Seagrave v. Price

• Decision Date: 27 June 2002
• Docket Number: No. 01-1370.,01-1370.
• Parties: Becky Coburn SEAGRAVE v. Jeffrey PRICE, Jerry and Darlene Price, Intervenors, STATE of Arkansas, Intervenor.
• Court: Arkansas Supreme Court

79 S.W.3d 339

349 Ark. 433

Becky Coburn SEAGRAVE v. Jeffrey PRICE, Jerry and Darlene Price, Intervenors, STATE of Arkansas, Intervenor.

No. 01-1370.

Supreme Court of Arkansas.

June 27, 2002.

Robert A. Newcomb, Little Rock, for appellant.

Keith Blackman, Jonesboro, for appellee and intervenors Jerry & Darlene Price.

Mark Pryor, Att'y Gen., by: Melanie Winslow, Ass't Att'y Gen., Little Rock, for intervenor State of Arkansas.

TOM GLAZE, Justice.

This case again requires this court to examine the constitutionality of the Grandparental Visitation Rights Act, Ark.Code Ann. § 9-13-103 (Repl.2002). We recently held that the statute was unconstitutional as applied in Linder v. Linder, 348 Ark. 322,72 S.W.3d 841 (2002), basing our decision primarily on the United State Supreme Court's plurality decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

Becky Coburn Price and Jeff Price have a daughter, Ashley, who was born on May 6, 1996; the couple divorced on March 11, 1997, and Jeff was awarded visitation. Jeff continued to have visitation with Ashley until April of 2000. At that time, Becky began to suspect that Jeff was abusing the child during his visits with her, when Ashley told her mother that she played what she called the "squishy game" with her father. This "game" apparently involved Ashley's sitting on Jeff's lap in the bathtub and shaking her bottom back and forth. Becky filed a complaint with the Family Protection Unit of the Arkansas State Police, and in May of 2000, the FPU concluded that Jeff was guilty of sexual abuse and was registered with the Central Registry established pursuant to the Arkansas Child Maltreatment Act, see Ark.Code Ann. §§ 12-12-501 and -505 (Supp.2001). Jeff did not appeal that decision.

On June 1, 2000, Becky filed a petition in Craighead County Chancery Court to terminate Jeff's visitation rights. Jeff filed a response on June 16, 2000, denying the allegations in Becky's petition; he also filed a counter-claim in which he argued that the chancery court should change custody of Ashley from Becky to him, because Becky had failed and refused to allow him visitation as ordered by the court. In addition to Jeff's response and counter-claim, Jeff's parents, Jerry and Darlene Price, filed a petition for grandparents' rights pursuant to Ark.Code Ann. § 9-13-103 (Supp.2001), in which they alleged that they desired to visit their granddaughter for substantial periods of time, and had been unable to do so due to Becky's actions. In response to the Prices' petition, Becky filed a response in which she denied their allegations and additionally argued that § 9-13-103 was unconstitutional, in that the statute violated her equal protection and due process rights.

In an order dated November 13, 2000, the chancery court found that § 9-13-103 was constitutional, stating that the statute did not violate the due process clause as impinging upon a fundamental constitutional right of a custodial parent, nor did the statute violate the equal protection clause. In a separate order filed on June 26, 2001, the trial court denied Becky's petition to cease and restrict visitation, and granted the Prices' petition for grandparent visitation. The court also ordered that Jeff would have visitation with Ashley only in the presence of either Jerry Price or Darlene Price, finding specifically that either Jerry or Darlene Price had to be physically present whenever Jeff had visitation with Ashley. The order further recited that if the court ever found that Jerry or Darlene Price had left Ashley alone with Jeff, all visitation between the three Prices and Ashley would cease.

From this order, Becky brings the present appeal, in which she argues that § 9-13-103 is facially unconstitutional under the Due Process and Equal Protection Clauses, and that the Act was unconstitutional as applied to her; alternatively, she asserts that the trial court failed to comply with the Act in awarding the Prices visitation.

