TALMADGE, J. (concurring/dissenting) -- While I agree with the majority's holding that
the plain language of RCW 26.10.160(3) and former RCW 26.09.240 provides the
petitioners standing to seek visitation with the respective children in these consolidated
cases, I disagree with the majority's view that such visitation intrudes unconstitutionally
into the realm of parents' protected interests. By eliminating the limited right these statutes
provides for nonparents to seek visitation with children, the majority opinion will have cruel
and far-reaching effects on loving relatives, particularly grandparents of children like the
Troxels here, depriving them in many instances of any contact with their grandchildren.
For these reasons, I respectfully dissent.
The majority correctly determines the plain language of RCW 26.10.160(3) compels the
conclusion that the petitioners in these cases had standing. But the majority holds 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." Majority op. at
24 (quoting In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). This
holding is based on two flawed premises: First, a parent's fundamental right to autonomy in
child-rearing decisions is unassailable, and, second, the State's parens patriae power to act
in a child's welfare may not be invoked absent a finding of harm to the child or parental
unfitness. Majority op. at 14-18.
A. Parental Rights Are Not Absolute
As the majority notes, parental rights regarding the care and custody of their children are
well established. See Majority op. at 14-15. It is equally true, however, such rights are not
absolute. As the majority asserts, the Supreme Court in Prince v. Massachusetts, 321 U.S.
158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), indeed noted "custody, care and nurture of the
child reside first in the parents{,}" but went on to hold:
but the family itself is not beyond regulation in the public interest, as against a claim of
religious liberty. And neither rights of religion nor rights of parenthood are beyond
limitation . . . the state has a wide range of power for limiting parental freedom and
authority in things affecting the child's welfare; and . . . this includes, to some extent,
matters of conscience and religious conviction.
Prince, 321 U.S. 166-67 (citations omitted). The majority focuses on only a portion of the
equation. The constitutional issue in these consolidated cases concerns the parameters and
balancing of rights and interests of the State and child, as well as
those of the parents.
We have previously addressed the parameters of the rights of parents and the State's
parens patriae power to act in the child's best interests in Sumey, 94 Wn.2d 757. There,
we balanced the rights of the parents, child and State, broadly interpreting the State's
parens patriae right to intervene and protect a child as a valid justification for temporary
residential placement of the child under RCW 13.32, stating:
The liberty and privacy protections of the due process clause of the Fourteenth
Amendment establish a parental constitutional right to the care, custody, and
companionship of the child. This constitutionally protected interest of parents has been
described as a "sacred right" which is " 'more precious . . . than the
right of life itself.' "
The parents' constitutional rights, however, do not afford an absolute protection against
State interference with the family relationship. Although "(h)istorically, the natural parent's
right to custody of a child . . . {was considered to be} absolute, barring a showing of
unfitness . . . {g}rowing concern for the welfare of the child and the disappearance of the
concept of the child as property has led to a gradual modification in judicial attitude." It is
now well established that when parental actions or decisions seriously conflict with the
physical or mental health of the child, the State has a parens patriae right and responsibility
to intervene to protect the child. As we observed in State v. Koome, 84 Wn.2d 901, 907,
530 P.2d 260 (1975),
Although the family structure is a fundamental institution of our society, and parental
prerogatives are entitled to considerable legal deference . . they are not absolute and must
yield to fundamental rights of the child or important interests of the
State.
Thus, in assessing the constitutionality of a procedure which infringes upon parents' rights
to the care, custody, and companionship of their children, it is necessary to ascertain the
proper balance between the parents' constitutional rights and the State's constitutionally
protected parens patriae interest in protecting the best interests of
the child.
Sumey, 94 Wn.2d at 762-63 (most citations omitted) (emphasis added) (alterations in
original). Accord, Washington State Coalition for the Homeless v. Department of Soc. &
Health Servs., 133 Wn.2d 894, 923, 929-30, 949 P.2d 1291 (1997).
Key to the balancing test we applied in Sumey was the degree of abridgment of parental
rights which residential placement of the child entailed. We contrasted the temporary
residential placement at issue with termination of parental rights and dependency
proceedings. In so doing, we observed the requisite balancing called for appropriate
justification for the severity of the abridgment of parental rights sought by the State. The
termination of parental rights is an extreme abridgment of a parent's constitutional rights to
care, custody and companionship of a child which requires the commensurately grave
circumstance of harm (physical, mental or emotional) to the child resulting from the
parent's conduct. But we contrasted this extreme abridgement with residential placement,
explaining: {temporary} residential placement . . . does not infringe upon parental rights as
severely as does a dependency adjudication or termination of parental rights. . . . An
adjudication of dependency (on grounds such as parental abuse, neglect, or abandonment)
can result in placement of the child in a foster home and transfer of certain legal rights and
duties to the foster parents . . . , and can ultimately result in full termination of parental
rights if the parents do not correct the behavior which led to the finding of dependency. In
contrast, a {temporary} residential placement . . . does not result in the transfer of any
legal rights and duties to the custodians of the child and such a placement cannot serve as
a basis for a subsequent termination of parental rights.
