Joseph, Matter of

• Decision Date: 23 February 1981
• Docket Number: No. 2-680A182,2-680A182
• Citation: 416 N.E.2d 857
• Parties: In the Matter of G. JOSEPH.
• Court: Indiana Appellate Court

Page 857

416 N.E.2d 857

In the Matter of G. JOSEPH.

No. 2-680A182.

Court of Appeals of Indiana, Fourth District.

Feb. 23, 1981.

Michelle A. Link, Nancy L. Cross, Legal Services Organization of Indiana, Inc., Muncie, for appellant.

Donald D. Chiappetta, Muncie, for appellee.

CHIPMAN, Judge.

This case involves the visitation of a father whose child has been declared a ward of the Delaware County Department of Public Welfare (Department). The trial court denied the petitioner's request to visit with his daughter. We affirm.

G. Joseph, daughter of Edward Joseph, was born in 1970. On May 23, 1972, G. was found to be a dependent and neglected child ¹ and declared a ward of the Department. The record indicates wardship was dissolved in July of 1972 when the child was temporarily placed in the custody of her paternal grandparents. In 1975 a second petition for wardship was filed by the Department alleging G. was abused and therefore dependent and neglected. Once again G. was declared a ward of the Department.

Though the Department's wardship continued, the child was unexplainably returned to the custody of her father in 1976. In 1978, however, the child was again taken from the home because of parental neglect. Then, in December 1979, Edward filed a "Petition to Establish Visitation" alleging he had no knowledge of his daughter's whereabouts and had not visited with her since March of 1978. The trial court determined visitation by the father would not be in the best interests of the child and denied Edward's petition. He now appeals from that determination raising the following questions for our review:

1) whether in a proceeding to determine the visitation rights of a natural parent application of the "best interests of the child" standard violates the parent's fundamental constitutional right to have contact with his child,

2) whether there was sufficient evidence to support the trial court's decision, and

3) whether the trial court erred by not requiring the Department's case to be proven by clear and convincing evidence.

I. Parental Rights and the "Best Interests of the Child" Rule

Petitioner first challenges the Indiana rule consistently applied in juvenile proceedings that "having once found ... (a) child to be a 'dependent (or neglected) child' the trial court ... (is) guided by the best interests of the child." In re Collar, (1973) 155 Ind.App. 668 671, 294 N.E.2d 179, 182; see also Duckworth v. Duckworth, (1932) 203 Ind. 276, 179 N.E. 773; In re Bender, (1976) 170 Ind.App. 274, 352 N.E.2d 797; In the Matter of Perkins, (1976) 170 Ind.App. 171, 352 N.E.2d 502. Petitioner argues the trial court's application of the "best interests" standard in the present case unconstitutionally interferes with his fundamental rights to family integrity and parent-child communication. He contends the court should be required to grant reasonable visitation absent a showing that visitation would pose a substantial threat to the child's emotional or physical well-being. We hold the "best interests" standard is a constitutionally permissible standard when applied in determining the visitation rights of a father whose child has been found dependent and neglected under Indiana law.

In the early case of Meyer v. Nebraska, (1932) 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, the U.S. Supreme Court held that the "liberty" guarantee of the Fourteenth Amendment "without doubt ... denotes ... the right of the individual ... to marry, establish a home and bring up children." Id. at 399, 43 S.Ct. at 626. The notion that the Due Process Clause recognizes and provides substantive protection for the family unit was subsequently reaffirmed in Pierce v. Society of Sisters, (1925) 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 and Prince v. Massachusetts, (1944) 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, rehearing denied, 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090. In Prince the court expressly recognized a constitutional barrier to governmental paternalism:

"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder ... and it is in recognition of this that these decisions (Meyer and Pierce ) have respected the private realm of family life which the state cannot enter."

