concurring.
I agree with the majority’s ultimate conclusion that the trial court properly dismissed the Thomas’s (“Appellants”) action against the Cabinet for Families and Children (“Cabinet”). I break ranks with the majority, however, because I find the untimeliness of Appellants’ pleading irrelevant to my conclusion. I would instead hold — as the Court of Appeals did — that Appellants have no standing to seek judicial review because, in the words of the Court of Appeals, “there is no right to appeal [the Cabinet’s] decision in a case such as this.”
*268While the majority correctly explains that neither KRS 199.473 nor 905 KAR 1:010(18) give Appellants a right to appeal the Cabinet’s decision because those provisions govern only private adoptions, I believe the majority errs when it concludes that KRS 13B.140 gives Appellants standing to appeal. In my opinion, the majority’s characterization of the adverse determination in this case as a “final order of an agency”1 requires it to manipulate a square peg through a round hole. I believe the trial court properly concluded that KRS 13B.140 does not provide Appellants with a right to appeal, and, as I cannot improve upon the trial court’s logic, I rely upon Judge Samuel Monarch’s explanation:
KRS 13B, Administrative Hearings, does not govern these proceedings because the administrative decision-making process was not, and was not required to be, a formal adjudicatory proceeding. Now, under Kentucky case law, adjudicatory decision made by either a legislative body, such as a fiscal court, Pierson Trapp Comp. v. Peak, Ky., 340 S.W.2d 456, 457 (1960) (zoning map changes), or a quasi-judicial administrative decisionmaker, Gentry v. Ressnier, Ky., 437 S.W.2d 756 (1969) (Board of Zoning Adjustment), are subject to review for arbitrariness, regardless of whether there is an explicit right of appeal [because] an agency is prohibited by Section 2 of the Kentucky Constitution from acting arbitrarily. Action in excess of statutorily granted powers, lack of procedural due process and lack of substantial evidence supporting the decision define the scope of judicial review in such a case. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 379 S.W.2d 450, 456 (1964). More generally, there is an inherent right of appeal from adjudicative orders of administrative agencies when constitutional rights are involved. Id.
An adjudicatory decision, which requires due process, is one which determines the rights, interests or duties of an individual, on the basis of particular facts relevant to the circumstances of that individual. Trimble Fiscal Court v. Snyder, Ky.App., 866 S.W.2d 124, 126 (1993). In order for an individual to be entitled to an adjudicatory hearing on a matter, he or she must have standing to bring the suit. Thus the Thomas’s must have a “judicially cognizable interest in the subject matter of the suit.” City of Ashland v. Ashland F.O.P. # 3, Inc., Ky., 888 S.W.2d 667, 668 (1994). The interest must be a present and substantial interest as distinguished from a mere expectancy. Id. “A Plaintiff must have a real, direct, present and substantial right or interest in the subject matter of the controversy.” Housing Authority of Louisville v. Service Employees International Union, Local 557, Ky., 885 S.W.2d 692, 695 (1994). The issue must be decided on the facts of each case. City of Ashland, supra at 668.
Now, in regards to an adoption petition, a court may overrule the recommendation of the [Cabinet] not to allow an adoption if that permission was arbitrarily or unreasonably withheld. Commonwealth Department of Child Welfare v. Jarboe, Ky., 464 S.W.2d 287, 291 (1971). However, the prerequisite to being able to file an adoption petition at all is the placement of the child in the adoptive parents’ home. Furthermore, regulations only provide a remedy for *269the [Cabinet’s] refusal to place a child in the case of private adoptions. Under the relevant policy statements in the Program Guide, which have the effect of regulations, the applicant, at least pre-placement, clearly has no procedural rights and no substantive legal interest in the subject matter of the proceeding. [Footnote: Custody or some type of placement is necessary for standing. See Williams v. Phelps, Ky.App., 961 S.W.2d 40, 42 (1998). See also Roark v. Yarbrough, Ky., 411 S.W.2d 916, 919 (1966).] The Petitioners merely had a right to complain and to get an answer. They had only an expectancy, not any vested right or interest in the adoption. Effectively, they had no more real legal interest in the child than any other “approved” adoptive parent. In effect, the “best interests of the child” are so paramount that when a child is in their custody the [Cabinet] is given the leeway to change its mind completely at least up to the time of placement without having to answer to the adoptive parent outside the administrative complaint process.
I believe that Appellants had no standing to appeal the Cabinet’s determination, and I would affirm the Court of Appeals on that basis.
GRAVES, J., joins this concurring opinion.. KRS 13B.140(1).