1

No. 122,737

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EUGENE R. FROST AND VICTORIA S. FROST,

Appellants,

v.

KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES,

Appellee.

SYLLABUS BY THE COURT

1.

By law, orders arising under the revised Kansas Code for Care of Children 

proceedings take precedence over orders from other courts. K.S.A. 2019 Supp. 38-

2201(a).

2.

An appellate court presumes statutes are constitutional and must resolve all doubts 

in favor of a statute's validity. Further, the appellate court must interpret a statute in a 

manner rendering it constitutional if there is any reasonable construction that will 

maintain the Legislature's apparent intent. A statute must clearly violate the constitution 

before it may be struck down.

3.

One panel of the Court of Appeals may disagree with a previous panel of the same 

court.
2

4.

In Kansas, judicial power extends only to cases and controversies. A court cannot 

decide a case if the plaintiff could not show a causal connection between their injury and 

the defendant's conduct, or if the dispute was not yet fixed and final, but instead 

contingent or hypothetical.

Appeal from Johnson District Court; PAUL W. BURMASTER, judge. Opinion filed March 5, 2021. 

Affirmed.

Linus L. Baker, of Stilwell, for appellants.

Marc Altenbernt, Corliss Scroggins Lawson, and Rae A. Nicholson, of Kansas Department for 

Children and Families, for appellee.

Before MALONE, P.J., HILL and BUSER,JJ.

HILL, J.: This appeal arises from a district court's dismissal of a grandparent 

visitation petition. When the petition was filed, the children were in State custody and the 

grandparents were already bound by an outstanding no-contact order issued in a child in 

need of care case. By law, orders in CINC cases take priority over orders from other 

courts. Pursuing a different option, the grandparents then sued the parents of their 

grandchildren and the Department for Children and Families, seeking an order granting 

them visitation. The court dismissed their petition for want of jurisdiction. When doing 

so, it followed a ruling of a prior panel of this court that held that the 2011 codification of 

the Family Code and 2012 amendments to that Code limited grandparent visitation only 

to divorce cases. We disagree with that panel's conclusion. In our view, grandparents did 

not gain or lose any visitation rights by the legislative action in 2011 and 2012. But after 

reviewing the statutes, the cases, and the record, we conclude that the court properly 

dismissed the grandparents' petition but not for the reason it cited. Thus, we affirm. 
3

Three Child in Need of Care cases are ongoing.

Eugene and Vicki Frost are the maternal grandparents of four grandchildren 

through their daughter. In August 2019, the Department for Children and Families took 

custody of three of those grandchildren in three Child in Need of Care cases in Johnson 

County District Court. The Frosts are interested parties in the CINC cases. The fourth 

grandchild, born after the CINC cases began, is not a subject of this appeal. 

The order prohibiting the Frosts' contact with the children arose during a review 

hearing after several parties questioned the Frosts' conduct. The children's guardian ad 

litem, the mother's attorney, the children's foster parents, and the paternal grandmother, 

all stated that the Frosts were hindering progress towards reintegration of the family. The 

guardian ad litem told the court that he and the social worker overseeing the case agreed 

that contact with the Frosts was not in the grandchildren's best interests. The court 

stopped the Frosts' visitation with the grandchildren and ordered the Frosts not to contact 

them. But it did not revoke the Frosts' interested person status in the cases. 

The Frosts filed a separate civil action in Johnson County seeking visitation with 

all four children. That petition named the mother and her husband, DCF, and the paternal 

grandparents as respondents. The petition alleges that the Frosts had cared for the 

children and had a substantial relationship with them. Even though the Frosts named 

other parties as respondents in their petition, this dispute is between only the Frosts and 

DCF. The Frosts moved for default judgment against DCF, but nothing in the record 

shows that the mother, her husband, or the paternal grandparents were involved in the 

district court proceedings or in this appeal.

