Hicks v. Enlow, s. 87-SC-895-D

Decision Date19 January 1989
Docket Number88-SC-091-DG and 88-SC-0233-TG,Nos. 87-SC-895-D,s. 87-SC-895-D
Citation764 S.W.2d 68
PartiesGlenn E. HICKS and Anna Rae Hicks, Appellants, v. Edwin E. ENLOW and Nancy Enlow, Appellees. CABINET FOR HUMAN RESOURCES, COMMONWEALTH OF KENTUCKY, Appellant, v. Sandra SIEGEL, Appellee. Carla Lynn Peyton HOWTON, Appellant, v. William Glenn BRANSON and Mildred Joyce Branson, Appellees.
CourtSupreme Court of Kentucky

Dennis L. Null, Mayfield, for appellants, Hickses.

James B. Brien, Jr., Neely & Brien, Mayfield, for appellees, Enlows.

Terry L. Morrison, Frankfort, for appellant, C.H.R.

Theodore Knoebber, Newport, for appellee, Siegel.

Pam Corbin, Little & Corbin, Madisonville, for appellant, Howton.

William A. Nisbet, III, Madisonville, for appellees, Bransons.

LEIBSON, Justice.

These are three separate cases which were heard together because of a common question of law. In two of these cases the issue is whether grandparents' rights to seek reasonable visitation as provided for in KRS 405.021 have been cutoff by legal adoption, and one, C.H.R. v. Siegel, involves involuntary termination procedures.

KRS 405.021(1), as presently constituted, states:

"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."

KRS 199.470-.590 provides the statutory procedure for "Adoption." The first sentence of KRS 199.520(2) provides:

"Upon entry of the judgment of adoption, from and after the date of the filing of the petition, the child shall be deemed the child of petitioners and shall be considered for purposes of inheritance and succession and for all other legal considerations, the natural child of the parents adopting it the same as if born of their bodies."

The second sentence of KRS 199.520(2) provides an exception to this mandate applying to stepparent adoptions. The exception is key to construing the impact of the statutory mandate on the grandparents' visitation statute. We will discuss it at length in the Opinion that follows.

The subsequent effect on grandparents' rights of a judgment granting involuntary termination of parental rights is now controlled by KRS 625.100. At the time of judgment in C.H.R. v. Siegel, the controlling statute was KRS 199.613(2) then stating as follows:

"Where parental rights have been terminated pursuant to KRS 199.601 to 199.617 all legal relationships between the parents and child shall cease to exist, the same as if the relationship of parent and child had never existed, except that the child shall retain the right to inherit from its parents under the laws of descent and distribution until the child is adopted."

This statute was repealed in the process of enacting the new Kentucky Unified Juvenile Code, Kentucky Acts 1986, Chapter 423, effective July 1, 1987. Section 106 of this new 1986 Juvenile Code in subparagraph (3) adopted verbatim the language of former KRS 199.613(2), quoted supra. This section of the Juvenile Code was further amended in 1988 to eliminate subparagraph (3). Nevertheless, the substance of subparagraph (3) has been retained by incorporating the following sentence in KRS 625.100, "Termination orders," in subparagraph (1):

"The order shall terminate all parental rights and obligations of such parent and release the child from all legal obligations to such parent and vest care and custody of the child in such person, agency or cabinet as the court believes best qualified."

The sum and substance of the termination statute is to "terminate" all parental connection with no exceptions such as provided in KRS 199.520(2) for stepparent adoptions. There was good reason for making no exceptions in involuntary termination cases in that involuntary termination required a finding by a clear and convincing evidence that the child "has been abandoned" or "substantially or continuously or repeatedly neglected or abused." KRS 199.603(1)(a) and (b). 1

Before the enactment of the grandparents' visitation statute in 1976, it was a given that grandparents had no legal rights to visitation. See Jouett v. Rhorer, Ky., 339 S.W.2d 865, 868 (1960). While court decisions were in sympathy with the problems of grandparents where death or divorce had severed the tie to the custodial parent and grandparents' visitation was being denied, it was a statutory fact that grandparents could visit with their grandchildren only with parental permission. They had no standing to demand otherwise regardless of the best interest of the child.

