In re Marriage of Howard

• Decision Date: 07 May 2003
• Docket Number: No. 02-0211.,02-0211.
• Citation: 661 N.W.2d 183
• Parties: In re the MARRIAGE OF Charitie S. HOWARD and Dennis M. Howard, Jr. Upon the Petition of Charitie S. Howard, Appellant, and Concerning Dennis M. Howard, Jr., Respondent, Dennis Howard, Sr., and Connie Howard, Intervenors-Appellees.
• Court: Iowa Supreme Court

661 N.W.2d 183

In re the MARRIAGE OF Charitie S. HOWARD and Dennis M. Howard, Jr.

Upon the Petition of Charitie S. Howard, Appellant,

and

Concerning Dennis M. Howard, Jr., Respondent,

Dennis Howard, Sr., and Connie Howard, Intervenors-Appellees.

No. 02-0211.

Supreme Court of Iowa.

May 7, 2003.

Anjela A. Shutts of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

Eric R. Eshelman, Des Moines, for appellees.

CADY, Justice.

In Santi v. Santi, 633 N.W.2d 312 (Iowa 2001), we determined that at least one subsection of the Iowa grandparent visitation statute was unconstitutional on its face. In this appeal, we revisit the question of the statute's constitutionality to determine whether the section of the statute permitting a petition for grandparent visitation when the parents of a child are divorced is also unconstitutional. We conclude that it is unconstitutional on its face, and we reverse the decision of the district court and dismiss this petition for grandparent visitation.

I. Background Facts and Proceedings.

Delainey Howard (Delainey) was born on April 28, 1999. Her parents, Charitie Howard (Charitie) and Dennis Howard, Jr., (Dennis) were in the process of dissolving their marriage. The pending dissolution prompted Dennis' parents, Connie and Dennis Howard, Sr., (Howards) to file a petition for grandparent visitation to establish their right to visitation with Delainey. See Iowa Code § 598.35(1) (permitting a petition for grandparent visitation when "[t]he parents of the child are divorced."). A final decree was issued in the dissolution action on February 16, 2000. One of the issues decided by the decree was the visitation arrangement under which Dennis and the Howards were to have subsequent contact with Delainey. The district court granted Dennis joint legal custody and unsupervised visitation, but made the exercise of his visitation right contingent on his resumption of drug treatment and counseling. The court did not grant the Howards independent visitation, choosing instead to allow them visitation through their son.

Unfortunately, Dennis failed to pursue drug treatment and counseling as ordered. In March 2000, Charitie filed an application to alter his visitation privileges. In response, the Howards filed a motion for intervention, requesting again that they be granted visitation independent of their son. The district court ordered Charitie and Dennis to participate in mediation to settle on an agreeable revised visitation schedule.¹ When Dennis failed to show for the mediation, the court put in place its own supervised visitation schedule that again did not provide for independent visitation for the Howards. The visitation alteration made no real difference to Dennis—his contact with Delainey was waning—but it made all the difference to the Howards, who wished to have regular contact with their granddaughter and considered the current visitation arrangement an impediment to that goal.

In May 2000, with the possibility of further legal proceedings looming, Charitie and the Howards attempted to cooperate under an informal visitation arrangement. Charitie contacted the Howards to set-up the first visit, which later occurred at a local restaurant. A second visit followed in June. From all outward appearances, both visits went well. During the second meeting, the Howards asked Charitie to allow them to visit Delainey without Charitie present. Charitie responded by stating that she wanted her daughter to have a more established relationship with the Howards before taking that step. A third visit soon occurred at a local park, and a fourth followed at the zoo.

During the fourth visit, the Howards requested that Delainey be present at festivities celebrating their twenty-fifth wedding anniversary and asked Charitie to come with Delainey if it would make her feel more comfortable about the visit. Charitie denied the Howards' request and, in the course of the conversation, stated that she did not foresee a time when she would permit the Howards to have an unsupervised, overnight visit with Delainey. This conversation apparently did irreparable damage to the temporary peace that had been forged between the parties. Soon afterward, the Howards filed an application for modification of the decree of dissolution of Charitie and Dennis' marriage as it related to grandparent visitation in the district court, seeking once again to establish visitation rights independent of those of their son. Before Charitie was served with the application, one final visit occurred, again at a public park. Charitie was subsequently served with the application and the informal visitation arrangement came to an abrupt end.