For authority, the Frosts relied on K.S.A. 2019 Supp. K.S.A. 23-3301(a). Under

that statute, a court may grant grandparents and stepparents visitation rights "[i]n an 

action under article 27 of chapter 23 of the Kansas Statutes Annotated." An article 27-
4

chapter 23 action is a divorce action. See K.S.A. 2019 Supp. 23-2701 et seq. But they 

argued that an opinion of this court had extended grandparent visitation to other types of 

cases. 

They were referring to In re T.N.Y., 51 Kan. App. 2d 956, 360 P.3d 433 (2015), 

where maternal grandparents moved for visitation rights in a paternity case. In that case, a 

panel of this court concluded that the language in the statute limited grandparent 

visitation only to divorce cases and this limitation violated the Equal Protection Clause of 

the Fourteenth Amendment to the United States Constitution because it treated children 

of unmarried parents differently than children of married parents. The panel severed that 

language from the statute and remanded so that the district court could consider the 

motion on its merits. 51 Kan. App. 2d at 968-70.

 

In response to the Frosts' grandparent visitation petition, DCF moved to dismiss 

the petition as moot because orders in the CINC proceedings would take precedence 

under K.S.A. 2019 Supp. 38-2201(a) and DCF would not have custody of the 

grandchildren once the CINC cases ended. DCF later refined its position by arguing the 

controversy was not ripe. In other words, the CINC orders would preempt any district 

court order here. And it was unclear what the children's custodial status would be after 

the CINC case closed. There was no relief to be granted. DCF also argued that the Frosts 

were trying to circumvent the CINC court's no-contact order.

We have no transcript of the hearing when the district court announced its ruling. 

But in its journal entry, the court found that it lacked jurisdiction to hear the Frosts'

petition under K.S.A. 2019 Supp. 23-3301, so it dismissed the case. 

The district court rejected the Frosts' argument that this court's decision in T.N.Y. 

had extended grandparent visitation to other family law contexts or allowed for 

independent actions for grandparent visitation. The district court pointed out that another 
5

panel of this court had considered and rejected that same argument in Baker v. 

McCormick, 52 Kan. App. 2d 899, 380 P.3d 706 (2016). In that case, the panel held that 

T.N.Y. did not apply beyond its setting, so it extended grandparent visitation only to 

paternity actions. 52 Kan. App. 2d at 909-11. Thus, the court declined to extend the 

T.N.Y. holding to a protection from abuse case. Like Baker, this case is neither a divorce 

action (as the statute allows for), nor a paternity action as permitted in the holding in 

T.N.Y. The district court found that it lacked statutory authority to hear the Frosts' case. 

The court therefore found that all other issues in the case were moot and declined to 

address them.

The basic issue the Frosts raise is jurisdiction—whether K.S.A. 2019 Supp. 23-

3301(a) even allows grandparents to bring a visitation action independently from a 

divorce or paternity case. The district court found that the statute did not allow for it, so it 

dismissed the action without reaching any other issues. The Frosts contend on appeal that 

the district court's interpretation was incorrect. This interpretation will be the focus of our 

examination.

Alternatively, the Frosts argue that if the statute does limit grandparent visitation 

actions to divorce or paternity cases, then it violates the Equal Protection Clause of the 

Fourteenth Amendment to the United States Constitution. They also mention a due 

process claim in passing. But they did not raise that issue in the district court and have 

not explained why it is properly before this court for the first time on appeal. Relying on 

the rule in State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018), we hold that this 

failure to assert an exception for raising a constitutional issue for the first time on appeal 

waives the issue for appellate review. 
6

Grandparent visitation rights were created by acts of the Legislature.

To properly resolve the district court's jurisdiction here, we must begin with a 

review of the history of grandparent visitation in Kansas. After that, we will examine two 

appellate opinions that have addressed the issue of grandparent visitation in two causes of 

action. The first, In re T.N.Y., is a paternity case. The second, Baker, involves a PFA

filing. At that point, we explain why we disagree with the holding in T.N.Y. which held 

that grandparent visitation was somehow limited by some legislative enactments in 2011 

and 2012. Because T.N.Y. is horizontal precedent, we are not bound by its ruling. In 

Baker, we agree with the panel's holding that the ruling in T.N.Y. is limited to paternity 

cases. But this does not mean that the Frosts prevail because the relief they seek cannot 

be granted by the party they sue—DCF. We will conclude with our explanation of that 

point. 

