Barger ex rel. E.B. v. Brown

134 P.3d 905

2006 OK CIV APP 47

Jaime Lyn BARGER, on behalf of minor child, E.B., Petitioner/Appellant, v. Danielle Ann Walker BROWN, Respondent/Appellee.

No. 102,814. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

February 14, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Donald L. Deason, Trial Judge.

AFFIRMED IN PART AND REVERSED IN PART.

Jennifer Chapel Richard, The Law Offices of Jennifer Chapel Richard, P.C., Oklahoma City, OK, for Petitioner/Appellant.

R. Kevin Butler, Rick L. Denker, Anthony W. Sykes, Denker & Butler, P.L.L.C., Oklahoma City, OK, for Respondent/Appellee.

Opinion by KEITH RAPP, Vice Chief Judge.

¶ 1 Jaime Lyn Barger (Barger), on behalf of EJB, a minor child, petitioner in the trial court, appeals an order dismissing this action against Danielle Ann Walker Brown (Brown), respondent in the trial court. Barger also appeals the post-judgment award of attorney fees to Brown. This appeal proceeds under the accelerated appeal provisions of Okla. Sup.Ct. R. 1.36.

BACKGROUND

¶ 2 Stephen Barger is the father of four children, all minors. The children are all under the age of ten. Barger is the mother of EJB and was married to Stephen Barger. Brown is the mother of KW, and twins, DB and BB. Each mother has legal custody of their respective children. Stephen Barger was convicted of a criminal offense and is incarcerated.

¶ 3 Barger filed this action on behalf of EJB seeking to compel visitation between EJB with the other children. The petition contained allegations that, prior to Stephen Barger's conviction, all the children visited regularly and had a bonded relationship. Brown denies the allegations and resists visitation.

¶ 4 Brown moved to dismiss the action on the ground that Barger on behalf of EJB has no claim. She cited 10 O.S.2001, § 5A in support of her motion.¹ Barger argued that EJB had a common-law or constitutional right of visitation regardless of the statute and that the statute does not preclude visitation when both parents are alive.

¶ 5 The trial court agreed with Brown, finding that a parent had to be deceased prior to granting sibling visitation. Subsequently, the trial court awarded Brown an attorney fee. Barger appeals both decisions.

STANDARD OF REVIEW

¶ 6 The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n. 1. If an appeal asserts a violation of constitutional rights, the appellate court will exercise its own independent judgment, if it becomes necessary to determine the constitutional question. Ranola Oil Co. v. Corporation Commission of Oklahoma, 1988 OK 28, ¶ 7, 752 P.2d 1116, 1118. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

¶ 7 A trial court's dismissal for failure to state a claim upon which relief can be granted involves a de novo review to ascertain whether the petition, including its exhibits is legally sufficient. Indiana Nat'l Bank v. State Dep't of Human Services, 1994 OK 98, ¶ 2, 880 P.2d 371, 375. The petition is a short and plain statement of the claim and a demand for judgment. 12 O.S.2001, § 2008. The Court must take as true all of the challenged pleading's allegations, together with all reasonable inferences which may be drawn from them. Indiana Nat'l Bank, 1994 OK 98 at ¶ 3, 880 P.2d at 375. Moreover, such motions to dismiss are not favored. Id., at ¶ 4, 880 P.2d at 375. Therefore, a pleading must not be dismissed for failure to state a claim unless the allegations show beyond any doubt that the litigant can prove no set of facts which would entitle him to relief. Id., at ¶ 3, 880 P.2d at 375.

¶ 8 Whether a party has a right to recover attorney fee presents a question of law. Hawzipta v. Ind. School Dist. No. I-004 of Noble Co., 2000 OK CIV APP 113, ¶ 26, 13 P.3d 98, 103. When the appeal raises an issue of the reasonableness of any attorney fees awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, ¶ 32, 932 P.2d 1091, 1097; State ex rel. Burk v. Oklahoma City, 1979 OK 115, ¶ 22, 598 P.2d 659, 663.

ANALYSIS AND REVIEW

A. Sibling Visitation

¶ 9 The issue here is whether a minor child (EJB) with siblings in the custody of another parent (Brown) may compel that parent to allow visitation with the siblings. The plain language of 10 O.S.2001, § 5A shows that it is a statute which does not answer the issue because nothing in the statute relates to the case where the petitioner is the minor seeking visitation with siblings. Therefore, this case presents a situation where the rights of a parent must be examined against the rights of the minor.

