Opinion
NO. 2019-CA-001102-ME
02-21-2020
JACQUENETTE YOUNG APPELLANT v. KANETA HINTON-GRAVES APPELLEE
BRIEF FOR APPELLANT: Peter J. Jannace Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 19-CI-500463 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. CLAYTON, CHIEF JUDGE: Jacquenette Young (Mother) appeals from a Jefferson Family Court order awarding visitation with Young's minor daughter (Child) to the child's paternal grandmother, Kaneta Hinton-Graves (Grandmother). Mother argues that Kentucky Revised Statutes (KRS) 405.021(1)(b) and (c) of the grandparents visitation statute pursuant to which this award was made, impermissibly impinge on her constitutional right to raise her daughter free from governmental interference.
The Appellee did not file a brief. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) sets out penalties that our Court may impose for the failure to file a brief. Given that this case concerns the welfare of a child, we have decided to address the merits and decline to impose a penalty. --------
Child was born on August 7, 2010. She, Mother, and Child's father resided with Grandmother from the time of her birth until September 2011, and then again from February 2016 until November 2018, when her father passed away tragically in a shooting. Child then stayed with Grandmother from January 29, 2019, through February 3, 2019.
Following the father's death, considerable conflict developed between Mother and Grandmother which culminated in Grandmother's filing a petition for visitation on February 15, 2019. Mother obtained a Domestic Violence Order (DVO) on March 5, 2019, against Grandmother for stalking. Grandmother made various allegations against Mother, including an accusation that she engaged in transporting drugs between Texas and Kentucky, although there is no evidence to support this claim. Under the terms of the DVO, Grandmother was permitted supervised visitation with Child for one hour on Friday evenings at the Children's Safe Haven.
A final hearing was held on the visitation motion on July 10, 2019. Evidence was presented that Grandmother always had considerable involvement in Child's life. Mother, Child, and Child's father had frequently resided with Grandmother. Grandmother provided significant financial support to Mother and Child, paying for rent, field trips, clothing, toys, uniforms, swim lessons, cheerleading, gymnastics, and passes to Kentucky Kingdom. Grandmother expressed her deep affection for Child and described the closeness of their relationship.
Tonesha Hearn, the co-owner of Children's Safe Haven, the facility at which Grandmother had been having supervised visitation with Child, testified that Grandmother had violated the Children's Safe Haven policies by talking with Child about the future, such as where she would sleep when she came over to Grandmother's home, and about their dogs. According to Hearn, talking about the past or the future with Child was inappropriate and against the facility's policy because speaking about such matters could give children false hope. She testified that Grandmother brought her phone to visitation on one occasion which also contravened the Children's Safe Haven's policy. She testified that Child and Grandmother had a positive relationship, and that Child appeared happy during visitation and misses Grandmother when they are apart.
Mother produced certified records from Child's counselor who reported that Grandmother showed Child an inappropriate graphic photograph of her deceased father, which caused the child to have difficulty sleeping. Mother also expressed concern because Child was molested by a relative while staying with Grandmother. Grandmother explained that the molestation was perpetrated by a "little boy" who was a relative. He allegedly touched Child between the legs while she was fully clothed and performing a cartwheel. Grandmother testified that her family spoke with the boy and he was no longer allowed to stay overnight with Child.
Mother works full-time at Humana and supports Child. Mother is a loving and protective parent. She expressed concerns about the people Child might encounter at Grandmother's home and the fact that Grandmother allowed someone to drive Child without checking with Mother. She described Grandmother as overstepping boundaries such as purchasing a phone for Child without checking with Mother. Mother testified that she was comfortable with continuing the weekly hour of supervised visitation at Children's Safe Haven.
The family court ordered Grandmother to have visitation with Child one weekend per month and for a one-week vacation in the summer. The DVO was amended to a No Unlawful Contact Order. The court expressed hope that the relationship between the two women, which had deteriorated following Father's death, might be rehabilitated through a predictable visitation schedule and improved communication. Mother filed a motion to alter, amend or vacate, raising the argument that KRS 405.021(1)(b) and (c) were unconstitutional, which the family court denied. This appeal by Mother followed. The Attorney General was properly notified pursuant to KRS 418.075 that the statute was being challenged, both in the family court and this Court, but has made no response.
