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Rideout v. Riendeau, dissenting opinion

ALEXANDER, J., dissenting. [¶47] I respectfully dissent. The Court's opinion thoroughly and correctly reviews the governing legal principles which we must apply to determine the constitutionality of the Grandparents Visitation Act. In the Court's analysis of that law, I only disagree with its conclusion that a partially constitutional application of a law justifies an interpretation of that law that is totally unsupported in the wording of the statute itself. Separately, the facts of this case, found by the trial court, require judgment for the parents. [¶48] The Court states the governing principle of interpretation that "if we can reasonably interpret a statute as satisfying . . . constitutional requirements, we must read it in such a way." Ante, ¶ 14 (Court's opinion). To apply this principle of interpretation, there must be some words to interpret. However, the Court cites no words in the statute that may be interpreted to limit its application to parent substitutes' or "de facto" parents' rights to sue. Rather, the Grandparents Visitation Act is an invitation to any and all comers who can call themselves grandparents to bring suit to disrupt a family unit. This is not the narrow tailoring that strict scrutiny demands of a statute that invades a fundamental interest, and the Court's mixing of the concepts of application of law and interpretation of law cannot make it so. [¶49] The Court's approach is analogous to holding that a statute authorizing stop and seizure of motorists without reason is constitutional if, in two out of three instances, the authorities had probable cause to stop and seize. The narrow tailoring mandate is not satisfied by trusting those given authority under broadly unconstitutional statutes to apply those statutes only narrowly and constitutionally. [¶50] A parent's right to direct the upbringing and control of their children is not a right to be lightly cast aside whenever the State or the courts think they have a better idea about how children should be raised. As the Troxel plurality opinion and the majority of this Court recognize, parental rights to direct their children's upbringing and control are a "fundamental" liberty interest protected by the Due Process Clause. Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000); Ante, ¶ 18 (Court's opinion).{22} In another context, the Fifth Circuit recently observed that the "most essential and basic aspect of familial privacy-[is] the right of the family to remain together without the coercive interference of the awesome power of the state." Morris v. Dearborne, 181 F.3d 657, 667 (5th Cir. 1999) (quoting Hodorowski v. Ray, 844 F.2d 1210, 1216 (5th Cir. 1988)). [¶51] When a fundamental liberty interest is at stake, as it is here, any state invasion of that interest must be subject to strict scrutiny. Ante, ¶ 19 (Court's opinion); Washington v. Glucksberg, 521 U.S. 702, 719- 21 (1997); Sch. Admin. Dist. No. 1 v. Comm'r, Dep't of Educ., 659 A.2d 854, 857 (Me. 1995). Under strict scrutiny, invasive state action can only be saved if it is narrowly tailored to serve a compelling state interest. Ante, ¶ 19 (Court's opinion); see also Reno v. Flores, 507 U.S. 292, 302 (1993); Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992); Butler v. Supreme Judicial Court, 611 A.2d 987, 992 (Me. 1992). [¶52] The challenge of justifying government invasion of the rights of fit parents is particularly great because the United States Supreme Court has observed that the government has only a "de minimis" interest in child care decision making by a fit parent. See Stanley v. Illinois, 405 U.S. 645, 657­p;58 (1972). Reflective of this "de minimis" state interest, "there is a presumption that fit parents act in the best interests of their children." Troxel, 120 S. Ct. at 2062 (citing Parham v. J.R., 442 U.S. 584, 602 (1979)). [¶53] The strict scrutiny test, the requirement that an invasion of parental rights be narrowly tailored and justified by a compelling state interest, and the presumption that fit parents act in the best interest of their children all cannot be avoided by a generalized statement that "[a] statute is presumed to be constitutional and the person challenging the constitutionality has the burden of establishing its infirmity." Ante, ¶ 14 (Court's opinion). When the State undertakes intrusive regulation of the family, "the usual judicial deference to the legislature is inappropriate." Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977). Application of the strict scrutiny test demands justification of state action by demonstrating that it is narrowly tailored to serve a compelling state interest, not abdication of rigorous analysis by resort to a presumption. [¶54] At first blush the Grandparents Visitation Act evokes images of Norman Rockwell's America: what some believe were better, simpler family times. The harsh reality of this law in application is closer to Orwell{23} than Rockwell. Except in cases of a deceased or disappeared parent, the law will only be invoked by grandparents whose relationship with their own children has failed so badly that they must resort to lawsuits to visit the relationship problems with their children on the next generation. Where parent-grandparent lifestyle choices differ and relationships are strained, the law presents the prospect of competent parents being caught in a withering crossfire of lawsuits by as many as four sets of grandparents demanding involvement in the grandchildrens' lives.