2013 UT App 174

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

E LLIE J ONES AND T RACY J ONES

,

Petitioners and Appellees,

v.

S HARON J ONES

, Respondent and Appellant.

Opinion

No. 20110998

‐ CA

Filed July 11, 2013

Third District, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 094904262

Anthony C. Kaye, Angela W. Adams, and

Emily Wegener, Attorneys for Appellant

Bryant J. McConkie, Attorney for Appellees

J UDGE J. F REDERIC V OROS J R

. authored this Opinion, in which

J UDGE S TEPHEN L. R OTH concurred. J UDGE J AMES Z. D AVIS

dissented, with opinion.

VOROS, Judge:

¶1 Sharon Jones (Mother) appeals the trial court’s order

awarding visitation with Mother’s daughter (Child) to Child’s

paternal grandparents, Ellie and Tracy Jones (Grandparents).

Mother claims a fundamental constitutional right in the control of

Child and contends that Utah’s Grandparent Visitation Statute is

not narrowly tailored to serve a compelling state interest as applied

to her under the circumstances of this case. We agree and reverse.Jones v. Jones

20110998

‐ CA 2013 UT App 174 2 BACKGROUND

¶2 Mother married Tracy Jones Jr. (Father) in 2006. Child was

born in November 2007, and Mother and Father separated in

January 2009. Mother and Father shared equal custody of Child

following their separation. Between January and March 2009,

Father lived with Grandparents, who helped care for Child while

she was in Father’s custody. After Father moved out of

Grandparents’ home, Ellie Jones continued to visit him two to three

times a week. Father died in May 2009, when Child was

approximately eighteen months old. Mother continued to facilitate

contact between Child and Grandparents during the months

immediately following Father’s death. On July 24, 2009,

Grandparents took Child to a baseball game and brought her home

after 10:30 p.m. Although Grandparents believed that Mother had

agreed for them to bring Child home late, Mother later expressed

concern about the late hour.

¶3 Following the baseball game, Mother denied several of

Grandparents’ requests to spend time with Child and also

requested that Grandparents not call Child on weeknights.

Grandparents then wrote Mother an email requesting visits with

Child two full weekends per month, visits on holidays and

birthdays, an extended visit each summer, and two phone calls per

week. When Mother did not respond, Grandparents threatened to

sue for grandparent visitation. Mother then responded with an

email outlining concerns she had about permitting Child to

continue visiting Grandparents and informing them that she

intended to limit their contact with Child to one phone call per

month and one visit every other month for a few hours in the

presence of Mother or one of Mother’s family members.

Grandparents responded that they would not submit to being

supervised and that they intended to initiate court proceedings.

¶4 On September 24, 2009, Grandparents filed a Verified

Petition to Establish Grandparent Visitation Rights pursuant to the

Grandparent Visitation Statute, see Utah Code Ann. § 30

‐ 5

‐ 2Jones v. Jones

1 In the course of the proceedings, Grandparents’ request

for visitation was dramatically reduced from their initial request.

20110998

‐ CA 2013 UT App 174 3 (LexisNexis 2007), requesting visitation comparable to that

afforded to noncustodial parents under a separate statutory

provision, see id. § 30

‐ 3

‐ 35.5(e) (Supp. 2012). 1 Their petition alleged

the existence of factors tending to rebut the statutory presumption

“that a parent’s decision with regard to grandparent visitation is in

the grandchild’s best interests” (the parental presumption). See id.

§ 30

‐ 5

‐ 2(2) (2007); see also Troxel v. Granville

, 530 U.S. 57, 68, 70

(2000) (plurality opinion) (holding that due process requires that a

fit parent’s decision regarding grandparent visitation be given

“special weight”).

¶5 Grandparents did not see Child again until July 2011, when

they saw her as part of a Grandparent Time Evaluation. By that

time, Child was approximately three and a half years old. At the

evaluation, Child “exhibited no distress being with [Grandparents];

recognized them; played board games and sang a song; and called

Grandparents ‘Nana and Papa.’” The evaluator “concluded that

[Grandparents] were appropriate, fit, and proper to have visitation

with [Child].” She recommended that Grandparents be awarded

phone calls with Child and visitation one day per month, starting

with three hours per visit and gradually increasing to overnight

visits as Child gets older.

