E.D. v. Commonwealth, Cabinet for Health and Family Services , 2004 Ky. App. LEXIS 337 ( 2004 )

COMBS, Chief Judge,

dissenting.

I respectfully dissent. I believe that KRS 405.021 is expansive enough to allow the circuit court to re-visit the previous district court order and to scrutinize it in light of the facts of this case to determine if the best interests of the children indicate the propriety of continued grandparent visitation. No statutory language indicates that timing of entry of such an order is of the essence requiring strict compliance in order to preserve this precious right.

It is true that the statute contemplates that grandparent visitation be established prior to termination of parental rights. However, the statute does not mandate an exclusive chronology or sequence of events as a condition precedent to a continuation of grandparent visitation. The intent of the statute has been held to be remedial, encompassing cases decided prior to its amendment:

The purpose of the amendment to KRS 405.021 was to change the existing law to which the courts, and undoubtedly litigants, had expressed displeasure. It was neither logical nor consistent with public policy to sever the child from an established grandparent relationship without first determining if such action was in the child’s best interest. The statute is dearly remedial in nature. If it is in the child’s best interest, it preserves grandparent visitation established prior to the termination proceeding. It is applicable to cases prior to July 1996, as well as those after the effective date of the amendment. (Emphasis added.)

Dotson v. Rowe, Ky.App., 957 S.W.2d 269, 271. If indeed this statute can be applied retrospectively to other cases, surely it can be utilized in this case to allow the circuit court to evaluate the visitation order of the district court according to the critical standard of the “best interest of the child” in balancing any and all other competing interests.

Appellant placed the issue in the proper perspective by contending that “the bonds developed between child and grandparent are the same regardless of which court entered the order.” (Majority opinion, p. 265). I agree and would accordingly remand this case to the circuit court for a hearing to examine the substantive issue of the well-being of these children rather than focusing incorrectly on the procedural technicality of which court acted first on the issue of grandparent visitation.