H. STERLING FENN et al., Plaintiffs and Appellants, v. ROBERT SHERRIFF, Defendant and Respondent.
No. C041899
Third Dist.
June 25, 2003.
109 Cal. App. 4th 1466
Downey, Brand, Seymour & Rohwer and Frank E. Dougherty for Plaintiffs and Appellants.
Law Offices of William D. Kopper and William D. Kopper for Defendant and Respondent.
OPINION
ROBIE, J.—Pursuant to
We conclude section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents. Although the fundamental right of parents to make decisions regarding the
We further conclude summary judgment was improper in this case because father‘s motion was based solely on the asserted facts that he and his wife were fit parents who objected to court-ordered visitation. Those facts were not legally sufficient to carry father‘s initial burden of showing that grandparents’ petition for visitation had no merit. Because father did not meet his initial burden of showing grandparents’ petition had no merit, the burden never shifted to grandparents to show a triable issue of fact. Accordingly, we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Andrew and Benjamin Sherriff are the natural children of Robert and Kathryn Sherriff. The Fenns are the children‘s maternal grandparents.
Kathryn Sherriff died in August 2000 while she and father were in the process of getting divorced. Two months later, grandparents filed a petition for visitation under section 3102, alleging father was denying them visitation with the children. The parties agreed to undergo psychological evaluations and to allow grandparents supervised visitation with the children during the evaluation period.
In August 2001, after the case was transferred from Shasta County to Yolo County, father filed his response to the petition, alleging he had allowed grandparents to visit with the children at his discretion, in accordance with the recommendation of the children‘s counselors. He also alleged section 3102 was unconstitutional and that grandparents were unfit to have visitation with the children.
In September 2001, father remarried. In November 2001, grandparents caused an order to show cause to issue, seeking increased, unsupervised visitation with the children. Father opposed any additional visitation. The matter was set for trial in April 2002. Meanwhile, in December 2001, father‘s new wife adopted the children.
In February 2002, father moved for summary judgment on the ground he and his wife, who were both fit parents, opposed court-ordered visitation. Father argued section 3104, which was enacted after section 3102, takes precedence over section 3102, and section 3104 does not allow visitation over the objection of both parents. He also argued section 3102 was
In opposition, grandparents argued section 3104 did not supercede section 3102, section 3102 is constitutional, and there was a genuine issue of material fact regarding father‘s fitness as a parent.
The trial court granted summary judgment in favor of father because grandparents had failed to allege in their petition that father was an unfit parent and because, even if unfitness had been alleged, grandparents had failed to raise a triable issue that father was unfit.
DISCUSSION
I
Standard of Review
A defendant may move for summary judgment “if it is contended that the action has no merit....” (
“Because the trial court‘s determination [on a motion for summary judgment] is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party‘s showing has established facts which justify a judgment in movant‘s favor. When a summary judgment motion prima facie justifies a judgment, the final step is
“The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
II
Grandparent Visitation After a Stepparent Adoption
Father sought summary judgment on the ground that he and his wife, who has adopted the children as her own, are both fit parents who oppose court-ordered visitation between the children and grandparents. Father contends the courts have no power “to award grandparent visitation over the objection of both parents living together in a family unit.” For the reasons that follow, we disagree.
A
Statutory Analysis of Section 3102 and Section 3104
Sections 3102, 3103, and 3104 are the three statutes in the
Here, grandparents sought visitation under section 3102, which on its face allows the court to order grandparent visitation when one of the parents is deceased “upon a finding that the visitation would be in the best interest of the minor child.” (
Father contends, however, that section 3102 must be read together and harmonized with section 3104, which compels a different conclusion. Under section 3104, “while the natural or adoptive parents are married,” a grandparent can seek court-ordered visitation only if: (1) “[t]he parents are currently living separately and apart on a permanent or indefinite basis“; (2) “[o]ne of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse“; (3) “[o]ne of the parents joins in the petition with the grandparents“; or (4) “[t]he child is not residing with either parent.” (
According to father, “Section 3104(b) preempted the field of grandparent visitation when both parents are married” and therefore the limitations set forth in section 3104 apply even when the grandparents seek visitation under section 3102 following their child‘s death. We disagree.
“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature‘s intent so as to effectuate the law‘s purpose. [Citation.] We begin by examining the statute‘s words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ... in order to determine the scope and purpose of the provision. [Citation.]’ [Citation.] That is, we construe the words in question ‘in context, keeping in mind the nature and obvious purpose of the statute. ...” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.‘” (People v. Murphy (2001) 25 Cal.4th 136, 142.)