¶6 A trial was held on October 12 and 13, 2011. The trial court

issued its Findings of Fact and Conclusions of Law on December

21, 2011, in which it considered the statutory factors and concluded

that Grandparents had rebutted the parental presumption by clear

and convincing evidence. Specifically, it concluded that

Grandparents were “fit and proper persons to have visitation with

[Child],” that “[v]isitation with [Child] was denied and

unreasonably limited” by Mother, that Grandparents “had a

substantial relationship with [Child] until the denial of visitation

and the denial has likely caused harm to [Child],” that Father hadJones v. Jones

20110998

‐ CA 2013 UT App 174 4 died, and that “[v]isitation is in the best interest of [Child].” As a

result of its findings, the trial court ordered grandparent visitation

amounting to approximately thirty

‐ six hours per month. Mother

appeals.

ISSUE AND STANDARD OF REVIEW

¶7 The central issue on appeal is Mother’s challenge to the

constitutionality of the Grandparent Visitation Statute, as applied

under the circumstances of this case. “Constitutional challenges to

statutes present questions of law, which we review for

correctness.” State v. Green

, 2004 UT 76, ¶ 42, 99 P.3d 820 (citation

and internal quotation marks omitted). Nevertheless, “legislative

enactments are presumed to be constitutional, and those who

challenge a statute or ordinance as unconstitutional bear the

burden of demonstrating its unconstitutionality.” Id. (citation and

internal quotation marks omitted).

ANALYSIS

As Applied to Mother, the Grandparent Visitation Statute Is Not

Narrowly Tailored To Serve a Compelling State Interest.

¶8 The Grandparent Visitation Statute allows a grandparent to

petition the court for grandparent–grandchild visitation over the

objection of the grandchild’s parents. The statute acknowledges “a

rebuttable presumption that a parent’s decision with regard to

grandparent visitation is in the grandchild’s best interests.” Utah

Code Ann. § 30

‐ 5

‐ 2(2). However, the statute allows the court to

override the parent’s decision when the parental presumption has

been rebutted. Id. The statute identifies several factors relevant to

this analysis:Jones v. Jones

20110998

‐ CA 2013 UT App 174 5 [T]he court may override the parent’s decision and

grant the petitioner reasonable rights of visitation if

the court finds that the petitioner has rebutted the

presumption based upon factors which the court

considers to be relevant, such as whether:

(a) the petitioner is a fit and proper person to

have visitation with the grandchild;

(b) visitation with the grandchild has been

denied or unreasonably limited;

(c) the parent is unfit or incompetent;

(d) the petitioner has acted as the grandchild’s

custodian or caregiver, or otherwise has had a

substantial relationship with the grandchild, and the

loss or cessation of that relationship is likely to cause

harm to the grandchild;

(e) the petitioner’s child, who is a parent of the

grandchild, has died, or has become a noncustodial

parent through divorce or legal separation;

(f) the petitioner’s child, who is a parent of the

grandchild, has been missing for an extended period

of time; or

(g) visitation is in the best interest of the

grandchild.

Id. Grandparents seeking court

‐ ordered visitation must overcome

the parental presumption by clear and convincing evidence. Uzelac

v. Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, ¶ 28, 144 P.3d 1083.

A. Because a Parent’s Right Is Fundamental, Strict Scrutiny

Applies.

¶9 Mother contends on appeal that any intrusion into a parent’s

constitutional liberty interest must be narrowly tailored to achieve

a compelling state interest. She argues that “constitutional law

requires a compelling state interest before visitation may beJones v. Jones

20110998

‐ CA 2013 UT App 174 6 ordered, and no fact findings or trial evidence identify a

compelling interest here.” We agree.

¶10 “[T]he interest of parents in the care, custody, and control of

their children

. . . is perhaps the oldest of the fundamental liberty

interests recognized by [the United States Supreme] Court.” Troxel

v. Granville

, 530 U.S. 57, 65 (2000) (plurality opinion) (citing Prince

v. Massachusetts

, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters

,

268 U.S. 510, 534–35 (1925); Meyer v. Nebraska

, 262 U.S. 390, 399, 401

(1923)). Parents have a fundamental right “to make decisions

concerning the care, custody, and control of their children.” Troxel

,

530 U.S. at 66 (citing Washington v. Glucksberg

, 521 U.S. 702, 720

(1997); Santosky v. Kramer

, 455 U.S. 745, 753 (1982); Parham v. J.R.

,

442 U.S. 584, 602 (1979); Quilloin v. Walcott

, 434 U.S. 246, 255 (1978);

Wisconsin v. Yoder

, 406 U.S. 205, 232 (1972); Stanley v. Illinois

, 405

U.S. 645, 651 (1972)).