Sumey, 94 Wn.2d at 763 (citations omitted). In Sumey, we upheld the placement of the
child outside the home against the parent's wishes because:
The degree of intrusion upon the parents' rights is relatively minor in that the parents retain
custody over the child, the placement outside the home is designed to be temporary and to
end as soon as the family conflict has been resolved . . . On balance, the substantial
interests of the State and child are sufficient to justify the limited infringement upon the
parents' rights.
Id. at 765. Similarly, where visitation is awarded to nonparents in furtherance of the best
interests of the child under the visitation statutes at issue here, the parents retain custody
over the child. The allowance of visitation is even less intrusive than out of home
residential placement of a child. Thus, our rationale in Sumey suggests where visitation is
awarded under the statutes in question, the minor infringement on parental rights resulting
from such visitation is permissible.
Furthermore, the United States Supreme Court cases striking down state action upon
which the majority relies do not argue to the contrary. They involve substantial
infringements of parents' (or others') rights. See Majority op. at 19-20, relying on
Wisconsin v. Yoder, 406 U.S. 205, 219, 92 S. Ct. 1526, 1535, 37 L. Ed. 2d 15 (1972)
(grave endangerment or destruction of free exercise of parents' religious beliefs); Pierce v.
Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534, 45 S. Ct.
571, 573, 69 L. Ed. 1070, 39 A.L.R. 468 (1925) (unreasonable interference with liberty of
parents to direct the upbringing and education of their children where parents wanted to
send their children to established religious or military schools; Meyer v. Nebraska, 262
U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923) (a prohibition on teaching
foreign languages in any school to children who had not yet completed eighth grade);
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (presumptive
termination of unwed father's parental rights). Santosky v. Kramer, 455 U.S. 745, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982) (termination of parental rights based on insufficient
evidentiary standard). Such is not the case here.
Instructive is the response of the Indiana Appellate Court, addressing the same argument
the majority makes here, based on many of the same cases upon which the majority relies.
Upholding its Grandparent Visitation Act, the court in Sightes v. Barker, 684 N.E.2d 224,
230 (Ind. App.), transfer denied, 690 N.E.2d 1187 (Ind. 1997), opined:
Unlike these significant infringements, visitation rights by grandparents as defined by the
Act are less than a substantial encroachment on the parent's fundamental rights or the
autonomy of the nuclear family. The Act contemplates occasional, temporary visitation,
which may only be allowed if a trial court finds visitation to be "in the best interests of the
child.". the Act does not presume that grandparent visitation is necessarily in the children's
best interest. Instead, the burden is on the grandparent, as the petitioning party, to
demonstrate . . . that court-ordered visitation is in the children's best interest. If such a
showing is made, it falls to the court to evaluate the evidence, assess the circumstances,
and carefully devise a visitation schedule that is in the children's
best interest.
As such, permitting grandparent visitation over the adoptive parents' objection does not
unconstitutionally impinge upon the integrity of the adoptive family.
Sightes, 684 N.E.2d at 230 (citations omitted). The same is true of the visitation statutes in
question here. The minor encroachment of parental rights possible under these statutes is
permissible under Sumey.
B. Parens Patriae
The majority's insistence that a showing of harm to the child or parental unfitness is
required before the State's parens patriae power may be brought to bear is incorrect. In
Sumey, there was no assertion of parental unfitness or harm to the child, yet we upheld the
temporary residential placement of a child outside the home as a valid exercise of the
State's parens patriae power to act in the child's best interests. See Sumey, 94 Wn.2d at
762-65. See also State v. Steinbach, 101 Wn.2d 460, 679 P.2d 369 (1984), in which
Justice Dolliver, dissenting on a different issue, explained our holding
in Sumey as follows:
Sumey involved the question of whether the residential placement procedures of former
RCW 13.32 violate due process by authorizing placement of a minor without a prior
finding of parental unfitness. In that case, the child had petitioned the court and been
granted an ARP {alternative residential placement}. Her parents challenged the
constitutionality of the statute. As the majority points out, the case discusses the
importance of the parent-child relationship. The holding, however, is that the "limited
infringement upon parental rights" by the ARP does not violate due process.
Steinbach, 101 Wn.2d at 464-65 (Dolliver, J., dissenting) (emphasis added). Indeed, the
provisions of RCW 13.32 may be invoked where a parent and child are in fundamental
conflict, without any showing of parental unfitness. The majority's analysis calls such
statutes into question.