KRS 405.021(1)(a) provides that the "Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child . . . if it determines that it is in the best interest of the child to do so." Because of the constitutional presumption that a fit parent acts in the child's best interest, the Supreme Court has held that a grandparent must show that visitation is in the child's best interest by the heightened clear and convincing standard. "In other words, the grandparent must show that the fit parent is clearly mistaken in the belief that grandparent visitation is not in the child's best interest. If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation." Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012).
This appeal concerns the constitutionality of two recently-enacted subsections of the grandparents visitation statute, KRS 405.021(1)(b) and (c), which were intended to address the visitation status of grandparents when their child, the parent of the grandchild, is deceased. The preamble to House Bill 517, which contains the amendments, sets forth numerous reasons for the additions, focused primarily on fostering and preserving the beneficial grandparent-grandchild relationship. We have paraphrased them as follows: studies have shown that relationships between adolescents and grandparents contribute to the adolescents' wellbeing; they have also shown that grandparents are instrumental in times of family adversity and help the whole family to survive a crisis; emotionally close ties between grandparents and grandchildren provide a wide variety of benefits to both grandparent and grandchild; the opioid epidemic and rise in drug abuse has led to an increase in the number of families that are pulled apart; there are over 70,000 children in Kentucky that are no longer living with their parents, including over 8,000 children in foster care and over 30,000 homeless children; the presence of healthy, supportive grandparents has been shown to be a factor in distinguishing well-functioning children of drug abusers; and there is a rapidly increasing number of grandparents who serve as the primary caregivers for children. 2018 Kentucky Laws Ch. 197 (HB 517).
If grandparents can show they had a meaningful relationship with their grandchild prior to the parent's death, they are afforded the rebuttable presumption that visitation with them is in the best interest of the child. The amended statute provides that "[i]f the parent of the child who is the son or daughter of the grandparent is deceased, there shall be a rebuttable presumption that visitation with the grandparent is in the best interest of the child if the grandparent can prove a pre-existing significant and viable relationship with the child." KRS 405.021(1)(b). To show the existence of a such a qualifying relationship, the grandparent must prove by a preponderance of the evidence one or more of the following:
1. The child resided with the grandparent for at least six (6) consecutive months with or without the current custodian present;KRS 405.021(1)(c).
2. The grandparent was the caregiver of the child on a regular basis for at least six (6) consecutive months;
3. The grandparent had frequent or regular contact with the child for at least twelve (12) consecutive months; or
4. There exist any other facts that establish that the loss of the relationship between the grandparent and the child is likely to harm the child.
The family court in this case found that Grandmother met her burden under KRS 405.021(1)(c)3. of proving a "pre-existing significant and viable relationship with the child" because she had frequent and regular contact with Child for at least twelve consecutive months and indeed had frequent and regular contact throughout Child's entire life. The family court further concluded that Mother had not succeeded in rebutting the presumption that visitation with Grandmother is not in Child's best interest when the parent is deceased. The family court found that Child will benefit from Grandmother's continued involvement in her life.
The United States Supreme Court has made it clear that "there is a constitutional dimension to the right of parents to direct the upbringing of their children." Morton v. Tipton, 569 S.W.3d 388, 397 (Ky. 2019) (citing Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). "[U]nder the Due Process Clause of the Fourteenth Amendment, parents have a fundamental liberty interest in the care, custody, and control of their children. And . . . there is a presumption that fit parents act in the best interests of their children." Walker, 382 S.W.3d at 868 (internal citations and quotation marks omitted).
"Strict scrutiny applies . . . when a statute significantly interferes with the exercise of a fundamental right." D.F. v. Codell, 127 S.W.3d 571, 575 (Ky. 2003) (citing Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673, 681, 54 L.Ed.2d 618, 631 (1978)). "Under this highest standard of review, the challenged statute can survive only if it is suitably tailored to serve a 'compelling state interest.'" Id. (citation omitted).
