Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65605-3
Title of Case: In RE the Custody of Sara Skyanne Smith
v.
Edison Smith et al V. Kelly Stillwell-Smith
File Date: 00/00/00
Oral Argument Date: 03/11/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Island County;
96-3-00150-1
JUSTICES
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COUNSEL OF RECORD
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Counsel for Appellant(s)
Christon C. Skinner
Law Offices of Christon Skinner
740 SE Pioneer Way
Oak Harbor, WA 98277-3202
Catherine W. Smith
Edwards Sieh Smith & Goodfriend
701 5th Ave Ste 7170
Seattle, WA 98104
Howard M. Goodfriend
Edwards Sieh Smith & Goodfriend P.S.
701 5th Ave Ste 7170
Counsel for Respondent(s)
Mark D. Theune
Cohen Manni & Theune
P.O. Box 889
Oak Harbor, WA 98277
Counsel for Guardian(s) Ad Litem
Claire S. Reiner
1015 6th St
PO Box 952
Anacortes, WA 98221
Amicus Curiae on behalf of Kenneth Weber
Kenneth W. Weber
Weber & Gunn
7700 NE 26th Ave
Vancouver, WA 98665-0672
Counsel for Other Parties
David G. Metcalf
3731 Colby Avenue
Everett, WA 98201-4910
Patricia S. Novotny
Attorney At Law
4756 Univ Village Pl NE
Suite #398
Seattle, WA 98105-5021
Grace S. Wagner
Attorney At Law
1721 Hewitt Ave. Ste 605
Everett, WA 98201
THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Custody of ) No. 65605-3
)
SARA SKYANNE SMITH. )
)
EDISON SMITH, ET AL., )
)
Respondents, )
)
v. ) EN BANC
)
KELLY STILLWELL-SMITH, )
)
Appellant. )
----------------------------------------- )
)
In re Visitation Rights with ) No. 65699-1
JUSTIN ROSS WOLCOTT, )
)
DAVID L. CLAY, )
)
Petitioner, )
)
and )
)
LISA WOLCOTT, )
)
Respondent. )
----------------------------------------- )
In re the Visitation of ) No. 66207-0
)
NATALIE ANNE TROXEL, )
ISABELLE ROSE TROXEL, )
)
Minors, )
)
JENIFER TROXEL and )
GARY TROXEL, )
Paternal Grandparents, )
)
Petitioners, )
)
and )
)
TOMMIE GRANVILLE, Mother, )
)
Respondent. )
) Filed: December 24, 1998
MADSEN, J. -- 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 Wolcott 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 lacked standing to seek
visitation because he is not related to Justin and no custody action was
pending. The court awarded Wolcott her attorneys fees. The Court of
Appeals affirmed and awarded Wolcott additional attorneys fees for the
appeal. In re Visitation of Wolcott, No. 37883-0-I, slip op. at 11 (Wash.
Ct. App. Mar. 24, 1997). Clay sought and was granted review by this court.
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 Troxels
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). 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 Brian's surviving family members (his parents,
brother, and sister) regarding when and to what extent Sara should have
contact with them. Consequently, the Smith family petitioned for
visitation rights with Sara. Following a trial held in April 1997, the
trial court granted the petition, under former RCW 26.09.240, and
established a visitation schedule. Stillwell appealed the order to
Division One of the Court of Appeals. The court granted the Smiths' motion
to transfer the appeal to this court. All three cases were consolidated
for review.
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 outside the context of custody or dissolution
proceedings. Even if the nonparent petitioners do have standing to sue,
appellant, Kelly Stillwell, argues that the statutes impermissibly violate
a parent's fundamental right to autonomy in child-rearing matters.
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.
Id. at 87 (citations omitted). This court has emphasized that it will not
construe unambiguous language and that it "assume{s} that the legislature
means exactly what it says." State v. McCraw, 127 Wn.2d 281, 288, 898 P.2d
838 (1995) (quoting Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815
P.2d 781 (1991)).
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, sec. 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, sec. 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. 460, sec. 18.
Thus, as amended, RCW 26.09.240 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 of circumstances. Any
person may petition the court for visitation rights at any time." Id.
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 "for any person" to
petition for such rights "any time including, but not limited to, custody
proceedings." Laws of 1987, ch. 460, sec. 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, sec. 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, sec. 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, sec. 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, sec. 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, sec. 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, sec. 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, sec. 2(3).
In 1996, the Legislature again amended both RCW 26.09.240 and RCW
26.10.160. RCW 26.09.240 now requires any nonparent seeking visitation to
show that he or she has a significant relationship with the child. It also
states that a "person other than a parent may not petition for visitation
under this section unless the child's parent or parents have commenced an
action under this chapter," which includes an action for dissolution of
marriage, legal separation or modification of a parenting plan proceeding.
