RENDERED: DECEMBER 15, 2022
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0071-DG
LAWRENCE MILLER, JR. APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-1856
LETCHER CIRCUIT COURT NO. 15-CI-00023
BRITTANY BUNCH, INDIVIDUALLY AND AS APPELLEE
ADMINISTRATRIX OF THE ESTATE
OF AUTUMN RAINE BUNCH
OPINION OF THE COURT BY JUSTICE LAMBERT
REVERSING & REMANDING
In the underlying action, the Letcher Circuit Court found that Lawrence
Miller, Jr. (Mr. Miller) willfully abandoned his stillborn daughter, Autumn
Raine Bunch (Autumn). Based on this finding, the circuit court ruled that
KRS1 411.137 and KRS 391.033, collectively known as Mandy Jo’s Law,
prevented Mr. Miller from being awarded any of the settlement proceeds from
the wrongful death action against the hospital where Autumn was born. Mr.
Miller appealed the circuit court’s ruling to the Court of Appeals, which
affirmed. After thorough review, we reverse and hold that Mandy Jo’s Law, as
currently written, is not applicable when the child in question is stillborn.
1 Kentucky Revised Statute.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2013, Mr. Miller was dating Autumn’s mother, Brittany Bunch (Ms.
Bunch). The couple broke up in late 2013 due, in part, to the fact that Mr.
Miller discovered Ms. Bunch was also sleeping with another man, Silas Walker
(Mr. Walker). On October 31, 2013, shortly after Mr. Miller and Ms. Bunch
separated, Ms. Bunch discovered she was pregnant. In November 2013, Ms.
Bunch met with Mr. Miller and showed him the positive pregnancy test. Ms.
Bunch also met with Mr. Walker and showed him the pregnancy test. Ms.
Bunch and Mr. Walker began dating in December 2013, and then remained
together throughout her pregnancy.
Ms. Bunch had a difficult pregnancy and had to be hospitalized three or
four times due to complications. On May 27, 2014, she was admitted to the
hospital at thirty-three weeks and four days. She was exhibiting symptoms of
preeclampsia, and an emergency Caesarean section was performed the next
day. Tragically, Autumn did not survive the birth.
In December 2014, Ms. Bunch was appointed the Administratrix of
Autumn’s Estate by an order of the Letcher District Court. A month later, Ms.
Bunch filed suit against the hospital alleging, inter alia, wrongful death. Mr.
Walker was named in the complaint as a co-plaintiff, and the complaint stated
that “[t]he Plaintiffs, Brittany Bunch and Silas Lee Walker are the natural
parents of Autumn Raine Bunch.” Ms. Bunch did not tell Mr. Miller about the
suit, and he instead found out about it from a friend. In May 2015, Mr. Miller
filed a motion to intervene in the suit based upon his allegation that he, not
2
Mr. Walker, was Autumn’s biological father. He then filed a motion for an
order to compel DNA testing. That testing would ultimately prove Mr. Miller’s
paternity, and Mr. Walker was dismissed as a plaintiff in September 2017.
After several years of litigation, the hospital, Ms. Bunch, and Mr. Miller
reached a settlement of all the claims and the hospital was released from the
litigation. Shortly thereafter, in July 2019, Ms. Bunch requested that the
circuit court hold a hearing to determine the division of the settlement funds.
Ms. Bunch asserted that Mr. Miller abandoned Autumn, prior to her birth, and
therefore he should not be awarded any of the settlement proceeds in
accordance with Mandy Jo’s Law. In defense, Mr. Miller contended that Mandy
Jo’s Law was inapplicable because it only pertains to the support, care, and
maintenance of a living child post-birth, and not an unborn child in utero.
During the hearing, Ms. Bunch testified that when she showed Mr. Miller
her positive pregnancy test in November 2013, he did not say anything or ask
her if she needed anything. Mr. Miller did not ask her if he was the father of
the child at that time, however he subsequently requested a DNA test that
apparently did not occur. Ms. Bunch alleged the following: she attempted to
get Mr. Miller to go to her doctor’s appointments with her, but he refused; Mr.