{24} These suits will be resolved by judges applying a law which provides virtually no guidance except the "best interest" standard. That standard delegates to judges authority to apply their own personal and essentially unreviewable lifestyle preferences to resolving each dispute. See Troxel, 120 S. Ct. at 2064. Each such resolution, successful for the grandparents, will usurp the parents' authority over the child and unavoidably insert the stress of litigation, dispute, and uncertainty into the grandchildren's lives. [¶55] As the trial court observed in its opinion: The reason these type of suits are brought are because hostility between the parent and grandparent exist in these, the most dysfunctional of cases. The economic consequences of the action could be disastrous to the parent and, derivatively, the child. As written, there is no real barrier to prevent a grandparent, who has more time and money than the child's parents, from petitioning the court for visitation rights. A parent who does not have the up-front out-of-pocket expense to defend against the grandparent's petition may have to bow under the pressure even if the parent honestly believes it is not in the best interest of the child. The awarding of attorney fees post-hearing does not provide a parent with the out-of-pocket expenses required before any petition is filed or any hearing has begun. Such suits cannot ethically be taken on a contingent fee. If a parent were required to defend against such suit they may have to make sacrifices that are detrimental to the child. For example, instead of being able to buy the child a winter jacket the parent may have to pay an up- front fee to the attorney. Absent a showing of harm to the child when the grandparent petitions the court for a hearing the parent should not be forced to make these sacrifices. [¶56] To add insult to injury, the Act presents the prospect that parents resisting grandparents' efforts to usurp parental authority may be forced to pay the grandparents' costs and attorney fees. See 19-A M.R.S.A. § 1803(6) (1998).{25} This prospect can greatly add to the pressures and stress of litigation, and must be soberly considered as the constitutional validity of this law is examined. [¶57] Proper constitutional analysis requires that we ask the following questions: 1.Does the State have a compelling interest in authorizing lawsuits by grandparents who have failed in relationships with their own children in order to gain access to their children's children; and 2.If so, is the means selected, the Grandparents Visitation Act, sufficiently narrowly tailored to serve that interest? [¶58] On the first point, the Court has apparently found "compelling" a state interest which the United States Supreme Court has called "de minimis."{26} For purposes of this opinion only, some compelling state interest in legislating to protect de facto parents as addressed in the Court's opinion will be assumed and not addressed further. However, the means selected to achieve that assumed compelling state interest do not meet the requirement that they be narrowly tailored to serve that particular interest. [¶59] The law provides that: -Any grandparent can file a lawsuit and haul the parents into court to defend their parental prerogative to control third party access to their children. -Except where a parent has died,{27} grandparents filing suits need demonstrate no particular relationship between the grandparent and the child. An expressed desire to establish a relationship is all that is needed to open the courthouse door.{28} -Grandparent access decisions are to be adjudicated based on the amorphous "best interest of the child" standard, and decided according to the preponderance of the evidence burden of proof. [¶60] Troxel indicates that such an open-ended invitation to grandparent lawsuits is too broad to meet due process requirements. The Troxel plurality holds such authority to be too broad because it gives the government, acting through the courts, virtually unfettered discretion to supersede parental decisions as to what is best for their children without any special weight being given to the parents' determination to deny access. See Troxel, 120 S. Ct. at 2062. [¶61] The findings required by Maine law that visitation "would not significantly interfere with any parent-child relationship or with the parent's rightful authority over the child," 19-A M.R.S.A. § 1803(3), do not provide sufficient qualification to save the statute. Any lawsuit by grandparents against parents seeking court intervention to force access to the grandchildren is a significant interference with the parent-child relationship and the parent's rightful authority over the child. Trial courts can make the "no significant interference" finding only by engaging in a sophistry that such lawsuits have insignificant impact. [¶62] As Justice Kennedy's dissent in Troxel notes, an act authorizing a lawsuit by third parties to intervene in the parent-child relationship is, by itself, a "state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated." Id. at 2079 (Kennedy, J., dissenting). Thus, as a matter of law, a lawsuit invoking the Grandparents Visitation Act, with all its implications, is a significant interference in the parent-child relationship. Further, where a fit parent has decided against grandparent access for reasons which, as a matter of law, are presumed to be in the child's best interest, see id. at 2061-62, a court order imposing an association that the parent opposes is unavoidably a severe insult to the parent's rightful authority over the child. [¶63] The plurality opinion in Troxel directs that rather than disregarding the parents' own determination, the court must give it special weight. Id. at 2062. If a trial court gives the parent's own determination regarding access to their children the special weight required, then making the "no significant interference" findings cited by the Court to save the statute{29} is a legal and logical impossibility. [¶64] The history of this case demonstrates the importance of