In thе Matter of the Visitation of NATALIE ANNE TROXEL, ET AL., JENIFER TROXEL, ET AL., Respondents, and TOMMIE GRANVILLE, Appellant.
No. 36737-4-I
Division One
July 28, 1997
131-144
with respect to any particular segment of the charging period. Accordingly, the evidence did not disclose more than one violation, and there was no need for a special instruction to assure juror unanimity.
Affirmed.
The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordаnce with the rules governing unpublished opinions.
COLEMAN and COX, JJ., concur.
Review denied at 134 Wn.2d 1002 (1998).
Donald J. Bisagna, for appellant.
Mary H. McIntosh and Law Office of Mary H. McIntosh; and Mark D. Olson and Law Office of Mark D. Olson, for respondents.
COX, J. — Tommie Granville, n/k/a Wynn, appeals the trial court‘s visitation award to Jenifer and Gary Troxel, the paternal grandparents of her daughters Natalie and Isabelle. Wynn argues that the grandparents lack standing to petition for two reasons. First, there was no pending custody proceeding at the time of the grandparents’ petition. Second, her husband Kelly Wynn adopted both girls.
Wynn also challenges evidentiary rulings by the trial court, contends it applied the wrong standard in making its decision, and maintains the findings and conclusions are inadequate. Moreover, she challenges the constitutionality of the visitation statute. Because the Troxels had no standing to petition for visitation in the absence of a pending custody proceeding, we reverse.
Brad Troxel and Tommie Wynn had a relationship that ended in June 1991. Natalie
In December 1993, Jenifer and Gаry Troxel commenced this action, seeking court-ordered visitation with their granddaughters. At the time of trial in December 1994, Natalie and Isabelle were five and almost three years old, respectively.
At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation during the summer. Based on the recommendation of her counselor, Dr. Nora Young, Wynn asked the court to order оne day of visitation each month with no overnight stay. Dr. Young also suggested that the grandparents participate in the Wynns’ holiday celebrations. The court heard testimony from the Troxels, their son-in-law, and two expert witnesses that Wynn hired. Based on the evidence, the trial court issued its oral ruling and entered a visitation decree ordering visitation of one weekend per month, one week in the summer, and four hours оn the birthday of each of the Troxels.
Wynn sought review. We remanded the case for entry of findings of fact and conclusions of law. We later directed the parties to file additional briefs.
Standing
Wynn argues that the Troxels lack standing to petition for visitation. The Troxels counter that the plain meaning of
At issue is the meaning of
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.5
A literal reading of this statute could lead tо the sort of absurd result that our canons of statutory construction forbid. Does “any person” have standing to petition “at any time” for visitation with a child? For example, could a member of the state Legislature who has displeased a constituent find herself faced with the considerable expenditure of time, money, and emotional energy to oppose a wholly frivolous petition by that constituent? Shоuld this occur without any showing that the parent was unfit or that the family was unstable or that the child was otherwise facing any threat to its well-being? Our
This court stated in dicta in In re Custody of B.S.Z.-S.6 that the third-party visitation provision in
Our reading of the limitations of
Aside from some renumbering,9 the portion of
In its 1996 session, the Legislature amended
In 1987, the Legislature enacted virtually identical provisions that have subsequently proceeded on parallel tracks. We can see no plausiblе reason why the Legislature would amend
For all of the reasons discussed above, whether or not the Legislature overlooked amending
Accordingly, we hold that a petition for visitation under
The Troxels argue that they have standing under
Wynn makes several other challenges to the visitation decree. She argues that her husband‘s adoption of both girls eliminates the Troxels’ right to petition for visitation. She also claims that the trial court abused its discretion by failing to follow the recommendations of her expert witnesses. In addition, Wynn argues that the visitation statute impermissibly interferes with parents’ constitutionally protected interest in child-rearing. She also claims that, in determining the best interests of the child in a nonparental visitation proceeding, a court‘s inquiry should be whether failure to order visitation would be detrimental to the child‘s devеlopment. Alternatively, she suggests that a court should apply the standards of the recently revised statute governing nonparental visitation in dissolution proceedings to the question of the child‘s best interests. Finally, she argues that, under either test, the findings of fact and conclusions of law in this case were inadequate to support the award. We do not reach these questions because of our disposition based on a lack of standing.
We reverse the visitation decree and dismiss the Troxels’ petition for visitation.
GROSSE, J. (concurring) — I write separately to underscore the salient fact behind the majority opinion: The Legislature has rejected the approach advocated by the dissent,17 and an appeal to the people by initiative failed to gain the requisite signatures.18 So, while the legislative aрproach may lack logic and common sense, it is the approach chosen by the policy makers with plenary authority over this subject.
