Jackson v. Tangreen

• Citation: 199 Ariz. 306,18 P.3d 100
• Decision Date: 26 December 2000
• Docket Number: No. 1 CA-CV 99-0542.,1 CA-CV 99-0542.
• Parties: Christy and Steven JACKSON, wife and husband, Petitioners-Appellants, v. Sandi TANGREEN, Respondent-Appellee.
• Court: Arizona Court of Appeals

18 P.3d 100

199 Ariz. 306

Christy and Steven JACKSON, wife and husband, Petitioners-Appellants, v. Sandi TANGREEN, Respondent-Appellee.

No. -0542.

Court of Appeals of Arizona, Division 1, Department C.

December 26, 2000.

Jones & Rosenberg by Kenton D. Jones, Prescott, Attorneys for Petitioners-Appellants.

Law Offices of Robert L. Fruge by Robert L. Fruge, Prescott, Attorney for Respondent-Appellee.

OPINION

RYAN, Judge.

¶ 1 In this appeal, we again hold that Arizona's grandparent visitation statute, Ariz.Rev.Stat.Ann. ("A.R.S.") § 25-409 (2000), is constitutional. We also hold that the statute does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions by permitting continuing grandparent visitation when a child is adopted by a stepparent.

BACKGROUND

¶ 2 Robert and Christy Thon were married in July 1992. The couple had two children, a boy born in 1992 and a girl born in 1993. In 1994, Christy petitioned the court for dissolution of the marriage, and the couple was later granted a divorce with Christy retaining primary custody of the children. In April 1997, Robert Thon's mother, Sandi Tangreen, petitioned the court for visitation with her grandchildren. After hearing oral argument on the petition, the court granted Tangreen visitation with the children.

¶ 3 In February 1998, Christy's new husband, Steven Jackson, petitioned to adopt the two children. Christy and her former husband both consented to the adoption. In July 1998, Tangreen filed a petition for continuation of visitation, which the trial court granted. Steven Jackson's petition to adopt the children was subsequently granted, and the order of adoption was entered in August 1998. The Jacksons then filed a petition to terminate Tangreen's visitation rights, arguing that A.R.S. section 25-409 is unconstitutional.¹ The Jacksons appeal from the trial court's denial of their petition to terminate visitation.

DISCUSSION

¶ 4 The Jacksons raise several arguments that we distill to two principal issues. First, the Jacksons argue that A.R.S. section 25-409 is unconstitutional on its face because it impermissibly interferes with their fundamental rights as parents in the care, custody, and control of their children. Second, the Jacksons argue that A.R.S. section 25-409(F)² conflicts with Arizona's adoption statute, A.R.S. § 8-117(A)(1999), and thus A.R.S. section 25-409(F) impermissibly distinguishes between two-parent adoptions and stepparent adoptions. We conclude that A.R.S. section 25-409 is constitutional. We also conclude that A.R.S. section 25-409(F) does not unconstitutionally distinguish between two-parent adoptions and stepparent adoptions.

The Constitutionality of A.R.S. Section 25-409

¶ 5 We review the constitutionality of a statute de novo. See City of Tucson v. Woods, 191 Ariz. 523, 530, 959 P.2d 394, 401 (App.1997). In conducting that review, we presume that the statute is constitutional and must construe it, if possible, to give it a constitutional meaning. See State Comp. Fund v. Symington, 174 Ariz. 188, 193, 848 P.2d 273, 278 (1993). The party alleging the constitutional violation bears the burden of proving it. Eastin v. Broomfield, 116 Ariz. 576, 580, 570 P.2d 744, 748 (1977). We will declare legislation unconstitutional only if we are clearly convinced that it conflicts with the Arizona or United States Constitution. See State v. Arnett, 119 Ariz. 38, 48, 579 P.2d 542, 552 (1978).

¶ 6 In Graville v. Dodge, this court held that Arizona's grandparent visitation statute, A.R.S. § 25-409, did not unconstitutionally infringe upon a parent's fundamental right to control child rearing. 195 Ariz. 119, 125, ¶ 23, 985 P.2d 604, 610 (App.1999). We concluded that because A.R.S. section 25-409 "neither substantially interferes with nor heavily burdens parental rights," it need only be rationally related to a legitimate state purpose. Id. at ¶ 24, 985 P.2d 604. We then held that A.R.S. section 25-409 was "rationally related to furthering the state's legitimate interest in enabling children to become responsible adults by fostering relationships between grandchildren and their grandparents." Id. at 126, ¶ 27, 985 P.2d at 611.

¶ 7 After oral argument in this appeal, the United States Supreme Court issued its decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court affirmed the Washington Supreme Court's ruling that Washington's nonparental visitation statute was unconstitutional. Id. at 63, 120 S.Ct. at 2059. We granted the Jacksons' request for additional briefing on whether the Court's decision in Troxel affected this appeal.

