GRANDPARENTS RIGHTS AND DE FACTO PARENTHOOD – PART II

H. Conlogue v. Conlogue – 2006

Factual Background – After the death of their son, the grandparents filed a petition under The Grandparents Visitation Act, seeking court-ordered visitation with their granddaughter. The mother filed a motion to dismiss because the grandparents had not filed an affidavit pursuant to section 1803(2)(A) of the Act alleging facts that would establish their standing under section 1803(1)(B) or 1803(1)(C). The mother withdrew her motion when the grandparents objected to the motion to dismiss and clarified that they were proceeding under section 1803(1)(A), which gives grandparents standing to file a petition when “[a]t least one of the child’s parents or legal guardians has died” and does not require the filing of an affidavit. The mother filed a new motion to dismiss attacking the constitutionality of section 1803(1)(A) and the trial court held a non-testimonial hearing and granted the motion.

Issue – The issue raised by the mother was that section 1803(1)(A) is unconstitutional on its face and as applied under the due process and equal protection clauses of the United States and Maine Constitutions. The Court declined to address all of these issues and instead determined that the case could be resolved on an as-applied basis. The Court’s discussion was confined to the issue of whether section 1803(1)(A), as applied in this case, violated the mother’s federal substantive due process rights.

Decision of the Court – The Court’s analysis consisted of an overview of the Troxel and Rideout cases as set forth above. The Court in Rideout applied strict scrutiny, which requires that the infringement be narrowly tailored to serve a compelling state interest. The Court in Rideout found a compelling state interest (urgent reason) in the preservation of an existing relationship between grandparents and grandchildren when the grandparents functioned as parents to the children for a significant period of time and the Court further found that the statute was narrowly tailored to serve this compelling interest.

The Court noted that in sharp contrast to the statute at issue in Troxel, the Maine Act contains multiple layers of protection before grandparent visitation can be ordered: (1) the grandparent must first establish standing; (2) the court must consider the parent’s objections; and (3) the court may order visitation only if it would not significantly interfere with the parent-child relationship or the parent’s rightful authority over the child.

Standard of Review – To determine the proper level of scrutiny in this case, the Court focused on the exact imposition on the mother’s rights that is at issue. Section 1803(1)(A) does not force a parent to allow visitation. Rather, it forces the parent to litigate the question of visitation, which would then be decided by the trial court (presumably after a hearing) applying the statutory criteria in section 1803(3). “Whether we must apply strict scrutiny, therefore, depends on whether being forced to litigate a claim that may result in an infringement of a fundamental right itself constitutes an infringement of that right.” The Court found that the opinions in Troxel and Rideout, as well as decisions from courts in other states, support the conclusion that being forced into litigation is itself an infringement of that right.

As stated above, the Troxel plurality noted how litigating a domestic relations proceeding alone can implicate a parent’s fundamental liberty interests. Similar concerns were voiced in Rideout wherein the plurality concluded that the Maine Act, as applied in that case, was narrowly tailored to serve a compelling state interest due to the fact that the grandparents were required to convince the court of their statutory standing by an initial showing of a “sufficient existing relationship” with their grandchildren, thus providing the parents with some “protection against the expense, stress, and pain of litigation.” The grandparents’ showing that they had functioned as parents to their grandchildren gave the state a compelling interest in “providing a forum” in which the grandparents could litigate the visitation issue.

“Other courts have also suggested that the mere commencement of third-party visitation litigation can infringe a parent’s fundamental rights, and have adopted various threshold requirements for bringing such litigation when these were not provided by statute. The Connecticut Supreme Court stated that ‘[w]here fundamental rights are implicated . . ., standing serves a function beyond a mere jurisdictional prerequisite. It also assures that the statutory scheme is narrowly tailored so that a person’s personal affairs are not needlessly intruded upon and interrupted by the trauma of litigation.’ Roth, 789 A.2d at 442. To save the constitutionality of the Connecticut statute, which contained no limits on standing, the court added a requirement that “any third party, including a grandparent . . ., seeking visitation must allege and establish a parent-like relationship as a jurisdictional threshold in order . . . to pass constitutional muster . . . .” Id. at 443 (emphasis added). The Massachusetts Supreme Judicial Court similarly adopted a narrowing construction of the Commonwealth’s grandparent visitation statute in response to a constitutional challenge. See Blixt, 774 N.E.2d at 1060. The court held that, because the usual requirements of notice pleading do not sufficiently protect a parent’s fundamental rights from the burden of potentially unwarranted litigation, a grandparent seeking visitation must make an initial showing of facts that would justify a visitation order by filing a complaint that is either detailed and verified or accompanied by a detailed affidavit. See id. at 1066; accord Daniels v. Daniels, 885 A.2d 524, 530-31 (N.J. Super. Ct. App. Div. 2005). The New Jersey Appellate Division shared the same concern that “the litigation itself is a burden on the parent’s substantive due process rights. One can easily imagine circumstances in which that burden would be grave indeed.” Wilde v. Wilde, 775 A.2d 535, 544 (N.J. Super. Ct. App. Div. 2001). The court adopted a requirement that grandparents could not commence litigation until they had made substantial efforts to repair their relationship with the parent and their request for visitation had been denied with finality. See id. at 545.”

The Court held that forcing parents to defend against a claim for grandparent visitation is itself an infringement of their fundamental right to make decisions concerning the care, custody, and control of their children and such an infringement is subject to strict scrutiny, and must be narrowly tailored to serve a compelling state interest. The Court proceeded to answer the question of whether section 1803(1)(A), granting the grandparents in this case standing to petition for visitation with their granddaughter because her father had died, serves a compelling state interest, and if so whether it is narrowly tailored to advance that purpose.

