Filed: Apr. 27, 2012
Latest Update: Apr. 27, 2012
Summary: NOT TO BE PUBLISHED OPINION LAMBERT, SENIOR JUDGE. This appeal is from an order of the Rowan Circuit Court denying David and Deborah Johnson's petition for grandparent visitation. The Johnsons allege that the circuit court abused its discretion because there was no evidence in the record to support its decision. After reviewing the record, we conclude that the circuit court failed to support its decision with adequate findings of fact and, consequently, we are unable to conduct a meaningful a
Summary: NOT TO BE PUBLISHED OPINION LAMBERT, SENIOR JUDGE. This appeal is from an order of the Rowan Circuit Court denying David and Deborah Johnson's petition for grandparent visitation. The Johnsons allege that the circuit court abused its discretion because there was no evidence in the record to support its decision. After reviewing the record, we conclude that the circuit court failed to support its decision with adequate findings of fact and, consequently, we are unable to conduct a meaningful ap..
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NOT TO BE PUBLISHED
OPINION
LAMBERT, SENIOR JUDGE.
This appeal is from an order of the Rowan Circuit Court denying David and Deborah Johnson's petition for grandparent visitation. The Johnsons allege that the circuit court abused its discretion because there was no evidence in the record to support its decision. After reviewing the record, we conclude that the circuit court failed to support its decision with adequate findings of fact and, consequently, we are unable to conduct a meaningful appellate review. Therefore, we vacate the circuit court's decision and remand this matter for further proceedings consistent with this opinion.
David and Deborah are the parents of Dorothy Johnson, who has two children. The father of the oldest child is Jason Jones and the father of the youngest child, born May 16, 2008, is Scott Manier. On March 16, 2009, the Johnsons filed a petition seeking grandparent visitation with the youngest child.2 Dorothy entered her appearance in the visitation matter but did not attend the hearing on the Johnsons' motion. Manier was served with summons but neither filed an answer nor attended the hearing. Thus, neither parent expressed any objection to grandparent visitation.3
At the time the petition for grandparent visitation was filed, the Cabinet was involved in a related matter involving the children and their parents in the Rowan District Court. At that time, the youngest child had been in the custody of the Cabinet since May 19, 2008. Although the circuit court considered the district court record, that record has not been included in the record on appeal. During the hearing on the Johnsons' motion, it was revealed that Deborah Johnson was initially granted custody of the oldest child and had timesharing with the youngest child following her birth, but that the district court later precluded her (and David) from visitation with either child. The specific basis for the district court's order is not revealed in the record and the circuit court made no findings concerning the district court proceedings.
In support of their petition, the Johnsons introduced evidence at the hearing concerning their medical history and, at the request of the court, submitted to drug testing, which returned negative. Although Deborah had a history of depression, her treating psychiatrist submitted a letter stating that Deborah had complied with her treatment program and that her signs and symptoms of depression have been stable. The psychiatrist further stated:
To my knowledge, Mrs. Johnson has never made a suicide attempt, and has perpetrated no acts of violence directed toward others. She appears to have a supportive husband and stable marriage. At this time, I would have no reservation with a child being in the Johnson home.
Moreover, a Cabinet worker testified that she performed a home evaluation and found nothing in the home that would preclude visitation.
On January 5, 2010, the circuit court entered an order denying the Johnsons' petition for grandparent visitation as to the youngest child. In doing so, the court did not make any findings regarding the evidence presented and offered no guidance as to the facts supporting the denial of grandparent visitation. Its judgment merely recited the ultimate conclusion that it was not in the child's best interest to grant reasonable visitation. This appeal followed.
A grandparent's right to seek reasonable visitation derives from KRS 405.021(1), which 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. 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.
In determining whether visitation with grandparents is in the child's best interest, a broad array of factors must be considered. These factors include, but are not limited to, the following:
(1) the nature and stability of the relationship between the child and the grandparent seeking visitation, (2) the amount of time the child and grandparent spent together, (3) the potential detriments and benefits to the child from granting visitation, (4) the effect granting visitation would have on the child's relationship with the parents, (5) the physical and emotional health of all the adults involved, grandparents and parents alike, (6) the stability of the child's living and school arrangements, and (7) the wishes and preferences of the child.
Grant v. Lynn, 268 S.W.3d 382, 384 (Ky. App. 2008); see also Vibbert v. Vibbert, 144 S.W.3d 292, 295 (Ky. App. 2004). Fundamentally "[t]he grandparent seeking visitation must prove, by clear and convincing evidence, that the requested visitation is in the best interest of the child." Vibbert, 144 S.W.3d at 295.
In this case, there is nothing to show that the circuit court considered the mandatory factors listed in Vibbert when it denied grandparent visitation, and there is no indication of the factual basis for the court's decision. As noted, the Johnsons had the burden of showing, by clear and convincing evidence, that visitation was in the best interest of the child. Id. For whatever reason, the circuit court was unpersuaded, but its findings of fact reveal no basis for denial of visitation or, for that matter, granting visitation. We trust that the circuit court was not without reasons for its decision and that it did not decide in an arbitrary manner. However, without any clear showing that it considered the mandatory factors set forth above and without providing any findings of fact supporting its determination that visitation would not be in the child's best interest, we are unable to engage in meaningful appellate review.4
Consequently, the circuit court's order must be vacated and this matter remanded for additional findings of fact. On remand, the circuit court has the authority to hear additional evidence, if needed, before making its findings. We reiterate that the Johnsons bear the ultimate burden of proof and that the court's findings should reflect why this burden has or has not been met. Our remand of this case should not be viewed as an indication that we believe the Johnsons have or have not met their burden.
For the foregoing reasons, the judgment of the Rowan Circuit Court is vacated and this matter remanded for specific findings of fact and separate conclusions of law consistent with this opinion, followed by the appropriate judgment.
ALL CONCUR.