Laws of 1996, ch. 177, sec. 1(1). As amended, RCW 26.09.240(6) also
contains a list of factors for the trial court to take into consideration
when making a determination of the child's best interests. Some of these
factors are the strength of the relationship between the child and the
petitioner, the relationship between the child's parents and the
petitioner, the nature and reason for the parent's objection to visitation,
and any criminal history or history of physical, emotional or sexual abuse
or neglect by the petitioner. Additionally, the restrictions that apply
under RCW 26.09.191 to parents also apply to a petitioner or intervenor who
is not a parent. RCW 26.09.240(7).
The 1996 Legislature amended RCW 26.10.160 again to clarify the
visitation rights of parents denied custody. Laws of 1996, ch. 303, sec.
2(1)-(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, sec.
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. Wolcott, 85 Wn.
App. at 473; Troxel, 87 Wn. App. at 136. The court in Wolcott stated it
could not "conceive of any reason why the Legislature did not similarly
amend RCW 26.10.160(3), a virtually identical provision in the parallel
statute." Wolcott, 85 Wn. App. at 473. The court, therefore, found that
the Legislature unintentionally overlooked amending RCW 26.10.160(3). To
correct that perceived oversight, the court deleted the provision of RCW
26.10.160(3) allowing "any person" to petition for custody at "any time
including, but not limited to, custody proceedings" and replaced it with
the 1996 amendment to RCW 26.09.240 prohibiting nonparents from bringing a
visitation action "unless the child's parent or parents have commenced an
action under this chapter." RCW 26.09.240(1). As interpreted by the Court
of Appeals, both sections would prohibit nonparent visitation action under
either chapter unless a custody proceeding is pending.
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 same result.
Appellant, Kelly Stillwell, asserts the trial court had no authority to
order visitation with her daughter by third parties (the Smiths) outside of
an action for custody or allegation she is an unfit mother.
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.1
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. 468, 472, 933 P.2d 1066 (1997); 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 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 any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children . . .
."); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510, 534, 45 S. Ct. 571, 69 L. Ed. 2d 1070, 39 A.L.R. 468 (1925)
(law prohibiting parents from sending children to private as opposed to
public school unconstitutional because it would "unreasonably interfere{s}
with the liberty of parents . . . to direct the upbringing and education of
{their} children . . . ."); Prince v. Massachusetts, 321 U.S. 158, 166, 64
S. Ct. 438, 88 L. Ed. 645 (1944) (Court recognized that "the custody, care
and nurture of the child reside first in the parents . . . . it is in
recognition of this that {our} decisions have respected the private realm
of family life which the state cannot enter."); Wisconsin v. Yoder, 406
U.S. 205, 235-36, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972) (exempting Amish
from the state compulsory education law requiring children to attend school
beyond the eighth grade); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct.
1388, 71 L. Ed. 2d 599 (1982) (in determining the standard of proof
necessary in termination of parental rights case, the Court noted its
"historical recognition that freedom of personal choice in matters of
family life is a fundamental liberty interest protected by the Fourteenth
Amendment.")
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 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
may step in and override a decision of a parent where the decision would
harm the child. In Prince v. Massachusetts, for example, the Supreme
Court refused to invalidate legislation which prohibited a parent from
permitting a minor to sell merchandise on a public street. Prince, 321
U.S. 158. Although the Court acknowledged the parent's constitutionally
protected right to child-rearing autonomy, it found a narrow exception
necessary in light of the "crippling effects of child employment," "more
especially in public places." Id. at 168. Police power thus empowered the
state to intrude on a parental decision in the interests of society as a
whole where the decision directly and severely imperiled the child.
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. Like the state's
police power the state may act only pursuant to its parens patriae power
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. at 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 the wishes of their parents. Id. at
229. The Court explained that in Prince, the Legislature was within its
authority to curtail the evils associated with child labor. Id. at 230.
But unlike Prince, the case presented in Yoder was "not one in which any
harm to the physical or mental health of the child or to the public safety,
peace, order, or welfare has been demonstrated or may be properly
inferred." Id.
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 homogeneous people with American ideals" was
insufficient justification for forbidding foreign language instruction.
Meyer, 262 U.S. at 402-03. In Stanley, the Court required an
individualized finding of parental neglect before stripping an unwed father
of his parental rights. 405 U.S. at 645. On the other hand, the Court
upheld the conviction of the mother who allowed her child to sell
magazines, approving state interference designed to prevent "psychological
or physical injury" to the child. Prince, 321 U.S. at 170. It 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.