Compelling State Interest – The Court indicated that the question of the state interest covers a spectrum with “the threat of harm to a child” on one end and “something more than the best interest of the child” on the other end. Citing Rideout, the Court stated the “State’s parens patriae interest can be compelling in this context when, even in the absence of a threat of harm, there are “urgent reasons” that may justify court-ordered grandparent visitation.

Urgent Reasons Illustrated – Maintaining a relationship between children and grandparents who had acted as the children’s parents for a significant period of time was such an urgent reason. Citing Robichaud v. Pariseau, the Court noted that where a grandmother’s affidavit pursuant to section 1803(1)(B) had alleged facts only amounting to “intermittent contact” with her grandchildren, rather than the “extraordinary contact”, the District Court was correct to dismiss the petition without holding an evidentiary hearing because the grandmother did not satisfy the requirement to make an initial showing of urgent reasons.

Parental Protection from Suit – “When a grandparent claims standing based on a “sufficient existing relationship” or an effort to establish one, the Act provides a summary procedure for testing that claim that allows the court to examine the specific facts of the case and decide whether urgent reasons have been shown that justify imposing on the parent the burdens of litigation. No such procedure exists when the grandparent claims standing under section 1803(1)(A) because one of the child’s parents has died. In effect, the Act adopts a per se rule that the fact of a parental death in itself justifies imposing on the surviving parent the burden of litigation that, as we have said above, itself infringes on the parent’s fundamental rights and may result in court-ordered visitation that more significantly infringes those rights.” The Court concluded that the fact of a parental death standing alone cannot be an urgent reason for a court’s interference in family life over the objections of a custodial parent like Patricia Conlogue. “Nothing in the unfortunate circumstance of one biological parent’s death affects the surviving parent’s fundamental right to make parenting decisions concerning their child’s contact with grandparents.”

“When the grandparents proceed under section 1803(1)(A), the court has no way to know of such facts until it holds an evidentiary hearing, and its ability to deny visitation at that point in the proceedings comes too late to fully protect the fundamental rights of the surviving parent. The possibility of an after-the-fact award of attorney fees is an insufficient remedy, in part because the parent may be in no position to pay an attorney up front and then hope for reimbursement, but also because the burdens of litigation are not solely financial, but include various forms of “pressures and stress” that can pose a real threat to family well-being.”

Illustration of What is Not a Compelling State Interest – The Court set forth examples of facts that would not warrant litigation over visitation: (1) the deceased parent may have had no role in the child’s life, so that the death does little to alter the child’s situation; or (2) a widow or widower may have wonderful parenting support from relatives and friends, so that the children are in no sort of urgent circumstances, yet lack the financial resources to defend against a visitation petition by wealthier grandparents.

Providing a forum for children who have been traumatized by the death of a parent to maintain or establish relationships with their grandparents may be in the best interest of the child, but protecting the best interest of a child is not itself a compelling state interest. The Court noted “in some cases there may even be “urgent reasons” to maintain or establish such a relationship, which would suffice in those cases to demonstrate a compelling interest. But given the burden that section 1803(1)(A)’s automatic grant of standing imposes on the surviving parent in every case, we do not believe that there can be a compelling interest in relieving grandparents of the modest burden of making an initial showing of the urgent reasons that justify their standing.”

The Court left the door partially open for parents of the deceased parent who have functioned as parents to the grandchild or are uniquely situated to protect the child from harm but the Court made clear that it could not say that the state interest in maintaining such connections is so compelling that it must be recognized in every case, regardless of the particular facts.

Holding – The death of one parent in itself is not an urgent reason that justifies forcing the surviving parent into litigation under the Act. “Section 1803(1)(A) thus fails to serve a compelling state interest when it is applied to allow the deceased parent’s family to litigate visitation over the objection of a custodial parent like the mother in this case. Because there is no compelling state interest, the Court did not consider whether section 1803(1)(A) is narrowly tailored. In the absence of a compelling state interest, forcing the mother to defend against the grandparents’ visitation petition for the sole reason that her daughter’s father is dead would violate her substantive due process rights. Accordingly, the District Court did not err in dismissing the petition.”

I. Passalaqua v. Passalaqua – 2006

Factual Background – Mother and father were divorced in 1997 after a three year marriage. The divorce judgment granted shared parental rights over the parties’ two children and awarded primary residence to mother. Father had visitation every weekend with the children and on holidays. Paternal grandmother (grandmother) had contact with the children almost every weekend during father’s visitation.

In 2005, mother stopped allowing the children to go to grandmother’s house and grandmother thereafter filed a petition for grandparent visitation rights along with an affidavit asserting a sufficient existing relationship with the children to establish standing pursuant to 19-A M.R.S.A. §1803(1)(B)(2005). The trial court determined that grandmother had a sufficient existing relationship with the grandchildren such that the case should proceed to hearing.

The trial court held a case management hearing at which neither father nor mother appeared and the family law magistrate entered a default against the parents and granted grandmother visitation rights every weekend from Friday after school until Sunday at 4:00 p.m.

Mother then filed her first responsive pleadings in the form of an answer (pro se), motion to amend her answer and an affidavit regarding standing alleging that the children exhibited signs of sexual abuse after being in grandmother’s care. Mother then filed a motion to dismiss for lack of standing and a motion to reconsider the order on standing. Both motions were denied by the trial court and mother appealed.
Issue – Given that a determination that a party has standing is not a final order and therefore, pursuant to the final judgment rule, is not immediately appealable, does this type of decision fall within one of the judicially created exceptions to the final judgment rule – the death knell exception?