Grandparents had no right to visitation at common law, but in 1971, the Kansas 

Legislature enacted its first grandparent-visitation statute—K.S.A. 38-129. That statute 

limited visitation to cases in which the mother or father of a minor child had died. L. 

1971, ch. 149, § 1; see Browning v. Tarwater, 215 Kan. 501, 503, 524 P.2d 1135 (1974).

In 1984, the Legislature expanded the scope of grandparent visitation by amending 

K.S.A. 38-129 to permit grandparent visitation upon a finding that there was a substantial 

relationship with the child and that it was in the best interests of the child. This law also 

focused on visitation with adopted children or orphans. 

And before 2011, a different statute—K.S.A. 60-1616(b)—gave district courts the 

authority to grant grandparent visitation in divorce actions. In a case involving a petition 

for grandparent visitation, our Supreme Court made the following observation about how 

these two statutes worked together:
7

"With the amendment in 1984 of [K.S.A.] 38-129(a), it became the more general 

of the two grandparent visitation statutes. K.S.A. 2000 Supp. 60-1616(b) applies in the 

specific situation where the parents are divorced. K.S.A. 38-129(a) applies generally."

Skov v. Wicker, 272 Kan. 240, 246, 32 P.3d 1122 (2001). 

In that case, the court looked for the intent of the Legislature and construed a general 

statute and a specific statute in harmony. By doing so, the court ruled they were 

constitutional:

"Here, the intent of the legislature is to provide for grandparent visitation in divorce 

actions. We have the authority and duty to construe K.S.A. 2000 Supp. 60-1616(b) to 

carry out that intent in a constitutional manner. 

"K.S.A. 2000 Supp. 60-1616(b) and K.S.A. 38-129(a) can be harmonized and 

construed as constitutionally valid by reading the limitations of the latter into the former. 

We construe K.S.A. 2000 Supp. 60-1616(b) to include the requirements set out in K.S.A. 

38-129(a) and conclude the district court erred in holding that it was unconstitutional." 

272 Kan. at 247-48. 

By harmonizing these two laws, our Supreme Court at that time recognized that the 

Legislature intended grandparents to have visitation in more than just divorce cases. 

The Legislature organizes a new family code.

By 2011, grandparents in Kansas could file separate actions seeking visitation with 

their grandchildren and seek similar relief in pending divorce cases. During that year, the 

Legislature recodified the paternity and divorce statutes into a Family Law Code found in 

Chapter 23 of the statutes. During the recodification, the Legislature transferred K.S.A. 

38-129 to K.S.A. 2011 Supp. 23-3302 and K.S.A. 60-1616(b) to K.S.A. 2011 Supp. 23-

3301. See L. 2011, ch. 26, §§ 29, 47. 
8

The next year, in 2012, the Legislature amended the Family Law Code by 

combining all of these laws into one statute. The language previously found in K.S.A. 

2011 Supp. 23-3302 moved to subsections (b) and (c) of K.S.A. 2012 Supp. 23-3301. The 

Legislature also moved the language stating that a court may grant grandparent visitation 

rights in divorce cases to K.S.A. 2012 Supp. 23-3301(a). See L. 2012, ch. 162, § 54. 

The Legislature has not amended the statute since 2012. We will display the entire 

statute—K.S.A. 2019 Supp. 23-3301—when we begin our analysis of the law. 

The T.N.Y. panel made a thorough examination of all of this statutory background. 

And when the panel reviewed the legislative history, it found that the Legislature did not 

intend for the 2012 amendments to be substantive. The panel reviewed various 

memoranda from the Judicial Council and the Kansas Bar Association:

"Our review of the legislative history relating to the 2012 amendment reveals 

there was no intent to make any substantive changes to the Kansas Family Law Code. 

