DocketNumber： Nos. 65605-3; 65699-1; 66207-0
Judges： Madsen, Talmadge
Filed Date： 12/24/1998
Status： Precedential
Modified Date： 11/16/2024
The issues presented in these three consolidated cases are whether petitioners had standing to petition for visitation under either RCW 26.10.160(3) or former RCW 26.09.240 and whether these statutes violate the parents’ constitutionally protected interest in raising their children without state interference. We conclude petitioners have standing but, as written, the statutes violate the parents’ constitutionally protected interests. These statutes allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.
STATEMENT OF THE CASE
Wolcott. Justin Wolcott was born April 10, 1986. After Justin was born, Justin’s mother, Lisa, began a relationship with David Clay. The three lived together from May 1988 until 1992. After Wolcott and Clay separated, Clay continued to see Justin. However, relations between Wol-cott and Clay deteriorated and, in November, Clay petitioned pursuant to RCW 26.10.160(3) to establish visitation rights with Justin. A court commissioner entered a temporary order allowing visitation every other weekend. On motion for revision, Judge Wilson reduced visitation to one Saturday per month. Wolcott appealed that order to Division One, arguing that Clay lacked standing to seek visitation. Commissioner Ellis dismissed the appeal because no final appealable order had been entered. He also found no obvious or probable error and denied discretionary review.
Following a trial in October 1995, Judge Hansen dismissed Clay’s petition for visitation holding that Clay
Troxel. Natalie and Isabelle Troxel are the daughters of Brad Troxel and Tommie Granville, who never married. After their separation, Brad lived with his parents, Jenifer and Gary Troxel, and the girls visited their father at their grandparents’ home on occasion. Brad committed suicide in May 1993. At first the girls continued to visit the Trox-els regularly, but their mother soon decided to limit visitation. In December 1993, the Troxels filed a petition pursuant to RCW 26.10.160(3) and former RCW 26.09.240 to obtain visitation rights with their grandchildren. In 1995, the trial court entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on each of the Troxels’ birthdays. Granville appealed, during which time she married Kelly Wynn, who adopted the girls in February 1996. The Court of Appeals remanded for entry of findings of fact and conclusions of law, which were entered in January 1996.
The Court of Appeals subsequently reversed the visitation order and dismissed the Troxels’ petition for visitation holding that nonparents lack standing to seek visitation unless a custody action is pending. In re Visitation of Troxel, 87 Wn. App. 131, 940 P.2d 698 (1997), review granted, 133 Wn.2d 1028, 950 P.2d 478 (1998). The Troxels sought and were granted review by this court.
Smith. Brian Smith and Kelly Stillwell were married in 1989. In 1992, Stillwell gave birth to daughter, Sara, conceived through artificial insemination (Brian was not the donor). In 1995, Stillwell petitioned for dissolution of the couple’s marriage. Both parties sought custody of Sara. On February 25, 1996, Stillwell’s mother went to Brian’s home and shot him. Brian fired back, and they were both killed. A dispute then developed between Stillwell and
DISCUSSION
The parties in this case sought visitation rights pursuant to RCW 26.10.160(3) and former RCW 26.09.240, both of which address visitation rights of nonparents. RCW 26.10.160(3) provides:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
Former RCW 26.09.240 (prior to 1996 amendments) provides:
The court may order visitation rights for a person other than a parent when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
A person other than a parent may petition the court for visitation rights at any time.
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.
The question before this court is whether a nonparent petitioner has standing pursuant to RCW 26.10.160(3) or former RCW 26.09.240 to petition for visitation with a child
STANDING
At issue in each of these cases is whether RCW 26.10.160(3) and former RCW 26.09.240 permit a nonparent to seek visitation in the absence of a custody proceeding. The parents argue that the question should be answered in the negative and ask this court to find that the individuals who petitioned for visitation rights lack standing under the applicable statutes. The petitioners respond stating that the plain meaning of RCW 26.10.160(3) and former RCW 26.09.240 allow them to petition for visitation absent a custody proceeding noting that both statutes allow “any person” to petition for visitation at “any time.” We hold that the plain language of the statutes gives Clay and the Troxels standing to petition for visitation rights under RCW 26.10.160(3) and the Smiths standing to petition for visitation under former RCW 26.09.240.