At trial, the already tenuous relationship between Charitie and the Howards deteriorated into accusations and finger pointing. The Howards claimed that Charitie had only begrudgingly allowed their visits with Delainey in the first place, and when the visits did occur, they were under the oppressive supervision of Charitie and her mother (Delainey's maternal grandmother), who had also been present at each meeting. Moreover, they claimed that Charitie maintained a double standard that permitted ample contact with Delainey for her maternal relatives, but insignificant contact for her paternal relatives. Dennis also played a limited role at the trial, testifying in support of the Howards' application and stating that he favored guaranteed visitation with Delainey for his parents.

Charitie responded to the Howards' assertions by claiming that she had always wanted to cultivate a relationship between her daughter and her paternal grandparents, but had wanted to do so at a pace suitable to Delainey's development. She defended her hesitancy in allowing extended, unsupervised visits by claiming the Howards' lifestyle and various incidents in their past had made her conclude that unsupervised visits were inappropriate. Charitie also expressed concern over the fact that Dennis continued to visit or even live with his parents for periods of time, a situation that she believed could lead to him having contact with Delainey outside of the context of the supervised visitation ordered by the district court.

On September 4, 2001, the district court issued its ruling regarding the application for grandparent visitation, finding that "there was no evidence presented or demonstrated to the Court that visitation ... would be harmful to the minor child." Although the court recognized "that Charitie has a right as a parent to make decisions regarding her daughter," it ordered two, four-hour visits monthly between the Howards and Delainey, unsupervised after the first two visits, but without overnight visitation. On September 6, we issued our opinion in Santi, invalidating as unconstitutional one portion of the Iowa grandparent visitation statute. In response to Santi, Charitie filed a motion to expand and enlarge the district court's initial ruling under Iowa Rule of Civil Procedure 1.904(2) (formerly rule 179(b)). On January 17, 2002, the district court denied the motion concluding that Santi was inapplicable to the case. Charitie appeals from that ruling.²

II. Standards of Review.

Although this appeal presents unique factual and legal issues, it also returns us to an area of the law we considered at length in Santi less than two years ago. Santi provided us the opportunity to reexamine Iowa's grandparent visitation statute³ in light of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), which introduced a myriad of new constitutional considerations to the discussion of parental decision-making. Although we acknowledged in Santi that we were not bound by federal court analysis of federal constitutional provisions when construing the Iowa Constitution, we also noted that such interpretations could prove helpful.⁴ Santi, 633 N.W.2d at 317. For that reason, we undertook a studied consideration of the guidance provided by the Court in Troxel and by other state courts of last resort. That consideration led us to state a number of legal principles applicable to a discussion of a parent's decisional rights in Iowa, especially as they relate to the grandparent visitation statute.

One of our first conclusions was that challenges to Iowa's grandparent visitation statute raise "questions of substantive due process and liberty interests in the context of statutory interpretation" obliging us "to review the record de novo, making our own evaluation of the totality of the circumstances." Santi, 633 N.W.2d at 316. Of course, the nature of the interests at hand required a further consideration of the appropriate level of constitutional scrutiny with which to examine the statute. We acknowledged that Troxel did not follow the strict scrutiny standard of review traditionally used when a statute burdens a fundamental liberty. Santi, 633 N.W.2d at 317. Instead, the Court in Troxel seemed to suggest a more flexible, neutral standard premised largely on the changing shape of the traditional family structure and the strength of the potential competing privacy interests of children and other family members. Troxel, 530 U.S. at 63-64, 87-88,120 S.Ct. at 2059, 2071-72,147 L.Ed.2d at 55-56, 69-70 (Stevens, J., dissenting). Several other courts, as well as a number of legal scholars, have noted this subtle alteration and sought to crystallize its meaning and application. See David D. Meyer, Constitutional Pragmatism for a Changing American Family, 32 Rutgers L.J. 711, 713-22 (2001).

Nevertheless, Troxel did not reject the historical notion that the parental caretaking interest is fundamental, but confirmed it as "`perhaps the oldest of the fundamental liberty interests recognized by [the] Court.'" Santi, 633 N.W.2d at 317 (quoting Troxel, 530 U.S. at 65, 120 S.Ct. at 2060, 147 L.Ed.2d at 56). Thus, in Santi, we confirmed the protected status of parental caretaking, and...