As we have already noted, by its terms section 3102 excepts from its application any case in which “the child has been adopted by a
Section 3104 addresses an entirely different situation than section 3102 and contains its own exceptions. Under section 3104, the court may order grandparent visitation when both parents are living (unlike § 3102), and when no custody proceeding is pending (unlike § 3103).3 Under section 3104, however, if the natural or adoptive parents are married, visitation can be ordered only in limited circumstances. Stated succinctly, if the natural or adoptive parents are married and living together with the child, and neither parent joins in the petition with the grandparents, a petition for visitation may not be filed. (
There is nothing in section 3104 to suggest the Legislature intended the limitations set forth in subdivision (b) of that statute to apply to petitions for visitation under section 3102. On the contrary, by the plain terms of section 3104, the limitations described in subdivision (b) of the statute apply only to “[a] petition for visitation under this section.” (
The legislative history of section 3104 confirms that its enactment was not intended to affect or limit the right to seek visitation conferred by section 3102. At the time section 3104 was proposed, the Legislature recognized the existence of section 3102 and understood that a petition for visitation under that statute could be filed even when there had been a stepparent adoption. An early analysis of the bill proposing section 3104‘s enactment specifically noted that under existing law, “if the grandparents’ adult child dies and leaves a minor child, the grandparents can request that they be allowed to visit with the child. This section is not applicable if [the] unmarried minor is adopted by strangers.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 306 (1993-1994 Reg. Sess.) Feb. 25, 1993, p. 2, italics added.) The express purpose of the proposed section 3104 was “to expand the situations in which grandparents may come into court to seek a visitation order with their
It appears from both the language of section 3104 and its legislative history that the Legislature did not intend the limitations set forth in section 3104 to apply when the grandparents seek visitation under section 3102. It follows, therefore, that father‘s statutory argument is only partly correct: courts have no power “to award grandparent visitation over the objection of both parents living together in a family unit” under section 3104. The Legislature imposed no such limitation on a petition for visitation under section 3102, when one of the natural parents is deceased.
Father‘s reliance on the decision in Lopez v. Martinez, to support his argument that the limitations in subdivision (b) of section 3104 apply to a petition for grandparent visitation under section 3102 is misplaced. Lopez involved a petition for grandparent visitation under section 3104, and at no point in the opinion did the appellate court discuss or even mention the application of section 3102. “An opinion is not authority for a proposition not considered.” (City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1318.) Thus, Lopez provides no support for father‘s position.
B
Constitutional Analysis
Father contends that if section 3102 is applied to allow court-ordered grandparent visitation over his and his wife‘s objections, the statute “infringes upon their constitutional right to raise and nurture their children without undue interference by the state.” On the record now before us, we disagree.
1. Federal Due Process
Under the due process clause of the
Following Troxel, at least four California appellate opinions have found section 3102 unconstitutional as applied to the specific facts before the courts in those cases. (Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1244; Herbst v. Swan (2002) 102 Cal.App.4th 813, 814; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1101; Kyle O. v. Donald R., supra, 85 Cal.App.4th at p. 851.) For example, in Kyle O. this court reversed a grandparent visitation order under section 3102 where (1) “the trial court did not make any finding that [the father] was an unfit parent“; (2) the father “agreed that visitation was appropriate, agreed that [the child] needed a relationship with the grandparents, and agreed to allow visitation with them“; and (3) the father
We turn now to the application of Troxel and its progeny to the facts of the present case. Here, father sought summary judgment on grandparents’ petition for grandparent visitation based on a very narrow set of facts he claimed were undisputed. In essence, father asserted in his separate statement of undisputed facts that he was entitled to summary judgment because: (1) he and his wife are married; (2) his wife has adopted the children; (3) both he and his wife oppose court-ordered visitation with plaintiffs; and (4) he and his wife are fit parents.
For father to prevail on his argument that he was entitled to summary judgment because section 3102 is unconstitutional as applied, we must be able to conclude that any grandparent visitation ordered by the court under the facts father presented in support of his motion would be unconstitutional. That leads us to frame the following dispositive question: Does the fundamental due process right of parents to make decisions concerning the care, custody, and control of their children preclude the state from ever ordering grandparent visitation over the objection of two fit parents? Based on Troxel, we conclude the answer is “no.”
