No Grandparent Left Behind
Summary:
This Comment examines the complex legal landscape surrounding grandparents’ rights in the context of Child in Need of Care (“CINC”) proceedings. In a recent Kansas case, In the Int. of N.E., the Kansas Supreme Court declined to affirm the lower court’s sweeping declaration that only parents could appeal termination orders in CINC proceedings. The Court reasoned that grandparents could likely establish common-law standing to appeal such orders. By stating this, the Court left room to doubt the prevailing principle that grandparents’ rights only exist as a derivative from those of their children, and once their children’s parental rights are terminated, so are theirs.
By scrutinizing the assumption behind severing grandparent rights after parental rights are terminated and emphasizing an additional focus on child’s rights, this Comment challenges the current strict adherence to the derivative principle and proposes an amendment to the CINC statute aimed at protecting grandparents’ and children’s rights to those relationships.
When the Kansas Supreme Court expressed skepticism at the lower court’s “sweeping pronouncement” that “only the parents have standing to appeal” a termination of their parental rights, it opened the door to doubt the prevailing notion that once a parent’s rights to their child are terminated, the ripple effect mandates severing those grandparents’ rights to that child as well.[1] The court’s willingness in In the Int. of N.E. to acknowledge there may be situations where grandparents’ rights are independent of their child’s rights suggests a reconsideration of how we address grandparent-grandchild relationships within the broader legal context may be necessary.[2]
While the Troxel presumption is strong,[3] it is not without bounds; the conventional nuclear family has evolved with an increasing number of grandparents assuming caregiving roles for their grandchildren.[4] Accordingly, we must recognize that this relationship requires us to view grandparents’ rights as more than merely derivative from those of their children but independent and significant.
This Comment proposes an amendment to Kansas’s current CINC code to be read in tandem with the Troxel presumption if warranted by the circumstances of the case. The amendment’s aim would be to give grandparents autonomous rights that survive the termination of a parent’s rights as well as additional considerations of the child’s right to those relationships.
When the Department for Children and Families (“DCF”) takes custody of a child, a series of proceedings ensue in accordance with the Revised Kansas Code for the Care of Children (“Revised Code”), K.S.A. § 38-2201 et seq.[5] These proceedings, often referred to as Child in Need of Care, or “CINC” proceedings, require courts to find permanent placements that align with the child’s best interests.[6]
CINC proceedings unfold within a temporal and somewhat rigid statutory framework.[7] Initially, the court assesses whether it should temporarily place the child in the custody of specific persons or entities listed by the statute, such as a shelter facility or secretary of the DCF.[8] Then, it determines whether the child meets one or more of the fourteen statutory definitions of a “child in need of care.”[9] During the dispositional phase, the court enters orders addressing the custody and case planning of the child[10] before then deciding whether the parent is unfit under the statutory factors,[11] and whether that parent’s or parents’ rights will be terminated.[12] Finally, if the court terminates parental rights, it “facilitates placement of the child in a permanent family setting, whether through [an] adoption or the appointment of a permanent custodian.”[13]
N.E.’s CINC proceedings began in August of 2019 when N.E. was only four months old and placed in the temporary custody of a foster family at the instruction of the DCF.[14] N.E.’s maternal grandmother (hereinafter “Grandmother”) attended the temporary custody hearing without an attorney.[15] Nothing in the record suggests she objected to the foster family placement.[16] In September of 2019, the district court determined N.E. met the statutory definition as a child in need of care; and again, the record suggests that Grandmother, also attended this proceeding, did not object to this finding, nor did she appeal the order.[17]
In March of 2020, COVID-19 significantly impacted judicial proceedings and in-person court appearances, leading to widespread disruptions and delays in Kansas’ courtrooms.[18] The delay gave Grandmother time to obtain counsel in May of 2020,[19] and later that month, “file a motion for interested party status and custody of N.E.”[20] As Grandmother’s custody motion was still pending, a hearing on the progress of finding permanent placement for N.E was set for June 4th.[21] At that hearing, the district court found that placement back with N.E.’s parents was not feasible, and it was in N.E.’s best interests to consider adoption.[22] From here, the State filed a pleading to terminate N.E.’s mother’s parental rights and find her unfit.[23] As the CINC proceedings progressed, the hearing on Grandmother’s motion was set for August 4th, and the hearing to terminate parental rights was set for August 20th.[24]
