Lead Opinion
Dissent: JABAR, J.
[¶ 1] Louise Dorr appeals from a judgment of the District Court (Augusta, E, Walker, J.) dismissing for lack of standing her petition for court-ordered visitation with her granddaughter pursuant to the Grandparents Visitation Act, 19-A M.R.S. §§ 1801-1805 (2015). We conclude that Dorr’s petition and affidavit did not demonstrate “urgent reasons,” or other compelling interests, sufficient .to justify the requested intrusion on Woodard’s constitutional right to be free from litigation regarding the care, custody, and control of her child. Thus, we affirm the court’s dismissal for lack of standing.
I. BACKGROUND
[¶2] Sarah Woodard is the mother of the child involved in this dispute. The child’s father died less than a year after the child’s birth. Dorr is the mother of the child’s father.
[¶ 3] On October 24, 2014, Dorr filed á petition in the District ' Court seeking court-ordered . visitation with , Woodard’s child, alleging a sufficient existing relationship between herself and the child, or, in the alternative, that she had made a sufficient effort to establish a relationship. See 19-A M.R.S. § 1803(1)(B), (C).
[¶ 4] Dorr attached her own affidavit to her petition and stated the following facts. Sarah Woodard is the child’s mother, and Dorr is the child’s paternal grandmother. Before the child’s birth, Dorr attended a baby shower for the child and Woodard. Additionally, Dorr was in the hospital on the evening that the child was born — September 3, 2012. Dorr had additional, unspecified contact with'the child until Dorr’s son died on April 19, 2013, when the child was seven mo'nths old.
[115] On November 3, 2014, Woodard filed a motion to dismiss the petition on the grounds that the Act infringes on her fundamental right to govern the care, custody, and control of her child, and is unconstitutional both on its face and as applied under the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
[¶ 6] On December 8, 2014, the District Court dismissed Dorr’s petition for lack of standing. The court found that the affidavit did hot establish a sufficient existing relationship with the child or a sufficient effort to establish such a relationship, and also did not make an initial showing of
II. DISCUSSION
A. Standard of Review
[¶ 7] Dorr argues that, given the unopposed facts she has presented, the plain language of 19-A M.R.S. § 1803(1)(A)-(C) provides her with standing. Woodard argues that a finding of standing on these facts would interfere with her fundamental liberty interest in raising her daughter. We review the court’s determination of a grandparent’s standing to petition for visitation rights de novo. See, e.g., Robichaud v. Pariseau,
B. The Act
[¶ 8] In 1991, the Maine Legislature enacted the Grandparents Visitation Act, which grants grandparents a statutorily-created right to petition for court-ordered visitation with their grandchildren under certain limited circumstances. 19-A M.R.S. §§ 1801-1805. The Act requires that grandparents make an initial showing of standing in a petition and accompanying affidavit submitted to the court before litigation may commence. 19-A M.R.S. § 1803(2)(A). The Act provides that grandparents can establish standing in a petition and accompanying affidavit by shpwing one of the following:
A. At least one of the child’s parents or legal guardians has died;
B. There is a sufficient existing relationship between the grandparent and the child; or
C. When a sufficient existing relationship between the grandparent and the child does not exist, a sufficient effort to establish one has been made.
19-A M.R.S. § 1803(1)(A)-(C).
[¶ 9] Dorr argues that her petition and affidavit were sufficient to confer standing under all three sections of the Act. Woodard argues that a reading of the Act that would confer standing on Dorr violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution.
[¶ 10] We have previously considered the constitutionality of sections 1803(1)(A) and 1803(1)(B) of the Act. We determined that conferring standing to grandparents based on the death of a parent alone, pursuant to section 1803(1)(A), is an unconstitutional application of the Act. Conlogue v. Conlogue,
C. Constitutional Considerations
[¶ 11] This case calls upon us to balance the fundamental, constitutionally recognized right of fit parents to be free from litigation by third parties concerning the care, custody, and control of their children against the statutorily created right of grandparents to petition for court-ordered visitation with their grandchildren.
