ALLEN S. MULLINS EDITH J. MULLINS v. VANESSA HALL
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RENDERED: May 7, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001662-MR
ALLEN S. MULLINS
EDITH J. MULLINS
APPELLANTS
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 02-CI-00417
v.
VANESSA HALL
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
McANULTY, JUDGE:
This is a grandparent visitation case under
Kentucky Revised Statutes (KRS) 405.021 in which the circuit
court granted the biological maternal grandmother visitation
rights over the refusal of the adoptive parents.
Having
concluded that the biological grandmother did not have standing
after the adoption to pursue visitation when she had not been
granted visitation prior to the adoption, we reverse.
On October 14, 2002, Vanessa Hall (Hall), the
biological maternal grandmother of Hunter Allen Mullins (Hunter)
filed a petition under KRS 405.021 for grandparent visitation
with Hunter.
At the time Hall filed her petition, Hunter was in
the process of being adopted by his biological paternal
grandparents, the Appellants in this action, Allen and Edith
Mullins (the Mullinses).
At this point, it is important to note
that the Mullinses did not oppose visitation and had
accommodated many short visits between Hunter and Hall.
However, they did oppose court-ordered visits of a much longer
duration and occurring according to a set schedule.
The adoption proceedings commenced on August 23, 2002.
At that time, Hunter was three years old.
Hunter’s biological
parents voluntarily terminated their parental rights in Hunter
and consented to his adoption by the Mullinses.
On November 22,
2002, the Letcher Circuit Court issued a Judgment of Adoption,
which terminated the parental rights of the biological parents
and granted the adoption of Hunter by the Mullinses.
On January 27, 2003, the Domestic Relations
Commissioner (DRC) of the Letcher Circuit Court recommended
granting Hall’s petition for grandparent visitation.
Mullinses filed exceptions.
The
In response, the DRC conducted a
hearing on March 6, 2003, to hear the Mullinses’ arguments.
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On
May 12, 2003, the DRC overruled the Mullinses’ exceptions.
The
Letcher Circuit Court adopted the DRC’s recommended orders on
July 15, 2003.
Further, the Letcher Circuit Court ordered that
Hall shall have visitation with Hunter one weekend per month on
Friday at 5:00 p.m. until Sunday at 5:00 p.m.
The Mullinses
appeal from this order.
Consistently, the Mullinses have argued that Hall does
not have standing to petition for grandparent visitation under
KRS 405.021 for two reasons.
The first reason is that Hall is
no longer Hunter’s grandmother due to the adoption by the
Mullinses.
The second reason is that Hall did not have an order
granting visitation prior to the voluntary termination of the
parental rights of her daughter, Hunter’s biological mother.
Standing issues aside, the Mullinses further argued that Hall
failed to show, as required by Scott v. Scott, Ky. App., 80
S.W.3d 447, 451 (2002), that harm would result to Hunter from a
deprivation of visitation with Hall.
In her one and a half page brief, on the issue of
standing, Hall argues that the circuit court correctly ruled
that she had the right to visit with Hunter because she had
filed her petition for visitation prior to the time the circuit
court finalized the adoption.
Hall contends that KRS 405.021
should be interpreted to allow a grandparent who is actively
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seeking visitation with her grandchild to be awarded visitation.
In support, Hall argues that “anything less would be wrong.”
As to whether the trial court abused its discretion in
granting the request for visitation, Hall contends that the
trial court correctly determined that it would be in the best
interest of the child to have visitation with Hall.
Further,
this determination was supported by ample evidence, such
evidence being the trial court’s conclusion that grandparents
should be allowed to visit with their grandchildren.
Unfortunately, Hall’s equitable arguments fail before
this Court.
Once the Mullinses adopted Hunter, Hall’s statutory
right to seek visitation under KRS 405.021 was cutoff by the
termination and adoption statutes.
S.W.2d 68, 74 (1989).
See Hicks v. Enlow, Ky., 764
Moreover, as this case does not involve
an adoption by a stepparent, there are no applicable exceptions
to this rule.
See id.
As harsh at this may seem, “[t]he
termination and adoption procedures are domestic relations
considerations of overriding importance, and no exceptions for
grandparents to the terms of the termination order required by
statute should be implied where none are provided.”
Id. at 74.
Because the circuit court did not grant visitation to
Hall prior to the termination of her daughter’s parental rights
in Hunter, the exception in KRS 405.021 is not applicable in
this case.
In pertinent part, KRS 405.021 is as follows:
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(1) The Circuit Court may grant reasonable
visitation rights to either the paternal or
maternal grandparents of a child and issue
any necessary orders to enforce the decree
if it determines that it is in the best
interest of the child to do so. Once a
grandparent has been granted visitation
rights under this subsection, those rights
shall not be adversely affected by the
termination of parental rights belonging to
the grandparent’s son or daughter, who is
the father or mother of the child visited by
the grandparent, unless the Circuit Court
determines that it is in the best interest
of the child to do so.
The circuit court terminated the parental rights of Hunter’s
biological mother by order issued on November 22, 2002, and the
circuit court order adopting the DRC’s recommended order was not
entered until July 16, 2003.
“[T]he existence and extent of
grandparents’ rights is exclusively the prerogative of the
legislature, and we are limited to interpreting and applying the
statutory mandate.”
Hicks, 764 S.W.2d at 71.
To conclude that
the exception in KRS 405.021 is applicable in this case would be
to ignore the plain language of the statute.
Having determined that Hall did not have standing to
seek visitation with Hunter, we need not address whether Hall
met her burden under Scott, 80 S.W.3d at 451, to show by clear
and convincing evidence that harm to the child will result from
a deprivation of visitation with the grandparent.
However,
having reviewed the record, we feel compelled to note that Hall
presented no proof in support of her petition other than the
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facts that she had been seeing Hunter, and Hunter knew who she
was.
Moreover, the circuit court made no findings of fact on
the matter.
If Hall had had standing to pursue visitation with
Hunter, we would certainly remand this case to the circuit court
for an evidentiary hearing and the entry of findings of fact.
Presently, the circuit court’s order unconstitutionally
infringes on the Mullinses’ fundamental rights to raise their
child without government intervention.
For the foregoing reasons, the order of the Letcher
Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gene Smallwood, Jr.
Whitesburg, Kentucky
James W. Craft, II
Whitesburg, Kentucky
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