But the sequence of hearings did not go as scheduled.[25] The August 4th hearing on Grandmother’s motion was continued due to COVID–19 complications and rescheduled for September 8th.[26] The termination hearing occurred as scheduled on August 20th, where N.E.’s father relinquished his rights, and the district court terminated N.E.’s mother’s parental rights after finding she was unfit.[27] The court subsequently ordered that N.E. stay in DCF custody while awaiting adoption.[28] Grandmother attended this hearing, but it is unknown whether she objected to the court’s findings because there is no transcript.[29]
Grandmother moved to continue the last hearing in a CINC proceeding, the permanency hearing, to September 8th—the same day as the evidentiary hearing on her motion for custody.[30] She believed that if the court made a permanency decision before ruling on her custody motion, it could render her motion moot[31] if the court ordered N.E. be adopted.[32] This is because her motion argued that she should be given “’substantial consideration as a placement option,’” so without ruling on that motion first, the court would not consider Grandmother as a potential placement.[33] The district court agreed with her assertion and consolidated the hearing on permanency with Grandmother’s custody motion and set it for September 8th.[34]
But COVID–19 continued to impact N.E.’s CINC proceedings.[35] On September 4th, the State moved to continue the consolidated September 8 hearing due to one of its witnesses being quarantined, and the court reset the hearing for October 9th.[36] However, on October 9th, the district court was unable to hear from all interested parties because of additional quarantines and thus “took Grandmother’s custody motion under advisement and continued the permanency hearing,”[37] resetting it, after additional COVID-19 and witness availability issues, for December 18th.[38]
Grandmother sent a letter to the court on December 3rd, “requesting a ruling on her motion for interested party status and custody of N.E.”[39] On December 10th, the court answered and found Grandmother had interested party status by law but also stated it rejected her request for custody raised at the June hearing in which she was not chosen as placement for N.E.[40] The court did previously agree to hear more evidence on the issue at the October 9th hearing, however that did not happen because COVID complications forced the court to take the issue under advisement.[41]
The permanency and custody hearing occurred on December 18th despite Grandmother’s custody motion still pending under advisement.[42] At that hearing, the district court found placement with N.E.’s foster parents was in the child’s best interests and placed N.E. in their custody to proceed with adoption.[43] In January, the court clarified in a journal entry that Grandmother’s custody motion was now moot and entered a final order terminating its jurisdiction over the proceeding because N.E. was formally adopted.[44] Five days later, Grandmother appealed the clarifying journal entry in addition to the June order memorializing N.E.’s initial placement, the August order terminating parental rights, and the December journal entry memorializing its post-termination permanency findings.[45] However, the Court of Appeals was ultimately unconvinced and dismissed her appeal, finding it lacked jurisdiction pursuant to K.S.A. § 38-2273(a), which states that all orders entered after a termination hearing are not orders of disposition and therefore cannot be appealed.[46] Grandmother petitioned the Kansas Supreme Court to review this jurisdictional holding.[47]
Courts have long held that grandparents’ rights are derivative from the parent’s legal rights with the child, and no autonomous rights exist independent of those.[48] Therefore, if a parent’s rights to their child are terminated, the grandparents are simultaneously divested of their rights.[49] This seemingly arbitrary divestment leaves grandparents with no standing to intervene or petition the court, which can be detrimental to both grandparents and grandchildren.[50]
To understand grandparents’ derivative rights in the broader legal context, it is first important to understand the Troxel v. Granville decision made at the United States Supreme Court level.[51] In 1991, Tommie Granville and Brad Troxel ended their relationship, which had resulted in two children.[52] Brad moved in with his parents, the Troxels, and regularly brought his two daughters over to their house for his weekend parenting time.[53] Unfortunately, Brad committed suicide in 1993 while still living with his parents.[54] After Brad’s death, visits between the Troxels’ and their two grandchildren became increasingly infrequent, and Tommie subsequently told the Troxels she wished to limit their time with her daughters to just one short visit per month.[55] Dissatisfied with this new arrangement, the Troxels brought suit in Washington Superior Court, arguing under Washington’s visitation statute that it was in their grandchildren’s best interest to have more visitation time with the Troxels.[56] That statute permitted “any person” to petition for visitation rights and authorized courts to order such visitation if it found to be in the child’s best interests.[57]
