Vice v. Andrews

Vickie VICE v. Lena Loraine ANDREWS and Larry
Duane Andrews, Jr.

96-544                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 19, 1997


1.   Parent & child -- visitation rights of grandparents discussed. -- The
     laws relating to adoption are derived from statutes, and at
     common law, a grandparent could not maintain an action for
     visitation rights to a grandchild except as a party to a
     custody proceeding; any right that a grandparent possesses
     must be either derived from statutes or conferred by a court
     of competent jurisdiction pursuant to statute.

2.   Adoption -- rights of adoptive and natural parents discussed. --
     Statutory declarations of public policy favor the rights of an
     adoptive family over the interests of biological relatives;
     under Ark. Code Ann.  9-9-215(a)(1) (Supp. 1995), except with
     respect to the adopting parent's spouse and his or her
     relatives, the effect of the final decree of adoption is to
     "terminate all legal relationships between the adopted
     individual and his natural relatives, including his natural
     parents, so that the adopted individual thereafter is a
     stranger to his former relatives for all purposes"; when a
     natural parent consents to the adoption of a child by another
     person, the consenting parent's relatives lose their legal
     rights to visitation because such rights are derivative of the
     consenting parent's rights and likewise are terminated when
     parental rights are ended.
3.   Adoption -- biological grandparent no longer entitled to visitation
     privileges. -- Because all legal relationships terminate once a
     child is adopted, a biological grandparent is no longer
     legally entitled to visitation privileges.

4.   Adoption -- statutory exception to termination of grandparents' visitation
     rights not applicable. -- The limited exception to the termination
     of grandparents' visitation rights codified at Ark. Code Ann.
      9-9-215(a)(1) (Supp. 1995) did not apply to the facts in
     this case because the statute specifically relates to
     visitation rights derived through a deceased parent when those
     rights are asserted before the adoption decree is entered.

5.   Appeal & error -- appellant provided no authority for notice claim. --
     Appellant biological grandmother provided no authority for any
     claim that she was legally entitled to notice of the adoption
     or deprived of any right to intervene in the adoption
     proceedings.

6.   Adoption -- chancellor did not err in dismissing appellant's petition for
     visitation. -- The supreme court agreed with the chancellor's
     determination that appellant biological grandmother's rights
     were derivative of her son's rights and that the effect of
     Ark. Code Ann.  9-13-215 was to terminate those rights; the
     court held that the chancellor did not err in granting the
     motion to dismiss appellant's petition for visitation.


     Appeal from Ashley Chancery Court; Jerry Mazzanti, Chancellor;
affirmed.
     Hani W. Hashem, for appellant.
     Michael D. Ray, for appellees.