Decision of the Court – Mother contended that substantial rights as a parent would be lost absent immediate appellate review of a decision on standing. The Court held that the decision of the trial court regarding standing pursuant to 19-A M.R.S.A. §1803(1)(B) does not fall within the death knell exception due to the fact that the act contains safeguards that will adequately protect parents’ substantial rights in the form of the preliminary procedure for testing whether a compelling interest could be shown to justify imposing the burden of litigation on the parent. The Court also noted the provisions in the act that require the court to consider the parents’ objections and determine whether visitation will significantly interfere with any parent-child relationship or with the parents’ rightful authority over the child.

Sua Sponte Clarification By the Court – The Court addressed a unique procedure issue in the case dealing with the entry of default and an order without hearing on the petition by the family law magistrate. The Court found that the Act did not contemplate awarding visitation rights to a grandparent at a case management conference, even one at which the parents fail to appear, and such an award would thwart the protections that are provided in the Act against unlawful infringement of the parents’ fundamental rights. The Court held that there must first be a judicial determination that the rights of visitation or access are in the best interest of the child and would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child.

Practitioner’s Note – The trial court must hold an evidentiary hearing before an entry of visitation can be made. Much like a divorce hearing by agreement or by default, the court must receive sufficient testimony to make the necessary finding to comply with the safeguards in the Act.

J. Provencher v. Provencher – Winter 2008

Factual Background – Jennifer and Scott Provencher were divorced in 2005 with the judgment awarding shared parental rights and shared residence of their two children, with neither owing child support to the other. Even though the parties knew Scott was not the genetic father of the older child, the parties agreed the divorce judgment should indicate they were the biological parents of both children.

Due to major differences with Jennifer about parenting the oldest child, Scott decided it best to end his relationship with the older child. In 2006, Scott sought relief from the divorce judgment, indicating he was not the biological father of the older child and, therefore, he should not be legally obligated to the child in any way.

The trial court denied the motion stating that “father” had many meanings and Scott was the child’s father “in every way except genetically” and concluded that it would not be in the child’s best interest to grant the motion. The court stated that even if Scott decided not to have a relationship with the child, the court was maintaining the father’s legal obligations. Later, the court ordered Scott to pay Jennifer child support for the older child both retroactively and prospectively and Scott appealed.

Issue – Whether the court has the authority to impose legal obligations on an individual who has acted as a parent and voluntarily agreed to a court order declaring him the parent when that individual later changes his mind and wants to be relieved from any legal obligations to the child.

Decision of the Court – The Law Court affirmed the decision of the trial court, thereby maintaining Scott’s legal obligations to provide for the older child in spite of the fact that he was not the biological or adoptive father of the child. Instead of focusing on Scott’s status as the de facto father of the child, the Court based its decision on the principle that Scott had voluntarily entered into a valid and legally binding court order that declared him the biological father of the child when he knew this was not the case and could have elected not to be bound. Notwithstanding, the Court also indicated the trial court had appropriately invoked its equitable jurisdiction to act as parens patriae such that it considered the best interest of the child when deciding whether to grant the relief Scott was seeking.

Factor Not Considered – Typically, the court is forced to contend with the fundamental rights of two biological parents when determining whether a third party should also have parental rights and/or responsibilities. Whereas the child’s biological father was never mentioned and the child’s mother was presumably in favor of keeping Scott’s legal obligations to the child in place the court was able to be less cautious about infringing upon the fundamental rights of the biological parents. It would be interesting to learn if Jennifer is in favor of, or even aware of, the fact that Scott is legally entitled to any property belonging to the child and if something should ever happen to Jennifer, regardless of any estate planning she may have prepared, decisions regarding the child would rest solely with Scott for him to exercise or forfeit as he may wish.

K. Davis v. Anderson – Summer 2008

Factual Background – Mother and father were the parents of a son born in 2002. Until their son was 18 months old, the parents and the child lived with the paternal grandparents. In 2004, mother moved out with the child and mother and father agreed that they would alternate providing the primary residence for the child on a weekly basis. Whereas father lived with his parents, the grandparents cared for the child during the weeks that he was working and providing primary residence. In the summer of 2004, father went to jail and mother became the only primary caretaker until father’s release in September of 2006. Mother, father and the child lived with the grandparents while mother was struggling with drug addiction until mother moved out with the child in January of 2007. In March of 2007, father filed a complaint for parental rights and responsibilities and the grandparents filed a motion to intervene pursuant to M.R.Civ.P. 24(a) and 19-A M.R.S.A. §1653(2)(C). On the eve of trial, the grandparents amended their motion to also request visitation pursuant to 19-A M.R.S.A. §1803. The trial court held a hearing to determine whether the grandparents could intervene. The trial court specifically rejected mother’s argument that the grandparents’ petition should be considered with at least the same level of scrutiny as that required for a petition under the Grandparent Visitation Act. The trial court issued an order allowing the grandparents to intervene on the issues of contact pursuant to 19-A M.R.S.A. §1653(2)(B) and parental rights and responsibilities pursuant to 19-A M.R.S.A. §1653(2)(C). Mother appealed.

Issue – Given that a determination that a party has standing is not a final order, and therefore, pursuant to the final judgment rule, is not immediately appealable, does this type of decision fall within one of the judicially created exceptions to the final judgment rule – the death knell exception?

