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In re Barker

Missouri Court of Appeals, Western District
Nov 26, 2002
No. WD 59968 (Mo. Ct. App. Nov. 26, 2002)

Opinion

No. WD 59968

October 8, 2002 Modified November 26, 2002

Appeal from the Circuit Court of Jackson County, Missouri, Honorable Marco A. Roldan, Judge.

Scott C. Trout, St. Louis, MO, for Appellant.

Christie E. Sherman, Kansas City, MO, Co-Counsel for Appellant.

Before Ulrich, P.J., Breckenridge and Hardwick, J.J.


This appeal arises from a judgment allowing Robert and Susan Barker to have visitation with their grandchildren pursuant to § 452.402 RSMo. 2000. Parents, Gerald and Christie Barker, contend the trial court lacked subject matter jurisdiction to order visitation. They also challenge the constitutionality of the grandparent visitation statute, both on its face and as applied in this case. We affirm.

All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise noted.

Factual and Procedural Background

On May 21, 1999, Robert and Susan Barker (Grandparents) filed a Petition for Grandparent Visitation Rights with their minor grandchildren: Aaron Barker, born November 18, 1985; Ian Barker, born February 8, 1991; and Kyle Barker, born February 8, 1991. The petition alleged that the children's parents, Gerald and Christie Barker (Parents), had unreasonably denied Grandparents meaningful contact and visitation with the children for a period exceeding ninety days, thereby giving rise to a claim under the grandparent visitation statute, § 452.402.

Gerald Barker is the son of Robert and Susan Barker.

Parents filed an Answer denying the petition's allegations and raising the affirmative defense that Missouri's grandparent visitation statute infringes their "constitutional right to family privacy." Parents later filed a Motion to Dismiss, alleging § 452.402 is unconstitutional because it allows grandparent visitation based solely on a "best interest of the child" standard and disregards the parents' fundamental right to direct the upbringing of their children, as recognized in Troxel v. Granville , 530 U.S. 57 (2000).

On March 29, 2001, the trial court denied the Motion to Dismiss and heard evidence on the petition. Grandparents testified that prior to December 25, 1998, they had unlimited visitation and contact with the grandchildren. They visited with the grandchildren almost weekly, attended their athletic events, babysat for them, and spoke with them regularly by phone. The oldest grandchild, Aaron, stayed overnight with them on a regular basis.

Grandparents testified Parents began restricting their contact with the grandchildren following a dispute between Gerald Barker and his brother, Michael Barker, in late December 1998. Gerald was coaching a youth basketball team at that time. Michael disagreed with Gerald's plan to forfeit a basketball game in order to motivate the team members to play better after consecutive losses. Gerald believed that Grandparents sided with Michael in criticizing his coaching strategy. After that dispute, Grandparents sought but were denied contact with the grandchildren, except for one fifteen-minute visit on Palm Sunday (March 28, 1999). Grandparents continued attending the athletic events but were not permitted to talk to the grandchildren.

Parents testified they restricted visitation beginning in December 1998 because Grandparents continually disregarded their concerns about the grandchildren's health and well-being. Parents had asked Grandparents not to give the grandchildren sweets before dinner, not to allow them to drink Coke, not to use demeaning or racially derogatory language in front of the grandchildren, and not to allow the grandchildren to have contact with another of Gerald's brothers, Christopher, who had been accused of sexual molestation at a YMCA camp fifteen years earlier. Parents also complained that Grandparents refused to tell them where they were taking the children and refused to keep their dogs restrained, even though the dogs had previously bitten, nipped, and snarled at the children.

In response, Grandparents testified they set rules for their own house and did not always comply with Parent's wishes, some of which they considered "stupid rules." They noted that Gerald Barker drank Coke and used derogatory language around the children. They said the molestation allegations against Christopher were unsubstantiated and no charges were filed against him. Grandparents saw no reason to keep Christopher away from the children because Parents had previously requested Christopher to accompany their oldest child, Aaron, on a school field trip. Grandparents testified they did comply with Parents' request regarding their current dog. In recent years, Grandparents kept the dog locked up whenever the children visited their home.