Miller only sent her a $25 money gram to Walmart in January or February
2014, but provided no other financial assistance to her; Mr. Miller never came
to visit her during her hospitalizations; and he did not come to, or help pay for,
Autumn’s funeral. Mr. Miller did come to the hospital on the day Autumn was
born, but Ms. Bunch believed he was high and made him leave. When
3
confronted with the fact that she named Mr. Walker as Autumn’s father in her
wrongful death action against the hospital, Ms. Bunch stated that she did so
because “he could have been her father.”
Mr. Miller’s testimony attempted to refute all of Ms. Bunch’s substantive
claims. Specifically, he testified that he gave her more than $25 during her
pregnancy; that he went to one of her doctor’s appointments with her; that he
only knew of one time she was hospitalized and that he spoke to her on the
phone for an hour thereafter; that he was not high when he came to the
hospital, and was only made to leave when he said something about fighting
Mr. Walker, who was also present that day; and that he was told by Ms.
Bunch’s family not to attend Autumn’s funeral.
The circuit court ultimately found Ms. Bunch to be more credible and
ruled in her favor. In its findings of fact, conclusions of law, and order, the
court found that Mandy Jo’s Law was applicable. Though the court did not
state so explicitly, it seemed to base this conclusion on the fact that Kentucky
permits a wrongful death suit for the death of a viable fetus. As it was
undisputed that Autumn was a viable fetus, the court concluded Mandy Jo’s
Law could apply. With regard to whether Mr. Miller willfully abandoned
Autumn, the court made the following findings:
The record in this case makes clear and the Court finds that the
Intervening Plaintiff, Lawrence Miller, Jr., willfully abandoned Ms.
Bunch when he learned that she had become pregnant and that he
might be the father of her unborn child. Because he abandoned
Ms. Bunch and her unborn child in their time of need, the
Intervening Plaintiff, Lawrence Miller, Jr., has no claim to wrongful
death damages . . . In fact, testimony in this case shows that Mr.
Miller abandoned Ms. Bunch as soon as he learned she was
4
pregnant . . . Further testimony establishes that Mr. Miller offered
no support, financial or otherwise, to Ms. Bunch during her
pregnancy, other than a $25.00 money gram to be used at
Walmart . . . Testimony in the case also shows that Mr. Miller did
not contribute to or even attend the funeral service for Autumn
Raine Bunch[.]
In Hafley v. McCubbins, 590 S.W.2d 892, 894 (Ky. [App.] 1979), the
Court of Appeals defined what it means to abandon a child in the
context of a civil wrongful death claim. The Hafley Court held that
to abandon a child meant “neglect and refusal to perform natural
and legal obligations to care and support, withholding of parental
care, presence, opportunity to display voluntary affection and
neglect to lend support and maintenance.” In Kimbler v. Arms, 102
S.W.3d 517, 522 (Ky. [App.] 2003), the Court of Appeals adopted
this definition of abandonment “in relation to Mandy Jo’s Law.”
The record in this case makes it clear that Lawrence Miller, Jr.,
neglected and refused to offer care and support to Ms. Bunch and
Autumn. The record shows that Mr. Miller ran away from Ms.
Bunch as soon as he learned she was pregnant, and other than
sending a $25.00 money gram to Walmart, contributed nothing to
the care and maintenance of Ms. Bunch and her unborn child.
Mr. Miller did not visit Ms. Bunch to offer her support, nor did he
attend any of her doctor’s appointments during the pregnancy . . .
He did not even attend the funeral service for Autumn. Mr. Miller
willfully abandoned Autumn from the moment he learned of her
existence. Through the operation of Mandy Jo’s Law, KRS
§411.137 . . . Mr. Miller is precluded from recovering for the
wrongful death of Autumn, and as such is not entitled to any
proceeds from the settlement of this case.
Mr. Miller appealed the circuit court’s ruling to the Court of Appeals,
which affirmed.2 The Court of Appeals first disagreed with Mr. Miller’s renewed
argument that Mandy Jo’s Law should not apply to a stillborn child. It
reasoned:
The predecessor to the Kentucky Supreme Court held that a fetus
is viable when “the child has reached such a state of development
that it can presently live outside the female body as well as within
2 Miller v. Bunch, 2019-CA-1856-MR, 2021 WL 402552 (Ky. App. Feb. 5, 2021).
5
it.” Mitchell v. Couch, 285 S.W.2d 901, 905 (Ky. 1955). In
Kentucky, “[o]nce the stage of viability is reached the fetus is
regarded as a legal ‘person’ with a separate existence of its own. It
is the living child of its mother and father—it has a family and
resides wherever its mother resides.” Orange v. State Farm Mut.
