- Associated Press - Thursday, December 17, 2015

LOUISVILLE, Ky. (AP) - A couple’s theft conviction for accepting thousands of dollars in prenatal expenses from competing sources after contacting both an adoption agency and another couple wanting to adopt their baby was set aside on Thursday by the Kentucky Supreme Court.

The case stemmed from the conditional guilty pleas of Michael and Janie Young to theft by deception over $10,000 in Lawrence County.

The Youngs argued the theft charge was wrongly upgraded to a more serious felony by combining separate amounts they received in living expenses. The out-of-state adoption agency was not listed as a victim in the indictment, and the prospective adoptive parents paid the Youngs less than $10,000.

Even if the adoption agency had been a party in the case, the amounts should not have been combined, the Supreme Court ruled.

The Youngs eventually told the other couple they decided not to proceed with the adoption. The Youngs apparently thought they were having another boy, but the baby turned out to be a girl, the court said. The Youngs were already raising three sons, it said.

In taking up the matter, the state’s high court said it delved into an issue that has drawn little appellate review.

Justice Mary Noble, in her majority opinion, said Kentucky law is “woefully inadequate” to deal with issues revolving around payments made by prospective adoptive parents to the biological parents prior to the birth.

Such adoptions require consent of the natural parents, but such consent cannot be formalized until 72 hours after the birth, Noble said.

The result is that an expectant mother cannot make a binding agreement to allow another couple to adopt her child before the birth. If prospective adoptive parents pay for the birth mother’s expenses, there’s no guarantee they will end up adopting the child, Noble wrote.

“There are no checks and balances on how much money prospective adoptive parents can pay to the biological parent during the pregnancy,” Noble said. “There is no method of verifying what actually was paid. This rudimentary accounting of the prepaid living expenses could actually be no more than a nod and a wink to the notion that a child has not been sold.

“And given that thousands of dollars are being spent in the hope that an adoption will occur, prospective adoptive parents are nonetheless given no recourse in the statutes,” she added. “The view appears to be that if the prospective adoptive parent loses that money because the mother changes her mind, too bad; they knew the risk when they spent the money.”

The Youngs contacted the adoption agency in September 2009, resulting in payments totaling about $4,000 from October 2009 to February 2010 for prenatal expenses, the court said. The Youngs also began discussing the baby’s adoption with the other couple, it said.

That couple started making prenatal expense payments in October 2009. The couple provided about $6,000 for expenses and paid $1,000 to the Youngs’ attorney and $974 to their own attorney, through February 2010, the court said. The couple was unaware the Youngs had contacted the adoption agency and received money from their potential rival until late February 2010, the court said.

The indictment alleged the couple was deceived about being the only family seeking to adopt the child.

After their conditional guilty pleas, the Youngs were sentenced to the minimum five years in prison, but would actually only have had to serve five years of probation.

On appeal, the state Court of Appeals said the charges should have been dismissed, sending the case to the state’s high court.

The Supreme Court on Thursday sent the case back to the trial court for any further proceedings the state might want to pursue.

In a concurring opinion, Justice Michelle Keller urged prosecutors “to exercise the utmost caution and discretion in determining whether to prosecute birth parents” under the theft-by-deception statute. Keller wrote that the adoptive process for newborns “can be filled with both joy and sorrow,” but said it remains “a reasonable solution to one of life’s most difficult dilemmas.”

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