Unable to reach a resolution in the lower courts, the United States Supreme Court granted certiorari in 1999.[58] The Court ultimately held that the statute under which the Troxels were arguing was unconstitutional because it infringed upon a fundamental parental right.[59] The Court found that Tommie Granville, being a fit parent, was protected by the parental presumption that she acted in the best interests of her children by limiting their visits with the Troxels.[60] In the context of the Troxels’ visitation wishes, the Court made clear that Granville held the power to determine when they could see her daughters and a best interests analysis was unnecessary.[61]
In unpacking the Troxel decision and applying it to cases like In the Int. of N.E., it is evident that the presumption does not automatically mandate that grandparents be divested of their rights to access their grandchildren based solely on the actions or decisions of their child. However, the longstanding adherence to severing grandparents’ rights at the time the parents’ rights are severed preemptively removes any grounds grandparents would have to argue the question the Supreme Court left unanswered in Troxel—whether having no visitation, which is usually the case for grandparents when their child is deemed an unfit parent, is reasonable.[62]
After granting Grandmother’s petition for review of the lower court’s jurisdictional holding, the Kansas Supreme Court reaffirmed the holding under the doctrine of stare decisis.[63] However, the court disagreed with the lower court’s reasoning.[64] Citing its precedent in In re N.A.C.,[65] the court explained that the order terminating parental rights was an appealable dispositional custody order, but Grandmother failed to timely appeal it.[66] It further corrected the lower court, by holding that “[o]rders addressing the custody of a child that are entered during the dispositional phase of a CINC proceeding are dispositional orders—one of the five types of appealable orders under K.S.A. § 38-2273(a). But orders addressing the placement of a child are not dispositional orders,” and as such, cannot be appealed.[67]
After considering the specific facts of this case, the court recognized the potential for grandparents to play a more direct role in post–termination proceedings.[68] The court based this reasoning on common–law standing principles because it saw how Grandmother was personally affected and interested in gaining custody of N.E.[69] While the court adhered to its precedent, it took a step further and made the unexpected statement that it was “unwilling to foreclose the possibility that a grandparent could establish common-law standing to challenge orders terminating parental rights or other ancillary rulings made in such orders.”[70] Grandparents would need to show “‘a personal interest in a court’s decision’ and that [they] ‘personally suffer[ed] some actual or threatened injury as a result of the challenged conduct.’”[71]
The Kansas Supreme Court could have easily held that Grandmother could not appeal the permanency order because at that point, her daughter’s parental rights were terminated, so Grandmother's grandparental rights were terminated as well.[72] But it did not. Instead, it engaged in statutory interpretation, and leaned on stare decisis and a procedural rule to determine that the appealed orders were not dispositional and therefore unable to be appealed pursuant to the statute.[73] The Court also took the opportunity to say it would not close the door on the possibility of allowing grandparents to appeal termination orders,[74] seemingly contradicting the longstanding derivative rights principle.[75] If Grandmother had timely appealed the August order, the holding in this case might have been in her favor.
The potential departure from the strict interpretation of a grandparent’s derivative rights reflects not only the evolving landscape of familial rights, but also the possibility that it may be a mistake to presume a grandparent is likely unfit because their child was deemed unfit.[76] That generalization undermines the bond often found between grandparents and their grandchildren,[77] and further demonstrates the United States’ “overwhelming noncomplian[ce]” and dismissiveness of internationally–accepted child rights.[78] But arguably, the Kansas court’s acknowledgement of the possibility that grandparents have independent rights regarding their grandchildren demonstrates a likely move toward greater acceptance of diverse familial rights, including child rights, beyond those solely attributed to parents.