Auto. Ins. Co., 443 S.W.2d 650, 651 (Ky. 1969). “The most cogent
reason . . . for holding that a viable unborn child is an entity
within the meaning of the general word ‘person’ is because,
biologically speaking, such a child is, in fact, a presently existing
person, a living human being.” Mitchell, 285 S.W.2d at 905.
Mitchell extended the application of KRS 411.130 to the death of
viable fetuses, holding that a wrongful death action may be
maintained where the death of a viable fetus results from the
negligence of another party. Id.
Based on the deposition testimony of medical expert witnesses in
the underlying wrongful death action, the trial court found that
Autumn, at 33 weeks and four days, was a viable fetus. Therefore,
she was a legal person with a separate existence of her own, and a
cause of action could be maintained for her wrongful death just as
it could for the wrongful death of any other child.3
Stated differently, the Court of Appeals seemed to reason that Mandy Jo’s Law
could be applicable to a case involving a stillborn child simply because the law
of Kentucky permits a wrongful death suit for the death of a viable fetus. The
court then upheld the circuit court’s finding that Mr. Miller abandoned
Autumn because the circuit court’s factual findings were supported by
substantial evidence.4
Additional facts are discussed below as necessary.
3 Id. at *3.
4 Id. at *4.
6
II. ANALYSIS
As this case was tried by the circuit court without a jury, we cannot set aside
its findings of fact if they are supported by substantial evidence; that is,
“evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.”5 However, the crux of this case
concerns statutory construction. Specifically, whether Mandy Jo’s Law applies
to cases involving a stillborn child. Statutory construction is an issue of law to
be reviewed de novo.6 Accordingly, neither the circuit court’s nor the Court of
Appeals’ construction of Mandy Jo’s Law is entitled to deference by this Court.7
It is a well-established tenet of statutory construction that our statutes
must be liberally construed “with a view to promote their object and carry out
the intent of the legislature.”8 “To determine legislative intent, we look first to
the language of the statute, giving the words their plain and ordinary meaning.
Further, we construe a statute only as written, and the intent of the Legislature
must be deduced from the language it used, when it is plain and
unambiguous[.]”9
Mandy Jo’s Law prevents a parent from recovering damages from an
action for the wrongful death of the child or from inheriting any part of the
5 Kimbler v. Arms, 102 S.W.3d 517, 521-22 (Ky. App. 2003).
6See, e.g., Pearce v. Univ. of Louisville, ex rel. Bd. of Trs., 448 S.W.3d 746, 749
(Ky. 2014).
7 Id.
8 KRS 446.080(1).
9 Pearce, 448 S.W.3d at 749 (internal citations and quotation marks omitted).
7
child’s estate if that parent has “willfully abandoned the care and maintenance
of his or her child.” Mandy Jo’s Law is comprised of two separate statutes, the
language of each is nearly identical. The first statute, KRS 411.137, provides
in its entirety:
(1) A parent who has willfully abandoned the care and
maintenance of his or her child shall not have a right to
maintain a wrongful death action for that child and shall
not have a right otherwise to recover for the wrongful
death of that child, unless:
(a) The abandoning parent had resumed the care and
maintenance at least one (1) year prior to the death of
the child and had continued the care and maintenance
until the child's death; or
(b) The parent had been deprived of the custody of his
or her child under an order of a court of competent
jurisdiction and the parent had substantially complied
with all orders of the court requiring contribution to
the support of the child.
(2) This section may be cited as Mandy Jo's Law.
Its companion statute, KRS 391.033, similarly states:
(1) A parent who has willfully abandoned the care and
maintenance of his or her child shall not have a right to intestate
succession in any part of the estate and shall not have a right to
administer the estate of the child, unless:
(a) The abandoning parent had resumed the care and
maintenance at least one (1) year prior to the death of
the child and had continued the care and maintenance
until the child's death; or
(b) The parent had been deprived of the custody of his
or her child under an order of a court of competent
jurisdiction and the parent had substantially complied
with all orders of the court requiring contribution to
the support of the child.
8
(2) Any part of a decedent child's estate prevented from passing to
a parent, under the provisions of subsection (1) of this section,
shall pass through intestate succession as if that parent has failed
to survive the decedent child.