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 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." In re the 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 13.32,2 which allowed for the temporary alternative
placement of a child outside the parents' home. Sumey, 94 Wn.2d at 758-59.
Under former RCW 13.30.020, repealed by Laws of 1979, ch. 155, sec. 86, a
child could be placed into limited custody where the child had been
reported as a runaway or when a law enforcement officer believed the child
was in circumstances which constituted imminent and substantial danger to
the child's physical safety. The state could then, at the request of the
child or the parents, place the child in a temporary3 alternative
residential placement if the court found by a preponderance of the evidence
that the petition was not capricious and that there was "a conflict between
the parent and child that cannot be remedied by counseling, crisis
intervention, or continued placement in the parental home." Id. at 764
(quoting former RCW 13.32.040, repealed by Laws of 1979, ch.155, sec. 86).
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. 4
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 pervasive state interference in the
parenting process." Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993).
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 do not require the petitioner to
establish that he or she has a substantial relationship with the child. It
seems that at a minimum such a showing should be required because harm to a
child cannot reasonably be anticipated as a result of no contact with
someone with whom the child has had no such relationship. Also, the
statutes do not require the court to take into consideration such factors
as the parents' reasons for restricting visitation with the petitioner or
any allegations of past physical or mental abuse by petitioner when making
a visitation determination.
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 their 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?, 24 U.
Louisville J. Fam. L. 393 (1985-6). 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 appeal and attorneys' fees in addition to
statutory costs. RCW 26.09.140; RCW 26.10.080. In deciding whether to
award fees and costs, the court must balance the needs of the party
requesting fees against the other parties' ability to pay. In re Marriage
of Harrington, 85 Wn. App. 613, 935 P.2d 1357 (1997).
In In re Custody of 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.5 Ms. Stillwell, however, has not shown
that the trial court abused its discretion in its determination. See In re
Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994) (the party
challenging the award bears the burden of proving that the trial court
exercised this discretion in a way that was clearly untenable or manifestly
unreasonable). Pursuant to RAP 18.1(c) Ms. Stillwell has filed an
affidavit of financial need to this court in support of her request for an
award of fees and costs 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 reflected 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.
We remand to the trial courts to determine whether these parties have
established sufficient financial need to warrant an award of attorneys fees
and costs on appeal, the financial ability of the parties to pay, and if an
award is warranted the proper amount.
1 The trial court found that the petition for visitation was governed by
the version of RCW 26.09.240 that was in effect when their 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.
2 Provisions in former RCW 13.32 have been supplanted by provisions in RCW
13.32A.
3 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 of 1979, ch. 155, sec. 86.
Throughout the six month period appropriate interim services were provided
to the child and parents with the ultimate goal of reunification. Id.
4 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 the 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.
5 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.
Top of page
Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 65605-3
Title of Case: In RE the Custody of Sara Skyanne Smith
v.
Edison Smith et al V. Kelly Stillwell-Smith
File Date: 00/00/00
Oral Argument Date: 03/11/98
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Island County;
96-3-00150-1
JUSTICES
--------
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Christon C. Skinner
Law Offices of Christon Skinner
740 SE Pioneer Way
Oak Harbor, WA 98277-3202
Catherine W. Smith
Edwards Sieh Smith & Goodfriend
701 5th Ave Ste 7170
Seattle, WA 98104
Howard M. Goodfriend
Edwards Sieh Smith & Goodfriend P.S.
701 5th Ave Ste 7170
Seattle, WA 98104
Counsel for Respondent(s)
Mark D. Theune
Cohen Manni & Theune
P.O. Box 889
Oak Harbor, WA 98277
Counsel for Guardian(s) Ad Litem
Claire S. Reiner
1015 6th St
PO Box 952
Anacortes, WA 98221
Amicus Curiae on behalf of Kenneth Weber
Kenneth W. Weber
Weber & Gunn
7700 NE 26th Ave
Vancouver, WA 98665-0672
Counsel for Other Parties
David G. Metcalf
3731 Colby Avenue
Everett, WA 98201-4910
Patricia S. Novotny
Attorney At Law
4756 Univ Village Pl NE
Suite #398
Seattle, WA 98105-5021
Grace S. Wagner
Attorney At Law
1721 Hewitt Ave. Ste 605
Everett, WA 98201
Majority by Madsen, J.
Concurrence/Dissent by Talmadge, J.
Nos. 65605-3; 65699-1; 66207-0
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:
{b}ut 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.1
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 nonparent 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.