Similarly, in In re Welfare of Key, 119 Wn.2d 600, 836 P.2d 200, cert. denied, 507 U.S.
927, 113 S. Ct. 1302, 122 L. Ed. 2d 691 (1993), in the context of a dependency hearing,
we rejected the natural parent's assertion that, absent a finding of parental unfitness, the
court's finding that the handicapped daughter is dependent violated the mother's due
process rights. Applying the Sumey balancing test, we held a finding of unfitness was not
required in a dependency proceeding, noting:
Ms. Key's interest is the same as that of any parent in a dependency proceeding. Her
interest does not depend on whether she is found unfit. Instead, the presence or absence of
unfitness would seem to affect only the weight of the State's interest.
Key, 119 Wn.2d at 611 (emphasis added). Thus, even in a dependency proceeding, again a
more severe abridgment of parental rights than that possible under the visitation statutes at
issue here, unfitness is not a threshold trigger for exercise of the State's parens patriae
power. Both parental unfitness and harm to the child speak rather to the allowable degree
of abridgment of parental rights which the state may impose in exercising its parens patriae
power.*fn6
Likewise, even in custody cases, the best interests of the child govern and unfitness is not
a prerequisite for the state to exercise its parens patriae power to act on behalf of the
child's welfare. In In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16 (1981), a
dissolution custody case in which the Court of Appeals affirmed the trial court's award of
custody to the step mother of a 7-year-old deaf son born of the father's prior marriage
based on the stepmother's extraordinary measures to aid the child, the Court of Appeals
held a custody proceeding required a middle ground.
{T}o give custody to a non-parent there must be more than the "best interests of the child"
involved, but less than a showing of unfitness. In extraordinary circumstances, where
placing the child with an otherwise fit parent would be detrimental to the child, the parent's
right to custody is outweighed by the state's interest in the child's welfare. There must be a
showing of actual detriment to the child, something greater than the comparative and
balancing analyses of the "best interests of the child" test. Precisely what might outweigh
parental rights must be determined on a case-by-case basis. But unfitness of the parent
need not be shown.
Allen, 28 Wn. App. at 649 (emphasis added). Thus, even in a custody proceeding unfitness
of a parent need not necessarily be shown. Each case is unique, save for the overarching
principle that the welfare of the child is the paramount concern.
The majority's position that, absent a threshold finding of parental unfitness or harm to the
child, no intrusion on parental rights, no matter how slight, may be undertaken by the State
as parens patriae acting on the child's behalf, cannot be reconciled with the above case
law.
The majority also goes too far in claiming "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 burden.' Yoder, 406 U.S. at 234."
Majority op. at 19 (emphasis added). The cited case does not so hold. In Wisconsin v.
Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held the
Free Exercise Clause of the First Amendment barred the application of compulsory school
attendance law to Old Order Amish who did not send their children to school after the
eighth grade because "only those interests of the highest order and those not otherwise
served can overbalance legitimate claims to the free exercise of religion." 406 U.S. at 215,
92 S. Ct. at 1533. Yoder turns on the free exercise claim asserted by the Amish parents
and the unique facts of that case. The Supreme Court held where the interests of parents
was combined with a free exercise claim of the nature present in that case, the state must
show a compelling interest in requiring Amish parents to send their children to school
beyond the eighth grade contrary to their religious beliefs. Referencing Prince v.
Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), however, the Court
went on to note that even where such greater justification for state action is required in
light of the Amish parent's free exercise claim, parental action threatening harm to the child
would not be tolerated.
To be sure, the power of the parent, even when linked to a free exercise claim, may be
subject to limitation under Prince 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. 233-34. Thus, the Supreme Court in Yoder did not hold that harm is a
threshold requirement for any encroachment upon parental rights, as the majority implies;
but rather notes even where the circumstances of a particular case provide heightened
protections for parental rights, the extreme circumstance of harm to the child clearly
justifies state intervention. Accord Prince, 321 U.S. 158.
Likewise, the majority errs in concluding "{i}t is clear from Supreme Court precedent that
some harm threatens the child's welfare before the state may constitutionally interfere with
a parent's right to rear his or her child{,}" citing Prince, 321 U.S. at 170. Majority op. at
20. In Prince, the Supreme Court upheld, against assertions of free exercise and parental
control, application of Massachusetts' child labor law prohibiting girls under 18 from
selling publications (here religious literature) on the streets, finding the state's power to
protect the child from harm was not diminished by the presence or direction of the child's
guardian. The exact parameters of the state's power to intrude into parental rights/free
exercise were not discussed.*fn7 Regarding the limits of state power, the Court held only
"the rightful boundary of {the state's} power has not been crossed in this case" and noting
"{o}ur ruling does not extend beyond the facts the case presents." Prince, 321 U.S. at
170-71. Although Prince indicates state intervention in areas of religious practices or
parental control is appropriate to prevent harm to a child, that case does not suggest harm
to a child is a threshold requirement for any and all types of state encroachment of parental
rights.