Decision of the Court – The Court held that this case was distinguishable from Passalaqua in that the issue of standing was resolved pursuant to Rule 24(a) and 19-A M.R.S.A. §1653(2)(B) and (C) rather than the Grandparents Visitation Act. The Act contained procedural safeguards that satisfied strict scrutiny. Mother properly argued that the trial court must apply the same level of scrutiny when determining standing pursuant Rule 24(a) and 19-A M.R.S.A. §1653(2)(B) and (C) as the court is required to apply when dealing with a petition under the Act. Whereas the trial court did not apply the correct level of scrutiny, there was not an appropriate application of the safeguards adequate to protect mother’s rights as a parent and those substantial rights would be irreparably lost if immediate appellate review was not available. On remand, the trial court must determine as a threshold questions whether the grandparents can establish that they have a parent-like relationship with the child because they have “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in his life.”

Constitutional Challenge – Mother requested a determination that 19-A M.R.S.A. §1653(2)(B) is unconstitutional because it infringes upon a constitutionally protected right to direct the care and custody of her child. The Court held that applying the safeguards of Rideout provides the same narrowly tailored action to serve the previously-identified compelling state interest, and allows the statute to be applied constitutionally to the facts of this case.

In Rideout, Justice Alexander filed a dissent concerning the “reading in” to a statute of wording that is not there to limit its application to parent substitutes or “de facto” parents’ rights to sue. Curiously, no dissent was authored in this case, although the Court read language into the statute that is not there in a more significant fashion. Title 19-A M.R.S.A. §1653(2)(B) references 3rd parties without limitation and would appear to be more of “an invitation to any and all comers” to bring suit to disrupt a family unit.

L. Philbrook v. Theriault – Fall 2008

Factual Background – Gary and Lynn Theriault had two sons. Lynn is the daughter of David and Mary Philbrook. During a difficult pregnancy with her younger son, Lynn and her older son moved in with the Philbrooks and stayed with them for over a year until Lynn had fully recovered. At times the boys would stay at the Philbrooks’ for extended periods even after moving back to their parents home due to work schedules, but when they stayed overnight Lynn would often stay as well or remain there until the boys went to bed.

In 2004 Lynn filed for divorce and she and the boys moved in with the Philbrooks. The Philbrooks intervened in the divorce action and in the court entered an agreed upon order indicating the boys’ primary residence would be with the Philbrooks, however, at the time Lynn was also living with the Philbrooks. In 2005 Gary and Lynn reconciled and the court modified its order such that the parents had shared residence of the boys. In 2006 Lynn moved to dismiss the divorce action and the court agreed to do so, but first offered the Philbrooks an opportunity to seek parental rights of the boys. The Philbrooks filed a complaint seeking parental rights and responsibilities regarding the boys on the basis that they were the de facto parents and as third parties pursuant to 19-A M.R.S.A. §1653(2)(C)(2007); Lynn moved to dismiss the complaint.

Without acting on the Philbrook’s complaint, the court dismissed the divorce action giving Lynn and Gary custody of the boys again. However, marital problems returned and Lynn filed a new action for divorce in 2007 at which time she and the boys again moved in with the Philbrooks. Having never acted on Lynn’s motion to dismiss the Philbrooks’ parental rights complaint, the court denied the motion and ordered the parties to file affidavits concerning the Philbrooks’ de facto parent status. Eventually, Lynn obtained the marital home and she and the boys moved back there; the court issued a divorce judgment allocating parental rights and responsibilities, by agreement, to Gary and Lynn.

Nevertheless, the Philbrooks and Lynn filed competing affidavits in support of their positions regarding the de facto parent status of the Philbrooks. Lynn’s affidavit indicated she had always had primary caretaking responsibility for both of her sons and that she and Gary made the decisions about the boys’ education and medical care; she stated she met with the boys’ teachers and she and Gary made all decisions about discipline, extracurricular activities, household chores, and homework.

The Philbrooks also claimed to be the primary caretakers for boys from 1996 until 2005, sharing primary parental responsibilities for the boys with Lynn who was often unable to do so for various reasons. The Philbrooks’ stated they were the primary providers of medical care and paid for most of the boys’ medical expenses. The Philbrooks also alleged they only intervened in the divorce because the boys’ guardian ad litem was concerned Lynn and Gary might have issues with drugs. A friend of the Philbrooks also filed an affidavit stating she frequently visited the Philbrook home and when doing so, the Philbrooks were always providing primary care for the boys and Lynn was present infrequently.

After reviewing the pleadings and affidavits as well as taking judicial notice of the divorce proceedings, the court determined the Philbrooks did not have standing to seek parental rights and responsibilities as de facto parents and dismissed the Philbrooks’ complaint with prejudice. The Philbrooks appealed.

Issue – While it was clear from the facts that the Philbrooks had undertaken an enormous amount of the care for the boys for most of the boys’ lives, did they qualify as de facto parents under the limited guidance provided by prior Maine cases?

Decision of the Court – The Court affirmed the trial court’s decision that the Philbrooks were not de facto parents of the Theriault boys and to dismiss the complaint with prejudice. The Court commended the trial court for undertaking a preliminary determination of standing through the submission of affidavits before subjecting the Theriaults to further litigation, clearly recognizing the fundamental rights of the Theriaults that were implicated by the action. The Court went on to endorse the process as outlined in the Davis and Rideout decisions (outlined above) for cases where third parties were seeking to interfere with the rights of the biological parents.

