                                                        RENDERED: MAY 5, 2016
                                                             TO BE PUBLISHED

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                               2015-SC-000499-DGE


LARRY MASSIE AND                                                       APPELLANTS
CHRISTINA MASSIE


                    ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO. 2014-CA-001052-ME
                  GREENUP CIRCUIT COURT NO. 13-CI-00736


DEBORAH NAVY                                                             APPELLEE



            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

                        REVERSING AND REINSTATING

      The pro se Appellee, Deborah Navy (hereinafter "Deborah"), is the

maternal grandmother of Ian.' She is a teacher who resides in West Virginia

with her husband who is an attorney. Ian currently resides in Greenup

County, Kentucky, with the Appellees, Larry Massie and his wife, Christina

Massie. Larry Massie is Ian's paternal uncle. Larry's brother Frank, is the

biological father of Ian. It is unclear whether the Massies have full custody of

Ian. It appears, however, that Ian was removed from his mother shortly after

his birth and that neither parent is closely involved in Ian's life.




             Pseudonyms are being used to protect the anonymity of the child.
       Deborah instituted a grandparent visitation action in Greenup Circuit

Court in 2013. The court held an extensive evidentiary hearing that included

the testimony of several witnesses, including Deborah (Grandmother), and

Larry (Uncle). Ian's parents were named as parties and were served with copies

of the visitation petition. Neither parent responded to the petition or appeared

at the hearing.

      The court subsequently denied Deborah's request for visitation rights

and Deborah appealed. A divided Court of Appeals panel reversed the trial

court's ruling and remanded on the basis that the court did not consider all of

the necessary factors required under Kentucky law. The Court of Appeals also

applied a less stringent legal standard because Larry and Christina Massie are

not Ian's biological parents. We granted discretionary review. For the reasons

stated herein, we reverse the Court of Appeals and reinstate the trial court's

order denying Deborah's petition for visitation rights.

                               Standard of Review

      We apply a clearly erroneous standard when reviewing the trial court's

findings of fact. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).

We review the trial court's legal conclusions de novo. Nash v. Campbell County

Fiscal Court, 345 S.W.3d 811, 816 (Ky. 2011).

                                     Analysis

      Two cases are of primary importance here. First is Walker v. Blair, 382

S.W.3d 862 (Ky. 2012). In Walker we addressed KRS 405.021—Kentucky's
grandparent visitation statute—and the U.S. Supreme Court's seminal decision

in Troxel v. Granville, 530 U.S. 57 (2000). We summarized Troxel as follows:

      [Troxel] addressed the federal constitutional implications of state
      statutes that allow courts to grant non-parent visitation with
      children over parental objections. A majority of that Court
      recognized that parents have a constitutionally protected liberty
      interest in rearing their children without government
      interference. To protect this liberty interest, courts must give
      appropriate weight in non-parent visitation proceedings to the
      parents' decision to deny visitation. Walker, 382 S.W.3d at 866.

In applying the relevant law, including Troxel, we held that "a fit parent is

presumed to act in the best interest of the child."    Id. In rebutting this

presumption, "the grandparent must show by clear and convincing evidence

that visitation is in the child's best interest." Id. at 873.

      We also stated that "[a] trial court can look at several factors to

determine whether visitation is clearly in the child's best interest." Id. at 871.

(Emphasis added). Those factors are:

    1) the nature and stability of the relationship between the child and
      the grandparent seeking visitation;
    2) the amount of time the grandparent and child spent together;
    3) the potential detriments and benefits to the child from granting
      visitation;
    4) the effect granting visitation would have on the child's relationship
      with the parents;
    5) the physical and emotional health of all the adults involved,
      parents and grandparents alike;
    6) the stability of the child's living and schooling arrangements; and
    7) the wishes and preferences of the child.



    8) the motivation of the adults participating in the grandparent
      visitation proceedings.



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Legal Standard

      The Massies raise two primary issues on appeal. First, they argue that

the Court of Appeals erroneously applied a legal standard that was less

stringent than the clear and convincing standard articulated in Walker. In

reversing the trial court, the Court of Appeals stated the following:

      And because we find that an uncle and an aunt by marriage do not
      automatically acquire the same fundamental liberty interest as
      parents simply by receiving custody of a child, the same Due
      Process Clause protections are not required. As such, the trial
      court erred in applying the heightened clear and convincing
      evidence standard of Walker.

It is noteworthy that the trial court's order does not appear to have applied the

clear and convincing standard. The words "clear and convincing" do not

appear anywhere in the order. In any event, we need not address the merits of

this purely legal issue because Deborah has failed to preserve this argument

before the trial court. It is clear that this case was briefed and argued by the

parties under the Walker "clear and convincing" standard. Deborah did not

challenge that standard at the trial court level.