ELLINGTON, J. (dissenting) — I must respectfully dis-agree with the majority‘s construction of the statute involved here, and with its reliance on dicta in In re Custody of B.S.Z.-S., 74 Wn. App. 727, 875 P.2d 693 (1994). I therefore dissent.
Petitioners commenced this action under
As the majority notes, from 1987 to 1996,
The court may order visitation rights for a person other than a parent when visitation may serve the best interest of the child whether or not there has been any change of circumstances.
A person other than a parent may petition the court for visitation rights at any time.
The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.
In 1996,
A persоn other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. A person other than a parent may not petition for visitation under this section unless the child‘s parent or parents have commenced an action under this chapter.
The limiting language underscоred above states a legislative intent to confine the new limitation, requirement of a pending action, to nonparent visitation petitions filed under
The majority concludes the Legislature simply overlooked amending
The majority also relies on dicta from In re Custody of B.S.Z.-S., 74 Wn. App. at 731, stating that the third-party custody provision in
The imposition of strict requirements for third-party custody petitions does not lead inexorably to the conclusion that the same requirements were intended to apply to visitation petitions. On the contrary, custody and visitation are vastly different matters. A petition for custody amounts to an attempt to wrest one‘s child permanently from one‘s care and control. A petition for visitation, on the other hand, is an attempt merely to gain a claim on some time with the child, and interferes distinctly less in the parents’ autonomy. The Legislature can sensibly create different thresholds for these different proceedings.
Previously, this court attempted to construe the governing statute to include “change of circumstances” threshold requirements for third-party petitions. This construction was immediately rejected by the Legislature. In 1976,
In the absence of a threshold situation so affecting the interests of the child with
regard to the continuity of the family unit, the welfare of the child will seldom, if ever, be served by a judicially imposed overriding of parental discretion to determine whether a third person, distinct from the basic family unit, shall be permitted the privilege of visitation with the child.
Carlson, 16 Wn. App. at 597-98.
Wise as these considerations may have appeared, the Legislature promptly rejectеd them, amending the statute in 1977 to permit third-party visitation petitions “whether or not there has been any change of circumstances.” In Marriage of Klouse, 30 Wn. App. 492, 494, 635 P.2d 773 (1981), the court characterized the amendment bluntly: “the impact of the 1977 amendment was to negate the requirement of showing a material change in circumstances.”
The language construed in Klouse survives today intact in
Many considerations could explain a legislative decision to leave
The limitations which public policy may place on such petitions are fertile grounds for debate. One may ask whether such petitions should be available at all in cases where both parents live with the children and oppose the petition, whether death or divorce or separation should affect, and, if so, how; whether adoption by a step-parent should affect, and so on.20 But these are matters for the Legislature, and for now, the current statute expresses one policy approach: any person may petition at any time, so long as the child‘s best interests are served. It cannot be said that this approach is absurd, or even out of harmony with
I must thus respectfully dissent from the reasoning and result of the majority, and from its holding that under
I would not simply affirm, however. The trial court here was not presented with any guidance as to the proper test to be applied in a case such as this. The findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings. And while I believe
One final issue remains. These children have been adopted by their stepfather, or so the briefs advise us. Under Mitchell v. John Doe, 41 Wn. App. 846, 706 P.2d 1100 (1985), and Bond v. Yount, 47 Wn. App. 181, 734 P.2d 39 (1987), adoption — by strangers or relatives — terminates standing to petition for visitation. These holdings are premised on a privacy rationale:
There is no policy stronger or more consistently followed in this state than that protecting the sanctity and privacy of
adoptions. When an adoрtion has become final, previous ties to natural parents are completely severed and a wholly new relationship is created. The confidentiality of the new, as well as the defunct, relationship becomes virtually inviolate. The legislative policy concerning this transformation is reflected not only in the adoption statute, but in the probate code as well. This policy has been аffirmed consistently by the courts. “The legislative policy of providing a ‘clean slate’ to the adopted child permeates our scheme of adoption.” The strength of this policy is illustrated by the reaction of our courts to the latter day attempt, buttressed by a wealth of arguments, to strip the mantle of confidentiality from adoption records. That attempt has been firmly rejected.
Mitchell, 41 Wn. App. at 849-50 (citations and footnote omitted) (quoting In re Estates of Donnelly, 81 Wn.2d 430, 437, 502 P.2d 1163, 60 A.L.R.3d 620 (1972)).
Not only has thе legislative concern for privacy lessened somewhat since Mitchell,23 the rationale is inapplicable here in any event. Where a stepparent adopts, ties to one natural parent remain intact, and virtually no confidentiality concerns exist. I would therefore be cautious about applying the Mitchell rationale to these facts. Nor have the parties fully briefed the issues. I thus would not hold standing terminated upon the adoption.
In sum, I would remand. I therefore dissent.
Review granted at 133 Wn.2d 1028 (1998).