Upon evidence heard, the trial court entered judgment in favor of Grandparents on April 2, 2001. The court found that Grandparents had been unreasonably denied visitation as a result of the dispute between Gerald Barker and his brother, Michael, in December 1998. In rejecting Parent's contention that they restricted visitation because Grandparents refused to heed their concerns about the children's health and well-being, the court found that the conduct complained of had been on-going and accepted by Parents until the December 1998 incident. The court awarded Grandparents visitation with the grandchildren on the second Sunday of every other month from 9:00 a.m. until 6:00 p.m. and for a half day on the day after Thanksgiving and Christmas. The judgment also allowed Grandparents to telephone the grandchildren twice monthly and to attend their athletic events.

Parents appeal, raising jurisdictional and constitutional issues.

Applicable Law

On appeal, we must affirm the trial court's judgment granting visitation unless it is not supported by the evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Ray v. Hannon , 14 S.W.3d 270, 272 (Mo.App.W.D. 2000). We review the evidence and inferences in a light most favorable to the judgment and must defer to the trial court's findings of fact. In re G.P.C. , 28 S.W.3d 357, 366 (Mo.App.E.D. 2000). Statutory interpretation is an issue of law that we review de novo. Blakely v. Blakely , No. S.C. 83307, 2002 WL 1364019, at *3 (Mo.banc June 25, 2002).

Section 452.402.1(3) authorizes the trial court to grant reasonable visitation rights when the grandparent of a child has been unreasonably denied visitation for a period exceeding ninety days. Upon the filing of a petition by a grandparent, the court must consider whether visitation would endanger the child's physical health or emotional development. § 452.402.2. A guardian ad litem may be appointed for the child. § 452.402.3. The court can also order a home study. § 452.402.4. Visitation can be awarded only upon a determination that it is in the child's best interest. § 452.402.2. The court may order reasonable conditions or restrictions on grandparent visitation. Id.

The Missouri Supreme Court has twice affirmed the validity of the grandparent visitation statute against challenges that it violates the constitutional rights of parents to make decisions affecting the family. In Herndon v. Tuhey , 857 S.W.2d 203, 209-10 (Mo.banc 1993), the court held that § 452.402 contemplates only "occasional, temporary visitation" and creates "minimal intrusion on the family relationship." The court noted the statute was "narrowly tailored to adequately protect the interest of parents and children." Id. at 210.

In Blakely v. Blakely , 2002 WL 1364019, the court upheld Missouri's grandparent visitation statute following Troxel , wherein the U.S. Supreme Court found a Washington visitation statute had been unconstitutionally applied. Blakely declared that § 452.402 "adequately safeguard[s] parents' interest by narrowing the circumstances in which non-parental visitation can be ordered to those very limited cases in which a grandparent can prove the parents' [denial of visitation] was unreasonable." Id. at *8.

In Troxel , the U.S. Supreme Court considered the constitutionality of a Washington visitation statute whose provisions are "fundamentally different" from the Missouri statute. Blakely , 2002 WL 1364019, at *6. Troxel declared the Washington statute "breathtakingly broad" because it allowed "any person" at "any time" to be granted visitation without giving any weight or deference to the parental determination of a child's best interest. 530 U.S. at 67.

Jurisdiction

Parents contend the trial court lacked jurisdiction to grant relief under § 452.402.1 because Grandparents had not been unreasonably denied visitation for more than ninety days before they filed their petition on May 21, 1999. Relying on our opinion in Ray v. Hannon , 14 S.W.3d at 273-74 , Parents argue the ninety days is a "jurisdictional waiting period," which does not allow access to the courts until visitation has been denied for that period of time.

This argument is contrary to the plain language of § 452.402.1(3) and our explanation of this statutory provision in Ray. The statute provides that a "court may grant visitation when . . . a grandparent is unreasonably denied visitation with the child for a period exceeding ninety days." § 452.402.1(3) (emphasis added). It requires only that the ninety-day period elapse before a visitation order is entered. Farrell v. Denson , 821 S.W.2d 547, 549 (Mo.App.E.D. 1991). Consistent with this statutory language, we noted in Ray , 14 S.W.3d at 274, that "[t]he statute sets ninety days as the limit of permissible visitation denial after which point a court may intervene."