In Troxel, the plurality opinion of Justice O‘Connor explained that a parent‘s fitness does not insulate the parent‘s decisions concerning his or her children from state intervention. The fitness or unfitness of a parent is important because “there is a presumption that fit parents act in the best interests of their children.” (Troxel, supra, 530 U.S. at p. 68, italics added.) “[S]o 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.” (Id. at pp. 68-69, italics added.) “[I]f a fit parent‘s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent‘s own determination.” (Id. at p. 70.)
Although father has not specifically requested that we consider any evidence beyond that cited in his separate statement of undisputed facts, we recognize there was undisputed evidence submitted in connection with the summary judgment motion showing that father and his wife had been allowing the grandparents some visitation with the children.5 Father asserted in his declaration in support of the motion that he and his wife had “provided reasonable visitation with [the children] to [grandparents] ... in accordance with the recommendations of Ray H. Carlson, Gail Winslow, Ph.D., and Dr. Richard Powell.”6 In their declarations in opposition to the motion, grandparents acknowledged they had been allowed to visit the children but complained their visits had been restricted “to a maximum of one hour visitations which have averaged once every 2 1/2 months.” Grandparents also complained because father, among other things, (1) required the visits to be “supervised by a person selected by him“; (2) demanded they pay various sums connected with the supervised visits amounting to “approximately $5.78 per minute for a one hour visit“; (3) “prohibited [them] from giving to the children any gifts during the visits” and “from taking photographs or videotapes of [them] with the children“; and (4) “instructed [them] not to talk to the children about their mother.”
The existence of the foregoing evidence—and the fact that the United States Supreme Court‘s decision in Troxel rested at least in part on the fact
There is much authority for the proposition that all facts on which a moving party relies in seeking summary judgment must be included in the mandatory separate statement of undisputed facts filed in support of the motion. The summary judgment statute itself provides that “[t]he supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. ... The failure to comply with this requirement of a separate statement may in the court‘s discretion constitute a sufficient ground for denial of the motion.” (
Recently, Division Three of the Court of Appeal, Fourth Appellate District held that the “Golden Rule” from United Community Church cannot be deemed an “absolute prohibition against consideration of ... evidence” not referenced in the separate statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.) According to that court, the summary judgment statute “demands a rule composed of a baser metal. ... [W]e may not mechanically conclude, as the ‘Golden Rule’ would have us do, that the [trial] court should never consider
Here, it appears from the record that in granting summary judgment to father the trial court neither exercised nor declined to exercise its discretion to consider evidence not referenced in father‘s separate statement. This is so because the court found the evidence that father and his wife were fit parents, which was referenced in father‘s separate statement, sufficient to require judgment in their favor. Because the trial court was never called upon to look beyond father‘s separate statement, we are not called upon to determine whether the trial court abused its discretion in this regard. Nevertheless, because an appellate court reviews a trial court‘s decision on summary judgment de novo (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476), and because we “must affirm the judgment if it is supportable on another basis which establishes [father] must prevail as a matter of law” (Lopez v. Tulare Joint Union High School Dist. (1995) 34 Cal.App.4th 1302, 1329), we undoubtedly have the same discretion as the trial court to consider evidence not referenced in the moving party‘s separate statement in determining whether summary judgment was proper. Whether we should exercise that discretion, however, is another matter.
The court in San Diego Watercrafts, Inc., suggested factors that should be considered in deciding whether to look beyond the moving party‘s statement of undisputed facts. Where the facts before the court are “relatively simple,” the evidence that compels affirming the summary judgment was “clearly called to the attention of court and counsel,” and the moving party‘s entitlement to judgment in its favor is “obvious to the court and to the [opposing] party,” it would be an abuse of discretion to reverse a summary judgment “because of a mere procedural failure” by the moving party in failing to include the dispositive fact in its separate statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 316.) Of course, “[i]n exercising its discretion whether or not to consider evidence undisclosed in the separate statement, the court should also consider due process implications noted in United Community Church.” (Ibid.) “[D]ue process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail.” (Ibid.)
Under the circumstances of this case, we conclude the relevant factors weigh in favor of declining to exercise our discretion to look beyond
Despite his assertion in his declaration that he and his wife were providing “reasonable visitation” to grandparents, father never attempted to rely on that fact to support his motion for summary judgment in the trial court. Instead, father sought summary judgment based solely on the ground that he and his wife objected to court-ordered visitation. Father specifically invited the trial court to hold that “allow[ing] grandparent visitation over the objections of both parents would be an unconstitutional application of” section 3102.