Without actually defining de facto parenthood, the Court held that despite all the Philbrooks had done for the boys, and for which they should be commended, they were not de facto parents for essentially two primary reasons: (1) no one ever thought of or understood the Philbrooks to be the parents of the boys as had been the case in prior instances where the Court found de facto parenthood status; and (2) although they had done much, they had only provided parental duties to the boys intermittently when the parents were not able to do so, as opposed to undertaking “a permanent, unequivocal, committed and responsible parental role.”

Left for Another Day – Just as it did in C.E.W. v. D.E.W., the Court avoided offering a detailed definition of what is required to attain de facto parent status, instead providing another example of what does not meet that threshold. While practitioners are eager for the Court to offer more guidance, it may be that the Court is awaiting such a determination to be made by its counterpart in the legislative branch of government.

Practitioner’s Note – It is unclear from the decision whether the Philbrooks were being denied access to the boys following the Theriault divorce. Although the Court found the Philbrooks did not meet the threshold of being de facto parents of the boys, it is certainly possible, if not probable, the nature and extent of the relationship the Philbrooks shared with the Theriault children would qualify as a compelling interest or urgent reason for a court to grant them visitation under either the Grandparents Visitation Act or 19-A M.R.S.A. §1653(2)(B).

M. Guardianship of Jeremiah T. – 2009

Factual Background – Jeremiah was born in the spring of 2004. When he was nine months old a trip to the emergency room raised concerns about abuse and/or neglect and DHHS was notified. The mother took Jeremiah home, but subsequently agreed to release custody to her grandparents pending an investigation and shortly thereafter she left the State for several months.

Before Jeremiah was a year old, his great-grandmother petitioned the Probate Court for guardianship. The mother consented with the understanding that if she wanted Jeremiah returned to her care she would have to bring a petition to terminate the guardianship. After her grandparents’ petition for full guardianship was granted, the mother regularly visited Jeremiah and she and her husband of four years also engaged in a seven-month parenting course and therapy.

In the summer of 2008, the mother filed a petition to terminate the guardianship. The court held a hearing in the fall at which Jeremiah’s guardian ad litem testified that he thought the child would do fine with the mother but would do better with the guardians. The mother argued that the statute regarding terminating the guardianship had been amended such that the burden of proof to terminate had shifted from the guardian to the petitioner and that the court should apply the law as it was when she consented to the guardianship. The mother also asserted the proceeding implicated her fundamental constitutional right to care for her child.

The Probate Court denied the mother’s petition, finding that the mother had not proved, by a preponderance of the evidence, that termination of the guardianship was in Jeremiah’s best interest and that the mother’s fundamental liberty interests were not involved; the mother appealed.

Issues – The Law Court was faced with two questions: first, whether the trial court erred in holding the mother had the burden of proving the guardianship should be terminated; and second, whether the court erred as a matter of law when it failed to consider the mother’s fundamental right to parent her child in deciding whether to grant her petition to terminate the guardianship.

Decision of the Court – The Court found for the mother on both issues. With respect to the first issue, the Court adhered to “the common law presumption that, absent language to the contrary, legislation affecting procedural or remedial rights should be applied retroactively, whereas legislation affecting substantive rights should be applied prospectively.” The Court concluded that changing the burden of proof clearly impacted the mother’s substantive rights, and therefore, the amended statute should not have been applied retroactively for purposes of the mother terminating the guardianship.

In addition to finding the guardian had the burden of proving the guardianship should remain in place, the Court also found that the mother’s fundamental right to care for her child were implicated in the process. The Court cited its decision in Rideout in support of its holding that the “best interest of the child” was not sufficient grounds for the court to interfere with the mother’s constitutional liberty interests. As such, the Court remanded the matter back to the Probate Court for a hearing at which the guardian would have the burden of proving not only that the continuation of guardianship was in the best interest of the child, but also that the mother was unfit to parent the child.

Left for Another Day – Whereas the Court was not faced with such facts, it is unclear if it would have found the statute as amended constitutional if the guardianship had been established after the amendment, thereby requiring the parent to prove that he or she is fit and that terminating the guardianship is in the best interest of the child.

 

 

N. Guardianship of Jewel M. (Jewel I) – Spring 2010

Background – In June 2007, father and mother were divorced. The divorce judgment granted mother primary physical custody of Jewel, then age two, and father was granted rights of contact. A month after the divorce judgment, mother moved into an apartment in Biddeford provided by the maternal grandmother (grandmother). Grandmother began spending most days of the week with Jewel and father had visits with Jewel through Christmas 2007. In early 2008, father was charged with OUI and a follow-up visit to his residence by police revealed that he was in possession of alcohol, marijuana, and drug paraphernalia in violation of his conditions of release. Father did not visit with Jewel again until August 2008.

In the spring of 2008, the relationship between mother and grandmother began to deteriorate, and in April 2008, the mother was hospitalized for substance abuse treatment. After the mother completed the treatment program in August 2008, she began to foster contact between the father and Jewel and allowed visitation. Around this time, however, the mother changed the locks on the apartment and stopped paying rent to the grandmother. Eventually, she moved with Jewel to an unknown location where Jewel was exposed and subjected to domestic violence by the mother’s boyfriend. The Probate Court found that Jewel was physically abused during this time period by the boyfriend and another individual. Although the father was visiting Jewel during this time period, he never entered the mother’s residence and had no reason to suspect these events were occurring.