Parents also rely on the Eastern District's opinion in In re G.P.C. , 28 S.W.3d at 364 , wherein the court stated:

"The denial [of visitation] must be both unreasonable and have continued for at least ninety days before grandparents may file an action seeking visitation." (emphasis added). Notably, this language is not part of the court's holding in G.P.C. , which focused on the constitutionality of § 452.402 following the U.S. Supreme Court's pronouncement in Troxel . The G.P.C. language cited by Parents appears to be a mere paraphrasing of the statute, albeit inconsistently with the Eastern District's prior holding in Farrell v. Denson , 821 S.W.2d at 549:

. . . it is apparent that the 90 days referred to in [§ 452.402] need not elapse prior to the filing of the petition in order to vest jurisdiction in the circuit court. It is necessary, however, that visitation be denied for 90 days prior to entry of the order.

The G.P.C. language is also at odds with the Missouri Supreme Court's explanation in Herndon , 857 S.W.2d at 210 , that an "unreasonable denial of visitation . . . must elapse before the court may enter an order under § 452.402." This interpretation was recently affirmed in Blakely , 2002 WL 1364019, at *6. We decline to follow G.P.C.'s paraphrasing in light of the plain language of the statute and the recognition in Farrell, Herndon , and Blakely that the ninety-day waiting period is a jurisdictional requirement for the entry of a visitation order and not the filing of a petition for grandparent visitation.

The evidence at trial established that Grandparents were denied contact with the grandchildren from April 1999 through the entry of the trial court's visitation order on April 2, 2001. The court had jurisdiction to enter judgment based on evidence that visitation had been unreasonably denied for a period of ninety days preceding the entry of the visitation order. While Parents dispute that visitation had been "unreasonably denied" because they offered to allow Grandparents to visit with the children only in the presence of parents, the court was not required to believe this testimony or consider this limitation reasonable. We must defer to the trial court's finding that the visitation denial was unreasonable, as it is substantially supported by Grandparents' testimony that they had not been allowed any visits or telephone contacts with the grandchildren for two years preceding the entry of the visitation order. Point I is denied.

Constitutionality of Grandparent Visitation Statute

Parents challenge the constitutionality of § 452.402 because it relies on a "best interest of the child" standard in determining grandparent visitation. Parents claim this standard infringes their Fourteenth Amendment due process rights to make decisions concerning the care, custody and control of their children, as recognized in Troxel , 530 U.S. at 65-66.

Generally, the Missouri Supreme Court has exclusive jurisdiction in cases involving the constitutional validity of a state statute. MO. Const. Art. V § 3. The mere assertion of a constitutional claim does not deprive the Court of Appeals of jurisdiction, unless the constitutional issue is real, substantial, and not merely colorable. State v. Stottlemyre , 35 S.W.3d 854, 861 (Mo.App.W.D. 2001). No real and substantial constitutional question exists after the state supreme court has ruled on an issue. G.P.C. , 28 S.W.3d at 362. Here, we have jurisdiction to rule on Parents' claim of unconstitutionality because the Missouri Supreme Court recently addressed the issue in Blakely , 2002 WL 1364019.

This appeal and Appellant's Brief were filed several months before the Missouri Supreme Court issued the Blakely decision on June 25, 2002, and modified it on August 27, 2002.

In Blakely , the court considered whether the "best interest of the child" standard in § 452.402.2 is constitutional in light of Troxel's holding that a grandparent visitation statute must accord some deference to the parents' decisions regarding the child's best interests. Id. at *4. Blakely concluded that procedural safeguards in the Missouri statute allow the trial court to determine, on a case-by-case basis, whether the grandparents merely disagreed with parental decisions or demonstrated that the parental decisions were unreasonable. Id. at *7-8. In declaring Missouri's grandparent visitation statute constitutional, Blakely held:

Finally, the Missouri statute, unlike the Washington statute, does not simply leave the best interests issue to the unfettered discretion of the trial judge. Rather, it provides several procedural safeguards that assist the judge in making the best interests determination, including providing for a home study, for consultation with the child regarding his or her wishes, and for appointment of a guardian ad litem to participate in proceedings "as if such guardian ad litem were a party." [citations omitted] These features of Missouri's statute assist the court in determining whether the parents' decisions as to visitation have been shown to be unreasonable and avoid having the judge base an order on "mere disagreement" such as occurred in Troxel. . . .

