DeRose v. DeRose Michigan Case Law

Michigan Court of Appeals Reports

DeROSE v. DeROSE, 232780 (2002)

THERESA ODAY DeROSE, a/k/a THERESA SEYMOUR, Plaintiff/Third-Party

Defendant-Appellant, v. JOSEPH ALLEN DeROSE, Defendant, and CATHERINE

DeROSE, Third-Party Plaintiff-Appellee.

No. 232780

Michigan Court of Appeals.

Submitted October 8, 2001, at Detroit.

Decided January 25, 2002, at 9:00 a.m.

Updated April 12, 2002

  Appeal from Wayne Circuit Court, LC No. 97-734836-DM.

  Douglas Hamel, P.C. (by Sarah J. Biggs), for Theresa O'Day DeRose.

Southgate

  Charles M. Merlo, for Catherine DeRose. Eastpointe

  Before: Cooper, P.J., and Sawyer and Owens, JJ.

  SAWYER, J.

  Plaintiff appeals by delayed application for leave to appeal granted

from an order of the circuit court granting grandparent visitation in

favor of third-party plaintiff Catherine DeRose (hereafter DeRose). We

vacate the trial court's order.

  Plaintiff and defendant were divorced after defendant admitted abusing

plaintiff's daughter from a previous marriage (defendant's stepdaughter).

Plaintiff and defendant did have a child in common, a daughter named

Shaun Ashleigh DeRose (born April 1, 1996). The judgment of divorce

granted plaintiff sole legal and physical custody of Shaun. While the

action was pending, defendant's mother, third-party plaintiff DeRose,

filed a petition for grandparent visitation with Shaun. Plaintiff opposed

the request, citing DeRose's denial of her son's abuse of plaintiff's

other daughter alleging and that it was not in Shaun's best interest to

have visitation with DeRose.

  The trial court granted the petition, opining in part as follows:

  But it doesn't strike me that there is any reason here

  that a child should be deprived of a grandmother.

  Grandmothers are very important. Grandmothers are very

  important. [sic] I don't say that just because I am

  one, but I do believe they are important. I have a

  niece who doesn't have any and she borrows

  grandparents and I realize this is difficult, a very

  difficult time for the 12-year-old, but the

  12-year-old is not going to be required to see this

  lady. Not that it necessarily would be terrible, but

  I'm not saying it would be good. She is not going to

  see her. That's not the point.

  This is not a motion for custody so that Shaun would

  be taken away from her sisters for the rest of her

  life or for a long period of time, even a weekend.

  This is like two hours of supervised visitation and I

  know that mom — now, I'm sure mom feels, well, I

  made a bad choice, I wasn't aware — this, that

  and the other thing. So now she wants to overcorrect.

  It makes no sense to me that this grandmother can't

  have two hours of supervised visitation and even four

  hours of supervised visitation as recommended by the

  Friend of the Court and that's plenty of time to

  evaluate whether anything bad or wrong happens.

  It's very troubling that the concept that somehow this

  whole incident can just be erased by keeping the

  child's actual grandmother away from her. It can't

  be, and everybody is going to have to learn to deal

  with it which is not happy, it's not good.

                               * *   *

  It doesn't strike me that a supervised visitation is

  wrong, so I would affirm the recommendation.

  Plaintiff's sole argument on appeal is that the Michigan

 grandparent visitation statute, MCL 772.27b, is unconstitutional

and, therefore, DeRose's petition should have been denied. We agree.

  The United States Supreme Court addressed this issue in Troxel v

Granville, 530 U.S. 57; 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000). In

Troxel, the Supreme Court upheld a decision of the Washington Supreme

Court that held that the Washington grandparenting visitation statute

Was unconstitutional because it violated the parents' fundamental rights

under the federal constitution to rear their children. Id., at 62-64.

  The plurality opinion reviewed a series of United States Supreme Court

decisions over the course of the twentieth century that recognized "the

fundamental right of parents to make decisions concerning the care,

custody, and control of their children." Id. at 66. With respect to the

statute at issue in Troxel, the plurality described it as "breathtakingly

broad" and focused on three aspects: (1) that any person could petition

for visitation, (2) they could do so at any time, and (3) the trial court

could grant visitation rights whenever it would serve the best interests

of the child. Id. The Court further opined as follows:

  Section 26.10.160(3) [of the Washington Rev Code]

  contains no requirement that a court accord the

  parent's decision any presumption of validity or any

  weight whatsoever. Instead, the Washington statute

  places the best-interest determination solely in the

  hands of the judge. Should the judge disagree with the

  parent's estimation of the child's best interests, the

  judge's view necessarily prevails. Thus, in practical

  effect, in the State of Washington a court can

  disregard and overturn any decision by a fit custodial

  parent concerning visitation whenever a third party

  affected by the decision files a visitation petition,

  based solely on the judge's determination of the

  child's best interests. [Id. at 67.]

