In re G.P.C. v. Cabral
| Decision Date | 08 August 2000 |
| Citation | 28 S.W.3d 357 |
| Parties | (Mo.App. E.D. 2000) . In re: G.P.C., a minor, Linda Cabral and Robert H. Cabral, Petitioners/Respondents, v. Mary C. Cabral and Joseph R. Cabral, Respondents/Appellants. Case Number: ED76060 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Cape Girardeau County, Hon. John W. Grimm
Counsel for Appellant: James M. McClellan
Counsel for Respondent: Marcia A. Mulcahy and James W. Hahn II
Opinion Summary: Petitioners filed an action seeking grandparent visitation pursuant to section 452.402.2 RSMo (Cum. Supp. 1998). The trial judge granted grandparents two hours of supervised visitation every three months. Parents appeal on three grounds: (1) Missouri's grandparent visitation statute impermissibly infringes on parents' fundamental liberty interests to make child-rearing decisions without government intrusion as protected by the Fourteenth Amendment of the U.S. Constitution; (2) the trial court erred in failing to find that grandparents' visitation would endanger child physically and emotionally; (3) the trial court abused its discretion by quashing parents' notices of deposition of additional witnesses and by refusing to reopen the evidence to admit expert testimony.
AFFIRMED.
Southern Division holds: (1) Missouri's grandparent visitation statute is constitutional; (2) the trial court did not abuse its discretion by failing to find that grandparents' visitation would endanger child; (3) the trial court did not abuse its discretion by quashing parents' notices of deposition of additional witnesses and by refusing to reopen the evidence to admit expert testimony.
Mary and Joseph Cabral, parents of a two-year-old female child, appeal from the judgment of the Cape Girardeau Circuit Court granting Linda and Robert Cabral, paternal grandparents, two hours of supervised visitation with child every three months.
Parents assert that Missouri's grandparent visitation statute, section 452.402.2 RSMo (Cum.Supp. 1998), infringes upon their fundamental liberty interests as protected by the U.S. Constitution. Parents also claim the trial court erred in failing to find that grandparents' visitation would endanger child physically and emotionally. Finally, parents contend that the trial court abused its discretion by quashing their notices of deposition of expert witnesses.
We affirm in that Missouri's grandparent visitation statute is constitutional. Further, we find the trial court did not abuse its discretion in its other rulings.
Child was born November 5, 1997. Although Grandparents had visits with Child during her first six months of life, Parents denied Grandparents contact with Child after Grandfather terminated Father's employment.
Parents ceased Grandparents' contact with Child, alleging that Grandparents were harmful to Child. Parents accused Grandparents of holding Child without supporting her neck on several occasions. Parents further charge that Grandmother repeatedly told them to give Child medication when she was not sick, administered an excessive dosage of medicine to Child, and repeatedly put ointment on Child following diaper changes despite having been told that it caused a rash on Child. Grandmother allegedly shook Child on one occasion in an effort to stop the Child's crying. Grandparents stated they were never informed of any of these errors on their part, while Parents testified that they informed Grandmother, but she either refused to listen or insisted on doing things her way.
Grandparents and Parents had several tense encounters with each other after Father's dismissal by Grandfather. Two such incidents resulted in father filing assault charges against Grandfather and Parents seeking an order of protection against Grandparents. The record does not reflect the outcome of the assault charges, but Grandparents testified that the protection order case had been dismissed.
Overall, Parents testified that they possessed a genuine fear that Grandmother would kidnap Child. Mother alleged that on one occasion, Grandmother screamed that she was going to take Child. In addition, Mother described an incident when Grandmother called and asked to visit, then parked in front of Parents' front door, left her car running, and hurried into the house. Mother claimed that Grandmother insisted on taking Child outside by herself, despite Mother's protests that Child first needed a coat and hat.
The thrust of Parents' accusations amounted to one complaint: Grandparents were too controlling. Parents indicated they should be allowed the freedom to make decisions regarding Child. Parents acknowledged the importance of relationships with an extended family, but they felt they should not be troubled with visitation until Child is able to communicate verbally her wishes to Parents regarding Grandparents. They expressed that the visitation proceedings have eroded the amount and quality of time they spend with Child, their financial resources, and even Child's health because she reportedly senses her parents' malaise.