[¶ 12] “It is well established that, pursuant to the substantive due process component of the Fourteenth Amendment, parents have a fundamental liberty interest in making decisions concerning the care, custody, and control of their children.” Conlogue,
[¶ 13] Nonetheless-, the right of parents to make decisions concerning the care, custody, and control of their children is not absolute. See McNicholas v. Bickford,
[¶14] Because the Act must survive strict scrutiny, the Act contains certain safeguards. See 19-A M.R.S. § 1803(2). Relevant here, a grandparent must demonstrate standing to petition for visitation rights before litigation may commence. 19-A M.R.S. § 1803(2)(A)-(D). To demón-strate standing, a grandparent must establish one- of three statutory requirements. 19-A M.R.S. § 1803(1)(A)-(C). Additionally, in order for the Act to survive strict scrutiny,. the grandparent must demonstrate a compelling state interest that provides a basis for interference with a parent’s fundamental right. See Robichaud,
[¶ 15] We have consistently held that such a compelling interest exists when there is a threat of harm to the child or the parent is unfit.
[¶ 16] Thus, despite the benefits to a child that could accompany a healthy and loving relationship with the child’s grandparents, it will be difficult for a grandparent to demonstrate a compelling state interest sufficient to infringe on a fit parent’s fundamental right when there is no threat of harm to the child. Such an intrusion in the context of q petition for court-ordered grandparent visitation will be court-enforced only when the grandparent demonstrates “urgent reasons”
[¶ 17] . Because the State’s interest in intruding on a parent’s fundamental right derives from its responsibility to assure the health arid safety of the child, the focus of any “urgent reasons” must be on the child’s needs, not the grandparent’s interests. See id. ¶ 26. The broad standard of the best interest of the child is itself not an “urgent .reason” that would justify intrusion on a parent’s rights; “something more ... must be at stake.” Conlogue,
D. Dorr’s Petition
[¶ 18] Against this backdrop, Dorr urges us to conclude that her limited contact and her efforts to expand that contact, taken as true for the purpose of this preliminary proceeding, were sufficient to confer standing -pursuant to sections 1803(1)(A), (B), and (C) of the Act. We discuss each section in turn.
[¶ 19] Regarding section 1803(1)(A), the death of a parent in and of itself, without a showing of “urgent reasons,” threat of harm to the child, or some other compelling interest, is not enough to confer standing under the Act. Conlogm,
[¶ 20] Concerning ' section 1803(1)(B), which confers standing when there is a “sufficient existing relationship between the grandparent and the child,” the “‘urgent reasons’ standard presupposes extraordinary ’contact between a grandparent and grandchildren to satisfy the constitutional requirement of a compelling state interest to interfere with parents’ right to care for and control their children.” Robichaud,
[¶ 21] Section 1808(1)(C) of the Act permits a grandparent to petition for visitation if a “sufficient effort” to establish a relationship between the grandparent and the child has been made. 19-A M.R.S. § 1803(1)(C). We address this section of the Act for the first time. In order to have standing, Doit must demonstrate first that she has met that statutory standard, and second that there is a compelling state interest, such as “urgent reasons,” to justify intrusion on Woodard’s fundamental rights. See Conlogue, 2006-ME 12, ¶ 22,
[¶22] Dorr’s petition and affidavit allege that Dorr attempted to maintain contact with Woodard and the child after the death of her son, hired a mediator to assist in resolving any issues, and made effort's to secure inheritance rights and Social Security and death benefits .for the child. We must acknowledge that, where the child’s father died when the child was less than one year old, there was little else Dorr could have done to demonstrate a sufficient effort to establish a relationship with the infant. For standing purposes, therefore, we assume that her efforts met the statutory requirement.