Father takes the same position in this court. Although the factual summary in father‘s brief refers in passing to the fact that he and his wife had been providing some visitation to grandparents, nowhere in his brief does father request that we consider this voluntary allowance of visitation in determining whether to affirm the summary judgment in his favor. On the contrary, father specifically contends “it [is] not necessary for a fit parent to provide any visitation to a grandparent in order to defeat a petition for grandparent visitation rights.” (Italics added.) Further, in the conclusion to his brief, father specifically asks us to find that he and his wife “have the right to deny [grandparents] visitation with [the] children.” Thus, it is quite apparent father does not want us to affirm summary judgment in his favor based on the fact, unreferenced in his separate statement, that he and his wife were voluntarily providing some visitation.
Under these circumstances, it seems that father‘s omission of the allowance of some visitation from his separate statement of facts was not “a mere procedural failure.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 316.) Instead, father has made a conscious, tactical choice to seek summary judgment based solely on the asserted facts that he and his wife are fit parents who object to court-ordered visitation. We should not reach beyond the moving party‘s separate statement and affirm a summary judgment based on consideration of a fact that the moving party does not even want us to consider.
Another reason for not looking beyond father‘s separate statement is that the facts here are not “relatively simple” and father‘s entitlement to judgment in his favor is far from “obvious,” even if we were to take into account
In Troxel, the evidence showed that the mother believed “‘grandparent visitation [wa]s in the best interest of the children,‘” and she wanted grandparents to have “one day of visitation per month (with no overnight stay) and participation in [the mother‘s] family‘s holiday celebrations.” (Troxel, supra, 530 U.S. at p. 71.) The grandparents, on the other hand, wanted “two weekends per month and two full weeks in the summer.” (Ibid.) On this evidence, the plurality found the visitation order unconstitutional in part because the trial court “fail[ed] to accord significant weight to [the mother‘s] already having offered meaningful visitation to the [grandparents].” (Id. at p. 72, italics added.)
In Kyle O., the evidence showed that the father “agreed the grandparents needed to be involved in [the child‘s] life” and “thought the grandparents should be able to see [the child] in the same fashion that his family saw her, which depended upon his and [the child‘s] schedule.” (Kyle O. v. Donald R., supra, 85 Cal.App.4th at p. 858.) At trial, the father testified “that he would allow [the grandparents] to have spontaneous visits with” the child and that the child “could continue to see the grandparents even if visitation were left completely to his discretion.” (Ibid.) Based on this evidence, this court found the visitation order unconstitutional in part because the father “agreed that visitation was appropriate, agreed that [the child] needed a relationship with the grandparents, and agreed to allow visitation with them; he only contested their right to specify the amount and timing of the visitation.” (Id. at p. 863.)
In Punsly, the evidence showed that the mother, who lived in San Diego, had offered the grandparents, who lived in Los Angeles, visits with the child in San Diego once every three months on Sundays, along with telephone calls, in order “to minimize the long drives to Los Angeles and to require
We do not discern from these opinions that the voluntary provision of some visitation by a fit parent, however small and under whatever conditions, necessarily renders any court-ordered visitation unconstitutional. Rather, in the words of the Troxel plurality, an offer of “meaningful visitation” to the grandparents is entitled to “significant weight” in determining whether intervention by the court would be constitutional. (Troxel, supra, 530 U.S. at p. 72.)
On the record before us, which we must view in the light most favorable to grandparents, it is far from obvious that father has offered them “meaningful” visitation with the children by allowing them one-hour supervised visits on an average of once every two and one-half months, which cost them approximately $5.78 per minute and during which they are prohibited from giving the children any gifts, from taking photographs or videotapes of themselves with the children, and from talking to the children about their mother. Moreover, in contrast to the parents in Troxel and Kyle O., it appears father does not believe visitation, at least with grandfather, is in the children‘s best interests and does not agree grandfather needs to be involved in the children‘s lives. On the contrary, he specifically stated in his declaration in support of the summary judgment motion: “I do not believe contact with [grandfather] is good for our two children.”