¶11 The Utah Constitution similarly protects this fundamental

right. “In a long line of precedent, [the Utah Supreme Court] has

recognized parental rights as a fundamental component of liberty

protected by article I, section 7 [of the Utah Constitution].” Jensen

ex rel. Jensen v. Cunningham

, 2011 UT 17, ¶ 72, 250 P.3d 465 (citing

Mill v. Brown

, 88 P. 609, 613 (Utah 1907)). Indeed, as our Legislature

recently recognized, “[t]he right of a fit, competent parent to raise

the parent’s child without undue government interference is a

fundamental liberty interest that has long been protected by the

laws and Constitution of this state and of the United States, and is

a fundamental public policy of this state.” Utah Code Ann. § 78A

‐ 6

‐ 503(9) & amend. notes (LexisNexis 2012). “[A]lthough

‘fundamental,’ parental rights are not absolute. A parent’s rights

must be balanced against the state’s important interest in

protecting children from harm.” Jensen

, 2011 UT 17, ¶ 74 (citations

omitted).

¶12 In contrast, “[h]istorically, grandparents had no legal right

of visitation.” Campbell v. Campbell

, 896 P.2d 635, 642 n.15 (Utah Ct.Jones v. Jones

20110998

‐ CA 2013 UT App 174 7 App. 1995) (citing Laurence C. Nolan, Honor Thy Father and Thy

Mother: But Court

‐ Ordered Grandparent Visitation in the Intact

Family?

, 8 BYU J. Pub. L. 51, 57 (1993)). “It is a fundamental tenet

of our common law that ‘the only persons having any actually

vested interest in the custody of a child cognizable by the law are

the parents.’” Jones v. Barlow

, 2007 UT 20, ¶ 39, 154 P.3d 808

(quoting Wilson v. Family Servs. Div

., 554 P.2d 227, 229 (Utah 1976)

(adjudicating the interest of a grandmother)). “Other relatives of a

child merely have ‘some dormant or inchoate right or interest in

the custody and welfare of children’ that matures only upon the

death or termination of the rights of the parents.” Id. (quoting

Wilson

, 554 P.2d at 230–31). Accordingly, the legal interests of

grandparents are typically protected by a state statute similar to the

one before us. Such statutes inevitably raise the question of the

extent to which the state may impinge upon the parent’s

fundamental right to control of her child for the purpose of

vindicating a grandparent’s “dormant or inchoate right or interest

in the custody or welfare of children.” Id. (citation and internal

quotation marks omitted).

¶13 The question before us is what level of scrutiny to apply in

reviewing a statute that to some degree circumscribes a parent’s

fundamental right to decide questions involving the care, custody,

and control of her child. Ordinarily, “the [federal] Due Process

Clause prohibits States from infringing fundamental liberty

interests, unless the infringement is narrowly tailored to serve a

compelling state interest.” Lawrence v. Texas

, 539 U.S. 558, 593

(2003) (emphasis omitted). Similarly, our supreme court has stated

that under the Due Process Clause of the Utah Constitution, a

“statute that infringes upon [a parent’s] ‘fundamental’ right is

subject to heightened scrutiny and is unconstitutional unless it (1)

furthers a compelling state interest and (2) ‘the means adopted are

narrowly tailored to achieve the basic statutory purpose.’” Jensen

,

2011 UT 17, ¶ 72 (quoting Wells v. Children ʹ s Aid Soc ʹ y of Utah

, 681

P.2d 199, 206 (Utah 1984)).Jones v. Jones

2 For a chart analyzing the six splintered opinions in

Troxel

, see Tracy C. Schofield, Comment, All the Better to Eat You

With, My Dear: The Need for a Heightened Harm Standard in Utah’s

Grandparent Visitation Statute, 2006 BYU L. Rev. 1669, 1699.

20110998

‐ CA 2013 UT App 174 8 ¶14 However, in ruling on the constitutionality of grandparent

visitation statutes, neither high court has stated that heightened

scrutiny applies. In Troxel v. Granville

, the Supreme Court

invalidated the application of a grandparent visitation statute on

the ground that it unconstitutionally infringed on the parent’s

fundamental right. 530 U.S. 57, 73 (2000) (plurality opinion). 2 A

plurality of the Court stated that the “breathtakingly broad” statute

involved in that case effectively allowed a judge to “disregard and

overturn any decision by a fit custodial parent concerning visitation

whenever a third party affected by the decision files a visitation

petition, based solely on the judge’s determination of the child’s

best interests.” Id. at 67. Justice Thomas concurred in the judgment,

advocating the strict scrutiny standard and stating that it was not

satisfied. See id. at 80 (Thomas, J., concurring in the judgment).

