No. 8 8 - 1 0 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE VISITATION OF
NEOLA B. KANVICK AND JOHN R. KANVICK,
Petitioners and Appellants,
-vs-
DEBRA H. REILLY,
Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Peter 1 Rapkoch, Judge presiding.
,
.
COUNSEL OF RECORD:
For Appellant:
Harris & Seidler; Nancy C. Seidler, Billings, Montana
For Respondent :
Dunaway, O'Connor & Moe; William J. O'Connor, 11,
Billings, Montana
Submitted on Briefs: June 30, 1 9 8 8
Decided: August 2 2 , 1988
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Neola B. and John R. Kanvick appeal an order of the
District Court, Thirteenth Judicial District, Yellowstone
County, denying their petition for a right to visit their
granddaughter.
We affirm.
The issues on appeal can be framed as follows:
1. Did the District Court have the authority to
entertain a petition in a custody action for visitation of a
grandchild by the natural paternal grandparents?
2. Did the District Court err when it considered
evidence of sexual abuse by the natural father?
3. Did the District Court abuse its discretion in
concluding that unsupervised visitation by the natural
paternal grandparents was not in the best interest of the
grandchild?
Debra H. Reilly, respondent, and Glenn R. Kanvick,
appellants1 son, were granted a decree dated March 4, 1983
dissolving their marriage. During the marriage, they had one
minor child, K.R., whom the court placed in the mother's
custody. The mother later remarried. The appellants
(Kanvicks) enjoyed regular and unsupervised visits with K.R.
until approximately July, 1985. At that time, the mother
would only allow visits in her home.
On January 2 4 , 1986, the Kanvicks filed a petition for
visitation requesting the court to order that K.R. be allowed
overnight stays each month and day visits each month and
holidays. In a separate adoption proceeding brought by
K.R. ' s new stepfather, Glenn Kanvickls parental rights were
terminated and the stepfather was allowed to proceed with his
adoption of K.R. without the father's consent. The adoption
was granted May 2, 1986. On February 11, 1987, a hearing was
held on the Kanvicks' petition. The court denied the
petition by order dated November 17, 1987.
The respondent mother has raised the issue of whether
the District Court had the jurisdiction to adjudicate the
question of grandparents' visitation rights after K.R. had
been adopted by her stepfather. This is a question of first
impression in Montana that must be treated with the utmost
care and consideration as it involves relationships between
and the rights of the natural and adopting parents of a
child.
The focus here is on the interplay between two statutes.
The first is 5 40-9-102, MCA, which allows the District Court
to grant grandparents reasonable visitation. It reads in
pertinent part:
(1) Except as provided in subsection (51, the
district court may grant to a grandparent of a
child reasonable visitation rights.
(2) Visitation rights granted under this section
may be granted only upon a finding by the court,
after a hearing, that the visitation would be in
the best interest of the child.
(5) This section does not apply if the child has
been adopted by a person other than a stepparent or
a grandparent. Visitation rights granted under
this section terminate upon the adoption of the
child by a person other than a stepparent or a
grandparent.
In apparent conflict with the above statute is the
statute concerning the final effect of an adoption decree, S
40-8-125, MCA. The relevant section of this statute reads:
(2) After a final decree of adoption is entered,
the natural parents and the kindred - the natural
of
parents of the adopted child, unless they are the
adoptive parents or the spouse of an adoptive
parent, shall be relieved of all parental
responsibilities for said child and have no rights
over such adopted child or to his property by
descent and distribution. (Emphasis added.)
We must resolve the apparent conflict between S 40-9-102(2),
which gives grandparents visitation rights if it is in the
best interest of the child, and 5 40-8-125(2), which appears
to abrogate those rights upon adoption. Because this Court
has not decided this narrow issue we seek guidance from other
jurisdictions.
Under the common law, grandparents had no right to visit
their grandchildren without parental consent. Ex parte
Bronstein (Ala. 1983), 434 So.2d 780, 782. The majority of
courts have generally adhered to this rule especially when
faced with a situation where the child has been adopted. See
Matter of W.E.G. (Alaska 1985), 710 P.2d 410; In re Adoption of
Schumacher (111.App. 1983), 458 N.E.2d 94; Bronstein; Mead v.
Owens (Ga.App. 1979), 254 S.E.2d 431.
The rationale behind this position is best summed up in
Schumacher:
The majority view is persuasive, as there is no
indication that the Illinois statutory provisions
for grandparent visitation were intended to
override the adoption laws.. .. However, as a
grandparent's status as such is derived from the
relationship between the child and the natural
parent (In - Adoption of Gardiner (Iowa 1980) , 287
-; e
N.W.2d 555; see people-ex rel. Bachleda v. Dean
(1971), 481 I11.2d 16, 2 6 8 ~ . X 2 d11) , an adTpt=
which terminates the rights of the natural parent,
also removes the basis for the relationship of the
grandparent and thereby ends the status on which
the statutory right to visitation rests. (In re
Adoption of Gardiner (Iowa 1980), 287 N.W.2d555.)
