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D.B. v. T.C.W.

Case NO. 2022-CA-1281-ME



Opinion by ACREE, JUDGE

Date Rendered: September 1, 2023

Issue: Whether Grandmother’s Motion to Intervene in Grandchild’s adoption proceeding was erroneously denied.

Parents were both incarcerated at birth of the minor child. Grandmother was unable to accept placement of the child due to her other caregiving responsibilities. Grandmother did obtain visitation rights to the child. The child was placed with foster parents who eventually moved to adopt the child. Grandmother filed a motion to intervene in the adoption case which the Circuit Court denied. Grandmother appealed.

Intervention must be 1) timely, 2) based on a present substantial interest, and 3) comply with CR 24.03’s requirement for claims or defenses.

The Court of Appeals holds the Circuit Court did not err in finding that Grandmother’s motion was not timely. There was substantial evidence of her delay in moving for intervention. It is a factual inquiry. There are five factors to be considered in evaluating timeliness:

(1) [T]he point to which the suit has progressed; (2) the

purpose for which intervention is sought; (3) the length of

time preceding the application during which the proposed

intervenor knew or reasonably should have known of his

interest in the case; (4) the prejudice to the original parties

due to the proposed intervenor’s failure, after he or she

knew or reasonably should have known of his or her

interest in the case, to apply promptly for intervention; and

(5) the existence of unusual circumstances militating

against or in favor of intervention.

The Court of Appeals goes on to hold that while Grandmother does have “a

cognizable legal interest” in visitation, intervention is not necessary to protect her interest, as the adoption will not alter her visitation rights. The Court of Appeals notes this case is not analogous to Baker v. Webb, as, here, Grandmother cannot base her intervention claim on her interest as a preferred relative. In this case, the preferred relative interest no longer exists since Grandmother was initially offered and denied the placement of the minor child.

Finally, the Court of Appeal agrees with the analysis of the Circuit Court that Grandmother failed to comply with CR 24.03. Grandmother’s motion was indeed procedurally deficient.

The Kentucky Court of Appeals affirms the denial of the Circuit Court.

Digested by Elizabeth M. Howell