(3) This section may be cited as Mandy Jo's Law.
The Legislature’s overarching intent in passing Mandy Jo’s Law is not
difficult to discern. It believed, as a matter of public policy, that parents who
forego participation in their child’s upbringing should be prevented from
enriching themselves in the event that the child predeceases them.10 The
murkier question, and the question this Court is now called upon to decide, is
whether the plain language of Mandy Jo’s Law evinces Legislative intent to
preclude recovery by an abandoning parent when the child in question is
stillborn. This is a matter of first impression for this Court, as our caselaw
interpreting and applying Mandy Jo’s Law entirely involves children who were
no longer in utero.11
Preliminarily, this Court clarifies that we are not overruling our
predecessor court’s holdings in Mitchell v. Couch that a viable fetus is a
“person” for the purposes of KRS 411.130, and that a wrongful death suit may
10 Simms v. Estate of Blake, 615 S.W.3d 14, 19 (Ky. 2021).
11 Id. at 18 (child was twenty-four years old); Johnson v. Estate of Knapp by
Knapp, 635 S.W.3d 845, 847-48 (Ky. App. 2021) (child was one year and eleven
months old); Big Spring Assembly of God, Inc. v. Stevenson, 2012-CA-001350-MR,
2014 WL 4267433, at *1 (Ky. App. Aug. 29, 2014) (child was thirteen years old);
Calhoun v. Sellers, 2008-CA-001311-DG, 2009 WL 3231506, at *1 (Ky. App. Oct. 9,
2009) (children were two years old and four years old, respectively); Shelton v. Parrish,
2005-CA-002464-MR, 2007 WL 1207125, at *1 (Ky. App. Apr. 6, 2007) (child was
thirty-six years old); Kimbler, 102 S.W.3d at 519 (child was nine years old).
9
accordingly be maintained for the negligent death of a viable fetus.12 However,
this Court cannot hold that the Legislature contemplated the application of
Mandy Jo’s law to the situation now before us.
First, neither of the exceptions to Mandy Jo’s Law could ever apply to a
stillborn child. The first exception, that “[t]he abandoning parent had resumed
the care and maintenance [of the child] at least one (1) year prior to the death
of the child,” to state the obvious, could not apply to a stillborn child because
the child would not yet be conceived one year prior to its death. The second
exception, that “[t]he parent had been deprived of the custody of his or her
child under an order of a court of competent jurisdiction” likewise could not
apply to a stillborn child because our courts do not enter custody orders for
children until they are born.
Furthermore, while our case law regarding Mandy Jo’s Law is extremely
scant, the definition of “willful abandonment,” is not applicable to a stillborn
child. Moreover, our precedent regarding what constitutes “care and
maintenance” is not applicable to a stillborn child. Neither “willful
abandonment,” nor “care and maintenance” are defined by statute. However,
in the twenty-two years since the passage of Mandy Jo’s Law, our appellate
system has developed a definition of abandonment, as well as a test for
12 285 S.W.2d at 906 (“We believe the complaint stated a cause of action under
KRS 411.130, because we conclude a viable child is a ‘person’ within the meaning of
this statute.”).
10
determining whether a parent has abandoned the care and maintenance of his
or her child. “Abandonment” for the purposes of Mandy Jo’s Law means the
neglect and refusal to perform natural and legal obligations to care
and support, withholding of parental care, presence, opportunity to
display voluntary affection and neglect to lend support and
maintenance . . . It means also the failure to fulfill responsibility of
care, training and guidance during the child's formative years.13
As previously noted, as the statutes are currently written, no “legal obligations
to care and support,” i.e., child support and custody orders can be issued until
a child is born. And how might a parent provide “presence” and “voluntary
affection” to a child still in the womb? Finally, fulfilling the “responsibility,
training and guidance during the child’s formative years” is by its very wording
only applicable to a child in his or her formative years. Certainly, one can
provide financial and emotional support to the child’s mother and perhaps
indirectly benefit the child. But, looking at the current definition of
abandonment, that definition can only apply to a child that has been born and
is living separately from his or her mother.
