Blackaby v. Barnes, 012121 KYSC, 2020-SC-0004-DGE

Docket Nº:2020-SC-0004-DGE
Opinion Judge:VANMETER, JUSTICE
Party Name:SHAYNE BLACKABY APPELLANT v. NANCY BARNES APPELLEE
Attorney:COUNSEL FOR APPELLANT: Joseph Patrick Bowman JOHNSON BEARSE, LLP COUNSEL FOR APPELLEE: Patrick Francis Graney THE GRANEY LAW OFFICE, PLLC
Case Date:January 21, 2021
Court:Supreme Court of Kentucky

SHAYNE BLACKABY APPELLANT

v.

NANCY BARNES APPELLEE

No. 2020-SC-0004-DGE

Supreme Court of Kentucky

January 21, 2021

ON REVIEW FROM COURT OF APPEALS NO. 2019-CA-0292 SHELBY CIRCUIT COURT NO. 18-CI-00486

COUNSEL FOR APPELLANT: Joseph Patrick Bowman JOHNSON BEARSE, LLP

COUNSEL FOR APPELLEE: Patrick Francis Graney THE GRANEY LAW OFFICE, PLLC

OPINION

VANMETER, JUSTICE

The issue we must resolve in this case is the effect of a grandparent visitation petition filed by paternal grandfather, Appellant Shayne Blackaby, after his son's parental rights lapsed by virtue of his death, and after an adoption by the child's maternal grandmother, Appellee Nancy Barnes, had been finalized. The Shelby Circuit Court dismissed Blackaby's petition for grandparent visitation on grounds that he lost standing to seek formal visitation after the adoption of his grandchild had been finalized. The family court also found that Blackaby did not meet the stepparent exception established in Hicks v. Enlow, 764 S.W.2d 68 (Ky. 1989). The Court of Appeals affirmed. This Court then granted discretionary review.

After a thorough review of the record and applicable law, we conclude that the grandparent visitation statute, KRS[1] 405.021, does not contemplate the situation at hand and further, that the public policy considerations of the stepparent exception articulated in Hicks extend equally to an intra-family grandparent adoption such as this one. Accordingly, we reverse the Court of Appeals and remand this case to the family court with instructions to conduct an evidentiary hearing on whether Blackaby can prove, as required by KRS 405.021, that continued visitation would be in the best interests of the child.

I. Factual and Procedural Background

Blackaby is the paternal grandfather of K.N.B., who was born in 2012. K.N.B.'s father (and Blackaby's biological son), Timothy Blackaby, was incarcerated in early 2016. In February of 2016, K.N.B.'s maternal grandmother, Barnes, petitioned the family court pursuant to KRS 199.520 to adopt K.N.B., with the consent of K.N.B.'s mother, who also consented to the termination of her parental rights. Timothy, though incarcerated, contested the adoption petition through his appointed guardian ad litem.

Before the adoption was finalized, Timothy passed away on September 22, 2016. On October 23, 2017, the family court granted Barnes's adoption petition. Blackaby was never a party to the closed, confidential adoption proceeding. But prior to, during, and after the adoption Blackaby enjoyed regular visitation with K.N.B., including overnight visitation. In June of 2018, Barnes unilaterally stopped all visitation between K.N.B. and Blackaby. This prompted Blackaby in September of 2018 to petition the family court for grandparent visitation pursuant to KRS 405.021. He also requested an evidentiary hearing. The family court ordered the parties to brief the issues and, based on substance of the briefs, dismissed Blackaby's petition, finding that he lacked standing to seek visitation under KRS 405.021 because his grandparent rights terminated upon finalization of the adoption. While acknowledging that "the same rationale for a stepparent adoption not cutting off the tie to one side of the family, while preserving the other, applies here," the family court reasoned that "its hands are tied to the relevant case law, which is Hicks. The Hicks court makes it plain that '[g]randparents rights do not extend to adoptions which are not stepparent adoptions.'" 764 S.W.2d at 73.

The Court of Appeals affirmed, finding first that Blackaby never preserved the issue of visitation since he never formally objected, nor filed a motion to reconsider or a CR2 59.05 motion to alter, amend or vacate following the family court's dismissal of his visitation petition. Accordingly, the appellate court applied the palpable error standard for reviewing unpreserved claimed errors.3 The Court of Appeals held that Blackaby's statutory right to grandparent visitation under KRS 405.021 was foreclosed upon entry of the adoption decree, since Blackaby had not previously been granted visitation by the family court. The Court of Appeals further held that the facts of this case do not fall into the exception for stepparent adoption created by Hicks. Thereafter, Blackaby petitioned this Court for discretionary review, which was granted.

II. Standard of Review

Although the Court of Appeals made much of Blackaby's lack of "formal objection" or post-judgment motions, Blackaby's petition for grandparent visitation, as supported by his affidavit, clearly alerted the family court as to his desire for an extension of Hicks and the family court's order addressed the Hicks argument. Moreover, the family court order is plainly designated as a final and appealable order. Thus, from the record, the appellate court could have easily discerned that the visitation issue had been raised and addressed and that the matter was ripe for appellate review.[4]

Since we find Blackaby's visitation issue to be preserved, we will review the family court's findings of fact under a clearly erroneous standard of review, giving due regard to the opportunity of the family court to judge the credibility of the witnesses. Walker v. Blair, 382 S.W.3d 862, 867 (Ky. 2012) (citing CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986) (applying CR 52.01 to review of child custody cases)). We review the interpretation of KRS 405.021 like other issues of law - de novo. Id. at 867; Morgan v. Tipton, 569 S.W.3d 388, 396 (Ky. 2019) (issues of law are reviewed on appeal under a de novo standard).

III. Analysis

Kentucky's adoption statute, KRS 199.520, severs all legal relationships with the biological families upon adoption of a child except when that child is adopted within the same family vis-à-vis a stepparent adoption. In this way, the law recognizes that a child adopted by a stepparent does not need to terminate all existing legal ties to biological family members to encourage a "fresh start" as is desirable in a new family adoption.

While KRS 199.520 does not address the rights of biological grandparents, nor circumstances such as the present in which the biological parent dies prior to an adoption terminating parental rights, this Court has explained: The overriding considerations expressed through the termination and adoption statutes for cutting, finally and irrevocably, all connections to the biological parent and his family where there has been a final order terminating parental rights and where there has been an adoption introducing the child into a new family, simply do not apply where there has been only a stepparent adoption with no prior legal severance of the bond to the grandparents.

Hicks, 764 S.W.2d at 72.

At the time Hicks was rendered, the...

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