  Because the Michigan statute limits its scope to grandparents seeking

visitation, and further restricts grandparents to petitioning for

visitation only when a custody matter is otherwise before the court or

when one of the parents is deceased, it does not have the broad expanse

that the Washington statute did, which authorized any person at any time

to file a petition. However, like the Washington statute, the Michigan

statute authorizes a court to issue a visitation order to a grandparent

whenever the court deems it to be in the best interests of the child.

Indeed, the Michigan statute mandates that the trial court issue such an

order once the court finds that grandparent visitation would be in the

best interests of the child.[fn1] MCL 722.27b(3).

  However, we do not believe the fact that the Michigan statute limits

itself to allowing only grandparents under certain conditions to petition

for visitation is sufficient to avoid the constitutional problems

identified in Troxel. We again turn to the plurality opinion in Troxel,

supra at 68-69, for guidance:

  First, the Troxels did not allege, and no court has

  found, that Granville was an unfit parent. That aspect

  of the case is important, for there is a presumption

  that fit parents act in the best interests of their

  children. As this Court explained in Parham [v JR,

  442 U.S. 584; 99 S.Ct. 2493; 61 L.Ed.2d 101 (1979)]:

  "[O]ur constitutional system long ago rejected any

  notion that a child is the mere creature of the State

  and, on the contrary, asserted that parents generally

  have the right, coupled with the high duty, to

  recognize and prepare [their children] for additional

  obligations. . . . The law's concept of the family

  rests on a presumption that parents possess what a

  child lacks in maturity, experience, and capacity for

  judgment required for making life's difficult

  decisions. More important, historically it has

  recognized that natural bonds of affection lead

  parents to act in the best interests of their

  children." 442 US, at 602, 61 L.Ed.2d 101, 99 S.Ct.

  2493 (alteration in original) (internal quotation

  marks and citations omitted).

  Accordingly, 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. See, e.g., [Reno v] Flores, 507 U.S. [292],

  at 304, 123 L.Ed.2d 1, 113 S.Ct. 1439 [(1993)].

  Furthermore, the trial court's decision in this case reflects the

problem with the statute's lack of guidance. The primary theme of the

trial court's decision is that "grandmothers are important" and there is

no reason the child should be deprived of a grandmother. That, however,

implicates the same observation made by the Supreme Court in Troxel,

supra at 72, that "this case involves nothing more than a simple

disagreement between the Washington Superior Court and Granville

concerning her children's best interests." As the Court went on to

observe, however, a court cannot intervene merely because it believes it

can make a "better" decision:

  As we have explained, the Due Process Clause does not

  permit a State to infringe on the fundamental right of

  parents to make childrearing decisions simply because

  a state judge believes a "better" decision could be

  made. Neither the Washington nonparental visitation

  statute generally — which places no limits on

  either the persons who may petition for visitation or

  the circumstances in which such a petition may be

  granted — nor the Superior Court in this

  specific case required anything more. [Id. at 72-73.]

  We should also note that, in addition to the plurality opinion in

Troxel, two of the justices wrote separately in concurring opinions.

Justice Souter stated that the Court should merely have accepted the

Washington Supreme Court's decision and, therefore, there was no need "to

decide whether harm is required or to consider the precise scope of the

parent's right or its necessary protections." Id. at 77 (Souter, J.,

concurring). Justice Souter also discussed in some detail the fact that

the law entrusts the parent to make choices regarding a child's social

companions. Id. at 77-79.

  Justice Thomas also concurred, noting as follows:

  I would apply strict scrutiny to infringements of

  fundamental rights. Here, the State of Washington

  lacks even a legitimate governmental interest —

  to say nothing of a compelling one — in

  second-guessing a fit parent's decision regarding

  visitation with third parties. On this basis, I would

  affirm the judgment below. [Id. at 80.]

  While Michigan's statute is certainly narrower in scope than

Washington's in terms of standing to file a visitation petition, the

Michigan statute is not narrower once a petition is properly before the

trial court. It is precisely this lack of legislative guidance that

renders the statute fatally flawed. Simply put, if a court in Washington

cannot constitutionally be vested with the discretion to grant visitation

to a nonparent on the basis of a finding that it is in the child's best

interests to do so, then a court in Michigan cannot be obligated under

statute to do so on the basis of the same finding. Presumably, a

grandparent visitation statute may be written in such a manner that it

complies with the constitution. Indeed, the plurality opinion in Troxel

specifically declined to hold that such statutes are unconstitutional per

se. Id. at 73. However, the lack of any standards in the Michigan statute

beyond "the best interests of the child," and specifically the failure of

the statute to afford any deference to the custodial parent's decision,

renders the Michigan statute unconstitutional as written.[fn2]

  This leads us to the question whether we could and should endeavor to

interpret Michigan's statute in a manner consistent with the

constitution. However, such an effort would require a significant,

substantive rewriting of the statute. To render the statute

constitutional, we would have to read into it requirements that go beyond

the text of the statute and do more than simply define the term "best

interests of the child" more clearly. We would have to go from the

judicial robing room to the legislative cloakroom and we decline to do

so. In short, the rewriting of the grandparent visitation statute is a

task best left for the Legislature.

