NOT DESIGNATED FOR PUBLICATION
No. 125,139
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
K.S.,
Appellant,
v.
D.C.,
Appellee.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed February 10,
2023. Reversed and remanded with directions.
John W. Fresh, of Farris, Fresh & Werring, of Atchison, for appellant.
Gary A. Nelson, of Gary A. Nelson, P.A., of Leavenworth, for appellee.
Before CLINE, P.J., ISHERWOOD, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: This case arises out of a dispute between grandmothers regarding
their granddaughter, S.W., who was born in 2009. K.S. is S.W.'s paternal grandmother,
and D.C. is S.W.'s maternal grandmother. The State initiated child in need of care
proceedings on behalf of S.W. To avoid having their parental rights terminated, S.W.'s
parents agreed to a permanent custodianship for S.W., and in 2013 the district court
appointed K.S. as permanent custodian with visitation rights for D.C.
The parties are well acquainted with the facts and the court proceedings that
followed, so we need not recount all of them here. It suffices to say that the disputes
between the grandmothers regarding visitation have been ongoing since the district court
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appointed K.S. as permanent custodian. This appeal arises out of proceedings in
Leavenworth County in which K.S. sought to reduce D.C.'s visitation time with S.W.
After hearing the matter, the district court denied K.S.'s request and ordered a visitation
schedule commensurate with past visitation schedules.
K.S. appeals, arguing the district court misinterpreted or misapplied K.S.A. 2021
Supp. 23-3301: (1) in not giving her proposed visitation plan the required deference K.S.
was entitled to as her grandchild's permanent custodian; (2) in failing to apply the
presumption that K.S. acted in S.W.'s best interests and in making no finding that K.S.
was not acting in S.W.'s best interests; (3) in presuming that grandparent visitation with
D.C. was in S.W.'s best interests; and (4) in relieving D.C. of her burden to show
grandparent visitation was in S.W.'s best interests.
K.S.'s claims present issues of law over which we have unlimited review. Nauheim
v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).
K.S.A. 2021 Supp. 23-3301(b) allows the district court to "grant the grandparents
of an unmarried minor child reasonable visitation rights to the child during the child's
minority upon a finding that the visitation rights would be in the child's best interests and
when a substantial relationship between the child and the grandparent has been
established." The district court must make findings on both these issues before granting
grandparent visitation. Moreover, the burden is on the grandparent seeking visitation to
prove these elements. In re Paternity of M.V., 56 Kan. App. 2d 28, 34, 422 P.3d 1178
(2018). Here, there is no dispute that S.W. and D.C. have a substantial relationship. The
child's best interests remain at issue.
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Constitutional Presumption
In Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000),
the United States Supreme Court recognized the fundamental liberty interest of parents in
the care, custody, and control of their minor children. Thus, courts cannot disregard
decisions made by fit parents regarding visitations based solely on a determination of a
child's best interests. 530 U.S. at 67. Rather, courts must afford special weight to a
parent's own decision when considering a fit decision regarding grandparent visitation.
530 U.S. at 70; see Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 658, 16 P.3d 962
(2001).
As stated in In re Paternity of M.V.:
"[W]hen considering a parent's constitutional due process rights, the best interest of the
child standard alone is an insufficient basis to award grandparent visitation. A court must
presume that a fit parent is acting in the child's best interests and must give special weight
to the parent's proposed visitation schedule. A court cannot reject a fit parent's visitation
plan without finding it is unreasonable. But a parent's determination is not always
absolute because otherwise the parent could arbitrarily deny grandparent
visitation without the grandparent having any recourse." 56 Kan. App. 2d at 36.
The key feature of this case is the fact that grandmother K.S. is calling the shots,
not S.W.'s parents. But as S.W.'s permanent custodian, the fundamental parental liberty
interest announced in Troxel inures to the benefit of K.S. K.S.A. 2021 Supp. 38-
2268(c)(1) provides that once a permanent custodian is appointed, "such individual shall
stand in loco parentis to the child and shall have and possess over the child all the rights
of a legal guardian." Put differently, K.S., as permanent custodian, has the same rights
regarding S.W. that a parent would have.
Here, the core findings of the district court are as follows:
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"[T]here's no doubt that grandparent parenting time is appropriate, that there's a bond
between [D.C.] and the child. That was established long ago. . . . [T]he position of the
permanent custodian here, [K.S.], is the child doesn't want as much contact as the child
had in the past and it's not in the best interests of the minor child to have that much
contact.
"The Court . . . finds that [K.S.'s] plan, as submitted today . . ., is—is not
reasonable for the reason that we have a long history of a grandparent visitation that's
much more substantial than what is being proposed. . . .
....
"I am going to return to the parenting time that existed prior to the permanent
custodian, [K.S.], moving to Colby and now has moved back because . . . that is the
recommendation from the child custody investigator. I've read that, that's part of the
evidence in the case. I think his rationale—and what he's put forth is—is pretty well
done, and so I think that, at this point in time, is in the best interests of the minor child."
K.S. is correct that the district court did not expressly find her to be a fit parent,
though the tenor of the court's comments do not suggest otherwise. Moreover, K.S.
necessarily had already been determined to be a fit parental substitute when she was
appointed permanent custodian of her grandchild.
But in considering the district court's ruling, we have no indication that the court
had in mind the special weight that courts must afford a fit permanent custodial
grandmother's decision regarding her grandchild's visitation with her other grandmother.
Thus, we cannot determine whether the district court interfered with K.S.'s due process
right (as her grandchild's permanent custodian) to parent her grandchild.
As a result, we must remand the case to the district court to make sufficient
findings and to apply the Troxel presumption in present context, i.e., that a fit
grandmother who is the permanent custodian of her grandchild acts in the best interests of
her grandchild and that her opinions on grandparent visitation are given special weight.
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See In re Creach, 37 Kan. App. 2d 613, 621, 155 P.3d 719 (2007); see also Davis v.
Heath, 35 Kan. App. 2d 86, 93, 128 P.3d 434 (2006) (affirming trial court's order of
grandparent visitation only after pointing out the trial court correctly recognized Troxel
presumption).
Best Interests of the Child
Before allowing grandparent visitation, the district court must find that a
substantial relationship (bond) has been established between grandparent and grandchild
and that visitation would be in the grandchild's best interests. See K.S.A. 2021 Supp. 23-
3301(b). In addition, the district court "may modify an order granting or denying
parenting time or visitation rights whenever modification would serve the best interests of
the child." K.S.A. 2021 Supp. 23-3302(a).
K.S. claims the district court erred by presuming that grandparent visitation with
D.C. was in S.W.'s best interests, and the district court relieved D.C. of her burden to
show grandparent visitation was in S.W.'s best interests. But that fact had already been
established when the court appointed K.S. as her grandchild's permanent custodian and
D.C. was granted grandparent visitation, and by her motion, K.S. was seeking to set aside
that earlier finding of best interests. Moreover, K.S. disregards the district court's finding,
stated earlier, regarding the report from the child custody investigator which the court
relied on. In that report, after interviewing the two grandmothers and their grandchild, the
investigator recommended D.C. have visitation with S.W. following a specifically
defined schedule and such other times as the parties could agree upon. The court stated:
"I am going to return to the parenting time that existed prior to the permanent
custodian, [K.S.], moving to Colby and now has moved back because, one, that is the
recommendation from the child custody investigator. I've read that, that's part of the
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evidence in the case. I think his rationale and—and what he's put forth is—is pretty well
done, and so I think that, at this point in time, is in the best interests of the minor child."
We are not persuaded by K.S.'s best interests argument.
Reversed and remanded with directions.
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