Fausey v. Hiller

• Decision Date: 25 May 2004
• Citation: 851 A.2d 193
• Parties: Shane FAUSEY, Appellant v. Cheryl HILLER, Appellee
• Court: Pennsylvania Superior Court

851 A.2d 193

Shane FAUSEY, Appellant v. Cheryl HILLER, Appellee

Superior Court of Pennsylvania.

Submitted February 12, 2004.

Filed May 25, 2004.

Randi W. Dincher, Williamsport, for appellant.

Janice R. Yaw, Williamsport, for appellee.

Before: LALLY-GREEN, GANTMAN and CAVANAUGH, JJ.

OPINION BY CAVANAUGH, J.

¶ 1 Appellant (father) appeals the August 1, 2003 order granting appellee, maternal grandmother (grandmother), partial physical custody of minor, Kaelen Fausey (born October 5, 1994), under the Grandparents' Visitation Act, 23 Pa.C.S.A. §§ 5311-5314. We affirm.

¶ 2 Kaelen's mother died of cancer on May 25, 2002, when Kaelen was seven years old. Father and mother were married until mother's death. Grandmother and Kaelen had a great deal of contact before the death of Kaelen's mother, and during the final two years before her death, their contact was almost daily. They shared a very close relationship through which grandmother helped to emotionally prepare Kaelen for his mother's death. The regular contact between Kaelen and appellee ended when Kaelen's mother died. The trial court found that appellee had made numerous attempts to obtain visits with Kaelen, but that appellant was not cooperative.

¶ 3 Grandmother sought partial custody and visitation rights under 23 Pa.C.S.A. § 5311. The trial court concluded that without a court order, Kaelen would have little or no contact with grandmother because of the following findings: 1) Father didn't foster visits before grandmother filed the custody petition; 2) Father's position on how much, if any contact is appropriate has been inconsistent; 3) Father's negative feelings toward grandmother interfere with his ability to make good decisions regarding Kaelen's contact with her; 4) Father alleges that grandmother is a threat to Kaelen's safety due to a history of alcohol abuse, domestic violence and the fact that her husband has Hepatitis C; and 5) Father alleges that spending time with grandmother would interfere in his father-son relationship with Kaelen because of the animosity between father and grandmother. Despite the court's recognition that father genuinely cares for his son, it found that the safety concerns he raised did not pose a meaningful threat to Kaelen, and that father was unlikely to allow Kaelen to spend time with grandmother absent a court order.

¶ 4 By order of court dated August 1, 2003, grandmother was granted one weekend of partial physical custody each month from 9:00 a.m. on Saturday until 7:00 p.m. on Sunday, as well as one week each summer.

¶ 5 Appellant raises the following two issues on appeal:

1. DID THE TRIAL COURT'S ORDER OF AUGUST 1, 2003 RESULT IN AN UNCONSTITUTIONAL INFRINGEMENT ON MR. FAUSEY'S FUNDAMENTAL LIBERTY RIGHT TO MAKE CHILD REARING DECISIONS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION?

2. DOES THE PENNSYLVANIA GRANDPARENT ACT, 23 Pa.C.S.A. 5311 AND 5312 VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, FOR IT TREATS CHILDREN OF SINGLE PARENTS AND THOSE OF MARRIED PARENTS UNEQUALLY WITHOUT THERE BEING A SUFFICIENT GOVERNMENT INTEREST TO INTERFERE IN THE RIGHTS OF A SINGLE PARENT?

¶ 6 We first address the constitutionality of 23 Pa.C.S.A. § 5311 with regard to the due process clause and then with regard to the equal protection clause. Because § 5312 is not implicated by this case, we will not consider it. The portion of the statute in question provides:

§ 5311. When parent deceased

If a parent of an unmarried child is deceased, the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

23 Pa.C.S.A. § 5311. This court has stated our standard for reviewing the constitutionality of a statute as follows:

[W]e note that properly enacted statutes enjoy a strong presumption of constitutionality. Commonwealth v. Miller, 455 Pa.Super. 534, 689 A.2d 238 (Pa.Super.1997). Our standard of review is limited to a consideration of whether the legislation at issue is clearly, palpably, and plainly in violation of the constitution. Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (Pa. [] 1995).

In re C.C.J., 799 A.2d 116, 122 (Pa.Super.2002).

¶ 7 Our Supreme Court recently set forth the following:

When confronted with a constitutional challenge premised upon substantive due process grounds, the threshold inquiry is whether the challenged statute purports to restrict or regulate a constitutionally protected right. Commonwealth v. Burnsworth, 543 Pa. 18, 669 A.2d 883, 889 (Pa.1995). If the statute restricts a fundamental right, it must be examined under strict scrutiny. Smith v. Coyne, 555 Pa. 21, 722 A.2d 1022, 1025 (Pa.1999). Pursuant to that analysis, legislation that significantly interferes with the exercise of a fundamental right will be upheld only if it is necessary to promote a compelling state interest and is narrowly tailored to effectuate that state purpose. Nixon [v. Commonwealth ], 576 Pa. 385, 839 A.2d 277, 286 (2003); Commonwealth v. Robinson, 497 Pa. 49, 438 A.2d 964 (Pa.1981), appeal dismissed, 457 U.S. 1101, 102 S.Ct. 2898, 73 L.Ed.2d 1310 (1982).

Khan v. State Bd. of Auctioneer Examiners, 842 A.2d 936, 947 (Pa.2004).

¶ 8 The United States Supreme Court has stated that the right of parents to make decisions about the upbringing of their children is a fundamental right. "[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Accordingly, we employ a strict scrutiny analysis to determine if § 5311 is necessary to promote a compelling state interest and is narrowly tailored to effectuate that purpose. See Khan, 842 A.2d at 947

.

¶ 9 Appellant's argument relies heavily on the United States Supreme Court decision in Troxel v. Granville, supra,

for the proposition that the application of § 5311 to this case violates the due process clause. The Troxel court found that a particular application of a very broad Washington state third-party visitation statute violated a mother's due process rights to make decisions regarding her children.¹ This court recently addressed the applicability of Troxel to § 5311 of Pennsylvania's Grandparent Visitation Act, as follows:

In Troxel the Supreme Court found the application of a Washington state statute permitting "any person" to petition for visitation impermissibly broad and found that, under the facts of that case, it unconstitutionally infringed on the fundamental right of the parent to make decisions concerning her child. However, the Troxel Court cited with approval statutes comparable to 23 Pa.C.S. § 5311 ["When parent deceased"], which do not contain the broad, sweeping language like that in the Washington statute. Moreover, the Troxel Court determined the trial court erred by placing the burden on the parent to disprove that the best interests of the child would be served by granting visitation with grandparents. Here, we emphasize it is the grandparents' burden to demonstrate partial custody or visitation is in the best interest of the children and will not interfere with the parent-child relationship.

Douglas v. Wright, 801 A.2d 586, 590-91, n. 1 (Pa.Super.2002).

¶ 10 As noted by this court in Douglas, the Washington statute at issue in Troxel is readily distinguishable from the Pennsylvania statute under consideration. In Troxel, the U.S. Supreme Court explained:

Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute's text, "any person may petition the court for visitation rights at any time," and the court may grant such visitation rights whenever "visitation may serve the best interest of the child." § 26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests. The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrower reading, but it declined to do so. See, e.g., 137 Wash.2d at 5, 969 P.2d at 23 ("[The statute] allows 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"); id. at 20, 969 P.2d at 30 ("[The statute] allows `any person' to petition for forced visitation of a child at `any time' with the

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