The amendment to K.S.A. 2011 Supp. 23-3301 began as part of House Bill 2741, which 

was proposed by the Kansas Judicial Council as 'clean-up amendments to the recodified 

domestic relations statutes.' . . . Further, the Kansas Judicial Council submitted written 

testimony in support of House Bill 2741's amendment to K.S.A. 2011 Supp. 23-3301—as 

well as an amendment to K.S.A. 2011 Supp. 23-3302—which stated: 'The amendments 

contained in these two sections merely reorder the provisions so that 23-3301 authorizes 

the court to grant visitation rights to grandparents and stepparents, while 23-3302 deals 

with modification of such orders. The changes are not substantive.'" 51 Kan. App. 2d at 

967. 

The T.N.Y. panel also reviewed written testimony offered to the Legislature: 

"Similarly, the Kansas Bar Association submitted written testimony explaining that 'HB 

2741 was introduced as a measure to correct any oversights that may have occurred' 

when implementing Senate Bill 24 in the previous year. Memorandum from Joseph 
9

Molina, Kansas Bar Association, to Chairman Lance Kinzer and Members of the House 

Judiciary Committee, March 13, 2012.

"Although House Bill 2741 died in the Senate Judiciary Committee after passing 

the House, it was resurrected in Senate Bill 304—which was introduced on March 1, 

2012. The Senate Bill dealt mainly with the implementation of a certified batterer 

intervention program. But a conference committee later included the amendments to 

K.S.A. 2011 Supp. 23-3301 and K.S.A. 2011 Supp. 23-3302 in Senate Bill 304. In fact, 

the Kansas Judicial Council's website provides that Senate Bill 304 'contains provisions 

from [HB 2741] proposing clean-up amendments to the recodified domestic relations 

statutes.' . . . The Governor ultimately signed Senate Bill 304 into law on May 25, 2012. 

In summarizing Senate Bill 304, the Kansas Legislative Research Department simply 

states that 'the bill fixes non-substantive errors and omissions in 2011 SB 24, which 

recodified several domestic relations statutes.'" 51 Kan. App. 2d at 967.

But the panel was not persuaded by this legislative history and ruled that these legislative 

actions did change the law permitting grandparent visitations and limited those rights to 

divorce cases. "We, therefore, conclude that the current version of K.S.A. 2014 Supp. 23-

3301 only authorizes a district court to grant grandparent visitation in proceedings 

involving the dissolution of a marriage." T.N.Y., 51 Kan. App. 2d at 963.

Why we depart from T.N.Y.

First, our facts differ from those in T.N.Y. In T.N.Y., a father brought a paternity 

action to establish custody over his child. The district court adopted paternity orders and 

a parenting plan submitted by the mother and father, and the grandparents filed for 

visitation rights. The district court denied their request because it found that K.S.A. 2014 

Supp. 23-3301(a) provided for grandparent visitation only in divorce cases and this was a 

paternity action. Here, the Frosts seek a visitation order in an independently filed case.
10

Next, the T.N.Y. panel found that the plain and unambiguous language of the 2012 

law restricts grandparent visitation to divorce actions only, because those are article 27 

chapter 23 actions. 51 Kan. App. 2d at 962-63. In other words, by compiling the several 

laws into one statute, grandparents lost their previously recognized right to file an 

independent action seeking visitation. It is from this holding that we depart. 

Our method of statutory interpretation is straightforward. First, by considering the 

entire article where the statute is found and heeding its history, and closely reading the 

statute itself, we do not interpret the law in a way that renders it unconstitutional. In our 

view, the 2011 codification and the 2012 amendment left the law of grandparent 

visitation unchanged—it was just moved. Grandparents neither gained anything from 

these enactments, nor did they lose anything. In other words, grandparents can still file an 

independent action seeking visitation based on the conditions specified in the law or file 

motions for visitation in divorce cases.