In answering the question before this court we must interpret the meaning of RCW 26.10.160(3) and former RCW 26.09.240. We review questions of statutory construction de novo. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 443, 842 P.2d 956 (1993). The purpose of statutory interpretation is to determine and give effect to legislative intent. Duke v. Boyd, 133 Wn.2d 80, 87-88, 942 P.2d 351 (1997). Legislative intent is primarily determined from the statutory language. Id.
When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written. Although the court should not construe statutory language so as to result in absurd or strained consequences, neither should the court question the wisdom of a statute even though its results seem unduly harsh.
Both RCW 26.10.160 and RCW 26.09.240 address the rights of nonparents to seek visitation with a child. Both statutes have been amended several times, most recently in 1996. As originally enacted in 1973, as part of a chapter having mainly to do with parenting plans in dissolution actions, former RCW 26.09.240 provided that a parent not granted custody of a child is entitled to reasonable visitation rights unless visitation would endanger the child’s health. It also said, “[t]he court may order visitation rights for any person when visitation may serve the best interest of the child.” Laws of 1973, 1st Ex. Sess., ch. 157, § 24. In 1976, the Court of Appeals held the phrase “any person” did not authorize trial courts to grant visitation rights to “third person,” including grandparents, absent a change of circumstances, such as death of one or both parents or termination of the nuclear family unit. Carlson v. Carlson, 16 Wn. App. 595, 597, 558 P.2d 836 (1976).
The following year, the Legislature amended RCW 26.09.240 to read: “The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change in circumstances. Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings.” Laws of 1977, 1st Ex. Sess., ch. 271, § 1. The statute retained its original language regarding visitation rights of parents denied custody.
In 1987, the Legislature adopted an extensive bill regarding parenting, child custody and child support. Laws of 1987, ch. 460. One section of that bill amended RCW 26.09.240 to omit references to visitation rights of parents denied custody and also to delete the phrase “including, but not limited to, custody proceedings.” Laws of 1987, ch.
In another section of this bill, the Legislature created a new statute which overlapped both the old and new versions of RCW 26.09.240. This new statute gave presumptive visitation rights to parents denied custody and allowed trial courts to order visitation rights, and “for any person” to petition for such rights “any time including, but not limited to, custody proceedings.” Laws of 1987, ch. 460, § 44. Although this statute dealt with visitation rights of both parents and nonparents, it was codified as RCW 26.10.160, in a new chapter titled “Nonparental Actions for Child Custody.” Laws of 1987, ch. 460, § 25.
In 1989, the Legislature amended RCW 26.10.160 to clarify the circumstances under which a parent who is denied custody may be allowed visitation. Laws of 1989, ch. 326, § 2(1), (2). That amendment also divided the statute into four subsections, and placed the language regarding nonparent visitation rights in subsection (3). Laws of 1989, ch. 326, § 2(3). This subsection still permitted “any person” to seek visitation “at any time” including, but not limited to custody proceedings “whether or not there has been any change of circumstances.” Laws of 1989, ch. 326, § 2(3). That same session, the Legislature also amended RCW 26.09.240 to permit “a person other than a parent” (rather than “any person”) to petition for visitation. Laws of 1989, ch. 375, § 13.
In 1994, the Legislature amended RCW 26.10.160 to further clarify the circumstances under which parents denied custody may be allowed (or denied) visitation. Laws of 1994, ch. 267, § 2. The Legislature made no changes to the subsection of the statute allowing “any person” to petition for visitation “at any time including, but not limited to, custody proceedings.” Laws of 1994, ch. 267, § 2(3).
The 1996 Legislature amended RCW 26.10.160 again to clarify the visitation rights of parents denied custody. Laws of 1996, ch. 303, § 2(l)-(2). The Legislature made no changes to subsection (3) of this statute, dealing -with petitions for visitation by “any person” “at any time including, but not limited to, custody proceedings. . . . whether or not there has been any change of circumstances.” Laws of 1996, ch. 303, § 2(3). There is no language limiting actions under RCW 26.10.160(3) in the manner they are limited under RCW 26.09.240.
