Smith v. Durham (In re E.R.S.)

538 P.3d 565

In the MATTER OF the Grandparental Visitation Rights to E.R.S., a Minor Child,

Matthew Smith and Vickie Smith, Petitioners/Appellants,

v.Ashley Durham and Jacob Warner, Respondents/Appellees.

Case No. 120,249

Court of Civil Appeals of Oklahoma, Division No. 2.

Filed September 21, 2023

Mandate Issued: October 19, 2023

Greg Wilson, Shawnee, Oklahoma, for Petitioners/Appellants

Mat Thomas, Shawnee, Oklahoma, for Respondents/Appellees

OPINION BY STACIE L. HIXON, JUDGE:

¶1 Matthew and Vickie Smith (Grandparents, or Grandfather and Grandmother) appeal a journal entry of judgment denying their Petition for Grandparental Visitation Rights, entered February 1, 2022, to which the custodial parent, Ashley Durham (Mother), objected.¹ Grandparents assert they met their burden under 43 O.S.2021, § 109.4, by demonstrating their own child, Charles Smith (Smith), was unfit. Alternatively, they asserted they rebutted the presumption Mother was acting in the minor child's best interests by denying visitation. On review of the record, the briefs and the applicable law, we find the trial court did not err in determining Grandparents were required to show Mother was unfit and did not abuse its discretion by determining Grandparents had failed to meet their burden by demonstrating E.R.S. would suffer harm or potential harm without grandparental visitation. We affirm the trial court's order of February 1, 2022, denying Grandparents’ Petition.

BACKGROUND

¶2 E.R.S. is the biological child of Mother and Grandparents’ son, Smith.² E.R.S. was born in 2014. Mother and Smith never married. Mother was the custodial parent of E.R.S. In April of 2020, Mother's now-husband, Jacob Warner, petitioned to adopt E.R.S. The trial court entered an order on April 5, 2021, finding E.R.S. eligible for adoption without Smith's consent.³

¶3 Thereafter, on April 13, 2021, Grandparents filed their Petition for Grandparental Visitation Rights. They alleged E.R.S.’s nuclear family had been disrupted, that there was a strong, continuous grandparental relationship between Grandparents and E.R.S., that E.R.S.’s custodian (Mother) had refused to allow any relationship with E.R.S., and that visitation was in E.R.S.’s best interests. Mother and Warner opposed the Petition.

¶4 The trial court conducted a hearing on Grandparents’ Petition on September 9, 2021, the same date on which it considered whether it was in E.R.S.’s best interests to be adopted by Warner. By the time of the hearing, E.R.S. was seven years old. Grandparents testified they had not seen E.R.S. since she was around three. They contended that, once Mother and Smith ceased their relationship, Mother had avoided allowing them visits with E.R.S. Grandparents acknowledged they gave up asking for visits for a few years, until they filed their Petition. Grandparents wanted to re-establish their relationship with E.R.S. through once-monthly visitation and holiday visits.

¶5 In support of their Petition, Grandparents acknowledged Mother is a loving and fit parent, but argued they met statutory requirements to seek visitation because they are able to show that Smith, at the time a non-custodial parent, is unfit. Alternatively, they argued they were entitled to visitation because, though Mother was fit, E.R.S. would suffer harm or potential harm without grandparental visitation.

¶6 The trial court determined Grandparents could not rely upon a showing that Smith was unfit to support their Petition for visitation. The trial court also determined that Grandparents had not presented evidence E.R.S. would suffer harm without grandparental visitation and denied Grandparents’ Petition.

¶7 Grandparents appeal.

STANDARD OF REVIEW

¶8 Grandparents’ right to court-ordered visitation is strictly statutory. Murrell v. Cox , 2009 OK 93, ¶ 25, 226 P.3d 692. Statutory interpretation involves a question of law, which this Court reviews de novo . Stump v. Cheek , 2007 OK 97, ¶ 9, 179 P.3d 606. Credibility of witnesses and the weight to be given their testimony are questions of fact resolved by the trial court, as trier of fact. Robert L. Wheeler, Inc. v. Scott , 1991 OK 95, ¶ 12, 818 P.2d 475.

¶9 When reviewing the trial court's determination of grandparental visitation pursuant to the applicable statute, we evaluate for an abuse of discretion. Murrell , 2009 OK 93, at ¶ 23, 226 P.3d 692. We will reverse "only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law." Curry v. Streater , 2009 OK 5, ¶ 8, 213 P.3d 550.

