Glidden v. Conley

• Decision Date: 14 February 2003
• Docket Number: No. 00-491.,00-491.
• Citation: 820 A.2d 197
• Parties: Morris R. GLIDDEN v. Nyoakla Lynn CONLEY.
• Court: Vermont Supreme Court

820 A.2d 197

Morris R. GLIDDEN v. Nyoakla Lynn CONLEY.

No. 00-491.

Supreme Court of Vermont.

February 14, 2003.

Margot L. Stone and Amy Phillippo, Newfane, for Plaintiff-Appellant.

Lois Mech, Pro Se, Putney, Defendant-Appellee.

William H. Sorrell, Attorney General, Montpelier, and Les Birnbaum, Assistant Attorney General, Waterbury, for Intervenor.

Present: AMESTOY, C.J., DOOLEY, MORSE,¹ JOHNSON and SKOGLUND, JJ.

¶ 1. SKOGLUND, J.

Appellant Morris Glidden appeals from a Windham Family Court order denying his motion to reconsider the court's award of visitation rights to Lois Mech, the maternal grandmother of Glidden's biological daughter, Amanda. Glidden, whose parental fitness is unquestioned, argues that the court's order deprives him of his constitutionally-protected right to decide whether, and on what terms, his daughter should have contact with her grandmother. We agree, and hold that the court unconstitutionally applied the statute governing grandparent visitation. We therefore reverse the visitation order.

¶ 2. Morris Glidden and Nyoakla Conley are the biological parents of Amanda May Conley, born on July 2, 1992. Lois Mech is Nyoakla Conley's mother and Amanda's maternal grandmother. Glidden and Conley were never married and never cohabitated. Glidden did not learn of his paternity until a 1995 probate proceeding through which Conley, who has a history of substance abuse and criminal conduct, was agreeing to relinquish her parental rights and place Amanda with adoptive parents. Upon discovering his paternity, Glidden sought to end the probate proceeding and establish a visitation schedule with Amanda by commencing a parentage proceeding in family court. He also began contributing financial support for his daughter. At the time, Glidden did not have an appropriate home for Amanda so Glidden, Conley, and Mech agreed that Mech would become Amanda's legal and physical guardian. The family court, which granted a motion to transfer the probate proceeding to the family court and consolidate it with the parentage action, approved the agreement. Thus, in January 1996, the court established a visitation schedule with Amanda for Glidden and Conley. Glidden eventually married, and he continued regular visits with Amanda until her behavioral problems became disruptive for him and all concerned. Glidden voluntarily suspended his visits with Amanda and urged Mech to obtain counseling for her, while he continued to contribute financial support for Amanda.

¶ 3. Less than two years later, Glidden attempted to renew visitation with his daughter. His efforts were rebuffed and resulted in frequent disagreements between him, Mech, and Conley. In April 1998, Mech moved to modify the January 1996 order to allow only supervised visits between Glidden and Amanda. The next month, Glidden moved to enforce the January 1996 order. Following the hearing on the motions, the court established a new temporary visitation schedule for Glidden and ordered a study of the Glidden and Mech households.

¶ 4. The home study was filed on September 15, 1998.² Along with the home study, Glidden filed a petition to dismiss Mech as Amanda's guardian and to obtain custody of his daughter. The court thereafter entered another temporary order on visitation between Glidden and Amanda based on another agreement between the parties.

¶ 5. In August 1999, Glidden, Conley, and Mech entered into yet another agreement on custody and visitation. Under the agreement, which the court approved on August 31, 1999, Mech resigned guardianship of Amanda, and Glidden and Conley shared physical and legal custody of her, although Glidden became Amanda's primary physical custodian. The parties also agreed that if either parent was cited by law enforcement for any criminal offense involving drugs or alcohol, the nonoffending parent would immediately be entitled to sole custody of Amanda. Conley was unable to maintain her sobriety and was charged in district court for disorderly conduct. Accordingly, pursuant to the parties' agreement, and by order of the family court, Glidden became sole legal and physical custodian of Amanda on May 15, 2000. Conley was still allowed visitation with Amanda one day per weekend, followed by full weekends upon satisfactory completion of a drug and alcohol rehabilitation program.