In that vein, the facts previously considered by our courts to determine
whether there has been willful abandonment cannot be applied to a case
involving a stillborn child. Whether a parent has abandoned his or her child is
consistently stated to be a highly fact-specific inquiry that must be considered
on a case-by-case basis.14 Though no fact is dispositive, those facts previously
13 Kimbler, 102 S.W.3d at 525.
See, e.g., id. (“[T]he differing factual situations that are likely to appear in this
14
context make a bright line rule impossible, and, as such, analysis under Mandy Jo's
Law must be done on a case-by-case basis.”).
11
considered by our courts include: payment of child support;15 a involvement in
the child’s education;16 spending time with the child;17 knowledge of basic facts
about the child such as favorite foods, names of child care providers, or diaper
size;18 seeking formal or informal visitation rights;19 or providing funds to help
provide the child with food, shelter, clothing, or any other necessities of life.20
From a practical perspective, what factors could a trial court consider in
a case involving a stillborn? By necessity, just as the circuit court did in this
case, a trial court could only consider what the alleged abandoning parent did
for the child while he or she was still in utero. This, in turn, requires looking at
what the abandoning parent did for the other parent. Indeed, in its opinion and
order in this case, the circuit court faults Mr. Miller for “willfully [abandoning]
Ms. Bunch” no less than three times. It further found that he “offered no
support, financial or otherwise, to Ms. Bunch”; that he “neglected and refused
to offer care and support to Ms. Bunch and Autumn”; that he “did not visit Ms.
Bunch to offer her support”; and that he “contributed nothing to the care and
maintenance of Ms. Bunch and her unborn child.”
15Id., 102 S.W.3d at 523 (“Although nonsupport is not decisive, it has
uniformly been deemed one of the relevant factors for consideration[.]”).
16 Id., 102 S.W.3d at 524 (“No credible argument can be made that education is
not among the fundamental areas encompassed in the ‘natural and legal obligations’
of parenting.”).
17 Id.
18 Calhoun v. Sellers, 2008-CA-001311-DG, 2009 WL 3231506, at *3 (Ky. App.
Oct. 9, 2009).
19 See Simms, 615 S.W.3d at 24.
20 Johnson, 635 S.W.3d at 852.
12
Again, we acknowledge that by supporting and caring for the mother one
provides at least some support and care for the child; to suggest otherwise
would be disingenuous. But the Legislature’s sole purpose in passing Mandy
Jo’s Law was to prevent a parent who has abandoned his or her child from
benefitting financially from that child’s untimely death. Accordingly, the
dispositive inquiry under Mandy Jo’s Law is whether a parent abandoned the
child, not the mother. This, in turn, necessitates that the alleged abandoning
parent has had a meaningful opportunity to be part of a child’s life once the
child is a living being separate from his or her mother. Consequently, without
clear expression from our General Assembly, this Court cannot use Mandy Jo’s
Law to find willful abandonment of a child based solely on the nature of the
relationship between the parents during the mother’s pregnancy. This is
particularly so in a case such as the one at bar wherein even Ms. Bunch
acknowledged that Mr. Miller may not have been Autumn’s father. It smacks of
injustice to require a man who did not know for certain that the child was his
until well after her death to provide financial and emotional support to the
child’s mother during her pregnancy. It also unfairly presumes that, had
Autumn lived post-birth, Mr. Miller would not have sought custody rights once
his paternity was confirmed.
III. CONCLUSION
For the foregoing reasons, we hereby reverse and remand with orders
that the Letcher Circuit Court’s Findings of Fact, Conclusions of Law,
13
Judgment, and Order be vacated and that a judgment be entered consistent
with the holding herein.
All sitting. Conley, Hughes, Lambert and VanMeter, JJ., concur. Nickell,
J., dissents by separate opinion, in which Minton, C.J.; Keller, J., join.
NICKELL, J., DISSENTING: Respectfully, I must dissent.
Although referred to as a singular law, Mandy Jo’s Law is actually
comprised of two separate but related statutes, KRS 391.033 and KRS
411.137. Together, these statutes “prevent a parent who has willfully
abandoned the care and maintenance of his or her child from maintaining a
wrongful death action for that child, from administering the child’s estate, or
from inheriting any part of the child’s estate through intestate succession.”