ANALYSIS

¶10 Grandparents argue they met their burden by showing Smith was an unfit parent, or that E.R.S. would suffer harm or potential harm, as required to obtain grandparental visitation pursuant to 43 O.S.2021, § 109.4(A)(1)(b). Therefore, they conclude that the trial court erred by denying them visitation. We disagree with both propositions of error.

¶11 Oklahoma law plainly recognizes a parent's natural right to custody and control of a child based on parental status. See In re Bomgardner , 1985 OK 59, ¶ 11 n.23, 711 P.2d 92. That right is constitutionally protected. Lehr v. Robertson , 463 U.S. 248, 257-263, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983) ; In re Herbst , 1998 OK 100, ¶ 12, 971 P.2d 395. In contrast with parents’ rights, grandparents’ rights are limited to those conferred by statute. Murrell , 2009 OK 93, at ¶ 25, 226 P.3d 692. Specifically, the Adoption Code provides grandparents may seek and be granted reasonable rights of visitation to the extent provided by 43 O.S.2021, § 109.4. See 10 O.S. 2021, § 7505-6.5(C).

¶12 Section 109.4 provides for grandparental visitation rights independent of either parent of the child if:

a. the district court deems it to be in the best interest of the child pursuant to subsection E of this section, and b. there is a showing of parental unfitness, or the grandparent has rebutted, by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child, and

c. the intact nuclear family has been disrupted in that one or more of the following conditions has occurred:

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(8) except as otherwise provided in subsection D of this section,⁴ the grandchild's parents have never been married, are not residing in the same household and there exists a strong, continuous grandparental relationship between the grandparent and the child ....

¶13 Thus, pursuant to the statute, Grandparents were required to show the following before the trial court could grant visitation: (1) that visitation was in the child's best interests, (2) parental unfitness or rebut the presumption that the fit parent is acting in the child's best interests by showing harm or potential harm if the relationship is not continued, and (3) disruption of the nuclear family, and existence of a strong, continuous relationship with Grandparents. Birtciel , 2016 OK 103, at ¶ 10, 382 P.3d 1041.⁵

¶14 First, Grandparents argue that they demonstrated parental unfitness by showing Smith, their own child, was not a fit parent. Mother argued that Grandparents were required to demonstrate her unfitness. We agree with Mother. By its very nature, grandparents petitioning for visitation seek to obtain it against an objecting parent. The statute plainly contemplates this scenario and "requires grandparents to prove parental unfitness" or "rebut the presumption that the fit parent is acting in the child's best interests by showing harm or potential harm if the relationship is not continued. ..." (emphasis added). While the statute does not expressly specify which parent must be demonstrated to be unfit, the Court will not read portions of the statute in isolation. See Anderson v. Eichner , 1994 OK 136, ¶ 13, 890 P.2d 1329. Subpart (b) in its entirety requires grandparents to show the objecting parent is either unfit or is fit but not acting in the child's best interests by denying visitation. Allowing the non-objecting parent's unfitness to serve as the basis to compel the objecting parent to allow visitation would render the second part of the statute superfluous. Further, under the facts of this case, to hold otherwise would allow the courts to interfere with Mother's natural right as the custodial parent to make decisions for her child without meeting the high burden necessary to justify such interference.

¶15 The Court's decision in Craig v. Craig , 2011 OK 27, 253 P.3d 57, is instructive. In that case, grandparents filed a motion in their son's divorce proceeding seeking visitation with their grandchild. Their son, the non-custodial parent, did not exercise his right of visitation with the child. Grandparents did not argue their son was the unfit parent, as in this case. Rather, they argued section 109.4 was not applicable, in that they essentially sought to exercise father's right of visitation. Id. at ¶ 22. The Court found that a natural parent's visitation right was not transferrable or alienable, such that an Oklahoma court is required to recognize and enforce it against the custodial parent.

¶16 As is relevant here, the Court explained:

A legal "right" possessed by one person does not exist "in the air," but exists only with a corresponding legal "duty" possessed and required by another. The forensic contest herein is one pitting a custodial and biological parent against paternal grandparents as non-parent third parties. Grandparents claim a judicially cognizable "right" to visitation and thereby seek to impose a "duty" upon the custodial parent in her relationship with Grandparents. A non-custodial father with visitation rights and a custodial parent may agree to grandparent visitation during the father's exercise of his visitation, and such may be judicially enforceable. Ingram v. Knippers , 2003 OK 58, ¶¶ 13--14, 72 P.3d 17, 21. An order memorializing such visitation possesses a quality of being

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