Opinion
No. 2003-CA-000741-MR.
April 16, 2004.
Appeal from Jefferson Family Court, Honorable Jerry J. Bowles, Judge, Action No. 01-FC-000038.
Bryan Gowin, Louisville, Kentucky, Briefs for Appellants.
Rocco J. Celebrezze, Louisville, Kentucky, Brief for Appellees.
Before: JOHNSON, KNOPF and McANULTY, Judges.
OPINION
E.H. and C.H. have appealed from an order of the Jefferson Family Court entered on March 26, 2003, which granted Mr. and Mrs. M.s's petition for visitation rights with their grandchildren. Having concluded that the trial court's factual findings were supported by substantial evidence, that it correctly applied the law, and that it did not abuse its discretion by awarding the grandparents visitation rights, we affirm.
E.H. and A.H. married and had two children. The couple's son, I.H., was born on August 1, 1995, and their daughter, H.H., was born on January 15, 1997. Mr. and Mrs. M. are A.H.'s parents and are the maternal grandparents of I.H. and H.H. When I.H. was a baby, E.H. and A.H. moved in with the grandparents for a few months, but E.H. and A.H. eventually established their own home. In late 1997 E.H. and A.H. separated. In March 1999 A.H. and the two children moved in with the grandparents. A.H., I.H., and H.H. resided with the grandparents until December 1999. On February 27, 2000, A.H. died of a brain aneurysm. Following their mother's death, I.H. and H.H. began living with their father.
E.H. and A.H's divorce proceeding was pending at the time of her death.
In April 2000 E.H. married C.H.C.H. adopted I.H. and H.H. shortly after her marriage to E.H. The grandparents continued to see I.H. and H.H. about once per month, but later expressed a desire to see them on a more regular basis. In order to establish a more consistent visitation schedule, the grandparents had their attorney send a letter to E.H. informing him about grandparent visitation in Kentucky. In response, E.H. informed the grandparents that he was completely terminating their visitation with I.H. and H.H.
On January 3, 2001, the grandparents filed a petition in Jefferson Family Court pursuant to KRS 405.021(1), seeking regular and ongoing visitation with I.H. and H.H.E.H. and C.H. objected to any type of visitation for a number of reasons, including (1) E.H. and C.H.'s contentious relationship with the grandparents following the filing of their petition; (2) the disruption in the children's routine in having to accommodate the grandparents' visitation requests; (3) and the nightmares and confusion experienced by the children after returning from visits with the grandparents.
Kentucky Revised Statutes.
KRS 405.021(1) states in full as follows:
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 family court appointed Steven J. Simon, Ph.D., to perform a visitation evaluation. After meeting with all of the parties, including I.H. and H.H., Dr. Simon concluded that the children appeared to be well taken care of, happy, and loved. In addition, Dr. Simon found nothing which would lead him to believe that any of the adults were unfit to care for the children. Dr. Simon recommended that since the grandparents were an additional source of love and support for I.H. and H.H., they should be allowed whatever grandparent visitation rights the law allowed.
On July 10, 2002, a trial was held before the family court, in which E.H. and the grandparents provided testimony. Mrs. M. testified as to the close and loving relationship that she and her husband had with I.H. and H.H. Since the children lived with the grandparents on a couple of occasions, Mrs. M. stated that the children were very familiar with them. In addition, the children had formed relationships with their cousins and other extended family members. Mrs. M. disagreed with E.H.'s allegation that the grandparents were trying to "resurrect their daughter" to the children. Mrs. M. stated that they answered the children's questions about their mother, but they did not bring out videos or photo albums of A.H.
E.H. testified that he and C.H. did not want the grandparents to have grandparent visitation with I.H. and H.H. In addition to E.H.'s personal feelings toward the grandparents, he was also concerned about the children's safety due to H.H. having received a burn from a cigarette lighter on one of her visits with the grandparents. On cross-examination, E.H. testified that he and his wife did not view the relationship with the grandparents as a "healthy one," and that they did not want the children to go through this conflict at this stage of their young lives. In particular, E.H. stated that when I.H. returns from visits with the grandparents, he has problems sleeping, including having bad dreams and urinating on himself. During earlier proceedings on this matter, E.H. stated that when the grandparents were gone for a month-long vacation and did not see the children, I.H. did not exhibit these behaviors.
On March 26, 2003, the trial court ruled that visitation with the grandparents was in the children's best interest after finding that the grandparents "have demonstrated by clear and convincing evidence that harm will result to these children if they are not permitted to continue their grandparent-grandchild relationship with these children." The court ordered the following visitation schedule: (1) the grandparents were to be allowed one visitation with the children the last weekend of every month from Friday afternoon until Saturday afternoon; (2) the grandparents were to have the children for one full week during the summer and were permitted to take them out of town; (3) the grandparents were to be allowed weekly telephonic contact with the children; and (4) the grandparents were permitted to celebrate the Christmas holiday with the children on December 23. This appeal followed.
E.H. and C.H. argue that the family court erred by granting the grandparents' petition for visitation. Specifically, E.H. and C.H. claim that the family court clearly erred by finding that, due to the long and lasting relationship between the children and the grandparents, I.H. and H.H. would be harmed if their relationship with the grandparents was terminated. We disagree.
