In re Parentage of CAMA, 75262-1.

• Court: United States State Supreme Court of Washington
• Citation: 154 Wn.2d 52,109 P.3d 405,154 Wash.2d 52
• Decision Date: 07 April 2005
• Docket Number: No. 75262-1.,75262-1.
• Parties: In re PARENTAGE OF C.A.M.A., a minor child, Christian E. Appel, Petitioner, v. Herlinde Appel, Respondent.

109 P.3d 405
154 Wash.2d 52
154 Wn.2d 52

In re PARENTAGE OF C.A.M.A., a minor child, Christian E. Appel, Petitioner,
v.
Herlinde Appel, Respondent

No. 75262-1.

Supreme Court of Washington, En Banc.

Argued November 16, 2004.

Decided April 7, 2005.

109 P.3d 407

Jordan Gross, Yarmuth Wilsdon Calfo PLLC, Seattle, for Petitioner

Charles Kenneth Wiggins, Kenneth Wendell Masters, Shelby R. Frost Lemmel, Wiggins & Masters PLLC, Bainbridge Island, WA, Mark Theodore Patterson, Rockefeller Law Office LLP, Everett, WA, for Respondent.

William Berggren Collins, Olympia, for Amicus Curiae (Washington State Attorney General).

Marc T. Christianson, Tacoma, Jonathan Mark Weiss, Law Office of J. Mark Weiss PS, Seattle, for Amicus Curiae (Washington State Bar Association).

Christine Norton, Port Townsend, for Other Party.

SANDERS, J.

¶ 1 We return to grandparent visitation, addressed previously in both the United States Supreme Court, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and in this court, In re Custody of Smith, 137 Wash.2d 1, 969 P.2d 21 (1998), aff'd on narrower grounds by Troxel, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. But here we examine a different grandparent visitation statute, RCW 26.09.240. Applying Troxel and Smith we hold this statute is unconstitutional, reverse the Court of Appeals, and reinstate the trial court's decision.

FACTS AND PROCEDURAL HISTORY

¶ 2 "C" was born December 25, 1992, to Christine Sue Norton and Christian Appel (the parent), who were not married and whose relationship ended after C's first birthday.

¶ 3 A year and a half later the parent and C moved to Germany where they lived with the parent's parents, Herlinde and Joachim Appel.¹ The parent and C lived in Germany with the grandparents for two years, and during this time the grandparents cared for C while the parent was at work.

¶ 4 In 1997, the grandparents, the parent, and C visited the parent's older sister in

109 P.3d 408

California. The parent informed the grandparents that he and C would stay in the United States, but grandparents convinced him that C should return to Germany with them until the parent had established a stable home

¶ 5 In 1999, the parent told the grandparents that he was engaged to be married and wanted C to live with him, his new wife, and her children in Snohomish County, Washington. In 2000 C attended her father's wedding and, while the grandparents were traveling after the wedding, the parent filed a parentage action in Snohomish County Superior Court. The Superior Court issued a temporary parenting plan which was agreed to by Norton (C's mother), and which included provisions for Norton to have visitation with C.

¶ 6 Upon the grandparents' return the parent informed them of the action and the custody documentation. The grandparent filed a motion to intervene. The grandparent moved to have the custody issue decided in Germany, but the Court of Appeals held the Snohomish County Superior Court had jurisdiction. Upon remand from this prior appeal, the grandparent petitioned for visitation.

¶ 7 The Superior Court held that C's parents were fit, and that no constitutional third party visitation statute existed in Washington. The court granted the parent's motion to dismiss the petition.

¶ 8 The Court of Appeals, Division One, reversed in a published decision.² The court found RCW 26.09.240 constitutional under Troxel and Smith. We accepted discretionary review.

ANALYSIS

I. RCW 26.09.240 unconstitutionally infringes on a fit parent's right to control visitation with his/her child under the Smith and Troxel cases

A. Standard of Review

¶ 9 The interpretation of a statute and the determination of whether a statute violates the United States Constitution are issues of law that are reviewed de novo.³ What constitutional standard is to be applied in this case — whether to apply strict scrutiny or some lesser tier of review — is a matter of dispute among the parties. This is because the grandparent contends Smith is no longer good law. We disagree.