Simms v. Estate of Blake, 615 S.W.3d 14, 19 (Ky. 2021) (internal quotation
marks omitted). In pertinent part, KRS 411.137(1) provides “[a] parent who
has willfully abandoned the care and maintenance of his or her child shall not
have a right to maintain a wrongful death action for that child and shall not
have a right otherwise to recover for the wrongful death of that child[.]” Using
essentially the same language, KRS 391.033 limits a parent’s “right to intestate
succession” and “right to administer the estate of the child[.]” Both statutes
contain two identical exceptions to the limitations of rights of the abandoning
parent, neither of which are applicable under the facts presented.
While Mandy Jo’s Law plainly precludes a parent from recovery if the
parent willfully abandons his or her child, the statutes do not include a
meaningful definition of abandonment. However, abandonment has been
14
defined as “neglect and refusal to perform natural and legal obligations to care
and support, withholding of parental care, presence, opportunity to display
voluntary affection and neglect to lend support and maintenance[.]” Simms,
615 S.W.3d at 24 (quoting Kimbler v. Arms, 102 S.W.3d 517, 525 (Ky. App.
2003)). “[G]enerally, abandonment is demonstrated by facts or circumstances
that evince a settled purpose to forego all parental duties and relinquish all
parental claims to the child.” Kimbler, 102 S.W.3d at 523 (quoting J.H. v.
Cabinet for Hum. Res., 704 S.W.2d 661, 663 (Ky. App. 1985)). Thus,
abandonment does not concern an issue of law but rather represents a factual
issue.
This case presents a matter of first impression in the Commonwealth—
whether abandonment for purposes of Mandy Jo’s Law can apply to a child
before birth. Contrary to the determination of the majority, I believe it can.
At the turn of the twentieth century, a mother and her unborn child were
considered “but one person” at common law, which thus prevented recovery in
tort for injuries to the unborn child. See Gregory J. Roden, Prenatal Tort Law
and the Personhood of the Unborn Child: A Separate Legal Existence, 16 St.
Thomas L. Rev. 207, 212 (2003). Kentucky joined a growing number of states
in rejecting the common law rule in 1955.
The most cogent reason, we believe, for holding that a viable
unborn child is an entity within the meaning of the general word
“person” is because, biologically speaking, such a child is, in fact, a
presently existing person, a living human being. It should be
pointed out that there is a definite medical distinction between the
term “embryo” and the phrase “viable fetus.” The embryo is the
fetus in its earliest stages of development, but the expression
15
“viable fetus” means the child has reached such a state of
development that it can presently live outside the female body as
well as within it. A fetus generally becomes a viable child between
the sixth and seventh month of its existence, although there are
instances of younger infants being born and surviving.
Mitchell v. Couch, 285 S.W.2d 901, 905 (Ky. 1955) (citing William J. Cason,
May Parents Maintain an Action for the Wrongful Death of an Unborn Child in
Missouri? The Case for the Right of Action, 15 Mo. L. Rev. 211, 218 (June
1950)); see also Rice v. Rizk, Ky., 453 S.W.2d 732, 735 (1970) (holding viable
fetus is “person” for purposes of wrongful death actions under KRS 411.130).
“Once the stage of viability is reached the fetus is regarded as a legal ‘person’
with a separate existence of its own. It is the living child of its mother and
father—it has a family and resides wherever its mother resides.” Orange v.
State Farm Mut. Auto. Ins. Co., 443 S.W.2d 650, 651 (Ky. 1969), overruled on
other grounds by Bishop v. Allstate Ins. Co., 623 S.W.2d 865 (Ky. 1981).
Moreover, in a criminal context, this Court has held
[i]t is inherently illogical to recognize a viable fetus as a human
being whose estate can sue for wrongful death and who cannot be
consensually aborted except to preserve the life or health of the
mother, but not as a human being whose life can be
nonconsensually terminated without criminal consequences.
Commonwealth v. Morris, 142 S.W.3d 654, 660 (Ky. 2004).
Additionally, putting aside any reasoned medical or scientific
considerations or any developing constitutional challenges, a number of
statutes enacted more recently by the General Assembly remove any doubt
regarding its intent that personhood be legally understood to begin at
conception. Among these are KRS 507A.010(1)(c), effective February 20, 2004,
16
which defines “Unborn child” as “a member of the species homo sapiens in
utero from conception onward, without regard to age, health, or condition of
dependency”; KRS 311.781(9), effective January 9, 2017, which defines
“Unborn child” to mean “an individual organism of the species homo sapiens
from fertilization until live birth”; and KRS 311.772(1)(c), effective June 27,
2019, which defines “Unborn human being” as “an individual living member of
the species homo sapiens throughout the entire embryonic and fetal stages of
the unborn child from fertilization to full gestation and childbirth.”
