Frost v. Kan. Dep't for Children & Families
| Decision Date | 05 March 2021 |
| Docket Number | No. 122,737,122,737 |
| Citation | 483 P.3d 1058 |
| Parties | Eugene R. FROST and Victoria S. Frost, Appellants, v. KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES, Appellee. |
| Court | Kansas Court of Appeals |
Linus L. Baker, of Stilwell, for appellants.
Marc Altenbernt, Corliss Scroggins Lawson, and Rae A. Nicholson, of Kansas Department for Children and Families, for appellee.
Before Malone, P.J., Hill and Buser, JJ.
This appeal arises from a district court's dismissal of a grandparent visitation petition. When the petition was filed, the children were in State custody and the grandparents were already bound by an outstanding no-contact order issued in a child in need of care case. By law, orders in CINC cases take priority over orders from other courts. Pursuing a different option, the grandparents then sued the parents of their grandchildren and the Department for Children and Families, seeking an order granting them visitation. The court dismissed their petition for want of jurisdiction. When doing so, it followed a ruling of a prior panel of this court that held that the 2011 codification of the Family Code and 2012 amendments to that Code limited grandparent visitation only to divorce cases. We disagree with that panel's conclusion. In our view, grandparents did not gain or lose any visitation rights by the legislative action in 2011 and 2012. But after reviewing the statutes, the cases, and the record, we conclude that the court properly dismissed the grandparents' petition but not for the reason it cited. Thus, we affirm.
Three Child in Need of Care cases are ongoing.
Eugene and Vicki Frost are the maternal grandparents of four grandchildren through their daughter. In August 2019, the Department for Children and Families took custody of three of those grandchildren in three Child in Need of Care cases in Johnson County District Court. The Frosts are interested parties in the CINC cases. The fourth grandchild, born after the CINC cases began, is not a subject of this appeal.
The order prohibiting the Frosts' contact with the children arose during a review hearing after several parties questioned the Frosts' conduct. The children's guardian ad litem, the mother's attorney, the children's foster parents, and the paternal grandmother, all stated that the Frosts were hindering progress towards reintegration of the family. The guardian ad litem told the court that he and the social worker overseeing the case agreed that contact with the Frosts was not in the grandchildren's best interests. The court stopped the Frosts' visitation with the grandchildren and ordered the Frosts not to contact them. But it did not revoke the Frosts' interested person status in the cases.
The Frosts filed a separate civil action in Johnson County seeking visitation with all four children. That petition named the mother and her husband, DCF, and the paternal grandparents as respondents. The petition alleges that the Frosts had cared for the children and had a substantial relationship with them. Even though the Frosts named other parties as respondents in their petition, this dispute is between only the Frosts and DCF. The Frosts moved for default judgment against DCF, but nothing in the record shows that the mother, her husband, or the paternal grandparents were involved in the district court proceedings or in this appeal.
For authority, the Frosts relied on K.S.A. 2019 Supp. K.S.A. 23-3301(a). Under that statute, a court may grant grandparents and stepparents visitation rights "[i]n an action under article 27 of chapter 23 of the Kansas Statutes Annotated." An article 27-chapter 23 action is a divorce action. See K.S.A. 2019 Supp. 23-2701 et seq. But they argued that an opinion of this court had extended grandparent visitation to other types of cases.
They were referring to In re T.N.Y. , 51 Kan. App. 2d 956, 360 P.3d 433 (2015), where maternal grandparents moved for visitation rights in a paternity case. In that case, a panel of this court concluded that the language in the statute limited grandparent visitation only to divorce cases and this limitation violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it treated children of unmarried parents differently than children of married parents. The panel severed that language from the statute and remanded so that the district court could consider the motion on its merits. 51 Kan. App. 2d at 968-70, 360 P.3d 433.