The grandmother filed petitions for guardianship and temporary guardianship in September 2008, but did not provide notice of the same to the father. She was awarded temporary guardianship on September 17, 2008. Shortly thereafter, Jewel was evaluated by the Spurwink Child Abuse Program and was diagnosed with post-traumatic stress disorder. She has since been treated by a therapist and has shown improvement since beginning play therapy.

In January 2009, the father moved to dissolve the temporary guardianship and hearing on his motion and on the issue of the permanent guardianship was scheduled for April 9, 2009. On the day of the hearing, the mother and the father signed an agreement to modify their parental rights judgment in the District Court by awarding the primary residential care of the child to the father, with rights of contact to the mother. The agreement also provided that the mother’s contact would be supervised until both her mental health provider and the child’s mental health provider agreed that supervision was unnecessary. In light of the agreement, the guardian ad litem (GAL) recommended that the court grant the grandmother a continued temporary guardianship to allow Jewel a slow and steady transition to the father’s home over a five-month period. She also recommended that the father make arrangements for an appropriate therapist to be available to treat Jewel once she comes into his care.

The Probate Court granted grandmother’s petition and found that the grandmother would provide a living situation that was in the best interests of the child, and that a temporarily intolerable living situation existed as to both parents. The court based its conclusion with respect to the father on its findings that: (1) he lacked a parental rights order giving him the primary residential care of Jewel; (2) he had had limited and inconsistent contact with Jewel; (3) he had not arranged for a qualified therapist to be available to treat Jewel near his home; and (4) he had yet to establish through hair follicle drug testing that he was drug-free. The court further ordered that the guardianship would terminate when the father provided proof that: (1) the District Court had approved the parents’ agreement and modified the parental rights and responsibilities order; (2) the father had found a qualified therapist for Jewel near his home; and (3) the father had passed a hair follicle drug test. Upon satisfaction of these conditions, the father would gain complete care, custody, and control of Jewel. To that end, the court also granted the father’s motion to dissolve the temporary guardianship. In the interim, however, the court ordered that the father have a graduated visitation schedule with Jewel. Father appealed.

Issues for the court – Did the court err in concluding that a termporarily intolerable living situation would exist if Jewel were to live with father, and did the court err in describing the guardianship it granted as permanent when the judgment establishes terms akin to a temporary guardianship?

Discussion – Intolerable living situation – The Court held that because a temporarily intolerable living situation must relate to a parent’s inability to care for the child, proof of parental unfitness is a required element to support the establishment of a guardianship over the parent’s objection. “The statute’s requirement of a “living situation . . . that is at least temporarily intolerable for the child even though the living situation does not rise to the level of jeopardy required for the final termination of parental rights,” 18-A M.R.S. § 5-204(c), thus requires the court to find that the parent’s inability to meet the child’s needs constitutes an urgent reason that “may have a dramatic, and even traumatic, effect upon the child’s well-being,” Rideout v. Riendeau, 2000 ME 198, ¶ 26, 761 A.2d 291, 301, if the child lives with the parent.”

In reviewing the judgment of the Probate Court to determine whether the conclusion that a temporarily intolerable living situation existed was clearly erroneous, the Court found that the record supported the conclusion that although the parents had signed an agreement to modify the divorce judgment at the time of the hearing, it was not yet submitted to the court and therefore no court order was in effect granting the father the right to Jewel’s primary residence.

Likewise, the Court found that record supported the conclusion that father had limited and inconsistent contact with Jewel due to the periods of time when the contact would cease (Christmas 2007 to August 2008; September 2008 to April 2009). The Court further found that father had not yet located a therapist in his area for Jewel but noted that “this finding, considered in isolation, might not support a court concluding that a temporarily intolerable living situation exists” but was relevant to the overall determination under the unique circumstance of the case.

The Court did determine that the finding that a temporarily intolerable living situation existed as to father because of his failure to establish through hair follicle testing that he is drug-free was clearly erroneous. The Count noted that the finding of the Probate Court that there was “no evidence that his OUI conviction represents a pattern of behavior for the father, nor is there evidence that he has any substance abuse issues and the conclusion of the GAL that there was no evidence that father was currently using drugs or had a drug problem could not be reconciled with the finding of a temporarily intolerable living situation.

Guardianship Order – A temporary guardianship may not last longer than 6 months and a permanent guardianship, in contrast, has no specific time period and terminates “upon the death, resignation, or removal of the guardian or upon the minor’s death, adoption, marriage or attainment of majority.” The Court found that in its order granting a guardianship, the Probate Court adopted the GAL’s recommendations: a slow and steady transition for the child to the father’s home; a resolution of the family matter giving the father primary residence; and the identification of a therapist for Jewel near the father’s residence. The GAL’s graduated visitation schedule, which the court accepted, would result in the father receiving complete custody of the child within five months. The court therefore clearly contemplated that the guardianship would remain in effect for a limited, defined period of less than six months; further, the court did not instruct the father to initiate a new petition seeking the termination of the guardianship once the conditions have been satisfied. Because the guardianship satisfies the criteria for a temporary guardianship pursuant to 18-A M.R.S. § 5-207(c) the court erred in characterizing it as a permanent guardianship and therefore the Court modified the judgment accordingly.

O. Guardianship of Jewel M. (Jewel II) – Fall 2010

Background – See above, Jewel I. After Jewel I was remanded to the Probate Court, things did not play out as the Law Court had envisioned. The grandmother had terminated the father’s access to the child and obtained temporary protection from abuse orders that restricted father’s access. Grandmother also filed a new petition for guardianship. The Probate Court held a hearing on the issues remanded by Jewel I as well as the new petition for guardianship filed by grandmother and having found that the father had complied with Jewel I by providing the name of a therapist, the Probate Court terminated the temporary guardianship pursuant to Jewel I. After a hearing involving testimony related to therapy for the child and allegations of sexual abuse by father, the Probate Court entered an order appointing father and grandmother as temporary coguardians of the child, with each coguardian providing residence for the child for part of each week. The Probate Court further ordered the parties to facilitate the child’s transition between counselors.