The current CINC statute, codified at K.S.A. § 38-2201 et seq. requires that grandparents be notified of CINC hearings[79] and defines them as interested parties.[80] The rest of the sections are silent as to how else grandparents may participate in the proceedings.[81] But, inherent in the In re Int. of N.E. opinion is the Kansas Supreme Court’s willingness to protect grandparents’ rights under the statute.[82] Because of this, K.S.A. § 38-2241 should be revised to reflect the modern American familial relationships and protect the independent rights of grandparents while still recognizing the fundamental parental right.[83] This revision, noted by the bold text, would read:
K.S.A. § 38-2241. Additional parties.
(c) Grandparents as interested parties.
(1) A grandparent of the child shall be an interested party to a child in need of care proceeding.
(2) The interested party status of grandparents, as conferred in subsection (a), shall not be revoked or affected during the termination phase of CINC proceedings, even after the parental rights of their child (biological or adopted) have been terminated.
(3) Grandparents shall have the participatory rights of parties pursuant to subsection (b), except that the court may restrict those rights if the court finds that it would be in the best interests of the child. A grandparent may not be prevented under this paragraph from attending the proceedings, having access to the child’s official file in the court records or making a statement to the court.
(4) This provision is to be read and interpreted in conjunction with the Troxel presumption and the fundamental rights of parents.
This revision of the statute maintains its original purpose of protecting children but also adds protection for those grandparent–grandchild relationships.[84] Depending upon the child’s age and the circumstances of the case, the courts may further require a finding that a “substantial relationship (bond) has been established between grandparent and grandchild” where either custody or visitation post–termination of parental rights is in the child’s best interests.[85] The history of contact between the grandchild and grandparent is heavily considered in the substantial relationship standard,[86] however In the Int. of N.E. demonstrates the inherent problem that standard poses when the child is a very young age. When that is the case, the courts should lean more into considering the rights of the child to that familial relationship and whether such arbitrary interference with that relationship solely because of a termination of parental rights is warranted.[87]
The amendment and additional considerations posed in this Comment ensure that grandparents do not unfairly lose their relationships with their grandchildren due to circumstances beyond their own control. They also emphasize the greater need to consider what child’s rights should be involved when balancing Troxel and grandparental rights. Unreasonably disrupting this relationship can cause children highly detrimental emotional effects when they are suddenly deprived of seeing their grandparents, and stability for these grandchildren and grandparents is necessary to overcome this continuing issue.
The court’s assertion that grandparents may be able to establish common-law standing to appeal CINC termination orders revealed that we may be departing from the prevailing notion of grandparents’ derivative rights.[89] We could be witnessing a shift towards a more grandparent and child’s right friendly legal landscape that recognizes the valuable role grandparents can play in the lives of their grandchildren, independent of the child’s parent’s legal rights.[90] N.E.’s grandmother did not have the chance to develop such a relationship with N.E. as she was only four months old at the time the CINC proceedings began,[91] but the Court’s willingness to recognize her rights after the termination phase signals an important departure from tradition and movement toward greater grandparent—and hopefully greater child—advocacy.
†B.S. Political Science 2020, Wichita State University, J.D. Candidate 2024, Washburn University School of Law.
[1]In re N.E., 516 P.3d 586, 599 (Kan. 2022).
[2]See generally id.
[3]Troxel v. Granville, 530 U.S. 57, 70, 72–73 (2000). The Supreme Court’s holding in this case requires courts considering non-parent visitation petitions to presume that a fit parent acts in the best interests of their child(ren). Therefore, if a parent denies a non-parent visitation with their child, the court must give this special weight and presume visitation is not in the child’s best interests.
[4]Suzanne Valdez Carey, A Proposed Third-Party Visitation Statute: A Recommendation for Legislative Change in Kansas, 11 Kan. J.L. & Pub. Pol'y 485, 486 (2002).
[5]In re N.E., 516 P.3d at 590.