In response to the Frosts' grandparent visitation petition, DCF moved to dismiss the petition as moot because orders in the CINC proceedings would take precedence under K.S.A. 2019 Supp. 38-2201(a) and DCF would not have custody of the grandchildren once the CINC cases ended. DCF later refined its position by arguing the controversy was not ripe. In other words, the CINC orders would preempt any district court order here. And it was unclear what the children's custodial status would be after the CINC case closed. There was no relief to be granted. DCF also argued that the Frosts were trying to circumvent the CINC court's no-contact order.
We have no transcript of the hearing when the district court announced its ruling. But in its journal entry, the court found that it lacked jurisdiction to hear the Frosts' petition under K.S.A. 2019 Supp. 23-3301, so it dismissed the case.
The district court rejected the Frosts' argument that this court's decision in T.N.Y. had extended grandparent visitation to other family law contexts or allowed for independent actions for grandparent visitation. The district court pointed out that another panel of this court had considered and rejected that same argument in Baker v. McCormick , 52 Kan. App. 2d 899, 380 P.3d 706 (2016). In that case, the panel held that T.N.Y. did not apply beyond its setting, so it extended grandparent visitation only to paternity actions. 52 Kan. App. 2d at 909-11, 380 P.3d 706. Thus, the court declined to extend the T.N.Y. holding to a protection from abuse case. Like Baker , this case is neither a divorce action (as the statute allows for), nor a paternity action as permitted in the holding in T.N.Y . The district court found that it lacked statutory authority to hear the Frosts' case. The court therefore found that all other issues in the case were moot and declined to address them.
The basic issue the Frosts raise is jurisdiction—whether K.S.A. 2019 Supp. 23-3301(a) even allows grandparents to bring a visitation action independently from a divorce or paternity case. The district court found that the statute did not allow for it, so it dismissed the action without reaching any other issues. The Frosts contend on appeal that the district court's interpretation was incorrect. This interpretation will be the focus of our examination.
Alternatively, the Frosts argue that if the statute does limit grandparent visitation actions to divorce or paternity cases, then it violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. They also mention a due process claim in passing. But they did not raise that issue in the district court and have not explained why it is properly before this court for the first time on appeal. Relying on the rule in State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018), we hold that this failure to assert an exception for raising a constitutional issue for the first time on appeal waives the issue for appellate review.
Grandparent visitation rights were created by acts of the Legislature.
To properly resolve the district court's jurisdiction here, we must begin with a review of the history of grandparent visitation in Kansas. After that, we will examine two appellate opinions that have addressed the issue of grandparent visitation in two causes of action. The first, In re T.N.Y. , is a paternity case. The second, Baker , involves a PFA filing. At that point, we explain why we disagree with the holding in T.N.Y . which held that grandparent visitation was somehow limited by some legislative enactments in 2011 and 2012. Because T.N.Y. is horizontal precedent, we are not bound by its ruling. In Baker , we agree with the panel's holding that the ruling in T.N.Y. is limited to paternity cases. But this does not mean that the Frosts prevail because the relief they seek cannot be granted by the party they sue—DCF. We will conclude with our explanation of that point.
Grandparents had no right to visitation at common law, but in 1971, the Kansas Legislature enacted its first grandparent-visitation statute— K.S.A. 38-129. That statute limited visitation to cases in which the mother or father of a minor child had died. L. 1971, ch. 149, § 1; see Browning v. Tarwater , 215 Kan. 501, 503, 524 P.2d 1135 (1974).
In 1984, the Legislature expanded the scope of grandparent visitation by amending K.S.A. 38-129 to permit grandparent visitation upon a finding that there was a substantial relationship with the child and that it was in the best interests of the child. This law also focused on visitation with adopted children or orphans.
And before 2011, a different statute— K.S.A. 60-1616(b) —gave district courts the authority to grant grandparent visitation in divorce actions. In a case involving a petition for grandparent visitation, our Supreme Court made the following observation about how these two statutes worked together:
Skov v. Wicker , 272 Kan. 240, 246, 32 P.3d 1122 (2001).
In that case, the court looked for the intent of the Legislature and construed a general statute and a specific statute in harmony. By doing so, the court ruled they were constitutional:
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