Maryland Family Law Maryland family law opinions and commentary
ST. LOUIS, MO — A grandmother who gave up her quest to adopt her granddaughter in exchange for visitation rights was left emptyhanded after the adoptive grandparents challenged her standing, the Missouri Court of Appeals has held.
An adoption judgment was issued in favor of the maternal grandparents after the trial court, the guardian ad litem and the paternal grandmother believed that an agreement was reached in which the paternal grandmother dismissed her competing adoption petition in exchange for visitation with the child.
The maternal grandparents, however, challenged the validity of the judgment granting visitation after their adoption was granted.
In an opinion scolding the maternal grandparents, Mickie and Michael Smith, for their alleged misrepresentation and the legislature for the state of the law, the Western District reluctantly found that Amy Duesenberg lacked standing to seek visitation.
“While we are sympathetic to Duesenberg and her grandchild J.S., only the legislature can grant her the standing to seek the relief she desires under the current facts of this case,” Judge Gary D. Witt wrote for the court.
The appellate court said that the law is clear: Chapter 211 allows a grandparent to intervene in an action but does not give the court authority to grant visitation. Section 452.402 allows a court to grant visitation to a grandparent in three specific circumstances, none of which were present here.
Duesenberg’s best shot would seem to be Section 452.375.5, which allows a court to consider third-party custody or visitation in the best interests of the child. However, the award could only be made in conjunction with an ongoing custody hearing, and her petition was filed as a separate action, not as a motion within a custody proceeding.
“We recognize that the outcome of this case is regrettable. Both the GAL and circuit court found that a continuing relationship with her grandmother would be in J.S.’s best interest. It is disappointing to this Court that the Smiths were able to sever such an important relationship with misrepresentations and seizing on Duesenberg’s procedural missteps,” Witt said in a footnote.
The grandmother’s attorney pointed the finger at lawmakers.
“The legislature needs to step in and do something about grandparent visitation, especially in cases like this when both sets of grandparents want to see the child. The court here was in a tough position,” said William M. Quitmeier, a Kansas City attorney who represented Duesenberg.
“The entire blame is on the legislature. There’s a nationwide trend towards grandparent rights and including specific language to cover this type of adoption,” added Quitmeier, of The Quitmeier Law Firm.
Jason C. Conkright, a Kansas City attorney who represented the Smiths, declined to comment.
Good faith
The Smiths and Duesenberg filed competing petitions to adopt J.S. after the termination of her parents’ parental rights. The Smiths’ petition was granted after Duesenberg dismissed her petition. She then sought grandparent visitation, which the court granted.
The Smiths then brought their challenge.
“It is clear from the record that, at the time of the adoption proceeding, all parties — including the court — believed that Duesenberg’s right to visitation was open to adjudication and the Smiths would accept the court’s ruling on that issue. Despite this understanding, following the Judgment, the Smiths seek to challenge Duesenberg’s standing to request visitation,” Witt wrote.
In its 19-page opinion, the Western District included testimony from the 2014 adoption hearing at which the trial court questioned the Smiths about their willingness to allow Duesenberg visitation and was assured they would make a “good faith” effort to participate. The trial court also referenced a letter from the guardian ad litem stating that the parties had reached an agreement that Duesenberg would receive visitation rights in exchange for not contesting the Smiths’ adoption.
Once the adoption became a judgment and no timely appeal was made, Duesenberg did not have standing to seek grandparent visitation at a later time.
“Thus, at this point, there is no lawful basis upon which the court can compel the Smiths to act in the fashion that they indicated to the court they would,” Witt said in another lengthy footnote.
First impression
Judicial estoppel is an equitable doctrine used to prevent litigants from taking a position in one proceeding and attempting to benefit from a contrary position in subsequent proceedings. The Western District said whether to apply to judicial estoppel to a standing determination presented an issue of first impression in Missouri.
The appellate court explained that although judicial estoppel may have been warranted, it cannot be used to grant standing.
“The case law from these other jurisdictions is persuasive. A litigant cannot obtain standing to bring an action solely based on judicial estoppel. To do so would create a new avenue for a court to obtain jurisdiction and allow a court to rule in a proceeding without any currently recognized constitutional authority to do so,” Witt wrote.
Quitmeier said he’s considering a further appeal.
“This opinion was well written, but we may ask the Supreme Court to look at what is meant by the right of intervention in Chapter 211, or maybe the Supreme Court can send a message to the legislature,” he said.
In a final footnote, the Western District leaned again on the adoptive grandparents.
“We too express hope that the Smiths would take to heart the findings of the circuit court and GAL that it is in the child’s best interests to maintain this relationship and reunite grandmother and granddaughter with reasonable time together,” the Western District concluded.
The case is Smith v. Duesenberg, WD78318.