¶ 8 In their supplemental brief, the Jacksons contend that our analysis in Graville no longer controls in light of the Supreme Court's decision in Troxel. Tangreen, on the other hand, contends that Troxel's holding is limited to the Washington statute and does not affect the constitutionality of A.R.S. section 25-409. We conclude that Troxel does not affect our holding in Graville.

¶ 9 In Troxel, no majority opinion emerged. However, six of the justices agreed with the state supreme court that the Washington statute was unconstitutionally overbroad because it allowed "`any person' to petition for forced visitation of a child at `any time' with the only requirement that the visitation serve the best interests of the child." Id. (quotations omitted); see also id. at 67, 72, 120 S.Ct. at 2061, 2064 (plurality opinion), at 74, 120 S.Ct. at 2065 (Souter, J., concurring), at 79, 120 S.Ct. at 2068 (Thomas, J., concurring). Four of these six justices also found that the Washington statute was unconstitutional as applied. Id. at 71, 120 S.Ct. at 2064.

¶ 10 Two factors support our conclusion that the Supreme Court's holding in Troxel has no impact on A.R.S. section 25-409. First, although the Court found the Washington statute's language too broad to pass constitutional muster, it refused to find nonparental visitation statutes unconstitutional per se. Id.

¶ 11 Second, A.R.S. section 25-409 is much more narrowly drawn than the Washington statute in Troxel. In contrast to the Washington law, Arizona's nonparental visitation statute is limited to grandparents and great-grandparents. A.R.S. § 25-409(A), (B). In addition, the court may order visitation over parental objections only if the marriage of the parents has been dissolved for at least three months, one of the parents of the child is deceased or missing, or the child was born out of wedlock. Id. at (A)(1)-(3). Further, the statute requires the court to evaluate "all relevant factors" as well as five specific factors to determine if visitation serves the best interests of the child. Id. at (C)(1)(5). Thus, A.R.S. section 25-409 stands in stark contrast to the "breathtakingly broad" Washington statute. Troxel, 530 U.S. at 67,120 S.Ct. at 2061.

¶ 12 Nevertheless, the Jacksons argue that certain language in Troxel compels a finding that A.R.S. section 25-409 violates their fundamental due process right to make decisions concerning the raising of their children. We disagree and conclude that Arizona's statute satisfies the due process concerns articulated in Troxel.

¶ 13 The Court in Troxel focused on two principle factors in concluding that the Washington statute, as applied, violated the mother's "fundamental right to make decisions concerning the care, custody, and control of her [children]." Id. at 71, 120 S.Ct. at 2063. First, no one alleged and no court found the mother to be unfit. Id. at 67, 120 S.Ct. at 2061. The Court explained that a fit parent is presumed to act in the child's best interests, and thus courts "must accord at least some special weight to the parent's own [visitation] determination." Id. at 69, 120 S.Ct. at 2062. In Troxel, the Washington trial court did not give any special weight to the mother's visitation decisions. Id. at 68-69, 120 S.Ct. at 2061-62. Instead, the trial court based its decision on its own presumption that third-party visitation would benefit the child, effectively forcing the mother to disprove the trial court's presumption. Id. at 69, 120 S.Ct. at 2062. Second, the mother had assented to some meaningful visitation even before the filing of any visitation petition or subsequent court intervention. Id. at 71, 120 S.Ct. at 2063. Thus, she did not seek to deny visitation altogether; she merely sought to limit it. Id. Nevertheless, the trial court failed to accord significant weight to the mother's prior assent to visitation. Id. These factors, combined with the trial court's "slender findings" in favor of the visitation order, convinced a plurality of the Court that the Washington statute did no more than permit the trial court to substitute its own judgment for that of a fit parent. Id. at 72, 120 S.Ct. at 2064. As a result, the Court concluded that the Washington statute, as applied, "exceeded the bounds of the Due Process Clause." Id. at 68, 71-72, 120 S.Ct. at 2061, 2063-64.

¶ 14 We believe Arizona's statute does not exceed the "bounds of the Due Process Clause." Section 25-409 requires Arizona courts to give weight to the parent's visitation decisions. For example, the court must assess "[t]he motivation of the person denying visitation." A.R.S. § 25-409(C)(3). It must also consider "[t]he motivation of the requesting party" and "[t]he historical relationship, if any, between the child and the person seeking visitation." Id. at (C)(1), (2). Also, the court must assess the amount of visitation requested and determine the impact that the visitation will have on the child's customary activities. Id. at (C)(4). As we concluded in Graville, these procedural safeguards "show[ ] that the legislature was conscious of parents' superior right to the custody and care of their children." 195 Ariz. at 127, 985 P.2d at 612 (quoting West v. West, 294 Ill.App.3d 356, 228 Ill.Dec. 794, 689 N.E.2d 1215, 1221 (1998)). Moreover, as subsections (C)(1...