Mother argues that the statutory creation of a rebuttable presumption is unconstitutional because it places the burden of proof on the surviving parent to prove grandparent visitation is not in the child's best interest, thereby burdening her fundamental right to raise her child as she sees fit. Mother further argues that the statute does not survive strict scrutiny because it is not narrowly tailored and is both under- and over-inclusive. She provides as a hypothetical example a grandparent who is responsible for a parent's death yet is able to benefit from the rebuttable presumption whereas a grandparent who successfully guides the parent through rehabilitation, thereby saving that parent's life, is not. She contends there is no evidence that the statute addresses the evils it is intended to alleviate as outlined in House Bill 517.
We decline to address the constitutionality of the statutory amendments for two reasons. The first arises from a desire to avoid conflicting holdings and judicial economy. A panel of this Court recently addressed arguments regarding the constitutionality of KRS 405.021(1)(b) and (c). See Robison v. Pinto, No. 2019-CA-000435-ME, 2019 WL 4724761 (Ky. App. Sept. 27, 2019). That panel concluded that (1)(b) and (c) are sufficiently narrowly tailored to pass constitutional muster because, unlike the grandparents under (1)(a) of the statute who must meet the clear and convincing standard in showing that visitation is in the best interest of the child, the grandparents invoking (b) and (c) have lost the parent who was their connection to the child and must also show a pre-existing relationship with the child. The appellee in Robison has filed a motion for discretionary review which is currently pending before the Kentucky Supreme Court. In our view, it would be prudent to avoid addressing the constitutionality of the statute until the Supreme Court rules (or decides not to rule) on the issue.
The second arises from "the long-standing practice of this Court . . . to refrain from reaching constitutional issues when other, non-constitutional grounds can be relied upon." Baker v. Fletcher, 204 S.W.3d 589, 597-98 (Ky. 2006) (footnote omitted). "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Louisville/Jefferson County Metro Government v. TDC Group, LLC, 283 S.W.3d 657, 660 (Ky. 2009) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944)). In this case, the matter may be resolved on narrower grounds.
We proceed on the unchallenged presumption that Mother is a fit parent who is presumed to do what is best for Child. "[T]the Due Process Clause requires that a fit parent's decision be given special weight because there is a presumption that a fit parent acts in the child's best interest." Walker, 382 S.W.3d at 870. In deciding that Mother failed to defeat the rebuttable presumption that visitation with Grandmother was in Child's best interest, the family court made few findings beyond stating there were "very few significant concerns" about Grandmother's visitation with Child at Children's Safe Haven and a general statement that Child would benefit from continued involvement in her life by Grandmother.
We fully recognize that "an appellate court is obligated to give a great deal of deference to the family court's findings and should not interfere with those findings unless the record is devoid of substantial evidence to support them." Cabinet for Health and Family Services v. K.H., 423 S.W.3d 204, 211 (Ky. 2014) (citation omitted). In this case, however, the findings are simply not adequate to inform us of the basis of the family court's decision; furthermore, the overwhelming weight of the evidence tended to show that Mother, who did not oppose supervised weekly visitation, had succeeded in rebutting the presumption that increased, unsupervised visitation would be in Child's best interest. Grandmother stalked Mother and made unsubstantiated allegations that Mother is transporting heroin from Texas to Kentucky, was involved in a federal drug investigation, and was in contact with the father's murderers. Child was sexually molested while in Grandmother's care; Grandmother allowed an individual to look after Child and drive Child without informing Mother; Grandmother violated the policies of Children's Safe Haven; Grandmother showed Child a graphic picture of her deceased father and violated the DVO on two occasions.
In light of this evidence, the case must be sent back to the Jefferson Family Court for further findings. Its order awarding increased and unsupervised visitation is reversed and the case is remanded for further proceedings in accordance with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Peter J. Jannace
Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.