Further, the mere existence of a statute permitting
court-ordered grandparent visitation under certain
circumstances should not be allowed to defeat the
adoption statute's basic premise of the complete
severance of ties between the child and the natural
family. (See 287 N.W.2d 555; Browning - Tarwater
v.
(1974), 215 Kan. 501, 524 P.2d 1135.) Therefore,
the grandparent visitation provision should be
construed as subject to the adoption laws, such
that a completed adoption proceeding supercedes any
rights which could have been obtained pursuant to
section 607 (b) of the Illinois Marriage and
Dissolution of Marriage Act (111.Rev.Stat. 1981,
ch. 40, par. 607 (b)1,
- See In re Adoption - of
Gardiner (Iowa 1980), 287 N.W., 2 d 555; Browninq -
v.
Tarwater (1974), 215 Kan. 501, 524 P.2d 1135: see
also Bikos v. Nobliski (1 ,979)
276 N.W.2d 541.
While this is the majority view, there are indications
that even the majority recognizes the harshness that may
result. Judge Shulman of the Georgia Court of Appeals,
concurring specially in Mead, stated:
I must agree with the legal premise set forth in
the opinion in this case. However, I feel
compelled to raise a voice in the hope that in a
more enlightened time, the strong and natural love
that grandparents have for their grandchildren will
be recognized to a greater extent and that their
rights to implement that affection will be legally
enlarged.
Similarly, Alabama Supreme Court Justice Shores stated,
specially concurring in Bronstein:
I agree that the common law does not recognize, and
never has, any right of visitation by grandparents.
I hope, however, that the Legislature will address
this issue and pass legislation extending to
grantparents a right to retain and maintain a
relationship with the children of their children.
Precious little remains of the family structure,
which played such a vital part in the development
of this nation. It seems unconscionable to allow
its further fragmentation.
Accordingly, many states are taking a less stringent
approach in harmonizing their adoption and grandparent
visitation schemes.
One of the earliest cases which does this is Mimkon v.
Ford (N.J. 1975) , 332 A. 2d 199, in which the New Jersey
Supreme Court held that the grandparent visitation statute
created an independent action in the grandparents and
therefore their rights were in no way dependent upon nor
derived from the natural parent's relationship with the
child. 332 A.2d at 201-02. By reading the adoption statute
and visitation statutes in pari materia, the court
distinguished between situations where the adoptive parents
were non-relatives or strangers to the child and where the
adoption was done by a natural parent and step parent couple.
In the adopting step parent scenario, reasoned the court,
"the policy of insulating the adoptive child from his natural
parents is not so clearly compelling as it would be in other
situations." Mimkon, 332 A.2d at 203.
Illinois takes a concomitant view:
In adoptions by a natural parent and that parent's
new spouse, the policy concern with maximizing the
pool of adoptive parents is greatly diminished,
since the act of becoming a stepparent most often
occurs without regard to adoption and in spite of
regular visitations between the child and the
noncustodial natural parent. If an adoption then
ensues, the rights and obligations of the natural
parent are terminated to the same degree as in an
adoption by strangers. Termination of the parental
relationship is, however, a legal fiction, since no
act of law can nullify a biological relationship.
There is no reason to extend that legal fiction to
include a termination of a grandparental
relationship unless it is in the child's best
interest to do so.. .. Absent an adoption of an
infant by strangers, there is no reason to assume
from the outset that termination of a grandparental
relationship is in an adopted child's best
interest; nor is there any reason to view
grandparental visitation as an "unnecessary
intrusion" in the lives of a reconstituted family.
Lingwall v. Hoener (Ill. 1985), 483 N.E.2d 512, 516.
This Court finds the reasoning of the Lingwall case
persuasive and adopts that view. Section 40-9-102, MCA,
gives a clear indication of intending to differentiate
between situations where adoption is done by strangers and
where it is not. Subsection (5) states succinctly that any
rights obtained under subsection (1) are terminated upon
adoption of the child by anyone other - - a stepparent -
than or
grandparent, i.e., a stranger or relative further removed
from the immediate family unit. While Montana law does not
permit visitation by a natural parent whose child has been
adopted, Matter of C. P. (Mont. 1986), 717 P.2d 1093, 1095,
43 St.Rep. 728, 731, we see no clear intent of the
legislature nor a public policy which mandates a similar
result for the natural grandparents of that child where the
adoption is done by a stepparent. Therefore, we hold that
the District Court had the jurisdiction to adjudicate the
merits of this matter. Respondents further argument that the
Kanvicks should have brought their petition in the adoption
proceeding is without merit as the court in a dissolution has
broad powers to determine all the problems of dissolution
including division of property, support, - custody in which
and
the matter of visitation is inherent. See In re Marriage of
Wilson (1980), 186 Mont. 290, 296, 607 P.2d 539, 542; S
40-4-208, MCA; 5 40-4-211, MCA; 5 40-4-217, MCA. Having thus
disposed of the jurisdictional issue, we move on to the
merits of the Kanvicks' appeal.