[¶ 23] We must also determine, however, whether granting Dorr standing to petition for visitation based on this “sufficient effort,” pursuant to section 1803(1)(C), would be consistent with the Due Process Clause of the Fourteenth Amendment. See Rideout,
[¶ 24] It is possible that in some circumstances, a grandparent’s “sufficient effort to establish” a relationship with her grandchild could pass constitutional muster and demonstrate “urgent reasons” to intrude on a parent’s fundamental rights. However, “[w]e are not called upon here to define all instances where a compelling interest could be demonstrated..., We need only look to the facts before us to determine whether that level of interest exists.” Rideout,
[¶ 25] Because we have assumed without deciding that a grandparent could under some circumstances show a “sufficient effort to establish” a relationship that would pass constitutional muster, we do not address Woodard’s argument, raised only in the trial court, that the Act is unconstitutional on its face. See Guardianship of Chamberlain,
[¶26] Although we do not address a facial challenge, we agree with the dissent that legislative action concerning the Act is called for. In order to construe the Act in accordance with the Constitution, our decisions have, over time, limited the scope of the Act when a grandparent is seeking to impose court-ordered visitation against the wishes of a fit parent. See Dissenting Opinion ¶¶ 29, 34, 36. Thus, the language of the Act no longer tracks with the applicable law. Families turn to the statute for guidance with their disputes, and in many instances the litigants in these matters may have little or no access to lawyers to assist them in understanding the law. Because the Grandparents Visitation Act has been effectively and substantially limited by the constitutional constraints articulated in our decisions and in the decisions of the United States Supreme Court, the public may be misled in their reading of the statute. The fiscal resources, emotional resources, and time of the parties may be unfairly wasted if the statute is not amended to reflect the constitutional limits in effect.
[¶ 27] It is uniquely the role of the Legislature to redraft statutes when the Constitution has required the courts to engraft additional requirements into statutes in order to read them constitutionally. See Me. Const, art. IV, pt. 3, § 1; Dissenting Opinion ¶ 41. We encourage the Legislature to review and amend the Act in the context of the constitutional mandates set out by the United States Supreme Court in Troxel and the principles we have set out in this decision and prior decisions concerning the Act.
III. CONCLUSION
[¶ 28] Children may well benefit from the existence of a large support system that includes many family members, and we sympathize with grandparents who wish to have a relationship with their grandchildren but, due to problems in the relationship between the parents and grandparents, are not able to do so. The question, however, is not whether the child could benefit from the involvement of her grandmother. The question is whether the State has the authority, on the facts presented by Dorr, to intrude on the mother’s decision-making on behalf of her daughter. Ultimately, the relationship that a grandparent has with his or her grandchild is a decision to be made by a fit parent, not the courts, unless the record presents a compelling reason for the State to intervene. There is no evidence on this record to suggest that the child in this case is not well cared for by her mother. The facts alleged in the petition and accompanying affidavit are' insufficient to provide standing to the grandmother without violating' the constitutional rights of the mother.
The entry is:
Judgment affirmed.
Notes
. For purposes of this appeal, wé assume that Dorr's son is the child’s father although the record does not provide proof of this fact.
. Dorr’s affidavit states: "I have written documentation of all contact from [the child's] birth through the death of my son Jeff in April of 2013, at which time Sarah ceased contact” However, Dorr did not provide any documentation of the alleged contact to the court.
. We note that neither party raised arguments concerning the Maine constitution and therefore do not address this issue. See Rideout v. Riendeau,
. In circumstances where a parent is unfit or there is a threat of harm to the child, there are several other statutory procedures that grandparents could pursue to obtain various degrees of legal rights over their grandchildren. See Child and Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to 4099-H (2015); Í8-A M.R.S. §§ 5-201 to 5-213 (2015) (guardians of minors); -18-A M.R.S. §§ 9-301 to 9-315 (2015) (adoption).
. "Urgent reasons” and "exceptional circumstances” are synonymous in this context. See Gordius v. Kelley,
Dissenting Opinion
dissenting.
[¶ 29] I respectfully dissent because I believe that the grandparent in this case presented enough evidence of a sufficient effort to establish a relationship with the child to demonstrate standing to seek an order of visitation and access pursuant to 19-A M.R.S. § 1803(1)(C) (2015). The Court’s interpretations of the Grandparents Visitation Act (Act), 19-A M.R.S. §§ 1801-1805 (2015), in this case and in prior cases, have rendered it nearly impossible for any grandparent to establish standing to take advantage of the Act.
[¶ 30] The Court correctly recognizes that grandparents do not have any constitutional or common law rights to access their grandchildren. Court’s Opinion ¶ 12; Rideout v. Riendeau,
[¶ 31] The Act as currently codified sets out three separate provisions that afford grandparents the opportunity to request court-ordered visitation with a grandchild. Title 19-A M.R.S-. § 1803(1) provides as follows:
I. Standing to petition for visitation rights. A grandparent of a minor child may petition the court for reasonable rights of visitation or access if:
A. At least one of the child’s parents or legal guardians has died;
B. There is a sufficient existing relationship between the grandparent and the child; or
C. When a sufficient existing relationship between the grandparent and the child does not exist, a sufficient effort to establish one has been made.