We need not decide, however, what bearing these facts might have on the summary judgment in father‘s favor. For our purposes, it is sufficient to conclude that the facts regarding father‘s voluntary provision of some visitation which he chose to omit from his separate statement are not “relatively simple,” and father‘s entitlement to judgment in his favor is far from “obvious” based on those facts. Taken together with the inescapable conclusion that father does not want us to consider his voluntary provision of some visitation in determining whether summary judgment was proper, these factors lead us to decline to exercise our discretion to look beyond father‘s separate statement in reviewing the summary judgment.
Accordingly, we limit ourselves to the question we framed above: Does the fundamental due process right of parents to make decisions concerning the care, custody, and control of their children preclude the state from ever ordering grandparent visitation over the objection of two fit parents? As we
2. State Parenting Right
Father contends “[a] parent‘s fundamental liberty interest to raise his or her children without undue state interference is also protected by article 1 [sic], section 1 of the California Constitution.” Accordingly, we must analyze father‘s constitutional argument under the state Constitution as well.
Article I, section 1 of the
With these principles in mind, the question we address under the state Constitution is the same one we addressed under the federal due process clause: Does the fundamental right of parents to make decisions concerning the care, custody, and control of their children preclude the state from ever ordering grandparent visitation over the objection of two fit parents? Again, we conclude the answer is “no.”
As we have explained, the right of parents to the care, custody, and control of their children is not absolute, and this is true even when the parents are deemed fit. Under California law, a finding of parental unfitness is not necessary for a court to award custody of a child to a nonparent against the claim of a parent. (In re B. G., supra, 11 Cal.3d at pp. 698-699.) Instead, a court can award custody to a third party based on “a clear showing that such award is essential to avert harm to the child.” (Id. at p. 699.)
If a court can deprive fit parents of the custody of their children without violating the parents’ fundamental right to the care, custody, and control of their children, then certainly a court can order grandparent visitation—a much more limited form of interference with the parents’ custodial rights—without necessarily causing such a violation.
There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent—that is, that “judicially compelled visitation against the wishes of both parents” “must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child.” (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1517, 1520 [involving a motion for visitation by a biologically unrelated person under former
3. Equal Protection
One further constitutional argument remains to be addressed. As we have previously explained, if: (1) a stepparent adoption occurs; (2) the natural parent, stepparent, and child are living together; and (3) both parents object to court-ordered visitation, no petition for grandparent visitation is permitted under section 3104. Under section 3102, on the other hand, if one of the natural parents is deceased, a grandparent visitation petition may be filed notwithstanding a stepparent adoption, even if the surviving natural parent and the stepparent live together with the child and object to visitation.8
Father contends this distinction between section 3102 and section 3104 violates the equal protection clauses of the United States and California Constitutions. He hypothesizes that if Kathryn Sherriff were only missing, instead of deceased, her parents would have no right to petition for visitation with the children, and “[t]here is no reason to afford greater grandparent visitation rights to the parents of a deceased child as opposed to parents of a missing child.” For the reasons that follow, we disagree.
“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578.) “As a foundational matter, ... all meritorious equal protection claims require a showing that ‘the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.‘” (People v. Wutzke (2002) 28 Cal.4th 923, 943, quoting In re Eric J. (1979) 25 Cal.3d 522, 530, italics omitted.) “There is ... no requirement that persons in different circumstances must be treated as if their situations were similar.” (People v. McCain (1995) 36 Cal.App.4th 817, 819.)
Here, father‘s equal protection argument posits the existence of two similarly situated groups—(1) natural parent/stepparent families where the other natural parent is deceased; and (2) natural parent/stepparent families where the other natural parent is missing. It is important to note, however, that a stepparent adoption cannot occur simply because one of the natural parents is “missing.” Generally, the consent of a living natural parent is required for an adoption unless the natural parent has deserted the child, had his or her parental rights terminated, surrendered those rights, or relinquished the child for adoption. (See
With the relevant groups properly understood, we conclude father has met his initial burden of showing a classification that affects two similarly situated groups in an unequal manner. The two groups at issue are similar because the members of each group consist of nuclear families made up of one natural parent and one adoptive stepparent living together with their child or children. The primary difference between the two groups is whether the other natural parent is alive or dead. It is this difference, however, “which is challenged as not justified by the purpose of [the statutes at issue].” (People v. Nguyen, supra, 54 Cal.App.4th at p. 715.) “In our view, these two groups are sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment.” (Ibid.)
“The next step in analyzing an equal protection challenge is a determination of the appropriate standard of review.” (People v. Nguyen, supra, 54 Cal.App.4th at p. 715.)