The Arkansas Grandparental Visitation Rights Act, Ark.Code Ann. § 9-13-103 (Repl.2002), provides in its entirety as follows:

(a)(1) Upon petition by a person properly before it, a chancery court of this state may grant grandparents and great-grandparents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if:

(A) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation; or

(B) The child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or

(C) The child is illegitimate, and the person is a maternal grandparent of the illegitimate child; or

(D) The child is illegitimate, and the person is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.

(2) The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor.

(3)(A) An order denying visitation rights to grandparents and great-grandparents shall be in writing and shall state the reasons for denial.

(B) An order denying visitation rights is a final order for purposes of appeal.

(b) If the court denies the petition requesting grandparent visitation rights and determines that the petition for grandparent visitation rights is not well-founded, was filed with malicious intent or purpose, or is not in the best interest and welfare of the child, the court may, upon motion of the respondent, order the petitioner to pay reasonable attorney's fees and court costs to the attorney of the respondent, after taking into consideration the financial ability of the petitioner and the circumstances involved.

(c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations:

(1) In which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation; or

(2) In which the child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or

(3) If the child is illegitimate.

(Emphasis added.)

In Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), this court disagreed that the Act is unconstitutional on its face. While agreeing that there is a fundamental right to parent, Linder, 348 Ark. at 342, 72 S.W.3d 841, the court noted that the Supreme Court, in Troxel v. Granville, supra, held that the State of Washington's Grandparental Visitation Rights Act, Wash. Rev.Code Ann. § 26.10.160(3), was unconstitutional as applied, due in part to its "breathtakingly broad" scope that allowed "any person" to petition for visitation "at any time." Id. at 344, 72 S.W.3d 841. The Washington Act also failed to accord a fit parent's wishes any weight whatsoever and failed to recognize a fit parent's interest in deciding what is in a child's best interest. Justice O'Connor wrote that, so long as a parent "adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054 (quoted in Linder, 348 Ark. at 345, 72 S.W.3d 841).

In sum, the Troxel Court held that the Washington statute was unconstitutional as applied because the Due Process Clause "does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made." Troxel, 530 U.S. at 72-73, 120 S.Ct. 2054. The Court did not, however determine whether or not the Washington statute was facially invalid.

Our court pointed out in Linder that a statute is facially unconstitutional "if it can be shown that under no circumstances can the statute be constitutionally applied." Linder, 348 Ark. at 349, 72 S.W.3d 841 (emphasis in original). However, this court held that the Arkansas GPVA was not facially unconstitutional because the statute "could be constitutionally applied in a narrow category of cases." In particular, the court noted that no fundamental liberty interest would be at stake in a case involving a child "in the custody or under the guardianship of a person other than one or both of his or her natural or adoptive parents." § 9-13-103(c)(2). Therefore, in the situation of, for example, a child in the custody of the State Division of Youth Services, "there would be no fundamental parental right at stake, and a trial court would be perfectly within its legal bounds to decide what is in the best interest of the child and apply the statute accordingly." Linder at 349, 72 S.W.3d 841. Therefore, we found that facial invalidation of the statute would be inappropriate. Because Becky offers no new arguments that would require a different outcome in this case, we decline to expand Linder's holding with respect to the Act's facial invalidity.

However, Becky raises an additional argument that the Act facially violates the Equal Protection Clause because it treats divorced parents differently than it does married parents. Because the statute only allows grandparents to petition for visitation when there has been a dissolution of the marital relationship by divorce, separation, or death, she asserts, the legislature has made an improper decision to treat parents differently on the basis of whether or not they are married. In sum, Becky maintains that, under a strict scrutiny analysis, there is no compelling state interest in treating the class of non-married parents differently from married parents.

However, in this equal protection challenge, the court must first look to see whether or not a suspect classification is involved; if...