In re Hernandez

• Decision Date: 02 November 2011
• Docket Number: Nos. 37779,37780.,s. 37779
• Citation: 151 Idaho 882,265 P.3d 495
• Court: Idaho Supreme Court
• Parties: Charles V. HERNANDEZ, Plaintiff–Appellant, v. Kerri A. HERNANDEZ, Defendant, and Janice Ausburn, Intervenor–Respondent. Janice Ausburn, Plaintiff–Respondent, v. Charles V. Hernandez, biological parent, Defendant–Appellant, and Kerri A. Hernandez, biological parent, Defendant.

151 Idaho 882

265 P.3d 495

Charles V. HERNANDEZ, Plaintiff–Appellant,

v.Kerri A. HERNANDEZ, Defendant,andJanice Ausburn, Intervenor–Respondent.

Janice Ausburn, Plaintiff–Respondent,

v.Charles V. Hernandez, biological parent, Defendant–Appellant,andKerri A. Hernandez, biological parent, Defendant.

Nos. 37779

37780.

Supreme Court of Idaho, Boise, September 2011 Term.

Nov. 2, 2011.

Hall, Friedly & Ward, Mountain Home, for appellant. Robert Ward argued.

Egusquiza Law Offices, Chtd., Mountain Home, for respondent. Mitchell L. Egusquiza argued.

J. JONES, Justice.

This case involves a custody dispute between Charles V. Hernandez, the biological father of two minor children, and Janice Ausburn, the children's maternal grandmother. The magistrate court granted shared physical custody to Charles and Janice. Charles appealed to the district court, which affirmed. We affirm the district court.

I.BACKGROUND

Charles V. Hernandez and Kerri A. Hernandez divorced in Elmore County in September 2000. Charles and Kerri had two minor children at the time. Before their divorce, Charles and Kerri briefly lived with Kerri's mother, Janice Ausburn, in Houston, Texas. Janice also briefly lived with the couple in Mountain Home before the divorce. Janice moved into her own place in Mountain Home just before Charles and Kerri divorced. After the divorce, Charles moved to Houston, Texas, and has lived there since. In the divorce decree, the court awarded Kerri primary physical custody and Charles reasonable visitation, including four weeks each summer.

In March 2001, Kerri left the children with Janice because Kerri was struggling with drug addiction. The children continued to live with Janice and she raised them without physical help from Charles or Kerri. One of the children, an infant at the time, did live with a maternal aunt for about a year and a half while Janice recovered from shoulder surgery, but the children otherwise lived with Janice exclusively. Charles had no physical contact with the children between November 2002 and early 2008. He did occasionally speak with the children by phone over the years. Charles also paid some child support until March 2008, when this action was filed. Kerri continued to struggle with personal issues and had nothing to do with the children after turning them over to Janice. Despite acting as the children's primary custodian, Janice never petitioned a court for guardianship.

In March 2008, Charles and Kerri stipulated to a change in the custody arrangement, whereby Charles would have sole physical custody of the children and Kerri would have visitation each summer. The court entered a modification order based on the stipulation. The court was unaware that the children were actually residing with Janice when it entered the order. Janice was not made aware of either the stipulation or the order.

After the court entered the modification order, Charles and Kerri planned for Kerri to take the children from school in Mountain Home, without telling Janice, and to meet Charles in Salt Lake City, Utah. The couple agreed that Kerri would hand over the children and Charles would take them to Houston. Janice found out about the plan and kept the boys home from school on the day Kerri was to take them. Janice then filed a separate action for custody.

In the subsequent custody proceeding, the court considered whether Charles or Janice should be the children's primary custodian. The court ultimately granted Charles sole legal custody and Charles and Janice shared physical custody, with Charles having primary custody and Janice having custody for six weeks during the summers. The court based its decision largely on a court-ordered parenting assessment and custody recommendation prepared by a third-party evaluator.

Charles appealed the magistrate court's decision to the district court. He did not challenge the magistrate judge's factual findings but, rather, argued the award of limited custodial rights to Janice violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In its decision affirming the magistrate court, the district court noted, "None of the substantive factual findings of the Magistrate Court are at issue for purposes of this decision. The only question before this Court is whether Idaho law as applied and/or on its face is in contradiction to established United States Supreme Court precedent." Charles filed a timely appeal to this Court.¹

II.ISSUES ON APPEAL

The following issues are presented on appeal:

(1) Whether I.C. § 32–717(3) facially violates the Fourteenth Amendment?

(2) Whether I.C. § 32–717(3) is unconstitutional as applied in this case?

(3) Whether this Court's holding in Stockwell v. Stockwell, 116 Idaho 297, 775 P.2d 611 (1989) violates the Fourteenth Amendment?