Father suggests we should apply the strict scrutiny test here because the challenged classification involves “matters concerning the fundamental right of parents to direct the upbringing of their children.” Not every classification involving a fundamental right warrants strict scrutiny, however.
“Although a fundamental interest may be involved, both the United States Supreme Court and [the California Supreme Court] have recognized that not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny standard. When the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied. [Citations.] It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied.” (Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 47.)
We conclude the classification father challenges does not warrant strict scrutiny. In essence, father complains that because the other natural parent of his children is deceased, rather than simply missing, he and his wife are subject to a petition for grandparent visitation under section 3102. The mere fact that defendant and his wife are subject to a visitation petition, however, is not “a real and appreciable impact on, or a significant interference with the exercise of” their fundamental right to make parenting decisions. (Fair Political Practices Com. v. Superior Court, supra, 25 Cal.3d at p. 47.) The trial court may ultimately determine that no court-ordered visitation is warranted under the circumstances presented, in which case the classification of which father complains will have had no “real and appreciable impact” on the fundamental right of father and his wife to make parenting decisions. Moreover, in determining whether court-ordered visitation is warranted in this particular case, the trial court will have to take into account the fundamental parenting right of father and his wife under both the state and federal Constitutions. At the very least, under Troxel, the trial court will have to accord “special weight” to the decision of father and his wife regarding visitation (assuming they are found to be fit parents). Because the fundamental right at issue here will be adequately protected by the trial court in its determination of the petition, we conclude strict scrutiny is not warranted in determining whether the Legislature violated the equal
We therefore apply the rational relationship test to father‘s equal protection challenge. Under that test, father bears the burden of demonstrating that the challenged classification is invalid because the classification bears no rational relationship to a conceivable legitimate state purpose. (D‘Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16-17.) We conclude father has failed to carry that burden.
Father contends “[t]here is no basis,” rational or otherwise, for allowing “an adopting stepparent full rights to control visitation if the natural parent is missing, but not if the natural parent is deceased.” We disagree.
As we have explained, the classification the Legislature created in section 3102 and section 3104 distinguishes between natural parent/stepparent families where the other natural parent is deceased, and natural parent/stepparent families where the other natural parent is alive, but has surrendered, lost, or forfeited his or her parental rights. We perceive a rational basis for this distinction. When a child is deprived of a natural parent by that parent‘s death, the parent‘s family may be the only means of maintaining the child‘s link with his or her paternal or maternal family, including their ancestry, heritage, culture, traditions, and medical history. The Legislature reasonably could have determined that in such circumstances, members of the deceased parent‘s family should have the opportunity to demonstrate to a court that visitation with the child will further this legitimate state interest. That is exactly the opportunity that section 3102 provides by allowing “the children, siblings, parents, and grandparents of the deceased parent” to petition for visitation rights. (
On the other hand, when the natural parent is alive, but has surrendered, lost, or forfeited his or her parental rights, the interest in maintaining the child‘s connection to his or her extended paternal or maternal family is not so compelling. The Legislature reasonably could have determined that when a living parent no longer has any parental rights, and a new nuclear family has been created by a stepparent adoption, the importance of “honor[ing] the integrity of the nuclear family unit and the ability of married, cohabiting parents to make decisions free from state interference” (Lopez v. Martinez, supra, 85 Cal.App.4th at p. 286) outweighs any interest in preserving the child‘s connection to the extended family of the parent whose rights were lost.
Because we find a rational basis for the classification father challenges, we reject father‘s equal protection argument.
Sufficiency of the Petition
Working from the trial court‘s ruling in this case—that grandparents failed to plead father‘s unfitness as a parent in their petition—father contends summary judgment was proper because grandparents’ petition “did not allege that [father] was unfit, the children would suffer any harm from the denial of visitation, nor allege any other special factors justifying visitation.” In effect, father contends the petition was insufficient to state a cause of action for grandparent visitation.
“[W]here the defendant asserts a failure of the complaint to state a cause of action, the summary [judgment] motion is tantamount to a motion for judgment on the pleadings.” (Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478.) On review of a judgment on the pleadings, we must accept the plaintiff‘s factual allegations as true, giving them a liberal construction and determine whether those allegations are sufficient to constitute a cause of action. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516.)
The petition here alleged that grandparents are the maternal grandparents of the minor children; that the children‘s mother is deceased; that father had left the area and taken the children with him; that grandparents had not been allowed to see the children since their daughter‘s death; and that grandparents “have a warm and caring relationship with the children which has always bordered on a parent/child relationship, and it is in the best interests of the children that this relationship continue.”
