In re Estate of Thurgood
| Decision Date | 25 August 2006 |
| Docket Number | No. 20040796.,20040796. |
| Citation | 2006 UT 46,144 P.3d 1083 |
| Parties | In the Matter of the ESTATE OF Samantha Taylor THURGOOD. Darlene Uzelac, Plaintiff and Respondent, v. Darryl Thurgood, Defendant and Petitioner. |
| Court | Utah Supreme Court |
J. Bruce Reading, Salt Lake City, for plaintiff.
Jerrald D. Conder, Salt Lake City, for defendant.
On Certiorari to the Utah Court of Appeals
INTRODUCTION
¶ 1 This case comes before this court as the result of a visitation dispute between a child's maternal grandparents and her father. Following the unexpected death of the child's mother, the grandmother petitioned the district court for custody of the child. However, the district court awarded custody to the father. Although the court's custody order urged the father to allow future visitation between the child and her grandparents, the parties were unable to agree upon an acceptable visitation schedule. As a result, the grandmother filed a petition for visitation pursuant to Utah Code section 30-5-2 (Supp. 2005)(the Grandparent Visitation Statute). The district court granted the petition.
¶ 2 On appeal, the father asks this court to declare that the district court's application of the statute violated his fundamental rights under the United States Constitution to manage the care, control, and custody of his child. While the father limits his arguments to an as-applied challenge, his claims appear to also directly challenge the constitutionality of any court's authority to order grandparent visitation. Because the Grandparent Visitation Statute grants courts authority to order grandparent visitation, we must undertake a facial constitutional analysis of the statute. Accordingly, we analyze first whether the plain language of the statute is unconstitutional, and second whether the trial court applied the statute in a manner that unconstitutionally infringed upon the father's liberty interest in the care, custody, and control of his child. We hold that the statute is constitutional, both on its face and as applied in this case.
¶ 3 Darryl and Shauna Thurgood were divorced in February of 1994. In December 1995, following a brief period of reconciliation, Ms. Thurgood gave birth to their daughter (the child). The following March, Ms. Thurgood and her child moved in with Ms. Thurgood's parents, Darlene and Robert Uzelac, where they lived for the next three years. During that period, the child spent a substantial amount of time with her grandparents and interacted with them on a daily basis. When the child became old enough to attend preschool, one of her grandparents regularly picked her up from school and spent afternoons with her. The Uzelacs cared for the child during the week, took her camping on weekends, and vacationed with her.
¶ 4 The extent of the Uzelacs' involvement changed somewhat in February 1999, when Ms. Thurgood moved into her own home, taking the child with her. Thereafter, the grandmother continued to play a significant role in the child's life by babysitting the child several times each week and speaking to her on the phone almost daily. This ended just over a year later when Ms. Thurgood died unexpectedly after a short illness. As a result, Ms. Uzelac moved into the child's home to provide full-time care for the child.
¶ 5 Following Ms. Thurgood's death, Ms. Uzelac petitioned to be appointed as guardian and conservator of the child.1 However, in June 2000, the district court awarded custody to the child's father, Mr. Thurgood, as the sole surviving natural parent. In its order, the district court stated that there "ought" to be future visitation between the child and her maternal grandparents with Mr. Thurgood's approval and under "reasonable and liberal circumstances," and the court admonished the parties "to cooperate to see that the child visits appropriately with her grandmother."
¶ 6 Shortly thereafter, it became apparent that the parties could not work out a mutually acceptable visitation schedule. Mr. Thurgood first received custody in June 2000, but he did not allow any visitation between the child and the Uzelacs for five months. Thereafter, Mr. Thurgood granted Ms. Uzelac two visits in December 2000, one for the child's birthday and the other for a family Christmas party. The next visitation occurred in March 2001, when Mr. Thurgood allowed Ms. Uzelac to spend one hour with the child. Ms. Uzelac did not see the child again until July 2002, at which time she petitioned the court for visitation pursuant to the Grandparent Visitation Statute. In July 2002, the court granted Ms. Uzelac temporary visitation, pending a final resolution of this matter. Despite the court-ordered schedule for visitation on the first weekend of every month, Mr. Thurgood only allowed Ms. Uzelac to visit the child twice between July 2002 and January 2003. As a result, the district court ordered the father to allow Ms. Uzelac to make up for the lost visits by spending every other weekend with the child for an indefinite period of time. Subsequently, visitation took place every other weekend until December 2003, when the Utah Court of Appeals reversed the district court's order, holding that the district court had abused its discretion by ordering make-up visitation in excess of the visitation necessary to remedy the number of visits the father had prevented. Thurgood v. Uzelac, 2003 UT App 439, ¶¶ 14-15, 83 P.3d 398. In January 2004, Mr. Thurgood moved to Florida with the child and the district court ordered temporary telephonic visitation between the child and Ms. Uzelac. The last telephonic visitation on record occurred in February 2004.