For ease of reference, we repeat the statute regarding grandparent and stepparent 

visitation rights, recognizing that it has remained unchanged since its amendment in 

2012:

"(a) In an action under article 27 of chapter 23 of the Kansas Statutes Annotated, 

and amendments thereto, grandparents and stepparents may be granted visitation rights.

"(b) The district court may grant the grandparents of an unmarried minor child 

reasonable visitation rights to the child during the child's minority upon a finding that the 

visitation rights would be in the child's best interests and when a substantial relationship 

between the child and the grandparent has been established.

"(c) The district court may grant the parents of a deceased person visitation 

rights, or may enforce visitation rights previously granted, pursuant to this section, even 

if the surviving parent has remarried and the surviving parent's spouse has adopted the 

child. Visitation rights may be granted pursuant to this subsection without regard to 
11

whether the adoption of the child occurred before or after the effective date of this act."

K.S.A. 2019 Supp. 23-3301.

Upon reading this statute in context with its companions, several things lead us to doubt 

that the Legislature restricted its application to divorce cases as the T.N.Y panel ruled. 

First is its location in a separate article. 

In jurisprudence, there is seldom a single statute. Most often, they are found in 

clusters. In Kansas, our laws are grouped into articles. Thus, a cluster of these laws—so 

grouped—are an expression of the total public policy that the Legislature wishes to 

enforce. Thus, any court seeking to interpret a statute must consider all the laws in an 

article to understand fully the intent of the Legislature. This statute—K.S.A. 2019 Supp. 

23-3301—is no exception to such a group consideration. 

This law is the first statute in a separate article—article 33—entitled Third Party

Visitation. It is not part of the statutes that deal with divorce cases found in article 27. 

Secondly, the subtitle of the statute communicates this law deals with rights and not 

procedures. Third, there are no words in this statute that says it applies only to divorce 

cases. True, subsection (a) deals with such cases, but subsections (b) and (c) do not. Just 

because a comes before b and c in the alphabet, it does not follow that (a) controls (b) and 

(c). We view this statute just as the Skov court did when it compared K.S.A 38-129 and 

K.S.A 60-1616(b)—the statutory ancestors of K.S.A. 2019 Supp. 23-3301. The court 

construed them in harmony and ruled they were constitutional, and we believe K.S.A. 

2019 Supp. 23-3301 is constitutional.

And when we go further and read the entire article and not just this statute in 

isolation, we see that the Legislature has very carefully established a system for 

grandparents to seek and secure visitation with their grandchildren and has given them 

the tools to do so. For example, the Legislature set out in K.S.A. 2019 Supp. 23-3302 
12

how to modify and enforce such orders. Then, in K.S.A. 2019 Supp. 23-3303, the 

Legislature states that grandparents can file an action seeking to enforce their visitation 

rights in the county where the children reside. If the Legislature wanted to limit visitation 

to divorce cases only, then this provision is surplusage. If it was the intent to so limit, 

then the statute would specify the motion would be filed in the county where the divorce 

case is filed. The article even includes a provision for attorney fees in K.S.A. 2019 Supp. 

23-3304. We hold that these added laws are not surplusage, they show a legislative policy 

of preserving grandparent rights, and they are not limited to divorce cases. In this article,

the Legislature has given grandparents all the tools needed to enforce their visitation 

rights, not limit them. 

All of this leads us to hold that the 2011 codification and the 2012 amendment did 

not restrict grandparent visitation to divorce cases as the panel in T.N.Y. held. In its view, 

grandparents lost visitation rights in 2011 and 2012. By adopting a narrow reading of an 

isolated statute, the panel chose an interpretation of that statute that rendered it violative 

of the Equal Protection Clause. In our view, that should be the last resort for a court when 

it is interpreting a statute.

Our Supreme Court has given us clear instructions about interpreting our statutes. 

An appellate court presumes statutes are constitutional and must resolve all doubts in 

favor of a statute's validity. Further, the appellate court must interpret a statute in a 

manner rendering it constitutional if there is any reasonable construction that will 

maintain the Legislature's apparent intent. A statute must clearly violate the constitution 

before it may be struck down. See State v. Gonzalez, 307 Kan. 575, 575, 412 P.3d 968 

(2018).