[¶ 32] This Court’s decisions have rendered it almost impossible for a grandparent to establish standing pursuant to any one of the foregoing subsections. I discuss the demise of each subsection in turn.
A. Death of a Parent
[¶ 33] The death knell to 19-A M.R.S. § 1803(1)(A) occurred when this Court issued its decision in Conlogue v. Conlogue,
[¶34] Although subsection A establishes a parent’s'death as the sole factual predicate for a grandparent’s standing to
B. Sufficient Existing Relationship
[¶ 85] Pursuant to 19-A M.R.S. § 1803(1)(B), a grandparent may petition the court for an order granting access to a grandchild if “[t]here is a sufficient existing relationship between the grandparent and the child.” In Rideout,
[¶ 36] Rideout and this Court’s subsequent decisions that equate the “sufficient existing relationship” contemplated by 19-A M.R.S. § 1803(1)(B) with the “primary caregiver and custodian” relationship required to establish de facto parenthood have rendered it extremely difficult, if not impossible, for a grandparent to establish standing pursuant to subsection B. See, e.g., Robichaud v. Pariseau,
[¶ 37] There are many relationships between a grandparent and a grandchild that are less involved than the relationship between a primary caregiver and custodian and a child, and the Act does not make any distinctions between these varying degrees of involvement. Pursuant to the language of subsection B, a grandparent establishes standing to petition for visitation by demonstrating that he or she has a “sufficient existing relationship” with the grandchild in question. The Court’s decision to equate this relational requirement with the extraordinary involvement inherent in a primary caregiving and custodial relationship frustrates the Legislature’s intent. The Legislature, by passing the Act, created a vehicle for grandparents to gain rights of access and visitation with their grandchildren, not a vehicle for obtaining the broad panoply of rights that a party may obtain through other procedural mechanisms by proving a primary caregiv-ing and custodial relationship with a child.
C. Sufficient Effort to Establish a Sufficient Existing Relationship
[¶ 38] This case involves an attempt by a grandparent to establish standing pursuant to 19-A M.R.S. § 1803(1)(C), which allows a grandparent to petition for visita
[¶ 39] As to subsection C, the Court acknowledges that “there was little else Dorr could have done to demonstrate a sufficient effort to establish a relationship” with the child. Court’s Opinion ¶ 22. The Court notes that Dorr unsuccessfully attempted to maintain contact with the child and, unsuccessfully attempted to mediate the issue of contact with the. mother. Id. ¶4. As in Conlogue, the Court acknowledges that although the grandparent has established one of the factual predicates for standing that the Act identifies, that predicate is not sufficient. Id. ¶¶ 22-24. In this case, as in Conlogue, the Court couches its decision in constitutional language without holding the statute unconstitutional.
[¶ 40] I cannot join-in this treatment of the statute. Because the grandmother here met the factual predicates for standing pursuant to both subsections A and C, her petition should not have been dismissed for lack of standing.
D. Conclusion
[¶ 41] The Maine Grandparents Visitation Act, like many other grandparent visitation acts across the country, has undergone close scrutiny following the United States Supreme Court’s decision in Troxel See Kristine L. Roberts, State Supreme Court Applications of Troxel v. Granville and the Courts’ Reluctance to Declare Grandparent Visitation Statutes Unconstitutional, 41 Fam. Ct. Rev. 14, 15 (2003). Some state appellate courts have upheld the constitutionality of grandparent visitation statutes by requiring trial courts to give “deference” to parents or to deny the presumption that grandparents have the right to access their grandchildren. See id. at 26. Others have returned their grandparent visitation statutes to , the legislative branches for revisions that conform more explicitly to the constitutional mandates set fohth in Troxel. See, e.g., DeRose v. DeRose,
[¶42] In Rideout, this Court recognized that the Act was passed “to provide a forum where certain grandparents could seek access to their grandchildren.”
[¶ 43] The Court should either hold that the Maine Grandparents Visitation Act is constitutional and recognize that petitioning grandparents prove 'standing by meeting the factual predicates established" by the Legislature, or it should hold the Act unconstitutional and encourage the Legislature to revisit the Act.