In Re Adoption of L.J.S.

2009 OK CIV APP 60, 216 P.3d 300, 2009 Okla. Civ. App. LEXIS 38
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 27, 2009
DocketNo. 105,672
StatusPublished
Cited by1 cases

This text of 2009 OK CIV APP 60 (In Re Adoption of L.J.S.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Adoption of L.J.S., 2009 OK CIV APP 60, 216 P.3d 300, 2009 Okla. Civ. App. LEXIS 38 (Okla. Ct. App. 2009).

Opinion

LARRY JOPLIN, Judge.

¶ 1 Appellants/Counter-Appellees Fletcher Witt Seago and Sara Nadine Seago, the paternal grandparents (Grandparents) of L.J.S., now C., a minor child (Child), and Appellees/Counter-Appellants Christopher Ryan Casey and Brandy Casey, Child’s adoptive parents (Parents), seek review of the trial court’s order granting judgment to Parents on Grandparents’ claim to visitation. In the principal appeal, Grandparents assert the trial court erred in summarily denying them visitation. By counter-appeal, Parents challenge the trial court’s finding of the existence of an order for grandparental visitation prior to entry of the final decree of adoption.

¶2 Child is the biological offspring of Grandparents’ son (Father). Child was adjudicated deprived, placed in the temporary custody of Parents, and the parental rights of Child’s biological mother were terminated. Father entered an “Appearance and Limited Consent to Adoption” in the juvenile case which provided:

I voluntarily and unequivocally consent to the adoption of [Child] by [Parents], [Child’s] current placement, and with the understanding that said adoptive parent[s] have agreed to allow [Child] to receive reasonable visitation with his biological grandparents, ... [Appellants]_

¶ 3 On Parents’ petition to adopt Child, a final decree of adoption was entered, but the decree contained no provision for grandpa-rental visitation. Although Parents initially permitted Grandparents visitation with Child, Parents subsequently refused them further visitation, ostensibly because Grandparents permitted Father to visit Child during periods of their grandparental visitation.

¶ 4 Grandparents filed a Motion to Determine Rights to Grandparental Visitation. Grandparents alleged their regular visitation with Child prior to Parents’ termination thereof, the existence of a “long standing relationship with [C]hild,” and Father’s consent to adoption specifically conditioned on their right to visit Child after the adoption. 10 O.S. § 5(D).

¶ 5 Parents objected. Parents asserted that no order for grandparental visitation had been entered prior to entry of the final decree of adoption, that the final decree of adoption made no provision for visitation by Grandparents, and that, absent a valid pre-adoption order for grandparental yisitation, Oklahoma law proscribed entry of such an order after the adoption. 10 O.S. § 5(B).

¶ 6 Parents then filed a Motion for Summary Judgment, again arguing § 5(B) proscribed entry of a grandparental visitation order. Grandparents responded, arguing that § 5(D) permitted entry of an order for their visitation, especially considering Father consented to the adoption specifically conditioned on their right to visit Child, their previous visitation with Child, and their established grandparental relationship.

¶ 7 By “Memorandum” filed February 15, 2008, adopted and incorporated into the Journal Entry of Judgment filed March 7, 2008, the trial court granted Parents’ Motion for Summary Judgment, holding that grand-parental visitation could not be granted over the unanimous objection of Parents:

The [adoptive] Parents adopted [Child] after the parental rights of both birth parents were terminated in juvenile proceedings.
At the juvenile court hearing where the birth father relinquished his parental rights, visitation rights were granted to the [Grandparents]. [Grandparents] seek to enforce those rights in this adoption case. The [adoptive] Parents were not parties in the juvenile ease.
There is a question of law presented. There are no disputed factual issues.
The key provision of Title 10 is Section 5 B. which states: “Under no circumstances [302]*302shall any judge, grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents of the child object to the granting of visitation.” [Grandparents’] position is that the reference to “intact nuclear family” applies solely to birth parents and not adoptive parents. The Court respectfully disagrees. See generally 3 Adoption Law and Practice, Section 13.03 which states: “In all jurisdictions adoptive families are deemed the legal equivalent of an original intact biological family.”
Oklahoma law, by statute and Oklahoma Supreme Court cases, agree with the 13.03 proposition. See 10 OK Stat. Section 7507-6.5 and Matter of Fox, 567 P.2d 985 (1977) and its progeny....

(Emphasis original.) Grandparents appeal, Parents counter-appeal, and the matter stands submitted on the trial court record.

Standard of Review

¶ 8 “Summary judgment is warranted only when ‘there is no substantial controversy as to the material facts and ... one of the parties is entitled to judgment as a matter of law[.]’ ” Wylie v. Chesser, 2007 OK 81, ¶ 3, 173 P.3d 64, 66. (Citation omitted.) “For summary judgment for a party to be appropriate the evidentiary materials submitted must demonstrate undisputed facts on material issues supporting but a single inference in favor of that party.” Id.

¶ 9 That is to say, “[s]ummary judgment settles only questions of law[,][and][t]he standard of review of the questions of law is de novo.” Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 11, 160 P.3d 959, 963-964. (Emphasis original.) (Citations omitted.) “Where a controversy is resolved by summary judgment, the appellate courts review the entire summary judgment record independently and without deference to a lower court.” Id. “Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.

¶ 10 The trial court’s construction and application of statutes also presents a question of law subject to de novo review on appeal. See, e.g., Stump v. Cheek, 2007 OK 97, ¶ 9, 179 P.3d 606, 609. “The primary goal of statutory construction is to ascertain and follow the intent of the legislature.” Id. “The words of a statute will be given their plain and ordinary meaning unless it is contrary to the purpose and intent of the statute when considered as a whole.” Id.

Adoption, Grandparental Visitation and 10 O.S. § 5

¶ 11 Section 5(A) of title 10, O.S., permits grandparental visitation if it is shown (1) in child’s best interests, (2) the parents are unfit or the child is harmed without grand-parental visitation, and (3) “the intact nuclear family has been disrupted” in certain enumerated circumstances, including the parents’ divorce, the death of one or both parents, or the placement of the child with related or unrelated third persons. 10 O.S. § 5(A)(1)(a), (b), (c). Section 5(A) clearly recognizes the right of grandparents, having an existing relationship with their grandchild, to request continuation of that relationship by visitation after disintegration of the nuclear family.

¶ 12 Section 5(B) of title 10, O.S., provides:

Under no circumstances shall any judge grant the right of visitation to any grandparent if the child is a member of an intact nuclear family and both parents of the child object to the granting of visitation.

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Related

In the Matter of Adoption of Ljs
2009 OK CIV APP 60 (Court of Civil Appeals of Oklahoma, 2009)

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Bluebook (online)
2009 OK CIV APP 60, 216 P.3d 300, 2009 Okla. Civ. App. LEXIS 38, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adoption-of-ljs-oklacivapp-2009.