This guidance from our Supreme Court is an example of the constitutional

avoidance canon of statutory interpretation mentioned by William Eskridge in his 
13

seminal work, Interpreting Law: A Primer on How to Read Statutes and the Constitution

310 (2016). According to Eskridge, there are three analytical steps to the canon:

1. [If the] statute is ambiguous: it can mean either A or B.

2. Interpretation A would violate the Constitution, but Interpretation B would not. 

3. Therefore, the Court should choose Interpretation B. 

See United States v. Davis, 588 U.S. __, 139 S. Ct. 2319, 2350, 204 L. Ed. 2d 757 (2019)

(Kavanaugh, J., dissenting).

So we choose to try to interpret the statues dealing with grandparent visitation in 

Kansas in a way that it does not violate the Equal Protection Clause. By doing so, we are 

following the directions of our Supreme Court in Gonzalez, as well as the avoidance 

canon. In our view, under subsection (b), a grandparent can file an independent action for 

visitation in the county where the child resides. When such an action is filed, a district 

court may grant reasonable visitation upon finding it is in the child's best interests and 

when a substantial relationship between the child and the grandparent has been 

established. We note that this interpretation was suggested to the T.N.Y panel but rejected 

without much comment. 

The grandparents in T.N.Y. argued that the statute could be interpreted as 

constitutional: 

"[T]he Grandparents argue that it would be reasonable to read the current statute to 

provide for grandparent visitation as it did prior to its 2012 amendment. Although this 

language is appealing in light of the legislative history of the amendment, such a reading 

of the current version of the statute would require us to ignore our directive from the 

Kansas Supreme Court to strictly construe third-party visitation statutes. Moreover, a fair 

reading of the statute reveals that subsection (b) does not provide a statutory right to 

grandparents in paternity actions to seek visitation. Rather, that subsection provides the 

findings that a district court is required to make in order to grant visitation to a 
14

grandparent. If the legislature intended subsection (b) to broadly permit grandparent 

visitation in a variety of actions, subsection (a) would be superfluous. [Citation omitted.]" 

51 Kan. App. 2d at 963. 

By reading the statute in isolation, the T.N.Y. panel decided that the plain language 

of subsection (b) of the statute does not provide a statutory right for grandparent 

visitation in paternity cases. This interpretation ignores important sources of the law.

The history and source of the statute explains our point. The three subsections of 

this statute arise from a compilation of several statutes. Subsection (a), dealing with 

divorces, comes from K.S.A. 2019 Supp. 23-3301 which itself derived from its prior 

iteration in K.S.A. 60-1616(b). Likewise, K.S.A. 38-129, the original general law dealing 

with grandparent visitation, where there is a history of a substantial relationship and 

adoption cases, became K.S.A. 2011 Supp. 23-3302. That law, in 2012, moved to its 

present home in K.S.A 2019 Supp. 23-3301(b) and (c). For reference, we quote from the 

old statutes: 

"(a) The district court may grant the grandparents of an unmarried minor child 

reasonable visitation rights to the child during the child's minority upon a finding that the 

visitation rights would be in the child's best interests and when a substantial relationship 

between the child and the grandparent has been established.

"(b) The district court may grant the parents of a deceased person visitation 

rights, or may enforce visitation rights previously granted, pursuant to this section, even 

if the surviving parent has remarried and the surviving parent's spouse has adopted the 

child. Visitation rights may be granted pursuant to this subsection without regard to 

whether the adoption of the child occurred before or after the effective date of this act." 

K.S.A. 38-129; L. 1984, ch. 152, § 1. 

We recite these old laws so that we can track their language and show how it is now 

repeated in our present law.
15

The language of the laws did not change when they were moved to a new Code. 

That is the main reason why we believe that grandparents gained nothing by the 2011 

codification and the 2012 amendment. Nor did they lose anything. If grandparents could 

file an independent action seeking visitation with their grandchildren before the 

amendment, they could file an independent action after the 2012 amendment. And that is 

where we differ with the district court in this case. 