(4) Whether Charles is entitled to attorney fees on appeal?

III.ANALYSIS

A. Standard of Review.

Constitutional questions are questions of law over which we exercise free review. Allied Bail Bonds, Inc. v. County of Kootenai, 151 Idaho 405, 409, 258 P.3d 340, 344 (2011). This Court presumes the constitutionality of challenged statutes and we are obligated to seek an interpretation of the statute that upholds its constitutionality. American Falls Reservoir Dist. No. 2 v. Idaho Dep't of Water Res., 143 Idaho 862, 869, 154 P.3d 433, 440 (2007). The party challenging a statute bears the burden of proving it unconstitutional. Id. To succeed on a facial challenge, one must demonstrate that under no circumstances is the statute valid. State v. Korsen, 138 Idaho 706, 712, 69 P.3d 126, 132 (2003). But, to prevail in an as-applied challenge, one must demonstrate only that the statute is unconstitutional as applied in a specific instance. Lochsa Falls, L.L.C. v. State, 147 Idaho 232, 241, 207 P.3d 963, 972 (2009).

B. I.C. § 32–717(3) is facially constitutional.

The statute at issue here, I.C. § 32–717(3), provides:

In any case where a child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child.

Charles contends that I.C. § 32–717(3) is facially unconstitutional in light of the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

In Troxel, the Supreme Court considered and invalidated a Washington visitation statute. Troxel, 530 U.S. at 60, 63, 120 S.Ct. at 2057–59, 147 L.Ed.2d at 53, 55. That Washington statute provided:

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.

Troxel, 530 U.S. at 61, 120 S.Ct. at 2058, 147 L.Ed.2d at 54 (citing Wash. Rev.Code § 26.10.160(3) (1994)). Charles maintains "Troxel specifically required that unless a parent is unfit, the Court must presume that the parent's decisions regarding the care and custody of the children are in the children's best interest." Charles therefore argues that "because [ I.C. § 32–717(3) ] places parents and grandparents on equal footing regarding custody without requiring a finding that the parents are unfit," I.C. § 32–717(3) infringes on a parent's fundamental rights. Janice counters that the Troxel court recognized a State's authority to make custody determinations contrary to a parent's demands, if a court appropriately considers a parent's wishes. Janice also argues that I.C. § 32–717(3) contains a built-in deference to parental decisionmaking because a child cannot come to live with a grandparent in a stable relationship absent a parent's approval or acquiescence.

The Troxel court recognized "the fundamental right of parents to make decisions concerning the care, custody, and control of their children," stating "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects [that] fundamental right." Id. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57 (plurality opinion by O'Connor, J.). See also id. at 77, 120 S.Ct. at 2066, 147 L.Ed.2d at 63–64 (Souter, J., concurring); id. at 80, 120 S.Ct. at 2067–68, 147 L.Ed.2d at 65–66 (Thomas, J., concurring); id. at 86, 120 S.Ct. at 2070–71, 147 L.Ed.2d at 68–69 (Stevens, J., dissenting); id. at 95, 120 S.Ct. at 2075–76, 147 L.Ed.2d at 74–75 (Kennedy, J., dissenting). A majority of the Court also agreed that Washington's statute unconstitutionally infringed on that right, but the Court did not reach a consensus holding. Id. at 72–73, 120 S.Ct. at 2064, 147 L.Ed.2d at 60–61 (plurality opinion by O'Connor, J.); id. at 75–79, 120 S.Ct. at 2065–67, 147 L.Ed.2d at 62–65 (Souter, J., concurring); id. at 80, 120 S.Ct. at 2067–68, 147 L.Ed.2d at 65–66 (Thomas, J., concurring).

A four-justice plurality said that the statute was "breathtakingly broad" and that, "as applied to Granville [the children's mother and respondent], [it] unconstitutionally infringes on [her] fundamental parental right [to make decisions concerning the care, custody and control of her children]." Id. at 67, 72–73, 120 S.Ct. at 2064, 147 L.Ed.2d at 60–61 (plurality opinion by O'Connor, J.). Justices Souter and Thomas opined that the statute was unconstitutional, but for different reasons. Justice Souter wrote that the statute was facially invalid, so the Court need not consider it as applied to the respondent. Id. at 75–79, 120 S.Ct. at 2065–67, 147 L.Ed.2d at 62–65 (Souter, J., concurring). Justice Thomas would have held that the State lacked a legitimate interest "in second-guessing a fit parent's decisions regarding visitation with third parties." Id. at 80, 120 S.Ct. at 2067–68, 147 L.Ed.2d at 65 (Thomas, J., concurring). Troxel 's import, therefore, is limited. It stands for the narrow proposition that Wash. Rev.Code § 26.10.160(3) (1994) is constitutionally infirm as applied...