The grandparents' visitation statute was an appropriate response to the change in the demographics of domestic relations, mirrored by the dramatic increase in the divorce rate and in the number of children born to unmarried parents, and the increasing independence and alienation within the extended family inherent in a mobile society. The United States Supreme Court recognized the shift in the domestic relations scene in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We now recognize the rights of the natural, unmarried father and require "clear and convincing proof that [the natural father] had abandoned or substantially or continuously or repeatedly neglected or abused" the child before terminating his parental rights. Wright v. Howard, Ky.App., 711 S.W.2d 492, 497 (1986).

Nevertheless, the existence and extent of grandparents' rights is exclusively the prerogative of the legislature, and we are limited to interpreting and applying the statutory mandate.

Termination of parental rights, as provided for by statute, whether voluntary or involuntary, once legally adjudicated severs all relationship of parent and child as if the same had never existed. Hill v. Garner, Ky.App., 561 S.W.2d 106 (1977). The statutory reasons underlying the termination process relate to parental abandonment, neglect and abuse so substantial that the child must be legally cutoff from the parent. They justify a legal structure that provides finality and blocks every path to further litigation to reestablish a connection to parents whose rights have been terminated. Litigation by grandparents, by the family of such parents, would frustrate and circumvent the termination decree. The statutory language of severance required in the termination decree now expresses no exception, and none may be created by implying an exception from the grandparents' visitation statute.

The same rules and the same reasoning applied to the adoption statutes as a general proposition, with one exception. The tie-in between the two, termination and adoption, is explained in Commonwealth, Dept. of Child Welfare v. Helton, Ky., 411 S.W.2d 932, 934 (1967).

In Jouett v. Rhorer, supra, wherein we interpreted parental rights vis-a-vis the effect of adoption where parental rights were terminated, we stated:

"It is our considered opinion the best interest and welfare of the child will be best served if it is permanently separated from all influence and contact with the natural father and his family." 339 S.W.2d at 868.

We explained:

"[P]ublic policy demands that an adoption shall carry with it a complete breaking off of old ties.... [T]he retention by the natural parent, by virtue of court sanction, of any semblance of parental authority over an adopted child, which is taken from such parent by judicial decree, is repugnant to the very spirit of the Adoption Act." Id.

Unlike the termination statute, the statutory mandate in the adoption statute does provide for an exception. The same sentence that mandates that "an adopted child from the time of adoption shall have no legal relationship to its birth parents," first states an exception "where a natural parent is the spouse of an adoptive parent." KRS 199.520(2), effective 1974. 2

The question before us is when does the grandparents visitation rights statute permit grandparents to seek to establish visitation rights contrary to the wishes of the custodial parents, and when is this statutory right cutoff by the termination and adoption statutes? As originally drafted in 1976, the grandparents' visitation statute was specific: it was limited to "grandparents of a child whose parent is deceased." The link to the grandchild had been cut by death but not by court decree and the statute prevented the surviving parent from denying grandparents visitation. We must assume that the 1976 grandparents' visitation rights statute was written with the language of the termination and adoption statutes in KRS Chapter 199 in mind. This includes the exception clause in KRS 199.520(2) for stepparent adoptions.

In 1984 the General Assembly expanded KRS 405.021 by deleting its limitation to the situation where the "parent is deceased," but it did not change the basic premise that it was subject to the overriding importance of the termination and adoption statutes to the welfare of children. No one in these cases has suggested that grandparents' visitation is in pari materia with termination and adoption; only that termination and adoption statutes should be construed to accommodate this new right of grandparents' visitation where the statute permits it and it is reasonable to do so.

Given the language of the exception clause in KRS 199.520(2) it is reasonable to interpret the meaning of the new statute, KRS 405.021, as extending grandparents' rights to seek court ordered visitation to cases where the surviving parent seeks to cut off the grandparents by using the device of stepparent adoption.

The exception clause in KRS 199.520(2) was structured in its present form in 1956. In Arciero v. Hager, Ky., 397 S.W.2d 50 (1965), involving a child who had been adopted by his mother's second husband, we interpreted KRS 199.520(2) to cutoff the child's right to inherit from his paternal great uncle. We stated:

"We consider it plain that the quoted statute has the effect of...

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    ...visitation statute so that biological grandparent has no standing to petition for visitation after stranger adoption); Hicks v. Enlow, 764 S.W.2d 68, 71-73 (Ky.1989) (grandparent visitation rights, by statute, do not extend to any but stepparent adoption); Preston v. Mercieri, 133 N.H. 36, ......
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