C. Grandparent Visitation Cases
Cases concerning the constitutionality of grandparent visitation statutes are also instructive
as they address the constitutional legitimacy of intrusions into parental rights. The majority
mentions only two such cases, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and Brooks
v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S. Ct. 377,
133 L. Ed. 2d 301 (1995). See Majority op. at 22, 24. Hawk was decided on state
constitutional grounds. Hawk, 855 S.W.2d at 582. See also Beagle v. Beagle, 678 So. 2d
1271, 1275-76 (Fla. 1996) (holding Florida's grandparent visitation statute violative of the
enhanced privacy rights found in art. 1, sec. 23 of the Florida Constitution, which provides
privacy protections "broader in scope" than the federal constitution). Given the state
constitutional bases of the Hawk and Beagle holdings, they are of little precedential or
persuasive value here since the Washington Constitution (art. 1, sec. 7) affords no greater
protection than the minimum protection conveyed by the federal constitution on matters
other than search and seizure. See Ramm v. City of Seattle, 66 Wn. App. 15, 27, 830 P.2d
395 (1992). Brooks adopted the reasoning of Hawk but declared Georgia's grandparent
visitation statute violative of both the state and federal constitutions. The Brooks majority,
relying on termination cases, premised its holding on the notion that the extent of the
intrusion upon parental rights to custody and control was irrelevant. No infringement of
such rights, regardless of how small, was permissible absent a showing of harm to the
child. Brooks, 265 Ga. at 194 n.6. We rejected such approach in Sumey. Indeed, our
pronouncements on parens patriae in Sumey are more in harmony with the Brooks dissent
which chided the majority there for its restrictive view, opining:
Following Tennessee's lead, the majority maintains that the State's authority to assert itself
as parens patriae "is permissible only where the health or welfare of a child is threatened."
Majority, p. 193. However, in Georgia, the courts have acted as parens patraie when
considering such non-threatening items as a child's name change, and a purported father's
petition of legitimation. In Georgia, the exercise of the parens patriae power has always had
as its paramount consideration the best interests of the child, and its exercise has become
synonymous with the child's best interests and welfare.
Brooks, 265 Ga. at 199-200 (Benham, Presiding J., dissenting).
The majority cites only the minority view and fails to mention cases such as King v. King,
828 S.W.2d 630 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289
(1992), upholding Kentucky's grandparent visitation statute against a federal constitutional
challenge. See also Hawk, 855 S.W.2d at 577 n.1 ("{t}he United States Supreme Court
was asked to review the King case on a right-to-privacy theory and declined. The Supreme
Court has never entertained a case involving the right to visitation of grandparents or other
third parties." (Citation omitted)). In fact, the majority of cases in the United States have
upheld grandparent visitation statutes. In upholding the constitutionality of Utah's
Grandparent Visitation Statute, the Utah Court of Appeals noted:
"the vast majority of courts that have addressed the constitutionality of grandparent
visitation statutes authorizing visitation if in the best interest of the child, have upheld those
statutes as constitutional. See Sketo v. Brown, 559 So.2d 381, 382 (Fla.App.1990); Bailey
v. Menzie, 542 N.E.2d 1015, 1020 (Ind.App.1989); Spradling v. Harris, 13 Kan.App.2d
595, 778 P.2d 365, 368 (1989); King v. King, 828 S.W.2d 630, 631-32 (Ky.), cert. denied,
{506 U.S. 941}, 113 S.Ct. 378, 121 L.Ed.2d 289 (1992); Herndon v. Tuhey, 857 S.W.2d
203, 208 (Mo. 1993) (en banc); Roberts v. Ward, 126 N.H. 388, 493 A.2d 478, 481
(1985); People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 445 N.Y.S.2d 420, 423, 429
N.E.2d 1049, 1052 (1981); Deweese v. Crawford, 520 S.W.2d 522, 526 (Tex.App.1975).
While the Tennessee Supreme Court has held that Tennessee's grandparent visitation
statute is unconstitutional under the Tennessee Constitution, the court did not decide
whether the statute is unconstitutional under the United States Constitution. See Hawk v.
Hawk, 855 S.W.2d 573, 582 (Tenn. 1993). To date, only Georgia has declared a statute
permitting court-ordered grandparent visitation, if in the best interest of the child, to be
unconstitutional under the United States Constitution. See Brooks v. Parkerson, 265 Ga.
