor, the grantee and her husband adopted appellant Woods, who was then an adult 32 years of age, as their heir. We held that appellant could not take the property as an heir of his adoptive parents, that he could inherit “from” them but not “through” them. However, in the course of the opinion we did not distinguish between the rights of an adopted adult and those of an adopted child. Therefore, the result probably would have been the same had the appellant been an infant when adopted. In the course of the opinion we stated:


[22]    “We, therefore, see that in ascertaining the intention of the creator of the estate not only may the title paper which he executes be considered, but also the terms of the statute under which the adopted child was made heir by its foster parent should also be weighed, and whensoever it appears that it was not the intention of the one executing the conveyance to embrace adopted children or heirs they will not be permitted to inherit or take title from or through foster parents under a conveyance by a stranger to the adoption contract.”


In 1957, in Bedinger v. Graybill’s Executors, Ky., 302 S.W.2d 594, we had before us a case almost identical to the one here under consideration. In that case Mrs. Lulu Graybill, in 1914, set up a trust for her son Robert by will. She then provided after the death of the son that the trust “be paid over and distributed by the Trustee to the heirs at law of my said son according to the laws of descent and distribution in force in Kentucky at the time of his death.” There was a devise over to others in the event that Robert died without heirs. Robert having no issue adopted his wife long after his mother’s death. We held that the wife should inherit the same as an adopted child, there being no public policy against the adoption of a wife. However, it will be noted that in the course of the opinion it is carefully pointed out that the will directed the estate be paid to the “heirs at law of Robert” and did not provide that the estate should go to “my heirs,” “his children” or to “his issue,” indicating by his language that if the phrase had been one of the others set out the results might have been different.


In Pennington v. Citizens Fidelity Bank and Trust Company (Ky.1965) 390 S.W.2d 671, the appellant was adopted by his wife, Annie, when he was 74 years of age. After her death, he asserted a claim to the estate of her mother, whose will devised the remainder to the “child, or children of my daughter, Annie.” Here, we again held that the adopted spouse could not claim under the status of child or children and cited Wilson v. Johnson, supra.


The time has come to face again this problem which has persistently perplexed the court when an adult is adopted for the sole purpose of making him or her an heir and claimant to the estate of an ancestor under the terms of a testamentary instrument known and in existence at the time of the adoption. Even though the statute permits such adoption and even though it expressly provides that it shall be “with the same legal effect as the adoption of a child,” we, nevertheless, are constrained to view this practice to be an act of subterfuge which in effect thwarts the intent of the ancestor whose property is being distributed and cheats the rightful heirs. We are faced with a situation wherein we must choose between carrying out the intent of deceased testators or giving a strict and rigid construction to a statute which thwarts that intent. In the Bedinger case there is no doubt but what the intent of the testatrix, as to the disposition of her property, was circumvented. It is our opinion that by giving a strict and literal construction to the adoption statutes, we thwarted the efforts of the deceased to dispose of her property as she saw fit.


[29]    When one rule of law does violence to another it becomes inevitable that one must then give way to the other. It is of paramount importance that man be permitted to pass on his property at his death to those who represent the natural objects of his bounty. This is an ancient and precious right running from the dawn of civilization in an unbroken line down to the present day. Our adoption statutes are humanitarian in nature and of great importance to the welfare of the public. However, these statutes should not be given a construction that does violence to the above rule and to the extent that they violate the rule and prevent one from passing on his property in accord with his wishes, they must give way.


Adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when he clearly was not intended to be so covered should not be permitted and we do not view this as doing any great violence to the intent and purpose of our adoption laws.


[30]    For the foregoing reasons the action of the trial court in declaring Myra Galvin Minary an heir of Amelia S. Minary is reversed



KY     
Thornberry v. Timmons, 406 S.W.2d 151 (Ky.App. 02/25/1966) Under the holding in Burchell v. Hammons, Ky., 289 S.W.2d 737, the latter ground is not valid because a judgment cannot be collaterally attacked for mere failure of the record to affirmatively show the jurisdictional facts. The Burchell case further holds that in a collateral attack upon a judgment, extrinsic evidence designed to show lack of jurisdiction of the person, if admissible at all, will not be given effect unless it is of a clear and convincing nature. The evidence in the instant case, that the person who was served and who participated in the adoption proceedings as Mary Jo’s father was not in fact her father, is not clear or convincing – in fact, none of Mary Jo’s testimony is convincing. Accordingly the first ground of collateral attack is not sustainable


KY     Ryburn v. First National Bank of Mayfield, 399 S.W.2d 313 (Ky.App. 12/17/1965) The statute prohibiting a potential heir and distributee from taking who feloniously brings about the death of his intestate is an instance of the first kind. KRS 381.280; Wilson v. Bates, 313 Ky. 333, 231 S.W.2d 39. Adoption statutes that govern the inheritance by an adopted child may do both; that is, prohibit inheritance from the natural parent and provide for inheritance from the adoptive parent. KRS 199.520; Arciero v. Hager, Ky., 397 S.W.2d 50 (decided December 10, 1965); Bedinger v. Graybill’s Executor and Trustee, Ky., 302 S.W.2d 594. The statute in each instance is supplementary to the statute of descent and distribution and determines who shall take as an heir at law from a deceased owner of property.

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KRS 199.525 Dissemination of post-adoption information about medical or genetic


condition affecting an adopted person.


(1) If the cabinet receives written information from the biological parent or adult


biological sibling of an adopted person or a provider of medical services concerning


a physician-verified medical or genetic condition which has affected or may affect


the physical or mental health of genetically-related persons, the cabinet shall make a


diligent effort to notify the adoptive parent if the adopted person is a minor, the


adult adopted person, or the adult adoptable person in order to transmit the health


information. For the purposes of this section, “adoptable person” means a person for


whom the court has terminated the parental rights of both biological parents but who


has not been adopted.


(2) The cabinet shall submit the health information to the clerk of the Circuit Court


which issued the adoption order, and the clerk shall place the health information in


the adoption case file.