Although the plain language of RCW 26.10.160(3) allows “any person” to petition for visitation “at any time,” the Court of Appeals in Wolcott and Troxel relied on the 1996 changes in comparable language in RCW 26.09.240 as a basis for avoiding the plain language of the statute. In re Visitation of Wolcott, 85 Wn. App. 468, 473, 933 P.2d 1066 (1997), review granted, 133 Wn.2d 1028, 950 P.2d 478
Our concern with the Court of Appeals’ analysis is its reluctance to address the plain language of RCW 26.10.160(3). Although the Legislature amended RCW 26.09.240 and other sections of RCW 26.10.160, it left RCW 26.10.160(3) untouched. By its plain language, RCW 26.10.160(3) gives nonparents an avenue to obtain visitation rights with children outside of a custody proceeding. We decline to construe the language of RCW 26.10.160(3) because we find that the language of the statute is unambiguous. Further, we will not read qualifications into the statute which are not there. A “court cannot read into a statute that which it may believe the legislature has omitted, be it an intentional or inadvertent omission.” Automobile Drivers & Demonstrators Union Local 882 v. Department of Retirement Sys., 92 Wn.2d 415, 421, 598 P.2d 379 (1979) (citing Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 573 P.2d 10 (1977)); accord State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982); Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981). Thus, the petitioners in Wolcott and Troxel had standing to petition for visitation under RCW 26.10.160(3).
In Smith, application of former RCW 26.09.240 yields the
However, when the Smiths filed their petition for visitation, RCW 26.09.240 did not require the existence of a pending action under RCW 26.09 as a precondition to a nonparents visitation petition. Former RCW 26.09.240 allowed “[a] person other than a parent” to “petition the court for visitation [rights] at any time.” Thus, under the plain language of the statute, the Smiths could petition the court for visitation rights “at any time,” as the trial court properly held.
CONSTITUTIONALITY OF RCW 26.10.160(3) AND FORMER RCW 26.09.240
In Wolcott and Troxel, the Court of Appeals rewrite of RCW 26.10.160(3) is based on its concern that a literal reading of the statute would have the “intolerable” consequence of “stable families” being “forced to defend in court against visitation petitions having no basis.” In re Visitation of Wolcott, 85 Wn. App. at 472; see also In re Visitation of Troxel, 87 Wn. App. 131. While the statute as written may have potentially troubling consequences for stable families, this does not justify the Court of Appeals’ rewriting of the statute.
Nevertheless, it is undisputed that parents have a fundamental right to autonomy in child-rearing decisions. The United States Supreme Court has long recognized a constitutionally protected interest of parents to raise their children without state interference. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923) (The liberty interest guaranteed by the Fourteenth Amendment includes freedom “to engage in
The Supreme Court defined the nature of this constitutionally protected interest in Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), when it held unconstitutional an Illinois law which declared that, upon the death of the mother, children of unwed fathers become wards of the state:
The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.”
The Court has frequently emphasized the importance of the*15 family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man” .... “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment ....
(Citations omitted.)
The family entity is the core element upon which modern civilization is founded. Traditionally, the integrity of the family unit has been zealously guarded by the courts. The safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution. A parent’s constitutionally protected right to rear his or her children without state interference has been recognized as a fundamental “liberty” interest protected by the Fourteenth Amendment and also as a fundamental right derived from the privacy rights inherent in the constitution. Where a fundamental right is involved, state interference is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved. See Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); O’Hartigan v. Department of Personnel, 118 Wn.2d 111, 117, 821 P.2d 44 (1991); In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980).