We recognize that the district court was duty bound to follow T.N.Y., but we are 

not. To us, T.N.Y. is horizontal precedent and not binding. "[O]ne panel of the Court of 

Appeals may disagree with a previous panel of the same court." State v. Fleming, 308 

Kan. 689, 706, 423 P.3d 506 (2018). 

Even though we disagree with the panel's holding in T.N.Y., that does not mean the 

district court erroneously dismissed the Frosts' petition. Dismissal is proper, but for a 

different reason. Before we address that, we must look at the second case that the Frosts 

complain about—Baker.

One of the issues the Baker panel had to resolve was whether the district court 

correctly denied a motion for grandparent visitation in a PFA case. The panel rejected the 

grandparents' argument that the effect of the T.N.Y. ruling opened the door for 

grandparents: 

"Based on T.N.Y., the grandparents argue that K.S.A. 2015 Supp. 23-3301(a) now 

applies to all types of actions that could involve child-custody and visitation matters. We 

disagree and conclude that the T.N.Y. case does not apply beyond its own setting—

namely, a request for grandparent visitation within a paternity case." Baker, 52 Kan. App. 

2d at 910. 

We have no quarrel with this ruling because the only pending actions in which 

grandparents can intervene are divorce cases, according to K.S.A. 2019 Supp. 23-
16

3301(a). There is no mention in the law of intervening in protection from abuse actions. 

There was no statute before or after 2012 that allowed intervention in any cases other 

than divorces. 

To sum up, we have explained why we disagree with the reason given by the 

district court in dismissing the Frosts' petition. We simply cannot interpret K.S.A. 2019 

Supp. 23-3301 as the T.N.Y. panel did. Our ruling is limited only to the issue before us—

the reasons for dismissing a grandparent visitation petition under these circumstances.

There is a good reason to dismiss this petition. 

We find no error in the district court dismissing the Frosts' petition. We hold there 

is a different reason that compels the dismissal and it was raised by DCF: ripeness. 

In Kansas, judicial power extends only to cases and controversies, and there is no 

justiciable dispute between the Frosts and DCF. See State ex rel. Morrison v. Sebelius, 

285 Kan. 875, 896-98, 179 P.3d 366 (2008). Because there was no actual controversy, the 

district court properly declined the Frosts' invitation to make such a ruling in order to 

"persuade" the juvenile court to also grant visitation. The task of persuading courts is left 

to the parties and their able advocates, not other courts.

By law, orders arising under the revised Kansas Code for Care of Children 

proceedings take precedence over orders from other courts. K.S.A. 2019 Supp. 38-

2201(a). Grandparent visitation is not a ripe issue for these parties because the CINC 

court's no-contact order governs until either the CINC case closes or the order is 

modified. K.S.A. 2019 Supp. 38-2201(a). Because the CINC court's order takes 

precedence, there is nothing DCF could do even if the district court here had ordered 

visitation. And once the CINC cases conclude, DCF will no longer have custody of the 
17

children. So the injury the Frosts allege does not appear attributable to any actions by 

DCF. This brings a recent ruling into play.

Our Supreme Court has ruled that a court could not have decided a case if the 

plaintiff could not show a causal connection between their injury and the defendant's 

conduct, or if the dispute was not yet fixed and final, but instead contingent or 

hypothetical. See State v. Roat, 311 Kan. 581, 600-01, 466 P.3d 439 (2020). The Frosts 

have not shown that DCF, by obeying a court's order has caused them injury. Any order 

made by the district court here would, by law, be ineffectual. And a ruling by the district 

court granting visitation could only be contingent or hypothetical. Thus, under the ruling 

in Roat, the district court could not have decided this case. That is why dismissal was a 

proper remedy. 

In State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015), our Supreme Court 

directed that an appellate court would uphold a district court decision that reaches the 

correct result for the wrong reason. That is what we do here. 

Affirmed.