These allegations were sufficient to state a cause of action for grandparent visitation under section 3102 on its face. In relevant part, the statute provides that “[i]f either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child‘s minority upon a finding that the visitation would be in the best interest of the minor child.” (
Father contends, however, that because Troxel establishes “the presumption that a fit parent acts in the best interests of his children with respect to
It is true, as we have explained, that a fit parent‘s parental decisions are entitled to “special weight” under Troxel in deciding a petition for grandparent visitation. Nothing, however, requires grandparents seeking visitation rights to plead the parent‘s fitness or unfitness, or any other “special factor” justifying a visitation order. The only legal principle cited by father, and relied upon by the trial court, to impose this pleading requirement on grandparents was the rule that “a party cannot successfully resist summary judgment on a theory which was not pleaded in the complaint.” (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 629; see also Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) That rule is inapposite here, however.
Grandparents did not seek to resist father‘s summary judgment motion on a theory different from the one they pled in their complaint. They sought court-ordered visitation with their grandchildren under section 3102, and father moved for summary judgment on the ground that they were not entitled to any such visitation over the objections of father and his wife. As the moving party, father bore the burden of presenting the court with sufficient facts to justify the relief he sought, and he attempted to meet this burden in part by asserting in his separate statement of facts that he and his wife are fit parents. When, in opposing the motion, grandparents sought to raise a triable issue as to the parental fitness of father and his wife, grandparents were not resisting summary judgment on a theory not pled in the complaint, but simply responding to material facts father contended were undisputed—as they are required to do by the summary judgment statute. (
“A cardinal rule of pleading is that only the ultimate facts need be alleged.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) “The California Supreme Court has consistently held that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.‘” (Id. at p. 608, quoting Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)
IV
Proof of Harm
Citing the rule applicable to awards of custody to nonparents (see In re B. G., supra, 11 Cal.3d at pp. 698-699), father “urges this court to adopt a standard that requires grandparents seeking visitation under
Father‘s argument is premised on a misunderstanding of summary judgment law. On review of a summary judgment, before we ever look at whether the opposing party demonstrated the existence of a triable, material factual issue, we must determine “whether the moving party‘s showing has established facts which justify a judgment in movant‘s favor.” (Hernandez v. Modesto Portuguese Pentecost Assn., supra, 40 Cal.App.4th at p. 1279.) What this means is that, assuming for the sake of argument a showing of harm or detriment to the children is required to support an order for grandparent visitation under section 3102,9 it was father‘s burden to prove initially that grandparents could not prove harm or detriment to the children if no visitation was ordered. Father did not carry that burden. As we have explained, father‘s motion was premised on a very limited set of “undisputed” facts and grounded on the argument that grandparent visitation can never be ordered over the objection of two fit parents. Father offered no facts in his separate statement to show that grandparents could not show harm or detriment to the children from the absence of visitation with grandparents.
V
Triable Issue as to Parental Fitness
Father‘s final argument is that grandparents failed to raise a triable issue of fact as to the fitness of father and his wife as parents. As we have previously explained, however, we need not reach this issue because we conclude father never carried his initial burden of presenting the court with facts justifying a judgment in his favor. Because the only facts father offered in support of his motion—that he and his wife are fit parents who object to court-ordered visitation—are not sufficient to show grandparents’ petition for grandparent visitation has no merit, the burden never shifted to grandparents to raise a triable issue of fact. Thus, whether a triable issue exists regarding parental fitness is immaterial at this stage of the proceedings.
DISPOSITION
The judgment is reversed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 27(a).)
Raye, J., concurred.
SIMS, Acting P. J.—I concur in the majority‘s statutory analysis undertaken in part II.A. of the majority opinion.
With respect to the question whether father has shown that
Father can defeat the grandparents’ claims to visitation by showing (1) he is a fit parent and (2) he is willing to provide meaningful visitation to the grandparents. (Troxel v. Granville (2000) 530 U.S. 57, 65-72; Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 861.) In this case, father showed (1) but not (2). By failing to identify evidence of visitation in his separate statement in the trial court, and by failing to ask this court to exercise its discretion to consider such evidence in our de novo review of the record, father has failed to put the question of visitation properly at issue, as stated
Respondent‘s petition for review by the Supreme Court was denied October 15, 2003. Baxter, J., did not participate therein.