Father appealed alleging that the Probate Court was barred by the doctrine of res judicata from granting grandmother’s subsequent petition for temporary guardianship. Father further alleged that the Probate Court erred in failing to follow the Law Court mandate and that the Probate Court had insufficient evidence to grant the new temporary guardianship order.

Governing Legal Standards – The Court took the opportunity at the beginning of the case to review the legal standards that govern a case when a third party invokes the legal process to attempt to limit or remove a parent’s fundamental right to his or her child.

“A decade ago, the United States Supreme Court ruled that a parent has a fundamental liberty interest in parenting his or her child-an interest that cannot be infringed without strict adherence to the Due Process Clause, which: “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 v. Granville, 530 U.S. 57, 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Thus, the United States Supreme Court has observed that the state has only a “de minimis” interest in child care decision-making by a fit parent. See Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Reflective of this “de minimis” state interest, “there is a presumption that fit parents act in the best interests of their children.” Troxel, 530 U.S. at 68, 120 S.Ct. 2054 (citing Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)).

The same year that Troxel was decided, we ruled similarly in Rideout v. Riendeau, 2000 ME 198, ¶ 18, 761 A.2d 291, 299, addressing a grandparents visitation statute, a law that, like the guardianship statute as applied in this case, “allows the courts to determine whether parents will be required to turn their children over to the grandparents against the parents’ wishes,” id. ¶ 21, 761 A.2d at 300. We held that “[t]he power of the court to adjudicate such disputes and to enforce its own orders constitutes state involvement in a way that clearly implicates parents’ fundamental liberty interests in the care and custody of their children.” Id.

Last year, in a guardianship appeal, we emphasized that:

[W]e have consistently recognized, absent a showing of unfitness, parents’ fundamental liberty interest with respect to the care, custody, and control of their children. See Rideout, 2000 ME 198, ¶ 18, 761 A.2d at 299; Osier v. Osier, 410 A.2d 1027, 1029 (Me.1980) (recognizing that “any decision terminating or limiting the right of a parent to physical custody of his child also affects his constitutionally protected liberty interest in maintaining his familial relationship with the child”); Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 797 (Me.1973). (discussing the natural and fundamental rights of parents to the custody of their children).

Guardianship of Jeremiah T., 2009 ME 74, ¶ 27, 976 A.2d 955, 962.
This year in Jewel I, we reviewed the issues that are before us again on this appeal as follows:

Title 18-A M.R.S. § 5-204(c) does not define the term “temporarily intolerable … living situation.” 18-A M.R.S. § 5-204(c). Our construction of that term is informed, however, by the fundamental liberty interest parents have in parenting their children. See Guardianship of Jeremiah T., 2009 ME 74, ¶ 27, 976 A.2d 955, 962. Because a temporarily intolerable living situation must relate to a parent’s inability to care for the child, proof of parental unfitness is a required element to support the establishment of a guardianship over the parent’s objection. Id. The statute’s requirement of a “living situation … that is at least temporarily intolerable for the child even though the living situation does not rise to the level of jeopardy required for the final termination of parental rights,” 18-A M.R.S. § 5-204(c), thus requires the court to find that the parent’s inability to meet the child’s needs constitutes an urgent reason that “may have a dramatic, and even traumatic, effect upon the child’s well-being,” Rideout v. Riendeau, 2000 ME 198, ¶ 26, 761 A.2d 291, 301, if the child lives with the parent.

Accordingly, a guardianship may only be ordered pursuant to section 5-204(c) if the court finds that (1) the parent is currently unable to meet the child’s needs and that inability will have an effect on the child’s well-being that may be dramatic, and even traumatic, if the child lives with the parent; and (2) the proposed guardian will provide a living situation that is in the best interest of the child. This standard is, as indicated in section 5-204(c), less stringent than the standard for finding jeopardy. See 22 M.R.S. § 4002(6) (2009). Although a temporarily intolerable living situation may arise from the physical condition of a parent’s residence, it is by no means restricted to that circumstance.

Jewel I, 2010 ME 17, ¶¶ 12-13, 989 A.2d at 729-30.
With this background, the law governing review of the Probate Court decision at issue in this appeal may be summarized as follows:

First, the father has a fundamental liberty interest in parenting his child that may not be infringed simply by proof that a grandparent might provide a “better” living arrangement for the child.

Second, because a temporarily intolerable living situation must relate to a parent’s inability to care for the child, proof of parental unfitness is a required element to support the imposition of a guardianship over the parent’s objection.

Third, while the standard for proof of a temporarily intolerable living situation, 18-A M.R.S. § 5-204(c), may be less stringent than the standard for a finding of jeopardy, 22 M.R.S. § 4002(6) (2009), a guardianship may only be ordered, pursuant to section 5-204(c), if the court finds that: (1) the parent is unfit in that he is currently unable to meet the child’s needs and that inability will have an effect on the child’s well-being that may be dramatic, and even traumatic, if the child lives with the parent; and (2) the proposed guardian will provide a living situation that is in the best interest of the child.