(3) If a child-placing agency or the court receives health information, it shall notify and


transmit the information to the cabinet.


Effective: July 15, 1996


History: Created 1996 Ky. Acts ch. 325, sec. 2, effective July 15, 1996.


 


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KRS 199.530 Repealed, 1956.


Catchline at repeal: Judgment of adoption –Name and legal status of adopted child —


Inheritance rights.


History: Repealed 1956 Ky. Acts ch. 157, sec. 15. — Created 1950 Ky. Acts ch. 125,


sec. 16.


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KRS 199.540 Annulment of adoption — Period after which adoption not subject to


attack.


(1) If a child adopted under KRS 199.470 to 199.520 reveals definite traits of


ethnological ancestry different from those of the adoptive parents, and of which the


adoptive parents had no knowledge or information prior to the adoption, a petition


setting forth the facts may be filed by the original petitioner or the cabinet at any


time within five (5) years after the adoption with the court which decreed the


adoption. If upon hearing the facts set forth in the petition they are established, the


court may enter a decree of annulment of the adoption and setting aside any or all


rights or obligations which may have accrued by reason of the adoption.


(2) After the expiration of one (1) year from the date of the entry of judgment of


adoption, the validity thereof shall not be subject to attack in any action, collateral or


direct, by reason of any irregularity or failure to comply with KRS 199.470 to


199.520, either procedurally or substantively.


Effective: July 15, 1994


History: Amended 1994 Ky. Acts ch. 242, sec. 9, effective July 15, 1994. — Amended


1970 Ky. Acts ch. 92, sec. 66. — Created 1950 Ky. Acts ch. 125, sec. 17.


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ANNOTATIONS:


Storm, f/k/a Mullins v. Mullins; et al. 2006-SC-000008-DG.pdf KSC Aug 24, 2006; Aug 25, 2006?The item in the record most closely resembling a consent to adoption is the consent to custody form that Appellant signed. That form, however, never mentions adoption and does not include the information required by KRS 199.011(14). As such, the consent form simply is not sufficient under the statute as proof of Appellant’s consent to the adoption. Like the Court of Appeals, we must acknowledge that the failure to appropriately document Appellant’s consent to the adoption was a flaw in the original adoption proceeding and it cannot be explained by reference to the record.


 


Despite irregularities in the adoption proceedings, such judgments are not ordinarily subject to review after one year under Kentucky law. KRS 199.540(2) provides a one year statute of limitation for a challenge to an adoption, regardless of the basis for the challenge: 


 


?This prohibition ensures the finality of adoption judgments, thereby minimizing the potential for traumatic changes in the lives of adoptive parents and children long after their relationship has been formalized.


 


?Although the Court suggested that proof of fraud might allow a petitioner to avoid the limitation imposed by the statute, it expressly declined to decide the issue. Moreover, Appellant has never alleged that the adoption of B.L.M. and A.R.M. was the product of fraud or the like. As such, we need not rule on whether fraud is sufficient to avoid the limiting effect of KRS 199.540(2).


 


?We have never allowed an exception to the limitation period merely for a failure to follow the procedural requirements. Indeed KRS 199.540(2) specifically bars a challenge based on failure to comply with the procedures contained in the adoption statutes. We decline to create another exception, especially one that flatly contradicts the language of the limitation statute. To conclude otherwise would amount to a substantial and unjustifiable departure from the principle underlying KRS 199.540(2), namely, the expectation of finality associated with a judgment of adoption.  We hold that because Appellant failed to challenge the adoption during the year immediately following entry of the judgment, her challenge based on the failure to comply with the statutory adoption procedures is barred by KRS 199.540(2).


 


The application of KRS 199.540(2), however, does not dispose of the entire matter because Appellant has also argued that she was not afforded adequate notice of the adoption proceedings, a claim which implicates the Due Process Clause of the Fourteenth Amendment. If her claim is correct, strict application of KRS 199.540(2) in this case could violate her right to due process.


 


?Unfortunately, we cannot discern from the record whether due process was satisfied in this case. The parties disagree pointedly about the nature of Appellant’s involvement in the original adoption proceedings, not only as to whether she actually consented to the adoption of B.L.M. and A.R.M., but whether she was even aware of and understood that Appellees intended to adopt the two girls.  At least one piece of evidence, the consent to custody, suggests that Appellant was not informed that her ex-husband’s parents intended to adopt the children. This document never mentions adoption, yet it precipitated the adoption proceedings in this case. On the other hand, there is ample evidence in the record that Appellant knowingly participated in Appellees’ attempts to adopt the children. For example, the DSS-192 form that Appellant signed specifically mentions adoption, and the purpose of that document is to record whether a child placed for adoption will, upon reaching adulthood, be allowed to contact a biological parent and/or inspect adoption records.  Likewise, the DSS-191 form, which Appellant also completed, discusses adoption and is designed to provide adoptive parents with a comprehensive health history of the “placing parent.6


 


Because the record does not establish conclusively whether the requirements of due process were met, this matter must be remanded to the trial court to hear evidence and make findings of fact.


KY     Pierce v. Pierce, 522 S.W.2d 435 (Ky.App. 04/25/1975)  To warrant a finding of undue influence in inducing the adoption of a child, it must appear that the person exercising the influence so far dominated the will of the person upon whom it was exercised as to substitute his will for that of the latter, with the result that the action brought about was not, in reality, that of the person whose act it was in form, but rather, was that of the person exercising the influence. Phillips v. Chase, 203 Mass. 556, 89 N.E. 1049, error dismd. 216 U.S. 616, 30 S.Ct. 577, 54 L.Ed. 639.