The Kanvicks complain that in its decision the District
Court relied upon certain intimations that K.R.'s natural
father had sexually abused her and that these intimations
were neither proven nor testified to as being accurate.
Because the father often lived in the grandparents' home, the
court concluded that the Kanvicks would be unable to protect
K.R. from her father.
Evidence of sexual abuse was testified to by a clinical
psychologist, Dr. Veraldi, who had been treating K.R. The
psychologist testified to the psychological effects of such
abuse on a child's sense of security and trust in her current
custodian. Specifically, the doctor testified as follows:
Q. What was the purpose of [K.R.] coming to see
her? A. Her mother brought her in because she
believed that [K.R. 's] behavior and some of her
statements indicated that she may have been
sexually abused.
Q. Did you talk to [K.R. I about that? A. Yes, I
did.
Q. Did you reach an opinion as a result of your
work with the child? A. During the course of my
sessions--not immediately, but during the course of
my sessions, yes, [K.R. 's] behavior indicated some
concerns about sexual problems, and [K.R. 1
made--later made statements to me that she had been
touched in a sexual manner, a manner that made her
feel uncomfortable by her father.
No objection was made to these statements.
Dr. Veraldi was careful to thoroughly discuss the
psychological harm done to and the resulting needs of a
sexually abused child.
THE WITNESS: There are a number of short and
long-term consequences on the child, but one of the
most significant is a loss of a sense of security
and a real fear that something has happened to the
child and is very upsetting to them, but they can't
control it. The adults that should be protecting
them are not protecting them so you have what's
called a betrayal of trust. This interferes
gradually on a long-term basis with all
relationships, because the trust is lost.
A: One of the most important things that should
happen when a child discloses abuse is adults who
have care of that child need to believe that child,
otherwise the betrayal of trust becomes even more
serious. It doesn't just pertain, then, to the
offender, it pertains to all other adults that the
child should be able to rely on so that to regain
the trust of a child that says "So and so touched
me in a way that made me feel uncomfortable," it is
important that you believe that child.
Dr. Veraldi testified as an expert witness under Rule
703, M.R.Evid., which reads:
The facts or data in a particular case upon which
an expert bases an opinion or inference may be
those perceived by or made known to him at or
before the hearing. If of a type reasonably relied
upon by experts in a particular field in forming
opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
Thus, an expert is allowed to rely upon the report and
opinions of other doctors, Matter of G. S. (Mont. 1985) , 698
P.2d 406, 409-410, 42 St.Rep. 451, 455, hearsay, Azure v.
City of Billings (1979), 182 Mont. 234, 255, 596 P. 2d 460,
471-472, and those facts she or he has garnered through an
independent investigation. State v. Hallam (1978), 175 Mont.
492, 501, 575 P.2d 55, 61. The credibility of the source of
the opinion goes to its weight and not its admissibility.
Azure, 596 P.2d at 472. The District Court properly
considered the doctor's testimony in making its decision.
Lastly, the Kanvicks assert that the District Court
abused its discretion in holding that visitation by the
Kanvicks was not in K.R.'s best interest.
Section 40-9-102 (2), MCA, allows the court to grant a
grandparent visitation rights only after a finding that the
visitation would be in the child's best interest. The
District Court chose not to allow visitation in this matter
because the natural father lived with his parents, the
Kanvicks, a majority of the time and that the Kanvicks were
not able to ensure that he would not interfere with their
visits with his daughter. Mr. Kanvick testified that he had
no plans to restrict his son's comings and goings from the
Kanvick home. He also testified that his son stays at the
home between three and seven days a week or "whenever he feels
like it." Testimonial evidence presented by respondent's
expert reveals that due to the possibility of sexual abuse
any contact with K.R.'s father could result in severe
psychological damage to K. R. We will not reverse the
District Court absent clearly erroneous findings which result
in an abuse of discretion. In re Marriage of Goodman (Mont.
1986), 723 P.2d 219, 220, 43 St.Rep. 1410, 1412; Rule 52 (a),
M.R.Civ.P. The District Court did not discount the
beneficial effects of the Kanvicks ' relationship with their
grandchild and encouraged K. R. Is mother to continue to allow
visits in her home. The court, however, did recognize that a
regular visitation schedule could most likely force K.R. to
visit her natural father as well. It did not abuse its
discretion by refusing such a schedule.
Affirmed.
Justice
We Concur: A
.-
Chief 'Justice