In answering whether the state visitation statutes at issue serve a compelling state interest we must understand the sources of state power to intrude on family life. The state may act pursuant to its authority to protect citizens from injuries inflicted by third persons or to protect its citizens from threats to health and safety. Thus, in the context of family life, the state’s police power gives it the authority to require the vaccination of children against communicable diseases over the objection of their fit parents. See Prince, 321 U.S. at 166-67. Similarly, the state
The state’s other source of authority to intrude on a family’s autonomy is its parens patriae power. As parens patriae the state acts from the viewpoint and in the interests of the child. As with the state’s police power the state may act pursuant to its parens patriae power only where a child has been harmed or where there is a threat of harm to a child. See Yoder, 406 U.S. at 206. Both parens patriae power and police power provide the state with the authority to act to protect children lacking the guidance and protection of fit parents of their own, and although they may represent different perspectives, both contemplate harm to the child and, in practical terms, have been used nearly interchangeably in the fashioning of a threshold requirement of parental unfitness, harm, or threatened harm. See Joan C. Bohl, The “Unprecedented Intrusion”: A Survey and Analysis of Selected Grandparent Visitation Cases, 49 Okla. L. Rev. 29 (1996).
For example, in Yoder, the Supreme Court held that the First and Fourteenth Amendments prevented the state from compelling Amish parents to send their children to public school after completion of the eight grade. Yoder, 406 U.S. 205. The state argued, based on the Court’s prior decision in Prince, that such a decision fails to give due regard to the power of the state as parens patriae to extend the benefit of the secondary education to children regardless of
These parties who have petitioned for visitation rights argue that former RCW 26.09.240 and RCW 26.10.160(3) serve a compelling state interest that warrants use of the state’s parens patriae power to impose visitation with third persons where the visitation serves the “best interest of the child.” Petitioners contend that a judicially determined finding that visitation is in the best interests of the child is a sufficiently compelling justification to override a parent’s opposition, regardless of the fact that the parent’s fitness is not challenged or that there has been no showing of harm or threatened harm to the child.
However, the Supreme Court cases which support the constitutional right to rear one’s child and the right to family privacy indicate that the state may interfere only “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” Yoder, 406 U.S. at 234. In Yoder, for example, the Court deemed significant the fact that Amish children would not be harmed by receiving an Amish education rather than a public education. Yoder, 406 U.S. at 230. Likewise, in Pierce, the Court found that parents’ decisions to send their children to private schools were “not inherently harmful,” as there was “nothing in the . . . records to indicate that [the private schools] have failed to discharge their obligations to patrons, students, or the state.” Pierce, 268 U.S. at 534. In Meyer, a case in which a teacher had been convicted of teaching a child German, the Court found that “proficiency in a foreign language ... is not injurious to the health, morals or understanding of the ordinary child,” and thus the state’s desire “to foster a
Washington has followed suit, allowing state interference with parents’ rights to raise their children only where the state seeks to prevent harm or a risk of harm to the child. This court has emphasized that a state can intrude upon a family’s integrity pursuant to its parens patriae right only when “parental actions or decisions seriously conflict with the physical or mental health of the child.” In re Welfare of Sumey, 94 Wn.2d at 762 (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); Yoder, 406 U.S. at 230).
In Sumey, parents were temporarily denied custody of their child pursuant to former RCW 13.32,
In Sumey, we concluded that the state properly acted pursuant to its parens patriae power finding that former RCW 13.32 was enacted to “safeguard the mental and emotional health of the child by removing him or her from a situation of family conflict that is so extreme that the parents and child are unable to live together even with the aid of counseling.” Id. at 764. Additionally, the court emphasized that the statute also protected the “physical health of children like [Sumey] . . . who [were] driven by the family conflict to run away from home and expose themselves to the physical dangers that attend running away.” Id. at 764-65.
In contrast, this case presents no such compelling interest of the state. The statutes at issue do not contemplate any similar harm or potential harm to the child which must be prevented by third party visitation rights. Accordingly, the parens patriae authority does not justify the interference with parental rights permitted by these statutes.
One court aptly emphasized that “[t]he requirement of harm is the sole protection that parents have against
“For the state to delegate to the parents the authority to raise the child as the parents see fit, except when the state thinks another choice would be better, is to give the parents no authority at all. ‘You may do whatever you choose, so long as it is what I would choose also’ does not constitute a delegation of authority.”
Id. (quoting Kathleen Bean, Grandparent Visitation: Can the Parent Refuse?, 24 U. Louisville J. Fam. L. 393, 441 (1985-86)).