In Troxel v. Granville, the Supreme Court of the United States held that the state of Washington's nonparental visitation statute had been unconstitutionally applied. The Washington trial court, over the objections of the custodial mother, granted the grandparents' petition for visitation based solely on the trial court's determination that the visitation was in the children's best interests. The Supreme Court explained that the statute impermissibly allowed a trial judge to grant nonparental visitation over the objections of a custodial parent, without affording any presumptive weight to the wishes of the custodial parent. The Court held that "the Due Process Clause [of the Fourteenth Amendment to the United States Constitution] does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made."
530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
Id. 530 U.S. at 62.
Id. at 72-73.
Id.
In Scott v. Scott, this Court previously explained how KRS 405.021(1), Kentucky's nonparental visitation statute, must be applied in order to pass constitutional muster in light of the Supreme Court's decision in Troxel:
Ky.App., 80 S.W.3d 447, 451 (2002).
While the U.S. Supreme Court in Troxel declined to address whether a showing of harm to the child was required in all nonparental visitation cases, we hold, based on Kentucky precedent, that grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent. To apply KRS 405.021 without a required showing of harm creates precisely the result that was ruled unconstitutional by the U.S. Supreme Court in Troxel [footnotes omitted].
As we mentioned previously, the trial court specifically found that the grandparents had demonstrated by clear and convincing evidence that I.H. and H.H. would be harmed if the grandparents were denied grandparent visitation. We cannot disturb this finding unless it is shown to be clearly erroneous. A factual finding is not clearly erroneous if it is supported by substantial evidence. "`Substantial evidence' is evidence of substance and relevant consequent sufficient to induce conviction in the minds of reasonable people." In the case sub judice, we hold that the trial court's factual findings were supported by substantial evidence, that it properly applied the law to those facts, and that its determination to award visitation to the grandparents did not constitute an abuse of discretion.
Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002).
Id.
Id.
Id. at 782-83.
In its order granting the grandparents' petition for visitation, the family court specifically found as follows: (1) "[f]rom the time the children were born [the grandparents] have been very involved and part of the children's lives[;]" (2) "the evidence presented at trial clearly demonstrates that the subject children in this matter have had a long and continuing close relationship with their maternal grandparents[;]" (3) "[i]t is equally clear that but for the untimely and unfortunate passing of their mother the children would enjoy a close relationship with their maternal grandparents[;]" (4) "these children are biologically part of the [grandparents'] family and nothing will ever change that biological fact . . ., when two persons bring children into this world they are through those children biologically bound for eternity[;]" (5) "these two children have suffered a tremendous loss with the passing of their mother . . . to compound that loss by adding the loss of their maternal grandparents, who have been an integral part of their lives since birth, would cause harm to the children[;]" and (6) "[E.H.'s] need to run from his past should not be allowed to further traumatize and exacerbate the loss of their mother and primary caretakers" [emphasis added].
Thus, the substantial evidence in support of the trial court's finding can be summarized as a determination (1) that the two young children have been traumatized by the death of their mother with whom they were living; (2) that their grandparents with whom they had a long and close relationship and who had served for a long time as their joint primary caretakers were an integral part of their lives; and (3) that the children would be further traumatized if they lost all contact with their maternal grandparents. Hence, the trial court made sufficient factual findings to support its determination that the grandparents had shown by clear and convincing evidence that harm would result to the children if they were denied visitation rights. The trial court gave the parents' wishes the appropriate weight, but it also appropriately considered the harm that would be caused to the children if the grandparents were denied visitation. Accordingly, the trial court's findings were supported by substantial evidence and it did not abuse its discretion by granting the grandparents' petition for visitation.
When the children's mother died on February 27, 2000, I.H. was four years and seven months old and H.H. was a little over three years old. E.H. and A.H. were involved in divorce litigation at the time of A.H.'s death, and the children had been living with A.H. at the grandparents' home since March 1999. Previously, I.H. and his mother had lived with the grandparents for most of the first year of I.H.'s life. Thus, during the 55 months of I.H.'s life, he had lived approximately 24 months, or almost one-half of his life, at the home of his maternal grandparents.
Based on the foregoing, the order of the Jefferson Family Court is affirmed.
KNOPF, Judge, Concurs.
McANULTY, Judge, Dissents and Files Separate Opinion.
In a perfect world raising a child might in fact require a village. However, in our imperfect world the determination of which villagers should or should not interact with one's child, absent unfitness of the parent(s), is not a proper determination of the courts.
Where is the finding that the parents in this case are unfit to make decisions for their child?
The power of the government to make these decisions should be highly scrutinized. To merely conclude that an arrangement, financial or otherwise, is better should not be the test. The sanctity of the family, absent a finding of harm to the child, should not be disturbed. When, as in the case sub judice the parents are fit, then the predicate for intervention is non-existent.
While the U.S. Supreme Court did not require states enacting grandparent visitation statutes to include a showing of harm or potential harm to the child as a condition precedent for granting visitation, the Kentucky Court of Appeals has elected to provide a stricter standard. In Scott v. Scott, 80 S.W.3d 447, 451 (2002):
Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
[B]ased on Kentucky precedent, that grandparent visitation may only be granted over the objection of an otherwise fit custodial parent if it is shown by clear and convincing evidence that harm to the child will result from a deprivation of visitation with the grandparent. (Emphasis supplied).
A review of the findings of the trial court makes it abundantly clear that the only basis for the award of visitation is the long term relationship. In my humble opinion, that finding does not justify the government's intervention into the affairs of an autonomous family. Therefore, I dissent.