DeRose v. DeRose

Decision Date31 July 2003
Docket NumberDocket No. 121246, Calendar No. 10.
Citation666 N.W.2d 636,469 Mich. 320
PartiesTheresa O'Day DEROSE, also known as Theresa Seymour, Plaintiff Third-Party Defendant-Appellee, v. Joseph Allen DEROSE, Defendant-Appellee, and Catherine DeRose, Third-Party Plaintiff-Appellant.
CourtMichigan Supreme Court

Sarah J. Biggs, Southgate, MI, for Theresa O'Day DeRose.

Law Offices of Richard S. Victor, PLLC (by Richard S. Victor and Daniel R. Victor, Scott Bassett, of counsel), Bloomfield Hills, MI, for Catherine DeRose.

Nichols, Sacks, Slank & Sendelbach, P.C. (by Karen S. Sendelbach), Ann Arbor, MI, for the Family Law Section of the State Bar of Michigan.

Michigan Poverty Law Project (by Anne L. Argiroff, Judith A. Curtis, Lynelle Morgan, and Ann Routt), Southfield, MI, for the Michigan Coalition Against Domestic and Sexual Violence.

Jay D. Kaplan, Michael Steinberg, and Kary L. Moss, Detroit, MI, and Robert A. Sedler, Detroit, MI, for the American Civil Liberties Union Fund of Michigan.

John F. Mills, Birmingham, MI, for the Family Law Section of the State Bar of Michigan.



This case presents a dispute under the grandparent visitation statute, M.C.L. § 722.27b, between a mother, Theresa Seymour,1 and a paternal grandmother, Catherine DeRose, who sought visitation with her granddaughter. The trial court ordered limited visitation, and the mother appealed. The Court of Appeals held that this statute was unconstitutional. We affirm.

I. Facts

The child at issue in this case was born during the marriage of Theresa and Joseph DeRose. In 1997, Joseph DeRose was sentenced to twelve to twenty years in prison after pleading guilty of first-degree criminal sexual conduct (CSC-I) involving his stepdaughter. Theresa filed for divorce, and a default judgment of divorce was entered the following year. Theresa was awarded sole legal and physical custody of the child.

While the divorce was pending, Catherine DeRose filed a petition for visitation under the grandparent visitation statute, M.C.L. § 722.27b.2 Theresa DeRose opposed visitation because the grandmother denied that her son was guilty of the crimes he admitted committing and, thus, in Theresa's view, contact with the child was not in the child's best interest.

The Friend of the Court, after investigation, concluded that Catherine DeRose lacked standing to bring this petition for visitation. After the grandmother objected, another Friend of the Court investigation took place resulting in a recommendation that the grandmother have two hours of supervised visitation with the child on alternate Saturdays, increasing to four hours after an eight-month period.

The mother objected to the recommendation, and the case proceeded to a hearing in the Wayne Circuit Court. No testimony or evidence was taken at the hearing. The trial court granted the grandmother's petition, stating:

But it doesn't strike me that there is any reason here that a child should be deprived of a grandmother. Grandmothers are very important. Grandmothers are very important. [sic] I don't say that just because I am one, but I do believe they are important. I have a niece who doesn't have any and she borrows grandparents and I realize this is difficult, a very difficult time for the 12-year-old, but the 12-year-old is not going to be required to see this lady. Not that it necessarily would be terrible, but I'm not saying it would be good. She is not going to see her. That's not the point.
This is not a motion for custody so that [the child] would be taken away from her sisters for the rest of her life or for a long period of time, even a weekend. This is like two hours of supervised visitation and I know that mom—now, I'm sure mom feels, well, I made a bad choice, I wasn't aware—this, that and the other thing. So now she wants to overcorrect.
It makes no sense to me that this grandmother can't have two hours of supervised visitation and even four hours of supervised visitation as recommended by the Friend of the Court and that's plenty of time to evaluate whether anything bad or wrong happens.
It's very troubling that the concept that somehow this whole incident can just be erased by keeping the child's actual grandmother away from her. It can't be, and everybody is going to have to learn to deal with it which is not happy, it's not good.

* * * It doesn't strike me that a supervised visitation is wrong, so I would affirm the recommendation.

The mother sought relief in the Court of Appeals, arguing that the grandparent visitation statute was unconstitutional.