Before an effort was made to correct the omissions and failures and long before the entry of the nunc pro tunc judgment, David attempted to discontinue the efforts he had originated to adopt the child and he militantly sought to have the original judgment vacated and the proceedings dismissed. We have held in such cases as Hill v. Poole, supra, that a parent could withdraw consent to adoption at any time before final judgment upon a showing of sufficient reason. Also see Skaggs v. Gannon, 293 Ky. 795, 170 S.W.2d 12 (1943). In Greene v. Fitzpatrick, 220 Ky. 590, 295 S.W. 896 (1927), we concluded that a judgment granting adoption could be set aside when there was fraud in obtaining it. A decree of adoption may be vacated under appropriate circumstances. Hood v. Nichol, 236 Ky. 779, 34 S.W.2d 429 (1931); 2 C.J.S. Adoption of Persons ? 113, p. 545. In Barber v. Barber, 280 Ky. 842, 134 S.W.2d 933 (1939), we affirmed a judgment vacating an adoption completed several months before it was attacked. The legislature has countenanced actions such as David’s so long as they are taken within two years of the entry of judgment. KRS 199.540(2).

KY     
Allen v. Martin, 735 S.W.2d 332 (Ky.App. 08/28/1987) More importantly, we are most reluctant to allow a collateral attack on a judgment of adoption such as is being attempted by appellants herein. Since at least 1950, KRS 199.540 has fixed a limitation period of two years within which to attack a judgment of adoption for “irregularity in procedures.” Even in the absence of such a statute, courts have been hesitant to upset an adoption decree rendered many years before where the ground for attack was lack of requisite consent or such other procedural irregularity. 2 Am Jur. 2d, ? 82.5, ? 76, Adoption (1962).


[17]    Appellants, at best, carry a heavy burden. As stated previously, the judgment being attacked has been in effect for forty-three years, and there is a strong presumption that it is valid and binding. Jones v. Sutton, Ky., 255 S.W.2d 658 (1953). Our courts have been naturally hesitant to upset rights so long ago adjudicated. Id. at 659; Bedinger v. Graybill’s Executor & Trustee, Ky., 302 S.W.2d 594 (1957). We remain so today.


KY     Jones v. Sutton, 255 S.W.2d 658 (Ky.App. 02/27/1953) Appellees contend that appellants are estopped to contest the validity of the adoption judgment, and rely in part upon KRS 199.540 which fixes a limitation period of two years within which to attack a judgment of adoption for ‘irregularity in procedures’. Without deciding the question, we are inclined to the view that if a forgery constitutes a fraud upon the court, the judgment might be adjudged void without regard to statutory limitations based upon ‘irregularity’. We will, therefore, assume appellants have the right in this proceeding to question the judgment’s validity.

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KRS 199.550 Disposition of child if adoption not adjudged.


If for any reason whatsoever a petition for adoption of a minor child be dismissed or the


judgment of adoption annulled, the following disposition shall be made of the child:


(1) If the child is, or was, prior to the filing of the petition, in the care, custody, and


control of the cabinet, individual, institution, or agency, then the child shall be


returned to the custody of the cabinet or such individual, institution, or agency;


(2) Otherwise the court shall certify the case to the juvenile session of the District Court


of the county where the adoption proceeding is pending for appropriate action and


disposition. Said District Court shall advise the cabinet of the pendency of such


action.


Effective: January 2, 1978


History: Amended 1976 (1st Extra. Sess.) Ky. Acts ch. 14, sec. 177, effective January


2, 1978. — Created 1950 Ky. Acts ch. 125, sec. 18.


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ANNOTATIONS:


KY     Day v. Day, 937 S.W.2d 717 (Ky. 01/30/1997) We hereby reverse the decision of the Court of Appeals and reinstate the judgment of the trial court which held the adoption to be void for lack of jurisdiction. If a petition is not filed in compliance with KRS 199.470(3), it follows that the petition must be dismissed. If so, KRS 199.550(1) mandates that the child “shall be returned” to the custody of the individual having custody at the time the petition was filed; otherwise, KRS 199.550(2) mandates that custody shall be determined by the juvenile court.


[35]    At the time the petition was filed, the child’s father, Appellant Marvin Lee Day, was his legal custodian pursuant to an order of the juvenile session of the Harlan District Court. Compare Hill v. Poole, Ky., 493 S.W.2d 482 (1973), where there was no court order of custody. Although the trial court’s order in this case vacated the judgment of adoption and dismissed the petition, it did not order the child’s immediate return to the legal custodian. Marvin Lee Day then obtained another custody order from the juvenile session of the Harlan District Court and filed a petition for a writ of habeas corpus to obtain physical custody. That writ was issued by the Harlan Circuit Court, but subsequently was stayed by the Court of Appeals pursuant to a CR 76.33 motion filed by Appellees. The Court of Appeals’ decision to reverse the trial court and reinstate the adoption effectively vacated the writ. Since we now reinstate the trial court’s decision to dismiss the petition for adoption, Marvin Lee Day is entitled to immediate physical custody of his child pursuant to KRS 199.550. Therefore, we remand this case to the Harlan Circuit Court with directions to order the immediate return of the child to the legal custodian, Marvin Lee Day.


KY     Hill v. Poole, 493 S.W.2d 482 (Ky.App. 03/02/1973) Finally, the Hills state that should this court sustain the order dismissing the adoption permanent custody of the child should be awarded to them under KRS 199.550, which provides that if a petition for adoption is dismissed the child shall be returned to the “custody and control of the department, individual, institution or agency” which had the child prior to the institution of the adoption proceedings. We do not believe that this particular section of the statute is applicable here in that it is designed to facilitate the re-establishment of the status quo where custody of a child had been awarded in prior court proceedings.

 
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KRS 199.555 Payment of subsidy to adoptive parents — Conditions.


(1) A “special-needs child” means:


(a) A child which the state has determined cannot or should not be returned to the


home of the child’s parents; and


(b) A child which the state has first determined:


1. That there exists a specific factor or condition the existence of which


leads to the reasonable conclusion that the child cannot be placed with


adoptive parents without providing adoption assistance under this section


or medical assistance under Title XIX; and


2. That except where it would be against the best interests of the child


because of such factors as the existence of significant emotional ties with


prospective adoptive parents while in the care of these parents as a foster


child, a reasonable, but unsuccessful, effort has been made to place the


child with appropriate adoptive parents without providing adoption


assistance under this section or medical assistance under Title XIX.