189, 454 S.E.2d 769, 773-74 (1995)." Campbell v. Campbell, 896 P.2d 635, 644 n.18
(Utah App. 1995).
[114]
As with RCW 26.10.160(3) and former RCW 26.09.240, the Kentucky statute at issue in
King allowed visitation by nonparents (i.e., grandparents) if in the best interest of the child.
Cf. Ky. Rev. Stat. Ann. sec. 405.021, RCW 26.10.160(3) and former RCW 26.09.240.
The denial of certiorari by the Supreme Court suggests the Kentucky Supreme Court
correctly determined the application of the similar Kentucky statute did not go too far in
intruding into the fundamental rights of parents under the federal constitution. As the
Washington Constitution affords no greater protection than the federal constitution in this
area, see Ramm v. City of Seattle, 66 Wn. App. 15, 27, 830 P.2d 395, review denied, 120
Wn.2d 1018, 844 P.2d 437 (1992), Washington's similar provisions likewise withstand a
constitutional challenge.*fn8 See also Sightes v. Barker, 684 N.E.2d 224 (Ind. App.)
(upholding Indiana's Grandparent Visitation Act against a federal constitutional challenge as
a less than substantial encroachment on the parent's rights and a legitimate exercise of the
state's parens patriae power where such visitation serves the child's best interests), transfer
denied, 690 N.E.2d 1187 (Ind. 1997).
Even in the absence of specific statutory authority a court may exercise its parens patriae
power to act in the child's best interests regarding visitation matters, as the New
Hampshire supreme court in Roberts v. Ward, 126 N.H. 388, 493 A.2d 478 (1985).
Recognizing the changing circumstances of modern families, the Roberts court awarded
visitation rights to grandparents, over objections of the natural parent, based on the court's
equitable powers. While noting the importance of parental rights the
court opined:
Parental autonomy is grounded in the assumption that natural parents raise their own
children in nuclear families, consisting of a married couple and their children. The family
has been seen as the "basic building block" of society. Parental autonomy strengthens the
family and the entire social fabric "by encouraging parents to raise their children in the best
way they can by making them secure in the knowledge that neither the state nor outside
individuals may ordinarily intervene."
The realities of modern living, however, demonstrate that the validity of according almost
absolute judicial deference to parental rights has become less compelling as the foundation
upon which they are premised, the traditional nuclear family, has eroded. . . . More varied
and complicated family situations arise as divorces, and decisions not to marry, result in
single-parent families; as remarriages create step-families; as some parents abandon their
children; as others give them to temporary caretakers; and as still others are judged unfit to
raise their own children.
One of the frequent consequences, for children, of the decline of the traditional nuclear
family is the formation of close personal attachments between them and adults outside of
their immediate families. Stepparents, foster parents, grandparents and other caretakers
often form close bonds and, in effect, become psychological parents to children whose
nuclear families are not intact.
It would be shortsighted indeed, for this court not to recognize the realities and
complexities of modern family life, by holding today that a child has no rights, over the
objection of a parent, to maintain a close extra-parental relationship which has formed in
the absence of a nuclear family.
Roberts, 126 N.H. at 391-92 (citations omitted). Emphasizing the best interests of the child
to be of paramount concern the Roberts court held exercise of the parens patriae power to
act in the child's welfare was appropriate here:
In determining whether or not to grant grandparental visitation, the court must consider the
best interests of the child. In doing so, it recognizes that it is primarily "the right of the
child to . . . know her grandparents" which is being protected and not the interests of the
grandparents.
Moreover, in balancing the child's rights to know and associate with her grandparents
against the parent's right to custodial autonomy, we note that we are dealing here only with
visitation rights. "{G}ranting visitation is a far lesser intrusion, or assertion of control, than
is an award of custody" and thus not nearly as invasive of parents'
rights.
Our holding today is in accord with the position taken by a number of other jurisdictions,
which have found non-statutory bases for granting grandparents visitation
rights.
Roberts, 126 N.H. at 392-93 (citations omitted).