Such a case-by-case approach is consistent with the fact that parental rights, although of prime importance, must be balanced with other rights, such as the best interests of the child and the state's interest in maintaining some contact between grandparents and grandchildren as well as in encouraging families to resolve disputes internally without a great amount of governmental interference.

Id. Blakely squarely rejects Parents' claim that § 452.402 is unconstitutional following Troxel . No real and substantial constitutional issue is presented by this appeal in view of the Missouri Supreme Court's decision to uphold the validity of the statute. Point II is denied.

Constitutionality of Visitation Order

Parents contend the trial court erred in granting "unrestricted" visitation in spite of evidence that Grandparents "repeatedly disobeyed" their requests related to the children's health and welfare. Parents argue the visitation order was an unconstitutional application of § 452.402 because the trial court relied solely on a best interest of the child standard and gave no deference to "the parents' right to raise their children as they see fit," as required by Troxel.

The Judgment Entry clearly indicates the trial court considered Parents' testimony that they restricted visitation due to Grandparents refusal to comply with their requests regarding the children. The court made the following findings:

Respondents state that they complained to Petitioners that they gave the children soda, contrary to their wishes, although Respondent Gerald Barker admits that he drank Coca-Cola all the time. Respondents complained about an incident when Aaron was scratched by a dog over 9 years ago; the evidence is that Petitioners had taken steps to keep the dog away from the children. The Respondents raised concern about an unfounded allegation made against one of Respondent Gerald Barker's brothers, over 15 years ago. Finally, Respondents complained about language Petitioners used around the children, although Respondent Gerald Barker uses the same language, also in front of the children. Yet, it was not until Respondent Gerald Barker felt that his parents had taken sides against him in an argument that visitation was stopped. It was under similar circumstances in 1993, that he had also stopped visitation for 2 months.

The trial court rejected Parents' concerns as pretextual in light of evidence that they did not restrict visitation until Gerald became angry with his brother, Michael, and Grandparents over a matter entirely unrelated to the grandchildren's health and well-being. The court concluded that Parents severed visitation in retaliation for Grandparents' support of Michael and not because of any legitimate concern about the childrens' safety. The court determined, as a factual matter, that Parents' denial of visitation was unreasonable because the decision was not made to protect the best interest of the children. This finding is substantially supported by the record and was based on the trial court's credibility determinations, to which we must defer. Ellis v. Ellis , 970 S.W.2d 416, 418 (Mo.App.W.D. 1998).

In light of the standards set forth in Troxel and Blakely , the trial court was required to consider the parents' right to make decisions regarding their children's upbringing, determine the reasonableness of those decisions, and then balance the interests of the parents, child, and grandparents in determining whether grandparent visitation should be ordered pursuant to § 452.402. Although parental decisions are to be given material weight and deference, it is within the trial court's province to determine the reasonableness of those decisions based on the evidence presented. The court is not required to blindly accept a parent's reason for denying visitation, particularly if disputed. Where, as here, the trial judge has determined that the parents' explanation of the denial is not credible after hearing the testimony of all parties, the court may find the visitation denial unreasonable and grant grandparent visitation rights.

Given the credibility findings, it is logical that the trial court did not impose restrictions on Grandparents' visitation relative to the concerns expressed by Parents. The court determined the Parents' concerns were not legitimate based on the evidence and, therefore, exercised its authority to deny the restrictions Parents requested. This denial does not reflect a failure of the court to give the proper deference to Parents wishes, but rather a finding by the trial judge that Parents did not honestly believe restricted visitation was necessary because Parents' did not impose any such restrictions prior to the December 1998 argument between Gerald and Michael. This finding is supported by the record and will not be disturbed on appeal. Points III and IV are denied, as we do not find that the visitation order was an unconstitutional application of § 452.402.

The judgment of the trial court is affirmed.

All concur.


Summaries of

In re Barker

Missouri Court of Appeals, Western District
Nov 26, 2002
No. WD 59968 (Mo. Ct. App. Nov. 26, 2002)
Case details for

In re Barker

Case Details

Full title:In Re the Matter of Robert E. Barker and Susan Elaine Barker, Respondents…

Court:Missouri Court of Appeals, Western District

Date published: Nov 26, 2002

Citations

No. WD 59968 (Mo. Ct. App. Nov. 26, 2002)