(2) “State-funded adoption assistance” means payment of monthly maintenance to assist


in meeting the special needs of a child which was placed by the Cabinet for Families


and Children. The state-funded adoption assistance shall also include payment of


nonrecurring adoption expenses, and may include reimbursement of extraordinary


medical expenses.


(3) “Nonrecurring adoption expenses” means those expenses which are incurred in the


legal adoption of a special-needs child for which parents are ultimately responsible


which include reasonable and necessary adoption fees, court costs, attorney fees, and


other expenses which are directly related to the special-needs adoption and which


are not incurred in violation of state or federal law.


(4) “Extraordinary medical expenses” means those expenses which are related to the


child’s special needs which existed prior to the adoption and are not reimbursed by


private insurance, Medicaid, or other third-party payors or government programs.


(5) If the secretary of the Cabinet for Families and Children or his designated


representative finds that a child may benefit from being adopted and that the


payment of a subsidy to adoptive parents after the adoption will increase the


likelihood of adoption, funds may be paid to the adoptive parents after completion of


the adoption of the child if the following conditions exist:


(a) The child was considered a special-needs child prior to the adoption;


(b) The child is committed to the Cabinet for Families and Children and the cabinet


has authority to consent to the child’s adoption; and


(c) The adoptive parents can give suitable care to the child if a subsidy is paid.


(6) Agreements for the payments of funds under this section shall be made prior to the


adoption of the child. However, if the secretary for families and children or his


designated representative finds that the adoption is likely to disrupt, extraordinary


medical expenses may be reimbursed contingent upon availability of resources, if the


following conditions exist:


(a) The child was placed for adoption by the Cabinet for Families and Children;


(b) The child was considered a special-needs child prior to the adoption;


(c) The parents have made a reasonable effort under the circumstances to meet the


needs of the child without reimbursement for extraordinary medical expenses.


This subsection shall apply to any child meeting the conditions of this subsection


who at the time of application for the post-adoption extraordinary medical expenses


is under the age of eighteen (18). This subsection shall have retroactive as well as


prospective effect.


(7) The payments shall be out of funds appropriated to the cabinet and those funds


collected pursuant to KRS 199.473(6) which shall be deposited in a restricted


account for the purpose of subsidizing special-needs adoptions, and shall be in


accordance with regulations promulgated by the secretary. The payments shall not


exceed the amount which would be paid for foster care for the child. Monthly


maintenance payments shall not exceed the amount which would be paid for foster


care for the child and may include reimbursement for extraordinary medical


expenses. Payment of nonrecurring adoption expenses shall only be reimbursed up to


the limit established by the secretary for families and children in accord with 42


U.S.C. sec. 673. However, payments under agreements entered into under


subsection (6) of this section shall be limited to reimbursement of authorized


extraordinary medical expenses related to problems or conditions that existed prior


to the adoption.


(8) State-funded adoption assistance payments shall not be made to parents if:


(a) The child has attained the age of eighteen (18), except that if the child is


enrolled in a state or federal educational program, the payments may continue


through age twenty-one (21);


(b) The cabinet determines the parents are no longer legally responsible for the


support of the child; or


(c) The cabinet determines that the child is no longer receiving any support from


the parents.


(9) Parents who have been receiving adoption assistance payments under this section


shall keep the cabinet informed of circumstances which would, pursuant to


subsection (8) of this section, make them ineligible for assistance, or eligible for


assistance in a different amount.


(10) The cabinet shall establish criteria to be followed for the adoption of children under


provisions of this section and shall promulgate the criteria by administrative


regulations.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 143, effective July 15, 1998. —


Amended 1990 Ky. Acts ch. 247, sec. 2, effective July 13, 1990. — Amended 1986


Ky. Acts ch. 467, sec. 1, effective July 15, 1986. — Amended 1974 Ky. Acts


ch. 179, sec. 1. — Created 1972 Ky. Acts ch. 346, sec. 1.


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KRS 199.557 Federal Title IV-E adoption assistance.


(1) For the purpose of this section, unless the context requires otherwise, “Federal Title


IV-E adoption assistance” means the payment of monthly maintenance to assist in


meeting the special needs of the child and of nonrecurring adoption expenses which


include reasonable and necessary adoption fees, court costs, attorney fees, and other


expenses which are directly related to legal adoption of a special-needs child and


which are not incurred in violation of state or federal law.


(2) If the secretary of the Cabinet for Families and Children or his designated


representative finds that payment of a subsidy to adoptive parents after the adoption


will increase the likelihood of the adoption, funds may be paid to the adoptive


parents after conclusion of the adoption if the child meets the eligibility criteria


established at 42 U.S.C. sec. 673.


(3) Agreements for Federal Title IV-E adoption assistance under this section shall be


made prior to the adoption of the child.


(4) Payment shall be out of funds appropriated to the cabinet and Federal Title IV-E


funds of the Social Security Act as amended (42 U.S.C. secs. 673 et seq.). All


payments shall be in accordance with administrative regulations promulgated by the


Cabinet for Families and Children. Payments shall not exceed the amount which


would be paid for foster care for the child. Nonrecurring adoption expenses shall


only be reimbursed up to the limit established by the secretary of the Cabinet for


Families and Children or his designated representative in accordance with 42 U.S.C.


secs. 673 et seq.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 144, effective July 15, 1998. — Created


1990 Ky. Acts ch. 247, sec. 4, effective July 13, 1990.


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KRS 199.560 Appeal.


Any party to any adoption proceeding shall have the same right of appeal to the Court of


Appeals of Kentucky as in other equity actions.


History: Created 1950 Ky. Acts ch. 125, sec. 19.


 


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KRS 199.565 Statewide swift adoption procedures — Protocol — Teams — Quarterly


report.