D. Sufficiency of the "Best Interest" Standard
Although the majority recognizes that the severing of a meaningful relationship a child
enjoys with a non-parent may be harmful to the child,*fn9 its disposition of this case
undermines the opportunity to sustain such relationships. This need not be the case. The
faults the majority sees in RCW 26.10.160(3) and former RCW 26.09.240 are more
imagined than real. Both RCW 26.10.160(3) and former 26.09.240 provide that the trial
court may order visitation rights for a non-parent "when visitation may serve the best
interest of the child{,}" but the majority finds this standard insufficient, and faults the
statutes for lacking enumerated factors such as a substantial relationship between petitioner
and child or consideration of any past abuse of the child by the petitioner. Majority op. at
22-24. However, such factors/considerations are clearly subsumed under the "best
interests of the child" determination*fn10 which is unique in each case. See Washington
State Coalition for the Homeless v. Department of Soc. & Health Servs., 133 Wn.2d 894,
931-32, 949 P.2d 1291 (1997) ("Ultimately what is in the best interests of a particular child
depends on 'a highly fact-specific inquiry that cannot be reduced to a mathematical
equation.' ").*fn11
We have long held that trial courts have broad discretion to determine the best interests of
a child in cases touching upon a child's welfare, and such determinations are given great
deference. In the context of a dependency proceeding, we stated in Aschauer:
While the criteria for establishing the best interests of the child are not capable of
specification, each case being largely dependent upon its own facts and circumstances, the
proof necessary in order to deprive a person of his or her parental rights must be clear,
cogent and convincing. If there is substantial evidence which the lower court could
reasonably have found to be clear, cogent and convincing, an appellate court should not
disturb the trial court's findings. Deference paid to the trial judge's advantage in having the
witnesses before him is particularly important in deprivation proceedings, when it is borne
in mind that continuity in the parent-child relationship, whether the parent figure be the
natural parent or not, is increasingly recognized as a significant factor in a child's normal
development.
In re Aschauer's Welfare, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980) (citations
omitted).
The best interests of the child remain the court's paramount concern. This inquiry is the
touchstone by which all other rights are tested and concerns addressed in various contexts
dealing with children. See, e.g., Washington State Coalition for the Homeless v.
Department of Soc. & Health Servs., 133 Wn.2d 894, 923, 949 P.2d 1291 (1997) ("As in
all matters dealing with the welfare of children, the court must additionally act in the best
interests of the child."); Aschauer, 93 Wn.2d at 695) ("This court has repeatedly said that
the goal of a dependency hearing is to determine the welfare of the child and his best
interests."); In re Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973) ("a child's welfare is the
court's primary consideration . . . when the rights of parents and the welfare of their
children are in conflict, the welfare of the minor children must prevail"); In re Marriage of
Littlefield, 133 Wn.2d 39, 51-52, 940 P.2d 1362 (1997) (noting in the absence of parental
cooperation in a post-separation action, the trial court is given broad discretion to develop
and order a parenting plan according to the guidelines set forth in RCW 26.09.187(3) and
based upon the best interests of the children at the time of trial); State ex rel. Campbell v.
Cook, 86 Wn. App. 761, 771, 938 P.2d 345, review denied, 133 Wn.2d 1019, 948 P.2d
387 (1997) (noting the best interests of the child are paramount in paternity proceedings,
the Court of Appeals upheld trial court's denial of the putative father's attempt to
reopen/challenge paternity determination made 13 years prior).
While our case law supports use of the "best interest" standard in matters relating to the
welfare of children, Judge Ellington's dissent in Troxel deftly explains why this standard is
particularly appropriate here: The statute itself contains the Legislature's standard for both
threshold and standing, in its requirement that the visitation serve the best interests of the
child.
Many considerations could explain a legislative decision to leave RCW 26.10.160(3)
unamended. Grandparent visitation issues come most readily to mind. For if a custody
action must be pending before a grandparent may petition, then a grandparent whose child
is dead -- as is the Troxels' son -- and who can thus never expect a RCW 26.09 petition
opportunity (because no petition will ever be pending under that chapter) also has no
recourse under RCW 26.10 unless willing to allege the remaining parent is unfit -- hardly a
prelude to amicable relations among family members. Is there never then to be a
circumstance where a child indeed has a fit parent, but also has strong ties to
grandparents, warm and beneficial ties which the child's best interests
call for protecting?
The limitations which public policy may place on such petitions are fertile grounds for
debate . . . But these are matters for the Legislature, and for now, the current statute
expresses one policy approach: any person may petition at any time, so long as the child's
best interests are served. It cannot be said that this approach is absurd, or even out of
harmony with RCW 26.09.240.
In re Visitation of Troxel, 87 Wn. App. 131, 142-43, 940 P.2d 698 (1997) (Ellington, J.,
dissenting) (italics and footnotes omitted). Indeed, the broad language of RCW
26.10.160(3) and former RCW 26.09.240 furthers the best interests of the child by tacitly
recognizing the growth of nontraditional families and the important role members of such
families may play in the child's life.
The best interest [ standard lacks nothing in its brevity and retains the necessary flexibility
required by a trial court in addressing the infinite circumstances and possibilities which
surround child welfare determinations such as the non-parent visitation at issue in these
cases. We should reiterate the best interests of the child remain the touchstone by which all
other rights are tested and concerns addressed in various contexts dealing with
children.*fn12 In the consolidated cases before us, the trial courts in Troxel and Smith
entered specific findings that visitation with the petitioners would be in the respective
children's best interest. See Troxel Findings of Fact 2.3E, Clerk's Papers at 128; and Smith
Findings of Fact 2.17, Clerk's Papers at 6; Conclusions of Law 3.3, Clerk's Papers at 9.
