Opinion
NO. 2016-CA-00594-ME
02-03-2017
TERESA EDWARDS AND QUENTIN EDWARDS APPELLANTS v. BRENDA DRUCILLA SPALDING APPELLEE
BRIEF FOR APPELLANT: Elmer J. George Lebanon, Kentucky BRIEF FOR APPELLEE: Theodore H. Lavit Joseph R. Stewart Lebanon, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MARION CIRCUIT COURT
HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 16-CI-00004 OPINION
VACATING AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. COMBS, JUDGE: This case involves a dispute over the issue of grandparent visitation. Teresa Edwards and Quentin Edwards appeal the decision of the Marion Circuit Court to grant grandparent visitation to Brenda Drucilla Spalding. After our review of the facts and the pertinent law, we vacate and remand.
Teresa and Quentin are the natural parents of two sons. At the time of the proceedings below, the boys were of a tender age. Spalding is their maternal grandmother. Spalding resides with Phillip Taylor, who has a significant criminal history. At the time this matter came before the trial court, Taylor was serving a probationary sentence for drug-related offenses. He and Spalding had been cohabitating for ten years and were engaged to be married.
Teresa and Quentin are divorced; they share joint custody of their boys. Both Teresa and Quentin enjoy a close relationship with their sons. Each of them provides resources for the boys' support. In September 2015, Teresa advised Spalding that she and Taylor would no longer be permitted to visit with the boys and that they could not expect to be involved in the life of the baby she was expecting. Quentin agreed that his boys should not be permitted to visit with Spalding and Taylor.
In October 2015, Teresa gave birth to a third child. The child's father, Steven Glover, resides with Teresa, the baby, and Teresa's boys. Glover, too, provides significant resources for the maintenance of the family. He will not consent to his child's visitation with Spalding and Taylor.
In January 2015, Spalding filed a petition in the Marion Circuit Court requesting an order for visitation with the boys. However, she did not seek to establish visitation with Teresa's new baby. Both of the boys' parents opposed the petition.
Following a hearing conducted on February 18, 2016, the circuit court found that the best interests of the boys would be served by resuming visitation with Spalding. The court dismissed the objections of the parents, finding that "no credible evidence was submitted to establish either [Spalding] or Mr. Taylor had engaged in drug activity in the presence of the children." In an order specifically designated as "interlocutory," Spalding was awarded visitation with the boys on alternating Fridays from 4:00 p.m. until 9:00 p.m. The parents filed a motion to alter, amend, or vacate, which was denied by the court.
A second evidentiary hearing was conducted on April 8, 2016. The court heard testimony indicating that each Friday's exchange of the boys had been tense, fearful, and/or violent. The evidence also indicated that the younger child had been overcome by emotion and was tearful following one of the visits with his grandmother. Reflecting upon this testimony, the court observed as follows: "[c]onsidering the unpleasant nature of events that occurred at the residence on that evening [a physical altercation between Taylor and Glover at the home shared by Teresa, Glover, his child, and the boys] the Court is not surprised that [the boy] was upset and alarmed." The court determined that exchanging the children at the local police department rather than at their home would alleviate the boys' apprehension. Again, the court rejected the parents' concerns about the drug activity allegedly occurring at Spalding's home.
The court found that Teresa's decision to suspend her mother's visitation with the boys had not been motivated by her concern about the alleged illegal transactions but rather by Spalding's decision to initiate a small claims action against Glover. The court concluded that Spalding had successfully rebutted the presumption that the boys' parents had acted in their best interest by suspending her visitation. Spalding was awarded one weekend of visitation every month; one week of visitation each summer; and eight-hours' visitation over the boys' Christmas break. This timely appeal followed.
We review the circuit court's factual findings for clear error. CR 52.01. A finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Substantial evidence is that which is "sufficient to induce conviction in the mind of a reasonable person." Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky.App. 2009). We must give due regard to the trial court's opportunity to judge the credibility of the witnesses. CR 52.01. However, the trial court's interpretation and application of the law are subject to our review de novo. Hill v. Thompson, 297 S.W.3d 892 (Ky. App. 2009).
Kentucky Rules of Civil Procedure.