¶ 10 We held in Smith that "parents have a fundamental right to autonomy in child-rearing decisions," In re Smith, 137 Wash.2d at 13, 969 P.2d 21, and this "liberty" interest is protected as a matter of substantive due process under the Fourteenth Amendment. Id. at 15, 969 P.2d 21. We held state interference with this interest "is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved." Id. This is the "strict scrutiny" test. AK-WA, Inc. v. Dear, 66 Wash.App. 484, 492, 832 P.2d 877 (1992) (citing Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)).

¶ 11 Because the standard of review — strict scrutiny versus the "balancing" test employed in Troxel — turns on whether Smith is still good law, we address that issue first. The Smith opinion decided two consolidated cases. One of those cases (Troxel) was appealed to the United States Supreme Court, which affirmed the Washington State Supreme Court on narrower grounds.

¶ 12 The In re Custody of Smith case was not appealed to the United States Supreme Court. While the effect of the United States Supreme Court's Troxel opinion affirming Smith on narrower grounds is not clearly established by the parties, the fact that Smith still stands as the opinion by the highest court to hear the In re Custody of Smith case dictates that Smith remains good law unless inconsistent with Troxel. Troxel did not vacate Smith; Troxel did not reverse Smith; Troxel did not even narrow Smith's

109 P.3d 409

holding. The United State Supreme Court explicitly declined to consider

the primary constitutional question passed on by the Washington Supreme Court — whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context.

Troxel, 530 U.S. at 73, 120 S.Ct. 2054.

¶ 13 We need not decide the precise effect of an affirmance on narrower grounds of our cases by the United States Supreme Court, because Smith stands as independent, unappealed precedent. We conclude Smith remains binding precedent.⁴

¶ 14 The grandparent also contends Troxel requires challenges to grandparent visitation statutes be brought "as applied" rather than as "facial" challenges, thereby claiming the need for a factfinding hearing before evaluating the statute's constitutionality. But the parent's challenge in this case stems from the language of the statute itself. It does not depend on the application of facts particular to this case. The parent claims the statute can never be applied under any circumstances without violating numerous minimal constitutional requirements set forth by both the Washington State Supreme Court and the United States Supreme Court. The challenge is therefore facial.

B. RCW 26.09.240, Smith, and Troxel

¶ 15 This visitation statute provides:

(1) A person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. A person other than a parent may not petition for visitation under this section unless the child's parent or parents have commenced an action under this chapter.

(2) A petition for visitation with a child by a person other than a parent must be filed in the county in which the child resides.

(3) A petition for visitation or a motion to intervene pursuant to this section shall be dismissed unless the petitioner or intervenor can demonstrate by clear and convincing evidence that a significant relationship exists with the child with whom visitation is sought. If the petition or motion is dismissed for failure to establish the existence of a significant relationship, the petitioner or intervenor shall be ordered to pay reasonable attorney's fees and costs to the parent, parents, other custodian, or representative of the child who responds to this petition or motion.

(4) The court may order visitation between the petitioner or intervenor and the child between whom a significant relationship exists upon a finding supported by the evidence that the visitation is in the child's best interests.

(5)(a) Visitation with a grandparent shall be presumed to be in the child's best interests when a significant relationship has been shown to exist. This presumption may be rebutted by a preponderance of evidence showing that visitation would endanger the child's physical, mental, or emotional health.

(b) If the court finds that reasonable visitation by a grandparent would be in the child's best interest except for hostilities that exist between the grandparent and one or both of the parents or person with whom the child lives, the court may set the matter for mediation under RCW 26.09.015.

(6) The court may consider the following factors when making a determination of the child's best interests:

(a) The strength of the relationship between the child and the petitioner;

(b) The relationship between each of the child's parents or the person with whom the child is residing and the petitioner;

(c) The nature and reason for either parent's objection to granting the petitioner visitation;

109 P.3d 410

(d) The effect that granting visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(e) The residential time sharing arrangements between the parents;

(f) The good faith of the petitioner;

(g) Any criminal history or history of physical, emotional, or sexual abuse or neglect by the petitioner; and

(h) Any other factor relevant to the child's best interest.

(7) The restrictions of RCW 26.09.191 that apply to parents shall be applied to a petitioner or

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