(1) The Department for Community Based Services shall develop a written protocol for


statewide swift adoption procedures to decrease the length of time necessary to


complete the adoption process for children who are committed to the cabinet. The


protocol shall establish outcome measures for the adoption process, and identify all


state, local, and federal agencies, and other entities required to provide services in


the adoption process.


(2) The department shall develop swift adoption teams to expedite the adoption process


for children who are committed to the cabinet. Swift adoption teams shall include


department personnel representing the state, district, and local levels. The swift


adoption teams shall operate under the protocol developed pursuant to subsection


(1) of this section. Case referrals to swift adoption teams shall be accepted from


social services offices from across the state.


(3) The department shall issue a quarterly report which shall provide the status of the


teams’ goals and objectives and identify all adoption proceedings in which the teams


have participated during the three (3) month period examined in the quarterly report.


The report shall include:


(a) The number and location of all committed children placed for adoption;


(b) All options made available to those populations;


(c) The experience and activity for each case;


(d) The successful adoptions and locations;


(e) The status of all cases in which the teams have participated;


(f) The identity of all agencies involved in the adoption process;


(g) An evaluation of the team efforts for the quarter; and


(h) A report of initiatives for the swift adoption process for the upcoming quarter.


(4) The quarterly report shall also include recommendations for changes in statutes,


administrative regulations, and policies that would enable the department to further


improve the timeliness of adoption placements. The report shall be provided to the


Governor, the Legislative Research Commission, and the Chief Justice of the


Kentucky Supreme Court.


Effective: July 14, 2000


History: Amended 2000 Ky. Acts ch. 14, sec. 19, effective July 14, 2000. — Created


1996 Ky. Acts ch. 325, sec. 3, effective July 15, 1996.


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NO CITATIONS FOR THIS STATUTE                         


KRS 199.570 Adoption records confidential — Exception — New birth certificate.


(1) (a) The files and records of the court during adoption proceedings shall not be


open to inspection by persons other than parties to the proceedings, their


attorneys, and representatives of the cabinet except under order of the court


expressly permitting inspection.


(b) Upon the entry of the final order in the case, the clerk shall place all papers and


records in the case in a suitable envelope which shall be sealed and shall not be


open for inspection by any person except on written order of the court, except


that upon the written consent of the biological parents and upon written order


of the Circuit Court all papers and records including all files and records of the


Circuit Court during proceedings for termination of parental rights provided in


KRS 625.108 shall be open for inspection to any adult adopted person who


applies in person or in writing to the Circuit Court as provided in KRS


199.572. Health information received pursuant to KRS 199.525 shall be added


to the adoption case file. The clerk of the Circuit Court shall set up a separate


docket and order book for adoption cases and these files and records shall be


kept locked.


(c) No person having charge of any adoption records shall disclose the names of


any parties appearing in such records or furnish any copy of any such records


to any person or other entity that does not meet the requirements of KRS


199.572, except upon order of the court which entered the judgment of


adoption.


(2) After entry of the adoption judgment, the clerk of the Circuit Court shall promptly


report to the Cabinet for Health Services of Kentucky full information as called for


on forms furnished by the Cabinet for Health Services, necessary to make a new


birth certificate conforming to the standard birth certificate form. Upon receipt of


this information, the Cabinet for Health Services shall cause to be made a new


record of the birth and it shall be filed with the original certificate, and the original


certificate shall be stamped with the words, “CONFIDENTIAL — subject to copy


and/or inspection only on written order of the court.”


(3) The new certificate shall set forth the new name, if any, of the adopted child, the


names of the adoptive parents, and such other information deemed necessary in


accordance with rules and regulations promulgated by the Cabinet for Health


Services in issuing of birth certificates. If the adopted child is under eighteen (18)


years of age, the birth certificate shall not contain any information revealing the child


is adopted and shall show the adoptive parent or parents as the biological parent or


parents of the child. If requested by the adoptive parents, the new birth certificate


when issued shall contain the location of birth, hospital, and name of doctor or


midwife. This information should be given only by an order of the court in which the


child was adopted. The new birth certificate shall recite the residence of the adoptive


parents as the birthplace of the child and this shall be deemed for all legal purposes


to be the birthplace of the child. If no birth certificate is on file for a child born in


Kentucky, the Cabinet for Health Services shall prepare a certificate of birth in


accordance with the information furnished the cabinet by the clerk of the Circuit


Court which issued the adoption order. The Cabinet for Health Services shall furnish


to the clerks of the Circuit Courts the necessary forms to carry out the provisions of


this section. If the child was born in another state, the order of adoption shall be


forwarded to the division of vital statistics of the state concerned to be changed in


accordance with the laws of such state. If the child was born in a foreign country,


the report of adoption shall be returned to the attorney or agency handling the


adoption for submission to the appropriate federal agency.


(4) Thereafter when any copy of the certificate of birth of any child is issued it shall be a


copy of the new certificate of birth, except when an order of the court granting the


judgment of adoption shall request the issuance of the copy of the original certificate


of the child’s birth.


(5) If any judgment of adoption is reversed, modified, or vacated in any particular, the


clerk of the Circuit Court shall notify the Cabinet for Health Services of the reversal


or modification and the effect of same, and the cabinet shall make any necessary


changes in its records.


Effective: July 13, 2004


History: Amended 2004 Ky. Acts ch. 186, sec. 8, effective July 13, 2004. — Amended


1998 Ky. Acts ch. 426, sec. 145, effective July 15, 1998. — Amended 1996 Ky. Acts


ch. 325, sec. 1, effective July 15, 1996. — Amended 1994 Ky. Acts ch. 242, sec. 11,


effective July 15, 1994. — Amended 1986 Ky. Acts ch. 43, sec. 3, effective July 15,


1986. — Amended 1976 Ky. Acts ch. 122, sec. 1. — Amended 1974 Ky. Acts ch. 74,


Art. VI, sec. 107(4). — Amended 1970 Ky. Acts ch. 232, sec. 1. — Amended 1968


Ky. Acts ch. 69, sec. 1. — Amended 1956 Ky. Acts ch. 157, sec. 16. — Created 1950


Ky. Acts ch. 125, sec. 20.