  For the above reasons, we hold that Michigan's grandparent visitation

statute, MCL 722.27b, is unconstitutional. Because the trial court lacks

the authority to grant relief to third-party plaintiff, a remand is

unnecessary. Rather, we vacate the trial court's order granting

visitation with the minor child to third-party plaintiff.

  Vacated. Plaintiff may tax costs.

  Owens, J., concurred.

[fn1] The Washington statute merely gave the trial court discretion to

enter a visitation order upon a finding that it would be in the child's

best interests. Id. at 60.

[fn2] In fact, MCL 722.27b(3) requires the trial court to state reasons

on the record for denying grandparenting time, but the trial court is not

required to state reasons for the granting of the petition.

  COOPER, P.J. (dissenting).

  I respectfully dissent from the majority opinion holding Michigan's

Grandparent visitation statute, MCL 722.27b, unconstitutional.

  If the goal of my esteemed colleagues is to stay out of the legislative

cloakroom, such an end would be better achieved by adhering to basic

principles of statutory construction in order to uphold the intent of the

Legislature.

  It is a well-established rule that a statute is presumed to be

constitutional unless its unconstitutionality is clearly apparent.

McDougall v Schanz, 461 Mich. 15, 24; 597 N.W.2d 148 (1999).

  MCL 722.27b was specifically reviewed by our Supreme Court in Frame v

Nehls, 452 Mich. 171; 550 N.W.2d 739 (1996), when it addressed the issue

of standing under an equal protection challenge. In that case, the Court

pointed out that grandparent visitation is specifically a part of the

Child Custody Act:

  The legislative purpose behind the Child Custody Act

  is to "promote the best interests and welfare of

  children." The act directs that it is "equitable in

  nature and shall be liberally construed and applied to

  establish promptly the rights of the child and the

  rights and duties of the parties involved." Section 7b

  of the Child Custody Act deals specifically with

  grandparent visitation. The grandparent visitation

  statute is consistent with the general purpose of the

  act, in that it permits a court to enter a grandparent visitation

  order "if the court finds that it is in the   best interests of the

  child" to do so. [Id. at 176-177 emphasis added, citations omitted).]

  The majority opinion relies heavily on Troxel v Granville, 530 U.S. 57;

120 S.Ct. 2054; 147 L.Ed.2d 49 (2000). In that case, the United States

Supreme Court struck down a Washington state statute that was

"breathtakingly broad" in that it allowed any person to petition at any

time for visitation of a minor child.

  However, Justice O'Connor, writing for the majority in Troxel,

specifically indicated that the Court would be hesitant to hold specific

nonparental visitation statutes violative per se of the Due Process

Clause.[fn1] Id. at 73. Justice O'Connor emphasized that the

constitutionality of any standard for awarding visitation turns on the

specific manner in which the standard is applied. Id.

  The Troxel decision was based on the sweeping breadth of the Washington

statute and_the application of that broad, unlimited power to the

specific facts of the case. Id. The United States Supreme Court expressly

refused to decide whether the Due Process Clause requires all nonparental

visitation statutes to include a showing of harm to the child as a

condition precedent to granting visitation. Id.

  My colleagues agree that the Michigan statute does not have the broad

expanse of the Washington statute; however, they declare the statute

unconstitutional because it authorizes a court to issue a visitation

order to a grandparent whenever the court deems it to be in the best

interests of the child.

  They claim that the lack of legislative guidance renders this otherwise

valid statute fatally flawed. A careful reading of Troxel indicates that

it was only because the Washington Supreme Court refused to give the

Washington statute a narrower construction that the United States Supreme

Court was compelled to make its ruling. Id. at 74-75.

  The primary goal of judicial interpretation of statutes is to ascertain

and give effect to the intent of the Legislature. In re MCI

Telecommunications Complaint, 460 Mich. 396, 411; 596 N.W.2d 164 (1999).

It is not an invasion of legislative prerogative to interpret a statute

to require that the burden of proof be on the petitioner. Nor is it

judicial overreaching to require the trial court to make specific

findings of fact regarding why grandparent visitation is or is not in the

best interests of the child. Placing the burden on the grandparents

presupposes that the parental wishes are a factor in the decision.

  While the courts have long recognized the fundamental presumption that

parents will act in the best interests of their children, that presumption

is rebuttable. The Michigan statute provides for minimal intrusion on

parental rights in situations where a custody dispute or death has altered

the traditional nuclear family. In those situations, custodial parents

who are otherwise fit may be motivated by factors that have little to do

with the best interests of the child.

"Cases like this do not present a bipolar struggle

  between the parents and the State over who has final

  authority to determine what is in a child's best

  interests. There is at a minimum a third individual,

  whose interests are implicated in every case to which

  the statute applies — the child." [Fitzpatrick v

  Youngs, 186 Misc.2d 344, 349; 717 N.Y.S.2d 503

  (2000), quoting Troxel, supra at 86 (Stevens, J.,

  dissenting).]

  I would therefore remand the case to the trial court for specific

findings of fact, bearing in mind that the petitioner has the burden of

proof.

[fn1] Michigan's grandparent visitation statute, MCL 722.27b, was

cited in the footnote to this statement.