     Ray Thornton, Associate Justice
     Ricky Wilkinson and Lena Loraine Andrews were divorced in
Alabama on November 26, 1991.  One child, Margaret LeAnn, was born
to the couple during their marriage.  Lena Loraine later married
Larry Duane Andrews, Jr., and they moved to Arkansas.  A petition
was filed in probate court to allow Larry Duane to adopt the minor
child, and Ricky Wilkinson, the biological father, consented to
this proposed adoption according to the provisions of Ark. Code
Ann.  9-9-220 (Supp. 1995).  On August 16, 1995, the final decree
of adoption was entered granting Larry Duane's adoption of Margaret
LeAnn.  Appellant, Vickie Vice, is the mother of Ricky Wilkinson,
and therefore is the biological grandmother of Margaret LeAnn.  
     This case presents the issue whether a biological
grandmother's statutory right to petition for visitation can
withstand a motion to dismiss on grounds that an adoption
terminated the legal relationship between the child and her
biological grandmother.  The chancery court found that the
adoption, which was granted with the consent of the biological
father, not only terminated any relationship he might have with his
daughter, but also terminated any rights of visitation which his
mother, Ms. Vice, might claim.  We agree and affirm.
     From the time of King Solomon, the decision as to which of two
competing claimants should be allowed to nurture and rear a young
child has challenged the best efforts of our institutions of
jurisprudence.  Unlike many controversies whose resolution depends
upon a judgment as to which party is right and which party is
wrong, a choice between the rights of an adopting parent and
visitation by a biological grandparent requires a decision between
parties who truly and sincerely care for the child.
     The public policy regarding this issue has been established by
legislation.  The laws relating to adoption are derived from
statutes; and at common law, a grandparent could not maintain an
action for visitation rights to a grandchild except as a party to
a custody proceeding.  Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729
(1994) (citing Quarles v. French, 272 Ark. 51, 611 S.W.2d 757
(1981)).  We have often relied on our rule that any right that a
grandparent possesses must be either derived from statutes or
conferred by a court of competent jurisdiction pursuant to statute. 
Id. at 19, 889 S.W.2d  at 730 (citing Cox v. Stayton, 273 Ark. 298,
619 S.W.2d 619 (1981)).
     In recent years, Arkansas statutory law has become more
liberal in establishing grandparents' rights.  In 1975, the
legislature provided for grandparent visitation in the event of
divorce or custody proceedings.  Ark. Stat. Ann.  34-1211.1 (Supp.
1983).  A later amendment enacted a very broad standard for
grandparent visitation and allowed visitation to a grandparent
"regardless of the marital status of the parents of the child or
the relationship of the grandparents to the person having custody
of the child."  Ark. Stat. Ann.  34-1211.2 (Supp. 1985).  In 1987,
the legislature again revised this area of statutory law and
granted courts permissive authority to allow grandparents
visitation in situations where the "relationship between the
parents of the child has been severed by death, divorce, or legal
separation."  Ark. Code Ann.  9-13-103(a)(1)(A) (Supp. 1995). 
This is the current law, which Ms. Vice cites as applicable to the
present case.
     If there had been no adoption, the provisions of Ark. Code
Ann.  9-13-103 permitting grandparent visitation privileges would
be the controlling statute.  However, not only were Margaret
LeAnn's parents divorced, but her biological father voluntarily
consented to her adoption by a stepparent.
     Even as grandparent's visitation rights have been articulated
by statutory expressions of public policy, so also have there been
statutory declarations of public policy favoring the rights of an
adoptive family over the interests of biological relatives.  Except
with respect to the adopting parent's spouse and his or her
relatives, the effect of the final decree of adoption is to
"terminate all legal relationships between the adopted individual
and his natural relatives, including his natural parents, so that
the adopted individual thereafter is a stranger to his former
relatives for all purposes."  Ark. Code Ann.  9-9-215(a)(1) (Supp.
1995).  When a natural parent consents to the adoption of a child
by another person, the consenting parent's relatives lose their
legal rights to visitation because such rights are derivative of
the consenting parent's rights and likewise are terminated when
parental rights are ended.  See Chauncey Brummer and Era Looney,
Grandparent Rights in Custody, Adoption, and Visitation Cases, 39
Ark. L. Rev. 259 (1985).
     In Suster v. Arkansas Dep't of Human Services, 314 Ark. 92,
858 S.W.2d 122 (1993), we interpreted Ark. Code Ann.  9-9-
215(a)(1) as an expression of public policy favoring a complete
severance of the relationship between the adopted child and its
biological family in order to further the best interest of the
child.  Id. at 97, 858 S.W.2d  at 125.  Because all legal
relationships terminate once a child is adopted, a biological
grandparent is no longer legally entitled to visitation privileges. 
Id.  In Suster, we reiterated that it is "unquestionably within the
province of the legislature to decide that the reasons favoring the
solidarity of the adoptive family outweigh those favoring
grandparents and other blood kin...."  Id. (quoting Wilson v.
Wallace, 274 Ark. 48, 50, 622 S.W.2d 164, 166 (1981)).
     A recent modification of this complete termination of
grandparents' rights was adopted by Act No. 889 of 1995, codified
at Ark. Code Ann.  9-9-215, which enacted an exception to the
termination of grandparent's visitation rights by the following
language:
     However, in cases where a natural or adoptive parent dies
     before a petition for adoption has been filed by a step-
     parent of the minor to be adopted the Court may grant
     visitation rights to the parents of the deceased natural
     or adoptive parent of the child if such parents of the
     deceased natural or adoptive parent had a close
     relationship with the child prior to the filing of a
     petition for step-parent adoption, and if such visitation
     rights are in the best interest of the child.
Id.  9-9-215(a)(1).  This limited exception does not apply to the
facts in the case before us, as this statute specifically relates
to visitation rights derived through a deceased parent when those
rights are asserted before the adoption decree is entered. 
However, the statutory language confirms the principle that with
very narrow and specific exceptions, all legal relationships
between the adopted individual and her natural relatives are
terminated upon adoption.
     Ms. Vice also states that she received no notice of the
adoption and that she previously had acted in loco parentis to
Margaret LeAnn because she allowed the child to live in her home
for several months.  However, in her appeal she does not provide
authority for any claim that she was legally entitled to notice or
deprived of any right to intervene in the adoption proceedings.
     We agree with the chancellor's determination that Ms. Vice's
rights were derivative of her son's rights, and that the effect of
Ark. Code Ann.  9-13-215 was to terminate those rights.  We hold
that the chancellor did not err in granting the motion to dismiss
appellant's petition for visitation.
     Affirmed.