¶ 6. Mech was seeing Amanda once a week for three hours at a time during Amanda's visits with Conley when in July 2000, she filed a request for visitation pursuant to Vermont's grandparent visitation statute, 15 V.S.A. § 1011(a). Her petition did not contain any allegations that Glidden had unreasonably denied her contact with Amanda. Instead, she expressed "fear" that he would prohibit her from seeing the child without a court-ordered visitation schedule. After a hearing, the court, on August 4, 2000, granted temporary visitation every other Saturday from 10:00 a.m. until 4:00 p.m. at Mech's home. Additionally, the court ordered Glidden to allow Mech to transport Amanda for a four-hour visit with Conley each Sunday at the Massachusetts long-term residential rehabilitation center where Conley resided and was receiving treatment.

¶ 7. On August 18, 2000, Glidden moved to reconsider the visitation award arguing that the court's failure to consider the decision of a fit parent violated his Fourteenth Amendment right to raise his child without undue interference by the state, relying on the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

¶ 8. Further, Glidden had discovered that a family friend living in Mech's household, to whom Amanda refers as "Uncle David," is a convicted sex offender. "Uncle David's" conviction stemmed from a sex offense against Conley when she was a minor, but he nevertheless has lived as a family member in the Mech household since 1980. Although Glidden was supportive of visitation between his daughter and Mech because of the child's relationship with her, he was concerned about a sex offender's presence with Amanda during their visits. He also claimed Mech had misled him about the identity of Conley's abuser.

¶ 9. The court affirmed the order following a hearing where it took evidence on whether it "should substitute its judgment on grandparent visitation for that of Mr. Glidden." The court found that Mech gave Glidden false information about the sex offender, that there had been questionable incidents between the offender and Amanda, and that Glidden's concern about the presence of the offender in Mech's home was valid. The court also found it likely that conflict between Glidden and Mech over visitation would continue without a court order structuring the visits between Amanda and her grandmother. It stated that Glidden's concern about the sex offender was "likely to have the effect of causing him to be overly concerned and restrict[ive of] the amount of contact between Amanda and Ms. Mech that even he believes is otherwise good for Amanda." The court therefore denied Glidden's motion, but modified the order to prohibit Mech from allowing the sex offender to be in Amanda's presence during their visits. Glidden thereafter took this appeal.

¶ 10. On appeal, Glidden argues that the family court's order and the grandparent visitation statute unconstitutionally infringe on his right to parent Amanda by not affording his parental decision regarding visitation sufficient deference in light of his fitness to adequately parent his daughter. Because Glidden is challenging the constitutionality of the statute, the Vermont Attorney General's Office intervened for the State in this appeal, and argues for a constitutional construction of the statute. For the reasons that follow, we agree with the State that the statute is not unconstitutional on its face, but we reverse the family court's order because we find meritorious Glidden's claim that the statute exceeds constitutional boundaries as applied in this case.

¶ 11. We review an order granting visitation to determine whether the court exercised its discretion on grounds that are clearly unreasonable or untenable. Cleverly v. Cleverly, 151 Vt. 351, 355-56, 561 A.2d 99, 102 (1989). When considering the constitutionality of a statute we begin by presuming that the legislative enactment is constitutional. In re Proceedings Concerning a Neglected Child, 129 Vt. 234, 240-41, 276 A.2d 14, 18 (1971). In the absence of "clear and irrefragable evidence that [the statute] infringes the paramount law," we will not strike down a statute as unconstitutional. Id. Moreover, if we can construe the statute in a manner that meets constitutional requirements, we will do so unless the statute's plain language precludes it. In re Montpelier & Barre R.R., 135 Vt. 102, 103-04, 369 A.2d 1379, 1380 (1977). Therefore, we examine Vermont's grandparent visitation statute in the context of the visitation order at issue in this appeal to determine whether the court abused its discretion by applying the statute in a manner that infringes on Glidden's right to raise Amanda without interference by the state.

¶ 12. The United States Supreme Court has "long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974). The interest of a parent in the custody, care, and control of his child may be the oldest of the fundamental liberty interests our federal constitution protects. Troxel, 530 U.S. at 65, 120 S.Ct. 2054; In re S.B.L., 150 Vt. 294, 303, 553 A.2d 1078, 1084 (1988). The state must generally show a compelling interest "before it encroaches upon the private realm of family life." In re Proceedings Concerning a Neglected Child, 130 Vt. 525, 530, 296 A.2d 250, 253 (1972). Indeed, there is a "presumption that fit parents act in the best interests...