Grandparents filed suit seeking visitation rights with Child, claiming they had been unreasonably denied visitation. They testified that their intention was not to interfere with Parents' efforts to raise Child, rather their goal was to have the opportunity to develop a relationship with her until she is old enough to communicate and make her own decisions. Grandparents indicated a willingness to compromise to facilitate visitation with Child and promote her best interests as determined by Parents and the court. Grandparents testified that they would like to see Child as often as possible, but they were willing to accept whatever visitation rights they would be granted.
At trial, Parents raised the issue of the constitutionality of section 452.402 in a motion to dismiss the action, but the trial court denied Parents' motion, relying on the Missouri Supreme Court decision in Herndon v. Tuhey, 857 S.W.2d 203 (Mo. banc 1993). After three days of testimony, the trial court granted Grandparents two hours of supervised visitation every three months at a neutral location in Child's hometown with parents present. Parents now appeal, again challenging the constitutionality of section 452.402.2, having preserved that alleged error at trial. Kellogg v. Kellogg, 989 S.W.2d 681, 687 (Mo.App. 1999); St. Louis County v. Kienzle, 844 S.W.2d 118, 122 (Mo.App. 1992).
In their first point, Parents assert that section 452.402.2 unconstitutionally violates their fundamental liberty interests as protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
Before addressing Parents' constitutional claim on its merits, we must first determine whether we possess subject matter jurisdiction to rule on this issue. Article V, section 3 of the Missouri Constitution provides that the Missouri Supreme Court has exclusive jurisdiction over all cases involving the validity of a statute.
Raising a constitutional question, however, does not alone deprive the appellate court of power to hear an issue. AG Processing, Inc. v. South St. Joseph Indus. Sewer Dist., 937 S.W.2d 319, 322 (Mo.App. 1997). Only where the constitutional claim is substantial and real, as opposed to merely colorable, will the appellate court lack jurisdiction to determine it. Hampton Foods, Inc. v. Wetterau Fin. Co., 831 S.W.2d 699, 701 (Mo.App. 1992). No real and substantial constitutional question exists after the state supreme court has ruled on an issue. Id. The appeals court must follow the law established by the Missouri Supreme Court. Hellmann v. Walsh, 965 S.W.2d 198, 200 (Mo.App. 1998). Therefore, we have subject matter jurisdiction and may analyze the facts of this case in conjunction with the precedent.
In Herndon, the Missouri Supreme Court addressed the issue of the constitutionality of two subsections of Missouri's grandparent visitation statute, sections 452.402.1(3) and 452.402.2. In this case, Parents challenge only section 452.402.2.
At trial, Grandparents brought their claim under section 452.402.1(3). The court appointed a guardian ad litem per section 452.402.3 and found that visitation was in Child's best interests according to section 452.402.2. Therefore, Parents' claim must be viewed as a challenge to those three subsections of the statute as they are interrelated and should be construed together. The relevant portions of section 452.402 provide:
1. The court may grant reasonable visitation rights to the grandparents of the child and issue any necessary orders to enforce the decree. The court may grant grandparent visitation when: . . .
(3) A grandparent is unreasonably denied visitation with the child for a period exceeding ninety days; . . .
2. The court shall determine if the visitation by the grandparent would be in the child's best interest or if it would endanger the child's physical health or impair the child's emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child.
3. If the court finds it to be in the best interests of the child, the court may appoint a guardian ad litem for the child.
The parents in Herndon contended the statute violated the First and Fourteenth Amendments to the U.S. Constitution and argued that they had a basic, constitutional right to raise their children as they saw fit. 857 S.W.2d at 207.
In addressing that issue, the Court acknowledged that the Due Process Clause of the Fourteenth Amendment has historically protected the freedom of personal choice in marriage and family decisions. Id. The Court concluded, however, that Missouri's...
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