Fourth, while section 5-204(c) states that the standard of proof may be less stringent than the standard for finding jeopardy, section 5-204(c) imposes on the guardianship petitioner the higher, clear and convincing evidence burden of proof to create in the fact-finder an “abiding conviction” that it is “highly probable” that facts sought to be proved are the correct view of the events. See Taylor v. Comm’r of Mental Health & Mental Retardation, 481 A.2d 139, 153 (Me.1984).”

Decision of the Court – The Court held that the new guardianship was not barred by res judicata due to the fact that the issues raised by the grandmother in support of the new petition for temporary guardianship arose, at least in part, after the prior guardianship was established. The Court did not find that the Probate Court violated its mandate from Jewel I, but it did provide clear instructions on remand that further guardianship proceedings after this opinion should be precluded due to the finding that although the transition in counseling may have served as a basis for a temporarily intolerable living situation, the grandmother by her own actions prevented the counseling transition to occur.

Practitioners Note – The Court indicates in its decision that the “Probate Court must, as a threshold matter, determine whether the grandparent should be required to exhaust the remedy provided by the Grandparents Visitation Act as a prerequisite to proceeding on the guardianship petition.” The guardianship statute itself does not have a gatekeeper mechanism like the Grandparents Visitation Act. No affidavit showing a sufficient existing relationship is required such to show that urgent reasons truly exist to justify the State’s interference into the parent’s realm of care and control of their child. From a practical standpoint, an interested party would file a petition alleging an intolerable living situation and the matter would be set for hearing. In a recent guardianship case, the Court cited prior grandparents’ rights cases acknowledging that “absent a showing of unfitness, parents’ fundamental liberty interest with respect to the care, custody, and control of their children.”

This decision may very well mark a shift in the practice in the Probate Courts as they are now required to make a threshold determination whether the matter should proceed. The Court has also noted that the imposition of litigation itself can be an infringement upon the parent’s fundamental liberty interest in the care, custody and control of their children and therefore an evidentiary hearing on the threshold matter would not sufficiently protect the parent. Presumably, the Probate Courts will require an affidavit containing evidence that an intolerable living situation exists. In the event the Probate Court determines that the petitioners have failed to show an intolerable living situation exists, the petition would be dismissed and the petitioner would thereafter have to determine whether to proceed under the Grandparents Visitation Act.

VI. CONCLUSIONS

Although these two related areas of law continue to evolve, the courts have made clear that court-ordered grandparent visitation involves an interference with the fundamental right of parents. In order to satisfy the strict scrutiny analysis required to interfere with such rights it must be shown that a compelling state interest is at stake and that the proposed interference is narrowly tailored to address the specific interest.

It is yet to be decided whether the standard of review would be the same in a case in which the custodian of the child was not a biological or adoptive parent, and thus, not entitled to the same level of constitutional protection. Notwithstanding, the Court has clearly recognized non-parent’s rights regarding children in its development of de facto parenthood case law. While it is not certain, the Court appears to hold de facto parents in the same regard as it holds biological and adoptive parents. As such, the Courts may determine that de facto parents are entitled to the same standard of review when their rights to children are being infringed upon.

It is for precisely this reason that we can expect the Court to keep those situations where de facto parenthood status is attained to be extremely unique. Recent case law seems to suggest that in order to meet such threshold the person must, in addition to many other characteristics, have been considered by all those involved in the situation, including the child, to actually be the parent. It is this criterion that will likely keep step-parents, grandparents and others that were never thought of as parents from ever attaining de facto parent status despite being intimately involved in the lives of children.

In order to petition the Court for visitation, grandparents have to satisfy the threshold requirement that urgent reasons exist to interfere with the rights of the parents. Thus far that has been established only by showing they have a substantial existing relationship with the grandchild. The Court has provided guidance as to what that is through the decisions it has rendered over the past decade. It is clear from Rideout that if the grandparents also fall within the category of de facto parents they will prevail in at least getting a hearing on their petition. In other cases, where grandparents were wonderful role models and supportive family members for grandchildren with substantial needs but did not have extraordinary relationships with grandchildren the Law Court has not found a compelling interest exists. Based on the law that has developed it is unclear if anything short of de facto parenthood status will satisfy this threshold requirement.

One thing that does appear clear is that §1803(1)(C), which has heretofore not been tested, is unlikely to ever withstand a constitutional challenge as it is almost inconceivable that the Court would find an urgent reason for grandparents to petition the Court for visitation when they have no existing relationship with their grandchild.

Practitioners must note that the affidavit that accompanies a petition for grandparents’ visitation is likely to be the single most important document to be filed. Although the Legislature has not developed any similar protocol for would-be de facto parents or other third parties seeking contact with children with whom they have substantial relationships it appears the Court will impose a similar process. As such, those initial affidavits attached to petitions are essential to prove standing and must set forth factually, and with specificity, the contact and relationship that the grandparents (or other third party) have had with the child.

As a practical matter, parents who allow regular, but not extraordinary, contact between their children and others insulate themselves very well from suit by anyone seeking visitation or other rights regarding their children. As such, any potential client seeking advice on grandparents rights whose relationship with his or her grandchild does not appear extraordinary would be well-advised to use their time and resources rebuilding relationships with their son or daughter (or son- or daughter-in-law) inasmuch as they are unlikely to have any success convincing the courts to override the decisions of fit parents regarding his or her child.

  • Stephen D. Nelson,
  • Severson, Hand & Nelson, P.A.
  • 35 Market Square
  • P.O. Box 804
  • Houlton, ME 04730
  • 207-532-6527
  • snelson@pwless.net