Legislative Research Commission Note (10/3/90). Pursuant to KRS 7.136(1), KRS


625.108 has been substituted for the prior reference to KRS 625.100(4) in


subsection (1) of this statute. KRS 625.100(4) was deleted by 1988 Ky. Acts ch.


350, sec. 76, and the substance of its provisions reenacted in 1988 Ky. Acts ch. 350,


sec. 78 which was codified at KRS 625.108.


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ANNOTATIONS:


KY     Bone v. Shadoan, 746 S.W.2d 68 (Ky. 03/03/1988) While much of the argument in the brief and response goes to the merits or matters not in the record, we do not express any opinion on these matters. We are of the opinion that KRS 199.570, as it provides for sealing the adoption record, does not apply to a judgment of adoption being appealed.

KY     
Wright v. Howard, 711 S.W.2d 492 (Ky.App. 05/23/1986) In this regard see also Jouett v. Rhorer, supra, wherein after reviewing the provisions of then KRS 199.530 (the predecessor statute to our present KRS 199.520) and of KRS 199.570 (the new birth certificate in adoptions statute) our former Court of Appeals commented at page 868:


[42]    (5) From the foregoing provisions of law it seems clear to us the Legislature intended that the adoption of a child necessarily brings to an end all connections, legal and personal, with any natural parent. If a child is subject to the parental control of two families – which are alien and often hostile to each other – the resulting injuries to the child’s emotions and future well-being are a matter of deep concern to the public. It is for this reason so many courts have held that public policy demands that an adoption shall carry with it a complete breaking off of old ties. We believe this is a sound view and we hereby adopt it. Therefore we conclude the retention by the natural parent, by virtue of court sanction, of any semblance of parental authority over an adopted child, which is taken from such parent by judicial decree, is repugnant to the very spirit of the Adoption Act. (Emphasis added).


KY     Warner v. Ward, 401 S.W.2d 62 (Ky.App. 03/25/1966) Appellants complain also that the report of the Department of Child Welfare should have been excluded from consideration, first because it consisted substantially of hearsay and secondly because, it is claimed, they did not have access to it prior to the hearing.


[17]    We do not know how the first of these objections could be eliminated without invading the province of the legislature, which by KRS 199.510 has provided that the report be made and submitted to the court. “It is well settled that the legislature of a state has the power to prescribe new, and alter existing, rules of evidence or to prescribe methods of proof.” 20 Am.Jur. 38 (Evidence, ? 8). The reliability of the report is a matter within the competence of a qualified trial judge to weigh and determine.


[18]    On the second point, the record shows that the report was filed on February 24, 1965. The hearing was held on March 3, 1965, at which time the trial court stated that the report was in the record. Hence it is clear that it was available for inspection by the parties and their attorneys. Cf. KRS 199.570(1). It is but two pages long, and could have been read and digested without delay. As a matter of fact, the departmental representative who prepared the report appeared as a witness and was cross-examined by counsel for the appellants. She gave the names of the persons she had interviewed, and they were subpoenaed and used as rebuttal witnesses. We are unable to perceive any prejudice in the circumstances.


KY     Jouett v. Rhorer, 339 S.W.2d 865 (Ky.App. 10/14/1960) According to KRS 199.530(2) a child when adopted shall be freed from all legal obligation of obedience to the parents or parent from whom it is severed. KRS 199.520 reads in part: “* * * In the judgment the name of the child shall be changed to conform with the prayer of the petition. The judgment and all orders required to be entered and recorded in the order book, including the caption, shall contain only the names of the petitioners and the proposed adopted name of the child, without any reference whatsoever to its former name or the names of its birth parents.” Also, KRS 199.570(3) provides for a new birth certificate to be issued, with the new name of the child, and which shows the child to be the actual child of the adopting parents the same as if born to their bodies.

KY     
Stanfield v. Willoughby, 286 S.W.2d 908 (Ky.App. 02/03/1956) In view of the above provisions, we conclude it is clear when the adoption of a child is consummated under the Adoption Act the Legislature intended that the surname of the child be altered to that of the adoptive parents, if such is the prayer of the complaint. We are fortified in this belief for the reason also that, after the change of name in the adoption proceeding, KRS 199.570(2) directs the clerk of the circuit court to promptly report such fact to the Division of Vital Statistics of Kentucky, in order that the Division “shall cause to be made a new record of the birth in the new name

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KRS 199.572 Inspection of adoption records — Limitations.


(1) At the time the biological parents give up the child for adoption, they shall be asked


by the cabinet whether they consent to the inspection of the adoption records, to


personal contact by the child, or to both when he becomes an adult. If consent is


then given, it can later be revoked. If consent is withheld at that time, the biological


parents may give consent at any later time. The initial written statement of consent


or refusal of consent to inspection of records and personal contact shall be filed with


the Circuit Court not later than the date of finalization of the adoption proceedings.


When a written consent is on file, the records shall be available to the adult adopted


person, upon his request therefor in writing.


(2) When any adult adopted person applies in person or in writing to the Circuit Court


for authorization to inspect all papers and records pertaining to the adoption


proceedings of that adult adopted person as provided in KRS 199.570(1), and the


biological parents have previously refused consent to inspection of records and to


personal contact, the court may, if satisfied as to the identity of the adult adopted


person, authorize the adult adopted person to inspect the papers and records if


written consent is obtained from the biological parents identified on the adult


adopted person’s original birth certificate.


