Shayne Blackaby v. Nancy Barnes ( 2021 )

RENDERED: JANUARY 21, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0004-DGE
SHAYNE BLACKABY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-0292
SHELBY CIRCUIT COURT NO. 18-CI-00486
NANCY BARNES APPELLEE
OPINION OF THE COURT BY JUSTICE VANMETER
REVERSING AND REMANDING
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, KRS1 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,
1 Kentucky Revised Statutes.
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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
2 Kentucky Rules of Civil Procedure.
3 The Court of Appeals cited Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006),
a criminal case, to support this statement. CR 61.02 is the palpable error rule for civil
cases and is identical to the criminal rule. Kentucky Rules of Criminal Procedure
(RCr) 10.26.
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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
4 Additionally, we note that while the Court of Appeals was within bounds when
it chastised Blackaby’s counsel for noncompliance with CR 76.12(4)(c)(v), requiring
stating the manner of issue preservation in an appellate brief, we find its application of
the palpable error review standard to be misplaced, particularly since Barnes failed to
submit a brief to the Court of Appeals. The penalties for failure to file a responsive
brief are contained in CR 76.12(8)(c) and provide the following available remedies:
“[T]he court may: (i) accept the appellant’s statement of the facts and issues as correct;
(ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action;
or (iii) regard the appellee’s failure as a confession of error and reverse the judgment
without considering the merits of the case.” Instead, the Court of Appeals fashioned
its own remedy of applying palpable error review, which unfortunately guided the
Court of Appeals’ analysis.
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
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no prior legal severance of the bond to the grandparents.
Hicks, 764 S.W.2d at 72.
At the time Hicks was rendered, the grandparent visitation statute, KRS
405.021 read:
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.
In Hicks, this Court held that the termination of parental rights also
terminates any grandparents’ visitation rights, while carving out an exception
for stepparent adoptions. 764 S.W.2d at 72. The grandparent visitation
statute was amended in 1996,5 partially to abrogate the harsh rule established
in Hicks, and now includes language preserving grandparent visitation with a
grandchild even after parental rights have been legally terminated, upon a
showing that the grandparent had previously been granted visitation. KRS
405.021 was amended to include the additional protections:
(1) (a) 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.
5 Act of April 9, 1996, ch. 302, § 1; ch. 314, § 2, 1996 Ky. Acts.
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(emphasis added).6 This statutory amendment “demonstrates an attempt on
the part of the legislature to balance the interest in finality of termination of
parental rights with public policy reasons in favor of continued grandparent
visitation.” E.D. v. Commonwealth, Cabinet for Health & Family Servs., 152
S.W.3d 261, 264 (Ky. App. 2004) (citing Dotson v. Rowe, 957 S.W.2d 269, 271
(Ky. App. 1997)). Indeed, it is “neither logical nor consistent with public policy
to sever the child from an established grandparent relationship without first
determining if such action was in the child’s best interest.” Dotson, 957
S.W.2d at 271. The paramount consideration in any matter involving a child is
the child’s best interest.
Because both adoption and grandparent visitation are purely statutory,
our task is one of statutory construction. “The interpretation of statutes is a
matter of law which we review de novo.” Commonwealth v. Moore, 545 S.W.3d
848, 850 (Ky. 2018) (citation omitted). Thus, “[w]e afford no deference to the
statutory interpretations of the lower courts.” Id. (citation omitted).
In interpreting a statute, we have a duty to accord to words of a
statute their literal meaning unless to do so would lead to an
absurd or wholly unreasonable conclusion. As such, we must look
first to the plain language of a statute and, if the language is clear,
our inquiry ends. We hold fast to the rule of construction that the
plain meaning of the statutory language is presumed to be what
6 In 2018, the General Assembly amended KRS 405.021 to expand protections
for the grandparent-grandchild relationship. The 2018 amendment added subsection
(b) to KRS 405.021(1) to provide: “If 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.” However, while both
Blackaby and the Court of Appeals discuss this rebuttable presumption, this Court
has since held subsection (b) (as well as subsection (c) of KRS 405.021) to be
unconstitutional. Pinto v. Robison, 607 S.W.3d 669 (Ky. 2020).
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the legislature intended, and if the meaning is plain, then the court
cannot base its interpretation on any other method or source. In
other words, we assume that the Legislature meant exactly what it
said, and said exactly what it meant.
Id. at 851 (citation omitted).
“Our rules of statutory construction, however, do not constrain us from
commenting upon plainly-written statutes when oddities within them are
exposed by the litigation before us.” Id. The facts of the case before us expose
the gaps in the adoption statute, the grandparent visitation statute, and our
precedent in Hicks – gaps which here have resulted in an absurd and wholly
unreasonable result that is contrary to the spirit and purpose of KRS 405.021.