Teresa and Quentin contend that the court erred by requiring them to show why visitation with Spalding should be denied and by awarding grandparent visitation despite their reasonable objections. We agree.
The provisions of KRS 405.021 govern the authority of a court with respect to a petition for grandparent visitation. Under that statute, a 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." KRS 405.021(1).
Kentucky Revised Statutes. --------
In Walker v. Blair, 382 S.W.3d 862 (Ky. 2012), the Kentucky Supreme Court construed the statute so as to conform it to and to harmonize it with federal constitutional requirements. The court observed that in order to protect the paramount liberty interest of parents in rearing their children without government interference, trial courts must give presumptive weight to the parents' decision to deny visitation. As long as a parent is fit, "there will normally be no reason for the [s]tate to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Walker, 382 S.W.3d at 870; Troxel v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 2063 (2000).
Since parents have a fundamental liberty interest in rearing their children in the manner they deem appropriate, a grandparent bears the burden to show that the presumably fit parents are clearly mistaken in their belief that visitation with the non-parent is not in the child's best interest. Walker, 382 S.W.3d at 871. A trial court may consider several factors to determine whether the parents have misconstrued the children's best interest. Chief among these, perhaps, is a consideration of the effect that granting non-parent visitation would have on the child's relationship with his parents. In Troxel, supra, a plurality of the U. S. Supreme Court observed as follows:
the extension of statutory rights in this area to persons other than a child's parents . . . comes with an obvious cost. For example, the [s]tate's recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship.Troxel, 530 U.S. at 63, 120 S.Ct. 2054, 20 (2000); Walker, 382 S.W.3d at 872. The Supreme Court of Kentucky recognized that this reasoning is especially true where animosity exists between the parent and grandparent. Id.
This factor is critical in the analysis of any parental decision concerning the rearing of their children. However, it does not appear that the Marion Circuit Court adequately considered it in this case. The evidence revealed that the relationship between Teresa and Spalding was plagued by acrimony and that the hostility between them was unlikely to abate. Under the circumstances, the added strain of the court's intrusion upon the relationship between the boys and their parents is manifest. In Walker, the Supreme Court of Kentucky warned that grandparent visitation could not be ordered where it was clearly detrimental to the parent-child relationship. Walker, 382 S.W.3d at 872.
Additionally, we are persuaded that the trial court erred in its analysis of the parents' motivation in suspending Spalding's visitation with their children. Spalding admitted that Teresa had asked her on numerous occasions not to permit drug activity in the presence of the children. When asked whether she had ever observed Taylor engage in illegal drug transactions, Spalding responded, "not in the house." This testimony is highly disturbing. Even if we were to accept that the evidence proved that Teresa's decision to suspend Spalding's visits with the boys was motivated purely by spite or vindictiveness, such evidence of Teresa's alleged ill-will is insufficient to rebut the presumption that her decision nonetheless served the boys' best interest. Walker addresses this precise issue in compelling language: "It may also be the case that a parent is acting out of spite, but the best interest of the child truly is not served by granting grandparent visitation." Id.
Finally, and significantly, we note that no evidence was introduced to indicate that Quentin's decision to suspend Spalding's visitation was motivated by anything other than his well-founded concern for his boys' safety and welfare. A fit parent's decision to prohibit non-parent visitation cannot be ignored. The trial court commended Quentin for his continued involvement with and support of his boys. However, it does not appear that Quentin's constitutionally protected liberty interest in raising his children free of unwarranted governmental intrusion was afforded the protection and primacy that pertinent case law requires.
Spalding has failed to provide clear and convincing evidence that both Teresa and Quentin were mistaken in their belief that visitation with her was not in the boys' best interest. We hold, therefore, that the trial court erred by ordering visitation under these circumstances. The opposition of the boys' parents alone in this case was sufficient to require that the petition for visitation be denied.
We vacate the order of visitation and remand for an order of dismissal.
ALL CONCUR. BRIEF FOR APPELLANT: Elmer J. George
Lebanon, Kentucky BRIEF FOR APPELLEE: Theodore H. Lavit
Joseph R. Stewart
Lebanon, Kentucky