(3) The Circuit Court shall, within seven (7) working days of the receipt of the request,


direct the secretary of the cabinet to notify each biological parent identified on the


adult adopted person’s original birth certificate that the person has applied to the


court for information identifying the biological parent. Within six (6) months of


receiving the notice of the request of the adult adopted person, the secretary of the


cabinet shall make complete and reasonable efforts to notify each biological parent


identified on the adult adopted person’s original birth certificate. The secretary may


charge a reasonable fee not to exceed two hundred fifty dollars ($250) to the adult


adopted person for making this search. Every child-caring facility and child-placing


agency in the Commonwealth shall cooperate with the secretary in his efforts to


notify these biological parents.


(4) If the cabinet utilizes the services of another person or entity to perform a search


under subsection (3) of this section, the cabinet shall enter into a formal contract


with that person or entity. A person or entity contracted to perform a search shall be


licensed under the provisions of KRS Chapter 329A.


(5) The notification of the biological parents shall not be by mail and shall be by personal


and confidential contact by the cabinet. The notification shall be done without


disclosing the identity of the adult adopted person. The personal and confidential


contact with the biological parents shall be evidenced by filing with the Circuit Court


an affidavit of notification executed by the person who notified each parent and


certifying each parent was given the following information:


(a) The nature of the information requested by the adult adopted person;


(b) The date of the request of the adult adopted person;


(c) The right of the biological parent to file, within sixty (60) days of receipt of the


notice, an affidavit with the Circuit Court stating that the adult adopted person


shall be authorized to inspect all papers and records pertaining to his adoption


proceedings;


(d) The right of the biological parent to file at any time an affidavit authorizing the


adult adopted person to inspect all papers and records pertaining to his


adoption proceedings; and


(e) The right of a biological parent to file an affidavit with the Circuit Court


stating that all papers and records pertaining to the adoption proceedings of


the adult adopted person shall not be open for inspection by the adult adopted


person.


(6) The adult adopted person shall not be authorized to inspect the papers and records


pertaining to his or her adoption proceedings unless those biological parents


identified on the original birth certificate agree in writing to that inspection.


(7) If after diligent and reasonable effort, the secretary of the cabinet certifies that both


biological parents identified in the original birth certificate are deceased or the


secretary is unable to locate said parents, then a judge of the Circuit Court, upon


motion of the adult adopted person, may order that all papers and records of the


Cabinet for Families and Children and those of the Circuit Court pertaining to the


adoption shall be open for inspection to the adult adopted person. In any case, the


court shall order that only identifying information about the biological parents be


shared with the adult adopted person.


Effective: July 13, 2004


History: Amended 2004 Ky. Acts ch. 186, sec. 9, effective July 13, 2004. — Amended


1998 Ky. Acts ch. 426, sec. 146, effective July 15, 1998. — Created 1986 Ky. Acts


ch. 43, sec. 4, effective July 15, 1986.


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ANNOTATIONS:


KY     Newsom v. Newsom, 786 S.W.2d 878 (Ky.App. 03/30/1990) Appellant inspected the records. Several months later appellant again requested to inspect the documents but his request for denied by the court on grounds that continued inspection was not intended by the legislature. This appeal followed.


[13]    Appellant argues that such denial was erroneous as when he viewed these records their confidential nature was lost and that he should be permitted to inspect them again as long as the statutory procedures are followed. We agree.


[14]    KRS 199.572 outlines the procedures to be followed. The petitioner initially applies to the circuit court for authorization to inspect all papers and records pertaining to the adoption proceedings. The Cabinet is then directed to personally notify the biological parents to obtain their consent. If both parents are deceased or cannot be located, the court may order that the records shall be open for inspection. Nowhere in the statute is there a restriction on the number of times the petitioner may view the documents. As that statute is relatively new, enacted July 15, 1986, there is no case law on this issue. However, as the trial court in its initial order denied the appellant’s request to copy the material, it was an abuse of discretion to deny his request to inspect the records a second time.


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KRS 199.575 Procedure whereby adopted person may seek to locate preadoptive sibling.


In situations where a preadoptive brother or sister relationship existed, and one (1) or


more of these siblings was then adopted, the following procedures shall be followed on an


inquiry by one (1) or more of the siblings to the Cabinet for Families and Children seeking


information about his brother or sister:


(1) In all cases, an adopted person eighteen (18) years of age or older or a pre-adoptive


sibling eighteen (18) years of age or older of an adopted person may file information


concerning himself, his present location, and his known antecedents with the Cabinet


for Families and Children, stating his interest in being reunited with his pre-adoptive


siblings and authorizing the cabinet to release such information to his pre-adoptive


siblings who may make similar inquiry.


(2) In any case in which a person eighteen (18) years of age or older requests


information about or expresses a desire in being reunited with a pre-adoptive sibling,


the cabinet shall first determine whether such sibling has made similar inquiry


pursuant to subsection (1) of this section. If the sibling has previously authorized


release of information about himself, the cabinet shall release the information to the


sibling making inquiry.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 147, effective July 15, 1998. — Created


1982 Ky. Acts ch. 365, sec. 1, effective July 15, 1982.


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NO CITATIONS FOR THIS STATUTE                         


KRS 199.580 Repealed, 1968.


Catchline at repeal: Adoption proceedings pending on June 15, 1950.


History: Repealed 1968 Ky. Acts ch. 152, sec. 168. — Created 1950 Ky. Acts ch. 125,


sec. 21


NO CITATIONS FOR THIS STATUTE                         


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KRS 199.590 Prohibited acts and practices in adoption of children — Expenses paid by prospective adoptive parents to be submitted to court.


(1) A person, corporation, or association shall not advertise in any manner that it will


receive children for the purpose of adoption. A newspaper published in the


Commonwealth of Kentucky or any other publication which is prepared, sold, or


distributed in the Commonwealth of Kentucky shall not contain an advertisement


which solicits children for adoption or solicits the custody of children.


(2) A person, agency, institution, or intermediary shall not sell or purchase or procure


for sale or purchase any child for the purpose of adoption or any other purpose,


including termination of parental rights. This section shall not prohibit a child-placing


agency from charging a fee for adoption services. This section shall not be construed


to prohibit in vitro fertilization. For purposes of this section, “in vitro fertilization”


means the process by which an egg is removed from a woman, and fertilized in a


receptacle by the sperm of the husband of the woman in whose womb the fertilized


egg will thereafter be implanted.