respecting fit parents' associational choices and recognizing the mischief promoted by the Act's authorizing lawsuits to interfere with those choices. The Riendeaus have now been married for eight years. There is no dispute in this record that, presently, they are fit parents for the children. The trial court's findings note the difficulties the marriage has had, primarily as a result of attempted interference by the grandparents since 1992: They separated during the summer of 1993, primarily because of the tensions created by Rose's [the grandmother's] interference in their family unit . . . . As the communications broke down finally between Rose and Heaven, Rose resorted to reporting Jeffrey to the police, resulting in a search warrant being executed on their house. In addition, she filed a report with the Department of Human Services, alleging abuse and neglect, and filed two suits against the defendant: an action in the Probate Court to adopt Keiko, and the instant case. All communications have since broken off, and plaintiffs are not getting any visitation or communication with the three children. [¶65] With this history, the parents' decision to limit association of their children with the grandparents is hardly surprising. Rather, it appears a legitimate expression of self-respect and family integrity. As the trial court found: "If this question were posed to the court in 1994, the conclusion would be inescapable that visitation would inject Rose too closely into the defendants' family unit, with catastrophic effect." This finding is essentially a finding that there was no "sufficient existing relationship" between the grandparents and the children in 1994, a year before suit was filed. It makes application of section 1803(1)(B) conceptually difficult. [¶66] The remainder of the trial court's opinion appears to look at the visitation prospects from the point of view of the grandparents and the children to determine that some visitation might be appropriate, except for the constitutional problem. This analysis ignores the direction of Troxel that a special, elevated level of consideration be given to the parents' views on these issues. The trial court thought it necessary to include in its order a specific prohibition on the grandparents making derogatory comments about the parents. This confirms that the court was not fully confident of its determination that the visitation order would not significantly interfere with the parent-child relationship or the parents' rightful authority over the children. [¶67] Thus, beyond the constitutionality problem, the Court could not legitimately order visitation in light of its findings regarding: (i) the horrible relationship between the parents and the grandparents; (ii) the grandparents' continued efforts to interfere in the parents and their children's lives; and (iii) the appropriateness of the severance of the grandparent-child relationship well before suit was filed. With the directive in Troxel properly applied-a directive which the trial court did not have when it rendered its decision-the findings made by the trial court itself demonstrate that if the reasons for the parents' decision are given special and elevated consideration, an award of visitation rights to the grandparents cannot be supported under section 1803(3). Where the parents had legitimate reasons, found by the court, for terminating access to grandparents who had engaged in a four-year effort to interfere with and disrupt the parent-child relationships of the Riendeau family, it is evident that a no significant interference finding cannot be made on the present record. [¶68] It is possible to posit a statute, much more narrowly drawn, that could survive a constitutional challenge and meet the requirements that a compelling state interest be properly defined with any remedy narrowly tailored to serve that interest. Such a statute could include a prerequisite finding of harm to the child from a parent's denial of some association with a grandparent. As a prerequisite for filing suit, the statute might also require, as the Court's opinion suggests, some demonstration of a prior parent-like relationship with the child, not just an aspirational hope that a relationship might be created, or an allegation of some minimal relationship, which is all the present law requires. See 19-A M.R.S.A. §§ 1803(1)(B), (1)(C) (1998). The law might also require a heightened burden of proof and some other provision to respect the direction of Troxel that a fit parent's decisions be given some special, heightened weight. [¶69] Except for the deceased parent prerequisite which is not implicated here, the Grandparents Visitation Act, as presently drafted, includes none of the prerequisites which would be essential (i) to properly define the compelling State interest to support interference with the fundamental liberty interest of parents to control their children; and (ii) to narrowly tailor any remedy to serve that interest. The present act presents an open invitation for grandparents who claim or hope to claim a relationship with a grandchild to file a lawsuit and have their claim or hope adjudicated according to the "best interest" standard, a standard which Troxel indicates is not enough to save constitutionality. This case is distinguishable from Troxel only by the Maine Act's requirement of subsidiary findings of "no significant impact" that cannot be made except by taking the facially incredible view that such lawsuits have no significant impact on the target parents and children. Proper application of the strict scrutiny test and due process protections requires more. [¶70] Accordingly, I would affirm the judgment.
Majority opinion.

Concurring opinion.

Dissenting opinion.

Attorneys and footnotes.

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