The majority ignores these findings.
E. Harassment Suits
The majority also faults the statutes in question for lacking safeguards to prevent stable
families from defending in court against frivolous petitions for visitation. Majority op. at
23. This imagined threat is also unfounded. Courts are amply provided with the means of
deterring such abuses. See CR 11 (authorizing sanctions, expenses and attorney fees for
frivolous claims which may be imposed sua sponte by a trial court); see also RCW
26.10.080 and 26.09.140 (providing for costs and attorney fees at the court's discretion
regarding "any proceeding under this chapter").
CONCLUSION
The majority correctly holds the nonparents in these consolidated cases have standing to
petition for visitation under the plain language of RCW 26.10.160(3) and former RCW
26.09.240. The majority is incorrect, however, in holding that such visitation, when
awarded upon determination of the best interests of the child, impermissibly infringe the
rights of parents. Since we have previously approved an encroachment of parental rights
of greater magnitude than that possible under the statutes in question, the majority's
position is untenable.
In practical terms, the majority would deprive nonparties to custody proceedings in
dissolutions from any opportunity to have visitation with a child even where the
relationship with the child is significant and in the child's best interest. This is cruel both to
the child who may want and need a relationship with grandparents, relatives, and others,
and to those third parties, many of whom are the child's blood relatives. I decline to apply
such an approach that is oblivious to the varied relationships that
flourish in our society.
As the requisite finding of best interest of the child has been made in Troxel and Smith, the
trial courts' orders granting visitation should be reinstated/affirmed. Because the trial court
in Wolcott found petitioner Clay to have no standing under a theory we reject, and did not
reach the issue of best interest of the child, that case should be remanded for further
proceedings including a determination regarding the best interest of the child. I would
reverse the Court of Appeals in Wolcott and remand for further proceedings, reverse the
Court of Appeals in Troxel and reinstate the trial court's order, and affirm the trial court in
Smith.
Opinion Footnotes
*fn6 Thus the majority's reliance on Sumey in asserting "{t}his court has emphasized that
a state can only intrude upon a family's integrity pursuant to its parens patriae right when
'parental actions or decisions seriously conflict with the physical or mental health of the
child{,}' " Majority op. at 20 (emphasis added), is misplaced. Indeed, recognizing that the
State has not merely a right, but the responsibility to intervene when the severe
circumstance of harm to the child is present is the starting point of Sumey's parens patriae
analysis. It does not end there however, as the above discussion explains. See Sumey, 94
Wn.2d at 762-65.
*fn7 After noting the "custody, care and nurture of the child reside first in the parents," the
Court went on to hold "neither rights of religion nor rights of parenthood are beyond
limitation . . . the state has a wide range of power for limiting parental freedom and
authority in things affecting the child's welfare{.}" Prince, 321 U.S. 161-67 (citations
omitted).
*fn8 The majority has correctly refrained from an analysis based on state constitutional
grounds as urged by appellant Stillwell who asserted "{a}rticle 1, sec. 7 of the Washington
Constitution mandates greater protection of the 'private affairs' of the family under the six .
. . factors . . . in State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986){,}" Br. of
Appellant at 14-18. This argument was rejected in Ramm v. City of Seattle, 66 Wn. App.
15, 23-27, 830 P.2d 395, review denied, 120 Wn.2d 1018, 844 P.2d 437 (1992), wherein
the Court of Appeals held: Our examination of the six Gunwall factors persuades us that,
on matters not involving search and seizure, Const. art. 1, sec. 7 affords no greater
protection than the minimum protection afforded by the federal constitutional analysis.
Ramm, 66 Wn. App. at 27 (emphasis added). Stillwell cites In re Detention of D.A.H., 84
Wn. App. 102, 110, 924 P.2d 49 (1996), for the proposition that our state constitution
provides greater privacy protection than the expectations created by the Fourth
Amendment. Reply Br. of Appellant at 9. D.A.H. relies, however, on a search and seizure
case, State v. Boland, 115 Wn.2d 571, 577-78, 800 P.2d 1112 (1990), for that statement
and failed to recognize the distinction between autonomy and search and seizure cases as
Ramm does. See Ramm, 66 Wn. App. at 23-27, discussing Boland. Stillwell also misstates
Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); which found the Florida grandparent
visitation statute violative of the state constitution, asserting the case to note "Washington's
Constitution provides express privacy protections similar to those relied upon by the
Florida Supreme Court. 678 So. 2d at 1275 n.9." Br of Appellant at 18. However, in
Beagle, the Florida court actually notes the Florida Constitution provides greater privacy
protection than the federal constitution and lists Washington among states which include
privacy protections in their search and seizure constitutional provisions. See Beagle, 678
So. 2d at 1275 & n.9. This interpretation comports with the Ramm holding (cited above)
noting heightened protection regarding searches and seizures only.