(3) No person, association, or organization, other than the cabinet or a child-placing


institution or agency shall place a child or act as intermediary in the placement of a


child for adoption or otherwise, except in the home of a stepparent, grandparent,


sister, brother, aunt, or uncle, or upon written approval of the secretary. This


subsection shall not be construed to limit the Cabinet for Families and Children in


carrying out its public assistance under Title IV-A of the Federal Social Security Act


program in accordance with KRS Chapter 205. This section shall not be construed


to prohibit private independent adoption or the right to seek legal services relating to


a private independent adoption.


(4) A person, agency, institution, or intermediary shall not be a party to a contract or


agreement which would compensate a woman for her artificial insemination and


subsequent termination of parental rights to a child born as a result of that artificial


insemination. A person, agency, institution, or intermediary shall not receive


compensation for the facilitation of contracts or agreements as proscribed by this


subsection. Contracts or agreements entered into in violation of this subsection shall


be void.


(5) A person, organization, group, agency, or any legal entity, except a child-placing


agency, shall not accept any fee for bringing the adoptive parents together with the


child to be adopted or the biological parents of the child to be adopted. This section


shall not interfere with the legitimate practice of law by an attorney.


(6) (a) In every adoption proceeding, the expenses paid, including but not limited to


any fees for legal services, placement services, and expenses of the biological


parent or parents, by the prospective adoptive parents for any purpose related


to the adoption shall be submitted to the court, supported by an affidavit,


setting forth in detail a listing of expenses for the court’s approval or


modification.


(b) In the event the court modifies the expense request as it relates to legal fees


and legal expenses only, the attorney for the adoptive parents shall not have


any claim against the adoptive parents for the amount not approved.


Effective: July 15, 1998


History: Amended 1998 Ky. Acts ch. 426, sec. 148, effective July 15, 1998. —


Amended 1994 Ky. Acts ch. 242, sec. 12, effective July 15, 1994. — Amended 1988


Ky. Acts ch. 52, sec. 1, effective July 15, 1988. — Amended 1984 Ky. Acts ch. 119,


sec. 1, effective July 13, 1984. — Created 1950 Ky. Acts ch. 125, sec. 22.


 


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ANNOTATIONS:


KY     Surrogate Parenting Associates Inc. v. Commonwealth of Kentucky, 704 S.W.2d 209 (Ky. 02/06/1986)  The question for us to decide is one of statutory interpretation: Has the legislature spoken? The fundamental question is whether SPA’s involvement in the surrogate parenting procedure should be construed as participation in the buying and selling of babies as prohibited by KRS 199.590(2). We conclude that it does not, that there are fundamental differences between the surrogate parenting procedure in which SPA participates and the buying and selling of children as prohibited by KRS 199.590(2) which place this surrogate parenting procedure beyond the purview of present legislation.


[29]    There is no doubt but that KRS 199.590 is intended to keep baby brokers from overwhelming an expectant mother or the parents of a child with financial inducements to part with the child. But the central fact in the surrogate parenting procedure is that the agreement to bear the child is entered into before conception. The essential considerations for the surrogate mother when she agrees to the surrogate parenting procedure are not avoiding the consequences of an unwanted pregnancy or fear of the financial burden of child rearing. On the contrary, the essential consideration is to assist a person or couple who desperately want a child but are unable to conceive one in the customary manner to achieve a biologically related offspring. The problem is caused by the wife’s infertility. The problem is solved by artificial insemination. The process is not biologically different from the reverse situation where the husband is infertile and the wife conceives by artificial insemination.


KY     Asente v. Moore, No. 1999-CA-000363-MR (Ky.App. 09/15/2000)


“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. In the event the person was not represented by independent legal counsel, the consent shall be in writing, signed and sworn to by the consenting person and include the following:


[81]    (a) Date, time, and place of the execution of the consent;


[82]    (b) Name of the child, if any, to be adopted and the date and place of the child’s birth;


[83]    (c) Consenting person’s relationship to the child;


[84]    (d) Identity of the proposed adoptive parents or a statement that the consenting person does not desire to know the identification of the proposed adoptive parents;


[85]    (e) A statement that the consenting person understands that the consent will be final and irrevocable twenty (20) days after the execution of the consent if the placement was previously approved, if approval of the placement is required;


[86]    (f) Disposition of the child if the adoption is not adjudged;


[87]    (g) A statement that the consenting person has received a completed and signed copy of the consent at the time of the execution of the consent;


[88]    (h) A statement that the consenting person understands that the consent may only be withdrawn by written notification sent by certified or registered mail addressed to either the attorney for the consenting person or to the attorney for the adoptive parents, within thirty (30) days following the execution of the consent;


[89]    (i) Name and address of the person who prepared the consent, name and address of the person who reviewed and explained the consent to the consenting person, and a verified statement from the consenting person that the consent has been reviewed with and fully explained to the consenting person; and


[90]    (j) Total amount of the consenting person’s legal fees, if any, for any purpose related to the execution of the consent and the source of payment of the legal fees. KRS 199.011(14).


[91]    The underlying basis of the trial court’s decision is its belief that the consent related only to the termination of parental rights proceeding. As the court stated in its February 11, 1999, order, “both the Respondent Asentes and the Petitioners knew the proceeding in Kentucky was a KRS 625 Voluntary Termination and not a KRS 199 Adoption.” While we agree that the parties knew that the Kentucky action was a termination action and not an adoption proceeding, we disagree with the trial court’s conclusion that the Voluntary and Informed Consent to Adoption documents signed by Moore and Dorning related only to the termination action and not to the proposed adoption action in Ohio.


[92]    Several facts lead us to the inescapable conclusion that the consent forms related to the proposed adoption action and not to the termination action.


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