The Court of Appeals, in a split decision, reversed the decision of the trial court. 249 Mich.App. 388, 643 N.W.2d 259 (2002). The panel concluded the grandparent visitation statute was unconstitutional on the basis of the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), which dealt with a somewhat similar third-party visitation statute in Washington that the Court ruled was unconstitutional. The Court of Appeals approach in deciding this matter was to compare the Washington statute to the Michigan statute to determine if the defects found by the Supreme Court in the Washington statute were mirrored in the Michigan act. Having done that, the Court of Appeals concluded that the Michigan statute was fatally similar to the Washington statute and, thus, it was unconstitutional pursuant to the Troxel analysis. As the panel said, "Simply put, if a court in Washington cannot constitutionally be vested with the discretion to grant visitation to a nonparent on the basis of a finding that it is in the child's best interests to do so, then a court in Michigan cannot be obligated under statute to do so based upon the same finding." 249 Mich.App at 394, 643 N.W.2d 259.

The Court of Appeals also addressed whether, by means of reading "requirements that go beyond the text of the statute," 249 Mich.App at 395, 643 N.W.2d 259, into the statute, it could cure the constitutional deficiencies. The panel declined to do this because it believed such actions to be the responsibility of the Legislature and beyond the authority of a court.

Catherine DeRose sought relief in this Court, and we granted leave to appeal.3

II. Standard of Review

The constitutionality of a statute is reviewed de novo. Tolksdorf v. Griffith, 464 Mich. 1, 5, 626 N.W.2d 163 (2001). Statutes are presumed constitutional unless the unconstitutionality is clearly apparent. McDougall v. Schanz, 461 Mich. 15, 24, 597 N.W.2d 148 (1999).

III. Analysis

In 2000, the United States Supreme Court heard and decided the Troxel case concerning the constitutionality of third-party visitation. At issue was the state of Washington's third-party visitation statute, Wash. Rev. Code 26.10.160(3), which was as expansive in granting third parties visitation privileges as can readily be envisioned. It stated:

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 a change of [sic, "in"] circumstances. [Troxel, supra at 61, 120 S.Ct. 2054.]

Operating under this statute, grandparents Jenifer and Gary Troxel sought greater visitation with their grandchildren than the children's mother would allow. The trial court granted visitation under the act, but the Washington Court of Appeals reversed for lack of standing. Troxel, supra at 62, 120 S.Ct. 2054; In re Visitation of Troxel, 87 Wash.App. 131, 137, 940 P.2d 698 (1997). The grandparents appealed, and the Washington Supreme Court, resting its decision on the United States Constitution, held that the statute was unconstitutional because it interfered with the right of parents, pursuant to substantive due process, to raise their children. Troxel, supra at 62-63, 120 S.Ct. 2054; In re Smith, 137 Wash.2d 1, 13-14, 969 P.2d 21 (1998). The statute did this, the court opined, because, contrary to relevant, constitutional doctrines on substantive due process, the court could order visitation over the parents' objection without first determining that court intervention was required to prevent harm or potential harm to the child. Moreover, the Washington Supreme Court held that the statute, by allowing any person to petition for visitation at any time subject only to a judge's unguided determination of the best interests of the child, was so overbroad that it violated constitutional requirements of due process. Id. at 30, 969 P.2d 21. Accordingly, it was unconstitutional for the additional reason that, as applied, it operated to deprive parents of their constitutionally protected rights to due process.

On appeal the United States Supreme Court also found the statute unconstitutional. The Supreme Court's holding, while clear regarding the outcome, is, unfortunately, written in so many voices that a unifying rationale is difficult to discern. Initially, in reviewing the decision it is important to note that the Court did not, unlike the Washington Supreme Court, analyze the case on the basis of theories implicating facial invalidities such as a violation of substantive due process would entail. In fact, only Justices Souter, Stevens, and Scalia, with three different positions as it developed, used that approach to decide the matter. Moreover, the plurality of four justices for whom Justice O'Connor wrote4 seemed to deal with what were facial-challenge issues while not fully acknowledging that such was the case. Yet, notwithstanding these difficulties, the Washington statute, when the smoke cleared, was held to be unconstitutional. It falls to us, as it has to other state supreme courts post-Troxel, to attempt to determine what at least five of the six justices who came to their conclusion did agree upon. We believe, guardedly, that a majority can be found in ...

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