*fn9 "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." Majority op. at 22.
*fn10 Although it appears the majority would be more comfortable with an enumeration of
"best interest" factors such as those appearing in the current version of RCW
26.09.240(6), even that statute makes clear that such enumeration is illustrative only. See
RCW 26.09.240(6) ("The court may consider the following factors when making a
determination of the child's best interests:") (emphasis added) and .240(6)(h) ("Any other
factor relevant to the child's best interest."). RCW 26.09.240(6) states in full: (6) The court
may consider the following factors when making a determination of the child's best
interests: (a) The strength of the relationship between the child and the petitioner; (b) The
relationship between each of the child's parents or the person with whom the child is
residing and the petitioner; (c) The nature and reason for either parent's objection to
granting the petitioner visitation; (d) The effect that granting visitation will have on the
relationship between the child and the child's parents or the person with whom the child is
residing; (e) The residential time sharing arrangements between the parents; (f) The good
faith of the petitioner; (g) Any criminal history or history of physical, emotional, or sexual
abuse or neglect by the petitioner; and h) Any other factor relevant to the child's best
interest.
*fn11 Should a listing of "best interest" factors be necessary, as the majority insists, we
are not without authority to provide them. Again, the New Hampshire supreme court's
approach in Roberts is instructive. Like the majority here, the Roberts court recognized the
importance of continuity and stability in children's close relationships, Roberts, 126 N.H. at
392-93, and, relying on its equity powers, established six factors to be considered when
acting in the child's best interests when considering a petition for visitation by
grandparents. Factors which the court may consider in determining whether or not to
grant grandparental visitation include: {1} whether the child has lived with the grandparents
and the length of that residence; {2} whether the grandparents have stood in loco parentis
to the child; {3} the effect on the child's physical and emotional health engendered by
visitation or lack of it; {4} the circumstances which resulted in the absence of a nuclear
family; and {5} the child's preference regarding visitation. . . . {6} The fact that there is
friction between the parents and grandparents will not in and of itself preclude granting
visitation rights but may be considered among all the surrounding circumstances. Roberts,
126 N.H. at 394 (citations omitted). Substituting "petitioner" for "grandparents" in the
above criteria would provide the factors the majority seeks, and like the New Hampshire
supreme court, we may provide trial courts with guiding considerations in matters
concerning a child's well-being. See In re Dependency of J.B.S., 123 Wn.2d 1, 11, 863
P.2d 1344 (1993) (holding the best interests of the child prevail when the rights of parent
and child conflict, and providing guiding considerations for the trial court in the event of a
future motion for change of placement). Any such enumeration of factors, however,
would be illustrative only, and subsumed under the "best interest" standard in any event.
Such listing is therefore unnecessary. Under the umbrella of the best interest standard a
trial court considers the unique circumstances of each case when deciding issues affecting
a child's welfare. As we stated in the dependency case of In re Welfare of Becker, 87
Wn.2d 470, 477-78, 553 P.2d 1339 (1976): While our statutes and judicial opinions may
set forth the goal, the criteria for establishing the best interests for the welfare of the child
are conspicuous by their absence. The complexity of the cases and the need for careful
individual treatment militates against the mandatory consideration of certain specified
factors in every case. Nevertheless, the courts have broad discretion and are allowed
considerable flexibility to receive and evaluate all relevant evidence in reaching a decision
that recognizes both the welfare of the child and parental rights. (Citations
omitted.)
*fn12 See Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996). While finding the Florida
grandparent visitation statute violative of the state constitution, the Florida Supreme Court
acknowledged other states had upheld their grandparent visitation statutes against federal
constitutional challenges, noting: "{i}n those cases a best interest standard was deemed to
be sufficient." Id. at 1275 (citing Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993); Lehrer
v. Davis, 214 Conn. 232, 571 A.2d 691 (1990); Bailey v. Menzie, 542 N.E.2d 1015 (Ind.
Ct. App. 1989); Spradling v. Harris, 13 Kan. App. 2d 595, 778 P.2d 365 (1989); King v.
King, 828 S.W.2d 630 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d
289 (1992); Ridenour v. Ridenour, 120 N.M. 352, 901 P.2d 770 (App.), cert. denied, 120
N.M. 68, 898 P.2d 120 (1995)).
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