[6]See id. The best interests of the child is a court doctrine used in custody proceedings, which often requires courts to use a set of factors in determining the custody of the child. See Kan. Stat. Ann. § 38–2269 (2018). The factors vary across jurisdictions, but typically include assessing each parent’s ability to provide a stable and nurturing environment, the child’s relationship with each parent, history of abuse or neglect, and the child’s preferences depending on their age and maturity. See id. They serve to promote the child’s well-being, safety, and overall welfare.
[7]In re N.E., 516 P.3d. at 590–91.
[8]Id. at 590.
[9]Id.; Kan. Stat. Ann. § 38-2202(d) (2024).
[10]In re N.E., 516 P.3d . at 590.
[11]§ 38-2269(b) (2018).
[12]In re N.E., 516 P.3d at 590.
[13]Id.
[14]Id.
[15]See In re N.E., 516 P.3d at 592. Grandmother first engaged counsel in May of 2020 and subsequently “became significantly more involved in the proceedings.” Id. Prior to obtaining counsel, Grandmother was seemingly complacent in N.E.’s CINC proceedings as the court noted she failed to object or appeal N.E.’s temporary placement order and the order finding N.E. as a CINC. Id. at 591. The court further casted doubt on Grandmother’s want of having custody of N.E. by stating it supplied her with “informational materials pertaining to [her] respective rights and responsibilities in connection with the proceedings.” Id. These facts are used to show that Grandmother had opportunities to fight for custody of N.E. and chose not to, however the court undermines how much having counsel changes one’s knowledge and abilities in legal proceedings. Grandmother’s lack of action was not indicative of a lack of desire to secure custody but rather stemmed from mere legal ignorance.
[16]Id.
[17]See supra note 15 and accompanying text.
[18]See In re N.E., 516 P.3d at 591.
[19]Id.
[20]Id. at 591–92. Pursuant to Kan. State. Ann. § 38-2241(c)(1) (2011), “[a] grandparent of the child shall be an interested party to a child in need of care proceeding.” Interested party status refers to one’s tangible interest in the outcome of a case. As an interested party, that individual has certain rights pertaining to notice of the proceedings and standing to bring legal arguments.
[21]In re N.E., 516 P.3d at 591–92.
[22]Id. at 592.
[23]Id.
[24]Id.
[25]Id.
[26]Id.
[27]Id.
[28]Id.
[29]Id.
[30]Id.
[31]“Moot” means that the issue or matter is no longer subject to a legal resolution or dispute because it has been resolved or the circumstances have changed. Moot, Cornell L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/moot (last visited Jan. 27, 2025). It essentially means the issue is no longer relevant.
[32]In re N.E., 516 P.3d at 593.
[33]Id.
[34]Id.
[35]Id.
[36]Id.
[37]Id. “Careful consideration; the activity or process of deliberation, esp. by a judge.” Advisement, Black’s Law Dictionary (12th ed. 2024).
[38]In re N.E., 516 P.3d at 593.
[39]Id.
[40]Id.
[41]Id.
[42]Id.
[43]Id.
[44]Id. at 594.
[45]Id.
[46]Kan. Stat. Ann. § 38-2273(a) provides, “[a]n appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.” Grandmother had interested party status to appeal most of the CINC orders, but the court held that the order after the termination of parental rights—the permanency hearing—was not an order of disposition, nor any other appealable order under the statute. In re N.E., 516 P.3d at 595.
[47]Id. at 594.
[48]Kristen Jones Indermark, Note, Permissive Intervention—Grandparents’ Key to Entering Adoption Proceedings, 26 Ga. L. Rev. 787, 821 (1992).
[49]Id. at 822.
[50]Id. at 823–27. Numerous studies show and courts recognize the intangible psychological relationship that exists between grandparents and grandchildren who have spent quality time together. Id. at 824. Some have even argued such relationship is strong enough to establish a grandparental right by itself. Id.
[51]See generally Troxel v. Granville, 530 U.S. 57 (2000).
[52]Id. at 60.
[53]Id.
[54]Id.
[55]Id. at 60–61.
[56]Id. at 61.
[57]Id. at 63.
[58]Id.
[59]Id. at 67.
