West v. West

• Decision Date: 27 January 1998
• Docket Number: No. 5-97-0108,5-97-0108
• Citation: 689 N.E.2d 1215,228 Ill.Dec. 794,294 Ill.App.3d 356
• Parties: , 228 Ill.Dec. 794 Carolyn A. WEST and John W. West, Petitioners and Cross-Appellees, v. Ginger WEST, Respondent and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 1215

689 N.E.2d 1215

294 Ill.App.3d 356, 228 Ill.Dec. 794

Carolyn A. WEST and John W. West, Petitioners and Cross-Appellees, v. Ginger WEST, Respondent and Cross-Appellant.

No. 5-97-0108.

Appellate Court of Illinois Fifth District.

Jan. 27, 1998.

Lance B. Freezeland, Effingham, for Respondent and Cross-Appellant.

John W. West, Steeleville, for Petitioners and Cross-Appellees.

Justice MAAG delivered the opinion of the court:

This action was brought in April of 1993 by Carolyn and John West (grandparents) to obtain visitation rights with their grandson, Jacob Dean West. Jacob was born January 27, 1992. He is the biological son of Ginger West and Gregory West, Carolyn and John's deceased son. In June of 1993, when Jacob was approximately 17 months old, the grandparents were granted accelerating visitation privileges. The visitation began with brief visits every Saturday for six consecutive weeks in the presence of Ginger and culminated with alternating weekends, two weeks every summer, and December 26 and 27 yearly.

In June of 1995, Ginger filed a petition to modify the order of visitation, which was denied. In February of 1996, after various petitions were filed requesting Ginger to show cause why she should not be held in contempt for not complying with the June 1993 order of visitation, Ginger filed a petition to terminate the grandparental visitation privileges of Carolyn and John. On May 15, 1996, Ginger filed a notice of claim of unconstitutionality of the grandparental visitation statute (750 ILCS 5/607(b) (West 1996)). The trial court denied Ginger's motion to declare the statute unconstitutional. A notice of appeal was filed on this issue in December of 1996.

The relevant facts are as follows. Carolyn and John West are the paternal grandparents of Jacob West. Jacob is the biological son of Gregory and Ginger West. Gregory West, son of Carolyn and John, committed suicide in January of 1993.

In June of 1993, the circuit court of Jefferson County entered an order establishing visitation privileges for Carolyn and John with Jacob. The trial court made a finding that it was in the best interest of the child that such visitation should occur, but the court did not disclose the basis of its finding.

In July of 1995, Ginger filed a petition to modify the June 1993 order of visitation. In August of 1995, Ginger unilaterally terminated the scheduled visitations. After Ginger refused to comply with the 1993 visitation order, Carolyn and John filed a series of petitions seeking a rule to show cause why Ginger should not be held in contempt of court for her noncompliance. In February of 1996, Ginger filed a petition to terminate Carolyn's and John's visitation privileges. In May of 1996, Ginger filed a motion to declare the grandparental visitation statute unconstitutional. In June of 1996, a hearing was held on the various issues in this case.

At this hearing, there was testimony that soon after Jacob began visiting with John and Carolyn, he began exhibiting changes in his behavior, all of which coincided with the visits. He began to speak with a speech impediment caused by a disfigurement of his face, which involved him twisting his mouth downwards and to the right. He regressed in his toilet training. He experienced periods of hysterical crying and nightmares. He became fearful of his mother and exhibited instances of self-abuse, when he would hit or bite himself when he thought he had done something wrong.

In August of 1995, Ginger took Jacob for a psychiatric evaluation. During this evaluation, Ginger found out that Jacob had been told how his father died. She had not told him the details of his father's death because she felt he was too young to cope with them. Carolyn and John deny telling him the details. Jacob told his maternal grandmother that Carolyn and John told him Ginger did not love him. Carolyn and John also deny telling him this.

The doctors concluded that Jacob suffered from traumatic stress disorder that is related to some aspect of visitation with Carolyn and John. The doctors could not determine with certainty whether the disorder was caused by something that transpired during visitation or whether it was caused by the active conflict between his mother and grandparents. One doctor opined that the disorder was caused by the visitation schedule that was set up with his paternal grandparents when he was less than two years old, which caused him to be separated from his mother.

