Miller v. Norris, Ky COA, Grandparent Visitation

Miller v. Norris

No. 2011-CA-001285-ME

Published: Opinion Affirming

County: Jefferson

Janet Miller appeals from Order of Jefferson Family Court granting summary judgment and dismissing her action seeking grandparent visitation.

In 2007, the Commonwealth removed two children from the custody of their biological parents and instituted a termination of parental rights action.  After the parents’ rights were terminated, the children were placed in foster care with Appellees Roxanne and Donald Norris, who adopted them in December, 2008.

The Norrises initially permitted Appellant, Janet Miller, the biological maternal grandmother of the children, to visit the children every Saturday with the understanding the children would have no contact with the biological mother.  After a visit with Appellant in February, 2010, the oldest child reported a telephone conversation with a woman during the visit.  The Norrises determined that it was in the children’s best interest to stop the visits with Miller to avoid contact by the children with the biological mother.

Miller testified that she had previously abandoned the idea of a grandparent visitation proceeding because the Norrises assured her they would never keep her from seeing the children.  Mr. Norris testified that although visits with Miller were allowed, she was never told that her access to the children was unconditional.

In August 2010, Miller filed a Petition for Grandparent Visitation.  The Norrises filed an answer and moved to dismiss under CR 12.02 alleging the complaint failed to state a claim upon which relief could be granted.  The Court utilized CR 56 and treated the motion as one seeking summary judgment and in June, 2011 it entered an Order Granting Summary Judgment and Dismissing the Action in favor of the Norrises.  The Court determined that termination of the biological mother’s parental rights also terminated Miller’s statutory right to seek grandparent visitation.  The Court ruled that KRS Chapter 405 gave Miller the right to pursue grandparent visitation only during the time her daughter had parental rights.  The Court rejected Miller’s argument that the doctrine of equitable estoppel should preclude the Norrises from asserting the defense that Miller had not complied with KRS Chapter 405.

Miller argued that the trial court improperly rejected her contention that the doctrine of equitable estoppel should bar the Norrises from arguing that Miller failed to assert a claim in conformity with KRS Chapter 405.  Miller asserted that had the Court accepted as true her claim that the Norrises told her she would always be allowed to visit the the children, she would also have been entitled to assert a claim of equitable estoppel.

The Court of Appeals noted that summary judgment shall be rendered if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.  The Court cited the elements of equitable estoppel which a party seeking to advance a claim must show, which are lack of knowledge of the truth, reliance on the conduct of the party to be estopped, and action or inaction which changes the conduct of the party claiming the estoppel, to his detriment.

The Court of Appeals found that in rejecting Miller’s claim of equitable estoppel, the trial court made a determination that Miller was aware of the necessity to seek grandparent visitation and the means of doing so though retained counsel.  Therefore, the Norrises were not barred by the doctrine of equitable estoppel from asserting the defense of Miller’s failure to comply with KRS Chapter 405.

Holding that the trial court correctly found there were no genuine issues as to any material fact and the Norrises were entitled to a judgment as a matter of law, the Court of Appeals affirmed the Summary Judgment of the Jefferson Family Court.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.