Although no Kentucky court has directly discussed prenatal
abandonment, the theory is not a new one. It has been analyzed in numerous
sister jurisdictions since as early as 1974. See Elliot v. Maddox, 510 S.W.2d
105 (Tex. Civ. App. 1974). Although the Elliot court concluded the father’s
conduct in that case “assuredly could not have been an act of abandonment of
anyone then not yet born[,]” id. at 107, the following year the Texas legislature
enacted a statute defining prenatal abandonment. Tex. Fam. Code Ann.
§161.001 (West, 2022). Other jurisdictions soon followed, and by 2017, thirty-
four states had adopted prenatal abandonment laws. See Mary M. Beck,
Prenatal Abandonment: “Horton Hatches the Egg” in the Supreme Court and
Thirty-Four States, 24 Mich. J. Gender & L. 53 (2017). Notably, in 2018,
Kentucky’s General Assembly added prenatal abandonment by a putative
father as a reason for granting an adoption without parental consent. KRS
199.502(j)(3).
17
In Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), the United States
Supreme Court acknowledged a father could abandon a fetus by failing to
provide any prenatal support and, at least tacitly, endorsed the theory of
prenatal abandonment. The Supreme Court considered all of the facts which
had any potential bearing upon the father’s intentions to either assume or
abandon parental responsibilities for the fetus; both prenatal and postnatal
actions played into the calculus. In so doing, the Supreme Court concluded
the father’s prenatal abandonment was sufficient to overcome even the extra
protections reserved by Congress for the special class of Native American
fathers under the Indian Child Welfare Act of 1978, 25 U.S.C.A. § 1901 et seq.,
to which the subject father belonged. If prenatal abandonment can eliminate
the heightened protections provided by Congress for Native American children,
it logically follows that it should also operate to block fathers such as Miller
who lack such elevated protections.
The assumption of duties owed a child includes contributing to the
support of the mother during the pregnancy and contributing to the support of
the child after its birth. Here, the child, a viable fetus, did not survive the
birth, but expenses were still incurred including the cost of medical procedures
and those for her funeral. Parental duties and obligations do not derive their
life from court orders but are birthed from the natural relationship of biological
parent and child. Contributing toward prenatal support over a typical nine-
month gestational period provides fathers the opportunity to establish their
parental rights.
18
The significance of the biological connection is that it offers the
natural father an opportunity that no other male possesses to
develop a relationship with his offspring. If he grasps that
opportunity and accepts some measure of responsibility for the
child’s future, he may enjoy the blessings of the parent-child
relationship . . . . If he fails to do so, the Federal Constitution will
not automatically compel a state to listen to his opinion of where
the child’s best interests lie.
Lehr v. Robertson, 463 U.S. 248, 262 (1983).
Based on the foregoing authorities, and because pre-birth conduct may
evince material facts bearing on abandonment, Kentucky courts should join
the growing number of jurisdictions who have concluded the failure of a father
to assume parental responsibilities, even when the child is en ventre sa mere,21
can constitute abandonment. Thus, in my view, the provisions of Mandy Jo’s
Law may be asserted against this father who allegedly willfully abandoned the
mother carrying their viable fetus prior to the child’s birth.
Because this matter was tried before the court without a jury, the trial
court’s factual findings “shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” CR22 52.01. Further, “the trial court, as the
finder of fact, has the responsibility to judge the credibility of all testimony, and
may choose to believe or disbelieve any part of the evidence presented to it.”