Based upon findings by the doctors and the changed behavior patterns of Jacob, the Illinois Department of Children and Family Services (DCFS) conducted an investigation. DCFS determined that there was a risk of harm to the child from future contact with John. This was based on statements made by Jacob that he and his grandfather had a "bad secret" that he could not tell anyone and was based on other statements by Jacob which suggested he had been sexually abused. DCFS made a further finding of credible evidence of child abuse and/or neglect. These findings, combined with the findings of the doctors during the psychiatric evaluations, led Ginger to stop the visits between Jacob and his grandparents and to seek the modification and later termination of Carolyn's and John's visitation privileges.

The trial court denied Ginger's motion challenging the constitutionality of the grandparental visitation statute. The trial court chose to modify the visitation privileges of Carolyn and John to supervised visitation to take place one Sunday per month for three hours in the home of Jacob's maternal grandmother, instead of terminating visitation. Carolyn and John appealed the restriction of visitation. Ginger cross-appealed the ruling of the trial court denying her motion to find the grandparental visitation statute unconstitutional.

On April 24, 1997, John West moved for a voluntary dismissal of the grandparents' appeal, Carolyn West then being deceased. John's motion was granted. Ginger proceeded with her cross-appeal.

The issue presented for review on appeal is whether section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607(b) (West 1996)), insofar as it pertains to grandparental visitation privileges, is unconstitutional as violative of the fundamental liberty rights of parents to the care and custody of their children, which are guaranteed to them by the fourteenth amendment to the United States Constitution and article 1, section 2, of the Constitution of the State of Illinois.

We begin our analysis of this issue with the presumption that the challenged provision of the visitation statute is constitutional. See Tully v. Edgar, 171 Ill.2d 297, 304, 215 Ill.Dec. 646, 650, 664 N.E.2d 43, 47 (1996). The court has a duty to construe enactments so as to sustain their constitutionality and validity, if reasonably possible. People v. Warren, 173 Ill.2d 348, 355, 219 Ill.Dec. 533, 538, 671 N.E.2d 700, 705 (1996). Keeping these principles in mind, we now proceed with our analysis.

Ginger begins her argument with a discussion of the long-recognized constitutionally protected interest of parents to raise their children without undue State influence. See Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534-35, 45 S.Ct. 571-73, 69 L.Ed. 1070 (1925); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Wisconsin v. Yoder, 406 U.S. 205, 235, 92 S.Ct. 1526, 1543, 32 L.Ed.2d 15 (1972); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). However, this constitutionally protected parental interest is not wholly without limit or beyond regulation. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). "[T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare." Prince, 321 U.S. at 167, 64 S.Ct. at 442, 88 L.Ed. 645. In fact, the entire familial relationship involves the State.

When two people decide to get married, they are required to first procure a license from the State. If they have children of this marriage, they are required by the State to submit their children to certain things, such as school attendance and vaccinations. Furthermore, if at some time in the future the couple decides the marriage is not working, they must petition the State for a divorce. Marriage is a three-party contract between the man, the woman, and the State. Linneman v. Linneman, 1 Ill.App.2d 48, 50, 116 N.E.2d 182, 183 (1953), citing Van Koten v. Van Koten, 323 Ill. 323, 326, 154 N.E. 146 (1926). The State represents the public interest in the institution of marriage. Linneman, 1 Ill.App.2d at 50, 116 N.E.2d at 183. This public interest is what allows the State to intervene in certain situations to protect the interests of members of the family. The State is like a silent partner in the family who is not active in the everyday running of the family but becomes active and exercises its power and authority only when necessary to protect some important interest of family life. Taking all of this into consideration, the question no longer is whether the State has an interest or place in disputes such as the one at bar, but it becomes a question of timing and necessity. Has the State intervened too early or perhaps intervened where no intervention was warranted? This question then directs our discussion to an analysis of the provision of the Act that allows the challenged State intervention (750 ILCS 5/607(b) (West 1996)).

Before beginning our analysis, we must note that the appeal of the ruling in this case is based solely on constitutional grounds.

The grandparental visitation provision states:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any...