We recognize that in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child. The difficulty, however, is that such a standard is not required in RCW 26.10.160(3) or in former RCW 26.09.240. Both statutes allow “any person” to petition for forced visitation of a child at “any time” with the only requirement being that the visitation serve the best interest of the child. There is no threshold requirement of a finding of harm to the child as a result of the discontinuation of visitation.
Short of preventing harm to the child, the standard of “best interest of the child” is insufficient to serve as a compelling state interest overruling a parent’s fundamental rights. State intervention to better a child’s quality of life through third party visitation is not justified where the child’s circumstances are otherwise satisfactory. To suggest otherwise would be the logical equivalent to asserting that the state has the authority to break up stable families and redistribute its infant population to provide each child with the “best family.” It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a “better” decision.
Additionally, the statutes lack other safeguards to prevent stable families from defending in court against frivolous petitions for visitation. Most notably the statutes
Parents have a right to limit visitation of their children with third persons. The law’s concept of the family rests “on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment . . . .” Brooks v. Parkerson, 265 Ga. 189, 192, 454 S.E.2d 769 (1995). Some parents and judges will not care if the child is physically disciplined by a third person; some parents and judges will not care if a third person teaches the child a religion inconsistent with the parents’ religion; and some judges and parents will not care if the child is exposed to or taught racist or sexist beliefs. But many parents and judges will care, and, between the two, the parents should be the ones to choose whether to expose their children to certain people or ideas. See Kathleen Bean, Grandparent Visitation: Can the Parent Refuse? RCW 26.10.160(3) and former RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the “care, custody and companionship of the child.” Sumey, 94 Wn.2d at 762.
ATTORNEYS’ FEES
Both RCW 26.09.140 and RCW 26.10.080 allow either party, based on financial need to recover attorneys’ fees and costs from another party as a result of maintaining or defending any proceeding under either chapter upon a showing of financial need. Additionally upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the ap
In Smith, the trial court declined to award either party costs or reasonable attorneys fees pursuant to RCW 26.09.140 and RCW 26.10.080. On appeal, Kelly Stillwell asserts the trial court erred its decision denying attorneys fees and costs. She also asks for attorneys fees and costs incurred on appeal.
Likewise, neither the Troxels nor Ms. Granville were awarded fees or costs below. Ms. Granville asks this court pursuant to RCW 26.09.140 and RCW 26.10.080 to award her attorneys’ fees and costs on appeal. She has filed an affidavit reflecting her financial need as required by RAP 18.1(c).
Finally, Ms. Wolcott was awarded attorneys fees by both the trial court and on appeal pursuant to RCW 26.10.080. Clay asks this Court to review the award of the fees below. Like the Court of Appeals, we find no abuse of discretion in the trial court’s award. Ms. Granville asks for an award of fees and costs on appeal to this court and has filed the necessary financial affidavits.
Dolliver, Smith, Johnson, and Sanders, JJ., concur.
The trial court found that the petition for visitation was governed by the version of RCW 26.09.240 that was in effect when the action was filed on April 3, 1996. The court held that the language added to the statute by the 1996 amendment was not applicable since the amendment was not effective until June 6, 1996.
Provisions in former RCW 13.32 have been supplanted by provisions in RCW 13.32A.
The residential placement was temporary. A review hearing had to be held every six months to approve or disapprove of the continuation of the placement. RCW 13.32.050, repealed by Laws op 1979, ch. 155, § 86. Throughout the six-month period appropriate interim services were provided to the child and parents with the ultimate goal of reunification. Id.
We note that the court in Sumey did not engage in a strict scrutiny analysis although it recognized that a parent’s fundamental right to the “care, custody, and companionship” was at stake. In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). The court instead, without citation to authority, engaged in a balancing analysis weighing the interests of the parents against the parens patriae power of the state. Id. at 763. Nevertheless, the court’s result was correct because the interests of the state in that case, as discussed above, were compelling and the statute was narrowly tailored to serve the state’s interest.
Ms. Stillwell asks for attorneys fees and costs on appeal pursuant to RCW 26.09.240(3). Ms. Stillwell cannot receive attorneys fees pursuant to RCW 26.09.240(3) as it was not in effect at the time the petition for custody was filed and there is not indication that the Legislature intended the amended provisions of the statute to be applied retroactively.