      However, Deborah argues that we should suspend our traditional rules

of preservation here. In support, she cites Mitchell, M.D. v. Hall, 816 S.W.2d

183 (Ky. 1991). In Hall, we stated that "[w]hen the facts reveal a fundamental

basis for decision not presented by the parties, it is our duty to address the

issue to avoid a misleading application of the law." Id. at 185. Unlike Hall,

there are no facts in the present case that we must address in order to avoid a




                                         4
misleading application of law. In contrast, the unpreserved issue here is purely

legal, not factual.

       Lastly, Deborah requests palpable error review of this issue. CR 61.02.

Although she has not expanded that argument, it is clear that there is no

palpable error here. Simply put, "we will not find palpable error . . . when the

trial court was given no opportunity to err." Norton Healthcare, Inc., v. Deng,

—S.W. 3d—, No. 2013-SC-000526-DG, 2016 WL 962600, at *5 (Ky. Feb. 18,

2016) (finding no palpable error where unpreserved issue was first invoked sua

sponte by the Court of Appeals); see also Doane v. Gordon, 421 S.W.3d 407 (Ky.

App. 2014) (affirming the trial court's application of Walker in a grandparent

visitation case involving a nonparent).

The Walker Factors

      The Massies' second argument pn appeal is that the trial court properly

considered the Walker factors and that the Court of Appeals erred by reversing

the trial court's order. In contrast, Deborah argues that the trial court only

considered the amount of time that she and Ian spent together. She also

asserts that the trial court applied an erroneous legal standard that focuses on

whether the denial of grandparent visitation rights will harm the child.   See

Scott v. Scott, 80 S.W.3d 447 (Ky. App. 2002) (overruled by Vibbert v. Vibbert,

144 S.W.3d 292 (Ky. App. 2004)). The trial court's order provides in pertinent

part as follows:

      [The court must be satisfied from the evidence that the
      grandparent has been so involved in the child's life that to not
      grant the visitation would somehow be harmful to the child and not
       in the child's best interest. The evidence before this court is that
       [Deborah] has had a limited involvement with [Ian], having only
       been involved with him shortly after birth and then having
       sporadic visitation with him over a period of months which ended
       approximately one and one-half to two years ago. Prior to that,
       there had been a three year period of time that she had not seen
       him at all. (Emphasis added).


       [T]he court finds that [Deborah] has not been such an integral part
       of Ian's life so as to deprive Ian from seeing her would somehow be
       detrimental to him. (Emphasis added).


       We agree with Deborah that the court discussed the potential "harm" or

"detriment" to Ian. However, we held in Walker that "implicit in the [Walker]

factors is the prior Scott harm standard." Walker, 382 S.W.3d at 872.

Therefore, although Scott has been overruled, there was no error in addressing

potential harm factor here.

       Furthermore, we do not agree that the trial court erroneously contained

its analysis to the amount of time Deborah and Ian spent together. The court

also considered Larry Massie's primary concern that Deborah was seeking to

reintroduce Ian to his biological mother. Although the court's reasoning here is

unclear from its order, Larry Massie testified that he was concerned that Ian's

mother had a history of drug use. It appears this is the pivotal reason that

Larry objects to Deborah's visitation with Ian—certainly a valid best interest of

the child consideration by the trial court.

      We have also considered Deborah's arguments that echo the Court of

Appeals' majority opinion, wherein the court criticized the trial court for not

addressing Deborah's oral motion requesting an interview with Ian. The Court


                                         6
of Appeals also took issue with the fact that the trial court did not address

visitation between Ian and his older half-sister, who was being raised by

Deborah and her husband. Lastly, the Court of Appeals instructed the trial

court to consider Ian's testimony, other expert testimony, and mental

evaluations when addressing this case on remand.

      Contrary to Deborah's arguments here and the Court of Appeals'

reasoning, Deborah has failed to directly challenge any evidentiary rulings by

the trial court. Therefore, the Court of Appeals erred by directing the trial

court to consider additional evidence that has not been properly preserved.

Moreover, the facts of each case dictate which Walker factors are most relevant

and possibly dispositive. In other words, all eight Walker factors need not be

considered when determining whether grandparent visitation is clearly in the

child's best interest. Although the trial court's order denying Deborah

visitation was brief, it is clear that the court considered several relevant factors

in reaching its decision. The record also indicates that the court considered

Deborah's extensive testimony wherein she voiced her concerns and motivation

for seeking visitation. Therefore, we cannot say that the trial court's factual

findings were clearly erroneous or that its application of those facts to the

relevant law was error.

                                    Conclusion

      For the foregoing reasons, we hereby reverse the Court of Appeals and

reinstate the order of Greenup County Circuit Court.

      All sitting. All concur.

                                          7
COUNSEL FOR APPELLANTS:

Amy Rollins Craft


APPELLEE:

Deborah Navy




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