¶ 7 During this protracted litigation, Mr. Thurgood challenged the constitutionality of the Grandparent Visitation Statute, complaining that it infringed upon his liberty interest in the care, custody, and control of his child. The district court held the statute was constitutional, therefore giving Ms. Uzelac standing and the court jurisdiction to proceed to the question of whether visitation was in the child's best interests. The court then ordered the parties to conduct discovery regarding whether visitation was in the best interests of the child.
¶ 8 As part of its discovery order, the court ordered the performance of a "visitation evaluation by a duly qualified evaluator." The parties stipulated to the appointment of Valerie Hale, Ph.D. Although Mr. Thurgood was invited to participate in the evaluation process, he declined to do so. Because Mr. Thurgood refused to participate, Dr. Hale was only able to conduct an informal evaluation that was "limited to an assessment of the nature of the relationship between [the child] and her maternal grandparent without further input from Mr. Thurgood." Dr. Hale conducted her evaluation by meeting with the child and the Uzelacs at the Uzelacs' home during one of the scheduled grandparent visitation periods.
¶ 9 Based on her evaluation, Dr. Hale made the following findings: (1) "[t]here is a great deal of physical affection between the grandparents and [the child]"; (2) "[b]oth grandparents were patient [and] able to set and maintain limits" with the child, (3) "[t]he child responded to her grandparents as loved and trusted care givers"; (4) the child "expressed her desire to spend more time with her grandparents"; and (5) the child talked about the time when she lived in her grandparent's home with her mother. Dr. Hale concluded that, as a result of the grandparents' role as primary caregivers, the child "demonstrated a strong emotional attachment to her grandparents" that was as strong as parent-child emotional attachments and that the loss of this attachment would devastate the child. In addition, Dr. Hale concluded that the child still had an emotional wound from her mother's death. Because Dr. Hale believed the child kept the memory of her mother alive through access to her grandparents, she concluded that a loss of the relationship with the Uzelacs would impede the child's ability to cope with her mother's death. Therefore, Dr. Hale recommended that it would be "in the best interests of the child to maintain a meaningful relationship with her maternal grandparents which is characterized by frequent and on-going visitation with them."
¶ 10 A trial regarding whether Ms. Uzelac should be granted permanent visitation was held on July 28, 2004. At the trial, Dr. Hale testified regarding her findings and her evaluation report was admitted into evidence. Mr. Thurgood countered Dr. Hale's testimony with the testimony of Brad Drown, a licensed clinical social worker. Mr. Drown testified that visitation would not be appropriate at that time due to the animosity between Mr. Thurgood and the Uzelacs, as was evidenced by the on-going dispute.
¶ 11 The district court rejected Mr. Drown's recommendation, determining instead that there is a "bond of love and affection between [the child] and both of her maternal grandparents." The court then concluded that the parental presumption had been rebutted and visitation would be in the child's best interests. Therefore, the court ordered visitation between Ms. Uzelac and her grandchild.
¶ 12 Mr. Thurgood appealed the district court's decision to the Utah Court of Appeals, claiming that the district court's application of the Grandparent Visitation Statute violated his constitutional rights. The court of appeals certified the case to this court. We have jurisdiction pursuant to Utah Code section 78-2-2(3)(b) (2002).
¶ 13 Parents have a constitutional right to manage "the care, custody and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The U.S. Supreme Court has recognized that this right is "perhaps the oldest of the fundamental liberty interests." Id. at 65, 120 S.Ct. 2054. This liberty interest encompasses parents' personal choices in family life beginning with their right to marry...
To continue reading
Request your trial
-
Michels v. Lyons (In re Visitation of A. A. L.)
... ... Thurgood , 144 P.3d 1083 (Ut. 2006) (visitation order upheld where child lived with maternal grandparents for three years and was regularly cared for by her ... ...
-
Jones v. Jones
... ... Id. Grandparents seeking court-ordered visitation must overcome the parental presumption by clear and convincing evidence. Uzelac v. Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, 28, 144 P.3d 1083. A. Because a Parent's Right Is Fundamental, Strict Scrutiny Applies. 9 Mother contends ... ...
-
Jones v. Barlow
... ... at will by either the person thus standing in loco parentis or by the child." To the same effect is this language from In re McCardle's Estate [95 Colo. 250, 35 P.2d 850 (1934) ]: "It (loco parentis) is not, as argued, to be likened to that of adoption. The one is temporary in character, ... Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶¶ 1-4, 144 P.3d 1083. As recognized in S.T.T., when a family is divided by events such as divorce, "a ... ...
-
Jones v. Jones
... ... This is not a case like Uzelac v. Thurgood, where the grandmother took care of the child on a daily basis throughout most of the child's first four years of life, such that she had an ... ...