[60]Id. at 68. The Court declined to answer whether the Troxels could be awarded additional visitation if Tommie Granville had completely cut off their visits with her two children because that was not the present dispute. Id. at 71. However, the Court did note that other states have explicit statutes allowing courts to award grandparents visitation if “‘the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child.’” Id. (citing Miss. Code Ann. § 93-16-3(2)(a) (1994)).
[61]See id.
[62]Valdez Carey, supra note 4, at 490.
[63]In re N.E., 516 P.3d 586, 595 (Kan. 2022). The doctrine of stare decisis explains that once a court has decided a legal issue, that decision becomes a binding precedent that must be followed by lower courts when similar issues arise in subsequent cases. It is not absolute, but it is very rarely departed from.
[64]Id. at 599.
[65]In re N.A.C., 329 P.3d 458, 470 (2014) held that the “dispositional phase ends once an order terminating parental rights is entered, precluding appellate review of any later orders because post-termination orders are not considered ‘dispositional orders.’”
[66]In re N.E., 516 P.3d at 596.
[67]Id. (citation omitted). Once an order terminating parental rights is entered, the dispositional phase ends, precluding appellate review of any later orders because all orders post-termination are not dispositional. See Kan. Stat. Ann. § 38-2255. This is because when parental rights are terminated, the district court is no longer doing what the dispositional phase requires: weighing whether the parent should have custody and if not, whether reintegration is possible. In re N.E., 516 P.3d at 602–03.
[68]Id. at 599–600.
[69]See id.
[70]Id.
[71]Id.
[72]See supra Section II.B discussing the legal background behind derivative rights.
[73]In re N.E., 516 P.3d at 606.
[74]Id. at 599–600.
[75]Indermark, supra note 48.
[76]See supra Section II.B discussing how grandparents’ rights are based solely on the legal relationship between the child and the child’s parents.
[77]See Valdez Carey, supra note 4 (discussing how the typical family has evolved to include many extended family members in the child-rearing and often build strong relationships because of this).
[78]Callie King-Guffey, How Do US States Measure Up on Child’s Rights?, Human Rights Watch (Sep. 7, 2023), https://www.hrw.org/feature/2022/09/13/how-do-states-measure-up-child-rights. The UN Convention on the Rights of the Child (“CRC”) outlines an expansive list of rights children have, including the right to maintain contact with family and the right from arbitrary or unlawful interference with their family. UN Convention on the Rights of the Child art. 16 & 20, Nov. 20, 1989 U.N.T.S. 1577. As this Comment has discussed, severing a child’s relationship with their grandparent after a termination of parental rights would fall under the arbitrary interference with maintaining contact. Notably, while the Convention “is the most ratified international human rights treaty to date . . . . the United States is the only UN member state that has not yet ratified the Convention.” King-Guffey, supra note 78.
[79]Kan. Stat. Ann. § 38-2236(b) (2024).
[80]§ 38-2241(c)(1) (2024).
[81]See § 38-2201 et seq (2024). The rest of the sections do not specify anything regarding grandparents’ standing nor do they reiterate the derivative principle anywhere to establish grandparents’ rights are dependent upon those of their child.
[82]See supra Section III regarding the court’s decision and reference to grandparents’ rights surviving termination.
[83]Kan. Stat. Ann. § 38-2241; see also Valdez Carey, supra note 4.
[84]See § 38–2201a(b).
[85]K.S. v. D.C., No. 125,138, 2023 Kan. App. Unpub. LEXIS 52, at *6 (Kan. Ct. App. 2023). The “substantial relationship” is Kansas’s current standard for grandparent visitation when it has been restricted by a parent. See id. at *2–3.
[86]Id.
[87]See supra note 78 discussing the UN Convention on the Rights of the Child, specifically the child’s right to familial relationships and protection from arbitrary interference of those relationships.
[88]Indermark, supra note 48, at 812–13.
[89]In re N.E., 516 P.3d 586, 599–600 (Kan. 2022).
[90]Indermark, supra note 48, at 814.
[91]In re N.E., 516 P.3d at 590.