This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Leota Stevens, petitioner,



St. Louis County, Minnesota,


Filed January 21, 1997


Huspeni, Judge

St. Louis County District Court

File No. F696600223

Robert M. Kaner, Robert M. Kaner, P.A., 508 Alworth Building, 306 W. Superior St., Duluth, MN 55802 (for Appellant)

Alan L. Mitchell, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 403 Government Services Center, 320 W. Second St., Duluth, MN 55802 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg,[*] Judge.



Appellant Leota Stevens contests the district court's denial without an evidentiary hearing of her petition for visitation of her two grandchildren. Because appellant has no standing under statute or common law to petition for visitation rights, we affirm.


Appellant is the maternal grandmother of two minor children whose parents' rights have been terminated; custody and guardianship of the children have been granted to the Commissioner of Human Services. After the termination, appellant petitioned for visitation of the two children, but the Commissioner, through respondent St. Louis County Social Services Department, opposed the petition.

The district court conducted a hearing on the petition. Appellant informed the court that she is the childrens' maternal grandmother; she is 50 years old, in good health, married, employed, and has custody of their sibling. While the court found nothing detrimental about appellant's character or habits, it denied her petition because it found no legal authority to grant visitation rights against the wishes of the legal guardian, respondent. Appellant contests this ruling and argues that the district court should have conducted an evidentiary hearing as to the children's best interests.[1]


The authority of the district court to award and enforce visitation rights is a question of law that an appellate court reviews de novo. Simmons v. Simmons, 486 N.W.2d 788, 790 (Minn. App. 1992).

Minn. Stat. § 257.022, subds. 1, 2, 2a (1994), provide grandparents with the right to petition for visitation of their grandchildren in three specific instances: (1) when the parent who is their child is deceased; (2) when there has been a proceeding for dissolution of marriage, legal separation, annulment, or determination of parentage; and (3) when the child has resided with the grandparents for a period of 12 months or more. This statute gives grandparents visitation rights only in those specifically listed situations. In re Welfare of R.A.N., 435 N.W.2d 71, 72-73 (Minn. App. 1989).

Appellant claims she qualifies for statutory visitation rights under Minn. Stat. § 257.022, subd. 1, because the termination of her daughter's parental rights places her in the same position as if her daughter were deceased. There is no legal authority for this proposition. Because the statute clearly states "deceased" and appellant's daughter is not deceased, appellant's argument must fail. See Minn. Stat. § 645.16 (1994) (court must give effect to clear meaning of statute). Further, this court has not recognized termination of parental rights to equate with death of a parent for the purposes of grandparent visitation rights. See R.A.N., 435 N.W.2d at 73 (refusing to recognize a grandparent's petition for visitation under Minn. Stat. § 257.022 when parental rights have been terminated, but the parent is not deceased and the grandparent cannot satisfy any other subdivision of the statute). Thus, appellant does not qualify under subdivision 1.

Likewise, appellant does not qualify for visitation rights under the other subdivisions because she has not shown that a proceeding for dissolution of marriage, annulment, legal separation, or parentage has occurred, nor has she indicated that the children have lived with her for over 12 months. See Minn. Stat. § 257.02, subds. 2, 2a. Therefore, the district court properly concluded that appellant had no statutory right to petition for visitation.

Appellant points to this court's ruling in In re the Adoption of A.M.R., 527 N.W.2d 565 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995), to support her argument that Minn. Stat. § 257.022 provides the court with authority to grant her visitation. We find no support in either the case or the statute. A.M.R. held that where a lower court had previously granted visitation rights to a grandparent under the statute, those rights did not automatically terminate upon the adoption of the children by their stepmother. Id. at 568. The grandparent in A.M.R., however, legitimately qualified for visitation rights under Minn. Stat. § 257.022, subd. 2, because the parents had been involved in dissolution proceedings. 527 N.W.2d at 566. As discussed, appellant does not qualify under any of the subdivisions of the statute.

Nor can we discover authority for including the proceeding for termination of parental rights under the types enumerated in Minn. Stat. § 257.022, subd. 2. Grandparents have visitation rights only in those situations specifically listed in the statute, and this court has refused to grant visitation rights to grandparents merely because other family court proceedings have occurred. R.A.N., 435 N.W.2d at 73. In R.A.N., the parents of the grandchild were never married to each other, but there had been a paternity action. Id. at 71. In applying an earlier version of Minn. Stat. § 257.022, subd. 2, which did not include paternity proceedings as situations under which grandparent rights could be granted, this court held that the grandparents had no statutory right to visitation. Id. at 72-73. Because appellant has made no showing that she can invoke visitation rights under the statute, the district court concluded that she lacked a statutory right to visitation and properly denied her petition.

Appellant also has no common law right to visitation of the grandchildren. Any rights a grandparent may have to visitation under common law may only be derived through the child who produced the grandchild. See id. at 72 (noting that under common law grandparents' visitation rights are derivative through their children). Because appellant's daughter has lost all rights to visitation, see Minn. Stat. § 260.241, subd. 1 (1994) (termination of parental rights severs the parent's rights to visitation), appellant has also lost any rights to visitation she had through her daughter.

We are concerned with the seeming harshness of our decision in this case, which prevents an apparently fit and concerned grandmother from having any contact with her grandchildren. However, there is no existing statutory or common law right under which we can mandate visitation between appellant and the two minor children. We therefore conclude that the district court correctly denied the petition without an evidentiary hearing.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 During oral argument, the County stated that the children had been adopted. With the consent of the parties, we have confirmed this information. Under Minn. Stat. § 260.241, subd. 1 (1994), any rights appellant may have had to visitation would be terminated by an adoption, absent a showing that a stepparent or grandparent adopted the children. However, because of the confidential nature of the adoption files, and the limited, verbal consent received from the parties for inquiry, we do not have a complete record as to the relationship between the children and the adopted parents. Therefore, we are not in a position to declare this case moot and we will address its merits. Cf. Matter of Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (dismissing appeal as moot when event occurred making decision on merits unnecessary).