Neither the adoption nor the grandparent visitation statutes contemplated the
present scenario in which one grandparent’s adoption of a grandchild operated
to divest another grandparent’s existing relationship with that same
grandchild, without consideration of the child’s best interests. And neither
statute requires notice to grandparents of a pending adoption petition initiated
by another grandparent. Considering these statutory deficiencies, we believe
extending the stepparent adoption exception in Hicks to grandparent adoptions
is necessary.
Furthermore, the lower courts’ emphasis on Blackaby’s “delay” in waiting
to seek formal visitation until after his son’s death and after the adoption of his
grandchild had been finalized begs the unresolved question of notice. Since
Blackaby was not a named party to the adoption case, and had no legal right to
be, expecting him to seek legal redress for a right he did not know was at risk
is unreasonable. This conclusion is especially unreasonable given that his
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visitation with the grandchild went uninterrupted during the pendency of the
adoption proceeding, and even after the adoption had been finalized. This
situation is further complicated by the fact that adoption proceedings are
strictly confidential, KRS 199.570(1), so even if Blackaby had preemptively
attempted to establish his formal visitation rights, he would have been unable
to join that case or access any legal documents relevant thereto.
The current law does not oblige the family court or petitioning party to
notify Blackaby of his grandchild’s pending adoption, a proceeding which
would adversely impact his statutory grandparent visitation rights per KRS
405.021 and deprive him of his continued visitation with his granddaughter.
See E.D., 152 S.W.3d 264–65 (holding that “KRS 405.021 requires a visitation
order issued by the circuit court prior to the termination of parental rights of a
grandparent’s son or daughter to protect grandparent visitation rights with the
children of that son or daughter[]”). Relying on Hicks, the family court
understandably denied Blackaby standing to pursue visitation. The result in
this case, however, is the unrealistic requirement that a nonadopting
grandparent somehow discover the status of a confidential adoption
proceeding, without receiving formal notice of it and without the ability to
access the court adoption case file. Then, that grandparent must preemptively
file a lawsuit to preserve visitation rights, even when visitation with the
grandchild has remained uninterrupted. Here, Blackaby’s filing of his petition
for grandparent visitation was only triggered because Barnes suddenly halted
the regular visits he was enjoying with his grandchild. Only at that point can
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Blackaby reasonably be imputed with having knowledge that his ability and
right to visit with his granddaughter might be at issue. Indeed, the record is
void of any evidence that Blackaby sat on his rights or acted in a dilatory
fashion in exercising his statutory right to grandparent visitation.
Society has long valued the unique and special relationship that exists
between a grandparent and a grandchild. In this case we are not confronted
with the situation of a child being adopted by non-biological parents, who were
unaware of that child’s prior visitation with a grandparent, who is now seeking
visitation rights post-adoption. Thus, the oft-cited concern of a grandparent
interfering with the fundamental right of parents, let alone adoptive parents, to
rear their children is not present. Nor do we have a case of non-biological
parents adopting a child and wishing to sever all ties with the child’s biological
family to further the stability of the adoptive family unit. Rather, here we have
two biological grandparents who both enjoyed spending time with their
grandchild, a child whose mother consented to her parental rights being
terminated and whose father’s parental rights were never formally terminated
before his death.
To dismiss Blackaby’s right to spend time with his grandchild, solely
because he failed to secure a visitation order before Barnes formally adopted
the child, is contrary to public policy as well as the spirit and intent of KRS
405.021. Blackaby appears to be K.N.B.’s only remaining tie to the paternal
side of her family; to sever that tie without determining whether such
severance would be in K.N.B.’s best interests is illogical and unjust.
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In the absence of a comprehensive legislative fix addressing the ever-
growing complexity of family units in the Commonwealth, and their competing
social implications, we must read KRS 405.021 plainly and literally. As the
judicial branch, we are not at liberty to write into a statute that which does not
exist. That said, we do have the authority to extend the stepparent exception
we recognized in Hicks, and we find it appropriate to do so.
We acknowledge, however, the limited record before us. We, thus, are
unable to determine whether visitation between Blackaby and K.N.B. would be
in the child’s best interests. Given our determination that Hicks’ stepparent
exception should be applied to grandparents under the facts appearing in this
matter, we remand this case to the family court with instructions to conduct an
evidentiary hearing on the extent of Blackaby’s relationship with the child and
whether continuing that relationship would be in the child’s best interests.
IV. Conclusion
The Court of Appeals’ decision is reversed, and this case is remanded to
the Shelby Circuit Court.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Joseph Patrick Bowman
JOHNSON BEARSE, LLP
COUNSEL FOR APPELLEE:
Patrick Francis Graney
THE GRANEY LAW OFFICE, PLLC
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