¶ 10 The initial step is to define the respective rights so to ascertain whether such rights are truly in conflict. The United States Supreme Court addressed the issue of parental rights in determining grandparental visitation in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). That decision instructs that the Fourteenth Amendment protects a parent's right to raise his or her child without undue interference from government. Moreover, a fit parent is accorded a presumption that the parent acts in the child's best interests. Last, some special reason or factor must be present to justify the state's intrusion, and one of those factors is a finding of parental unfitness. In re Herbst, 1998 OK 100, ¶¶ 10, 16, 18, 971 P.2d 395, 397-99.

¶ 11 In Herbst, the Court spoke at length about the exclusive right of the parents to care, custody, and control of their minor children, even to the extent of forbidding grandparental visitation. The Court instructed that the interests of the State are limited.

The state's interest in a child is "implicated upon a finding of harm to the child . . . or of the custodial parent's unfitness." It is the state's responsibility to exercise its police power to protect a child's welfare when the decisions of parents would result in harm. Without the requisite harm or unfitness, the state's interest does not rise to a level so compelling as to warrant intrusion upon the fundamental rights of parents.

Herbst, 1998 OK 100 at ¶ 13, 971 P.2d at 398 (citations omitted).

¶ 12 In summary, when a parent adequately cares for his or her children, "there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Neal v. Lee, 2000 OK 90, ¶ 7, 14 P.3d 547, 549. Thus, under the reasoning of Herbst and subsequent cases, Brown has the right to determine such matters as visitation.²

¶ 13 Next, the inquiry turns to whether EJB has a right to sibling visitation. Barger's Amended Petition and Motion for Sibling Visitation argued that EJB has both a common law and a constitutional right of visitation with his siblings.³

¶ 14 Barger cited statutes from Arkansas and Rhode Island authorizing siblings to petition for visitation with other siblings. No similar statute exists in Oklahoma. The fact that the Legislature has provided visitation privileges in certain limited circumstances evidences its recognition that visitation privileges of third parties, i.e., parties other than the parents, do not exist without statutory authorization.

¶ 15 In Lihs v. Lihs, 504 N.W.2d 890 (Iowa 1993), a case with factual similarities to the one before this Court, the Iowa Supreme Court ruled that the minor children of deceased husband's second marriage had no common-law or statutory right to visitation with the minor child of husband's first marriage. The ex-wife, as custodial parent, had common-law veto power over visitation between the child and third parties with certain exceptions provided by statute.⁴ The basis for this decision is that the custodial parent has common-law veto power over visitation between the child and all other third parties, except a noncustodial parent.⁵

¶ 16 The Supreme Court of Wyoming in the case of MBB and JPB v. ERW and MIS, 2004 WY 134, 100 P.3d 415, held that a sibling had no standing to seek visitation in the absence of a statute authorizing the action. The Court premised its holding on the principle that under the common law, courts "deferred to the right of the parents to make decisions regarding their children's associations." Id. at ¶ 13, 100 P.3d at 419.

¶ 17 A number of articles have been written which discuss the issue of sibling visitation. Joel V. Williams, Comment, Sibling Rights to Visitation: A Relationship Too Valuable to Be Denied, 27 U. Tol. L.Rev. 259, 286-87 (1995), "Case law specifically addressing siblings' rights to visitation is sparse. However, courts which have heard such cases have generally abided by a `no statute — no standing — no right to visitation' rule." In a separate article, another author reviewed cases denying either a common law or a constitutional right of sibling visitation. William Wesley Patton, The Status of Siblings' Rights: A View Into the New Millennium, 51 DePaul L.Rev. 1, 4 (2001) (quoting Ellen Marrus, "Where Have You Been, Fran?" The Right of Siblings to Seek Court Access to Override Parental Denial of Visitation, 66 Tenn. L.Rev. 977, 1013 (1999)). In yet another article, the author presents an argument for a possible constitutional underpinning to support a minor's right to claim visitation with siblings, but acknowledges that, in the jurisdiction reviewed, the constitutional issue had not been determined. Seth A. Grob, Sibling...