321 U.S. at 166, 64 S.Ct. at 442. In Stanley v. Illinois, (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, the Supreme Court struck down an Illinois dependency statute that deprived an unmarried father the custody of his natural children upon the death of the mother. Justice White characterized the nature of Stanley's interest in the children he had lived with and supported:

"The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.' "

Id. at 651, 92 S.Ct. at 1212. The court concluded that the integrity of the family unit was protected by the Fourteenth Amendment due process and equal protection clauses. Similarly, our Indiana Supreme Court has recognized the parent-child relationship as "most hallowed" and "sacred." Duckworth v. Duckworth, 179 N.E. at 773.

We are therefore inclined to agree with appellant Joseph's initial premise that the Constitution recognizes a fundamental right to family integrity. Many federal and state courts have so held. See, e. g. Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977); Sims v. State Dept. of Public Welfare, etc., 438 F.Supp. 1179 (S.D.Tex.1977); Kruse v. Campbell, 431 F.Supp. 180 (E.D.Va.1977); Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976); Alsager v. Dist. Ct., 406 F.Supp. 10 (S.D.Iowa 1975), affirmed, 545 F.2d 1137 (8th Cir. 1976); Interest of Brehm, (1979) 3 Kan.App.2d 325, 594 P.2d 269; In Interest of Howard, (1980) La.App., 382 So.2d 194. We also acknowledge that state interference with a fundamental right may be justified only by the advancement of a compelling state interest. Roe v. Wade, (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147; Shapiro v. Thompson, (1969) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Harper v. Board of Elections, (1966) 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169.

A fundamental right to family integrity means that our federal constitution, as a matter of substantive due process, protects the private ordering of interpersonal relationships from state intrusion. It must surely be a relational right, encompassing the rights of both parent and child. There can be no question that the Due Process Clause would be offended " '(i)f a state were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' " Quilloin v. Walcott, (1978) 434 U.S. 246, 256, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (citing Smith v. Organization of Foster Families, (1977) 431 U.S. 816, 863, 97 S.Ct. 2094, 2119, 53 L.Ed.2d 14). See Roe v. Conn, 417 F.Supp. 769 (M.D.Ala.1976). However, few would challenge the authority of the state, pursuant to its parens patriae power, to intervene when parental neglect, abuse or abandonment has been established. In such a case the state most certainly has a compelling interest in protecting the welfare of the child.

The question in the present case, however, takes us one step further: once a finding of neglect or abuse has been made, how may the state proceed with the most delicate task of protecting the child's welfare while at the same time preserving what remains of the family unit? Specifically, should the rights of the biological parent be considered paramount to what otherwise might be in the best interests of a child whose growth and development has already been threatened by neglect or abuse? We think the answer must be a resounding no.

The petitioner challenges the "best interests of the child" rule as "meaningless." He argues that absent a finding of danger to the child's mental or physical health, the rule could be applied to advance less than a compelling state interest, and therefore unconstitutionally interferes with the fundamental rights of the biological father. However, our review of the many decisions of this state which have applied the "best interests" standard shows our courts have in fact been primarily concerned, either explicitly or implicitly, with the emotional development and physical health of the child.

For example, the early case of Luellen v. Younger, (1924) 194 Ind. 411, 143 N.E. 163, involved a custody battle between the biological father of a young girl and the child's foster parents. Only a few months after the birth of his daughter the father voluntarily placed her in a foster home. Nine years later, surely after strong psychological bonds developed between the child and her foster parents, the father filed a habeas corpus action to regain possession of the girl. The court acknowledged the character of each party was good and that each had the financial ability to raise the child. On appeal, our Supreme Court affirmed the trial court's denial of the father's request for custody, stating:

"(I)n determining disputes as to the custody of children the court acts as parens patriae, and regards the welfare of the child as the controlling consideration. (citations omitted) Thus, when the interests of the child will best be promoted by leaving it with its foster parent, the father will not be permitted to obtain its custody by judicial action."

143 N.E. at 164. In a similar case, Beach v. Leroy, (1950) 228 Ind. 122, 89 N.E.2d 912, the natural mother voluntarily placed her infant...