Cabinet for Health & Fam. Servs. v. P.W., 582 S.W.3d 887, 896 (Ky. 2019)
(citing Caudill v. Maloney’s Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977)). If a
21 This Latin phrase translates to “In its mother’s womb.”
22 Kentucky Rules of Civil Procedure.
19
trial court’s findings of fact are supported by substantial evidence and the
correct law is applied, the appellate court will not disturb the decision unless
an abuse of discretion has occurred. Cabinet for Health & Fam. Servs. v. R.S.,
570 S.W.3d 538, 546 (Ky. 2018). Substantial evidence is “[e]vidence that a
reasonable mind would accept as adequate to support a conclusion.” Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English,
993 S.W.2d 941, 945 (Ky. 1999)).
“When the decision of the fact-finder favors the person with the burden
of proof, his only burden on appeal is to show that there was some evidence of
substance to support the finding, meaning evidence which would permit a fact-
finder to reasonably find as it did.” Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). The burden of proof is on the proponent of application of
Mandy Jo’s Law; here, that was Bunch. In Simms, we held trial courts are to
use a preponderance of the evidence standard when considering claims under
Mandy Jo’s Law. 615 S.W.3d at 23. Under that standard, the party who, on
the whole, has the stronger evidence, however slight the advantage may be,
must prevail. Thus, Bunch was required to present sufficient evidence to
establish it was “more likely than not” that Miller abandoned Autumn. My
review of the record reveals she did so.
20
The trial court heard live testimony from Bunch and Miller regarding
events which occurred before, during, and after the pregnancy. It also had the
benefit of the parties’ depositions which included more details of these events.
Although conflicting testimony was presented at the hearing regarding the
events, the trial court has discretion on what evidence to believe or disbelieve,
and apparently it determined Bunch was more credible. Trial courts are given
broad discretion to make factual findings. If the testimony before the trial
court is conflicting, as here, we are not at liberty to substitute our decision in
place of the judgment made by the trial court. R.C.R. v. Commonwealth
Cabinet for Hum. Res., 988 S.W.2d 36 (Ky. App. 1998). The test is whether the
trial court’s rulings were clearly erroneous or constituted an abuse of
discretion and not whether we, as an appellate court, would have decided the
matter differently. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
I have reviewed the record and—although neither of the litigants
arguably come to this case with clean hands—I must conclude the trial court’s
findings of fact were supported by substantial evidence as correctly held by the
Court of Appeals. Testimony adduced before the trial court revealed Miller
immediately left once he learned Bunch was pregnant. It is undisputed
Autumn was a viable fetus. Miller knew or had reason to believe he was
Autumn’s father, even testifying he thought Autumn was his “the whole time.”
Nevertheless, he made little to no effort to contact or support Bunch during the
pregnancy. Miller did not accompany Bunch to any prenatal physician visits or
lend assistance during her multiple admissions to the hospital due to
21
complications associated with the pregnancy. He sent Bunch a $25
MoneyGram one time but otherwise offered no financial support. Miller
appeared only briefly at the hospital following Autumn’s death and did not
attend the funeral nor assist in paying for same. Moreover, he did not
contribute to Autumn’s grave marker.
Miller offered contradictory testimony, claiming to have accompanied
Bunch to a single doctor’s appointment, giving her additional monies during
the pregnancy, and offering to pay for the funeral expenses. “While some of the
evidence conflicted with the trial court’s conclusions, and a different trial court
or a reviewing appellate court might disagree with the trial court, the standard
on appellate review requires a great deal of deference both to its findings of fact
and discretionary decisions.” Frances v. Frances, 266 S.W.3d 754, 758 (Ky.
2008). Sufficient evidence was adduced to make it more likely than not that
Miller had “a settled purpose to forego all parental duties and relinquish all
parental claims to the child.” Kimbler, 102 S.W.3d at 523. Miller exhibited
almost no feeling for the unborn child and arguably would have continued his
passive stance had the present action not been filed. He clearly eschewed his
prenatal responsibilities and only asserted his parental rights when it became
potentially financially beneficial for him to do so. Miller plainly disagrees with
the trial court’s decision, but a mere disagreement with a finding is an
insufficient basis for this Court to conclude the trial court erred. I cannot say
the trial court abused its discretion in finding Miller abandoned Autumn and
22
was therefore precluded from sharing in the settlement proceeds resulting from
her untimely passing.
For the foregoing reasons, I would affirm the decision of the Court of
Appeals.
Minton, C.J. and Keller, J., join.
COUNSEL FOR APPELLANT:
Kevin Wayne Johnson
Law Office of Kevin W. Johnson
COUNSEL FOR APPELLEE:
Daniel F. Dotson
Daniel F. Dotson, PSC
Stephen M. O’Brien
O’Brien Batten & Kirtley, PLLC
23
Lawrence Miller, Jr. v. Brittany Bunch, Administratrix of the Estate of Autumn Raine Bunch
Combined Opinion