Despite Justice Thomas’s chiding, the plurality declared the statute

unconstitutional as applied to that case without identifying the

applicable level of scrutiny.

¶15 In Uzelac v. Thurgood

, our supreme court upheld the

Grandparent Visitation Statute against a federal constitutional

challenge. See Uzelac v. Thurgood ( In re Estate of S.T.T. ), 2006 UT 46,

¶¶ 1–2, 144 P.3d 1083. The court compared Utah’s statute to the

statute held unconstitutional in Troxel

. See id. ¶¶ 19–36. The court

concluded that Utah’s statute avoided the errors identified in Troxel

and thus was “not unconstitutional under Troxel ” either facially or

as applied. See id. ¶¶ 35, 38. The court further addressed the

“standard of proof by which the parental presumption must be

rebutted,” concluding that “a clear and convincing standard of

proof should apply to satisfy due process requirements.” Id. ¶ 28

(citing Santosky v. Kramer

, 455 U.S. 745, 769 (1982) (“We hold that

such a standard adequately conveys to the factfinder the level ofJones v. Jones

20110998

‐ CA 2013 UT App 174 9 subjective certainty about his factual conclusions necessary to

satisfy due process.”)).

¶16 But the clear and convincing standard is a standard of

evidentiary proof, not a level of constitutional scrutiny. It is one

thing to require that “factors which the court considers to be

relevant” to grandparent visitation, “such as” those listed in section

30

‐ 5

‐ 2(2), must be found by clear and convincing evidence. See

Utah Code Ann. § 30

‐ 5

‐ 2(2) (LexisNexis 2007); Uzelac

, 2006 UT 46,

¶ 28. It is quite another to determine that the existence of some

combination of those factors justifies the state’s interference with

a parent’s control of her child—although the court obviously made

that determination in Uzelac

.

¶17 Santosky v. Kramer

, from which our supreme court drew the

clear and convincing standard, is instructive. See 455 U.S. 745

(1982). At issue in that case was a New York statute permitting the

state to terminate the rights of parents in a child upon a finding

that the child was “permanently neglected.” See id. at 747. The

statute required only that “a fair preponderance of the evidence

support that finding. Thus, in New York, the factual certainty

required to extinguish the parent

‐ child relationship [was] no

greater than that necessary to award money damages in an

ordinary civil action.” Id. (citation and internal quotation marks

omitted). In other words, at issue in Santosky was not whether the

State of New York had a compelling interest in rescuing

permanently neglected children—the parties and the Court

apparently assumed it did—but what level of proof was required

to establish neglect. Santosky did not address the question of the

appropriate level of constitutional scrutiny.

¶18 Since Troxel

, several state courts have reviewed the

constitutionality of their respective grandparent visitation statutes

without considering the level of scrutiny to apply. See Moriarty v.

Bradt

, 827 A.2d 203, 218–19 (N.J. 2003) (collecting cases). Instead,

they have “simply compared the structure of their statutes to the

one invalidated in Troxel to assess constitutionality.” Id. at 219; seeJones v. Jones

20110998

‐ CA 2013 UT App 174 10 also, e.g.

, Williams v. Williams

, 2002

‐ NMCA

‐ 074, ¶¶ 10–29, 50 P.3d

194. Similarly, our supreme court in Uzelac addressed whether the

statute was constitutional “under Troxel .” See 2006 UT 46, ¶ 35. It

did not address the level of constitutional scrutiny applicable to the

Grandparent Visitation Statute, presumably because under any

level of scrutiny, the court would not have held the statute

unconstitutional facially or as applied to the facts of that case.

¶19 Notwithstanding Mother’s extensive appellate briefing of

the appropriate level of scrutiny, Grandparents do not squarely

address the argument. They simply respond that Uzelac settled the

constitutionality of the Grandparent Visitation Statute, and that

even if strict scrutiny applied, that standard is met here.

¶20 However, Uzelac ’s declaration that the Grandparent

Visitation Statute is constitutional on its face does not dispose of

Mother’s challenge to the statute as applied to her. Furthermore,

unlike Troxel and Uzelac

, this case does not fall comfortably on

either end of the constitutional spectrum. Thus, to address

Mother’s constitutional challenge, we must decide the appropriate

level of scrutiny to apply.

¶21 As Mother notes, the majority of state courts to address the

issue have held that grandparent visitation laws are subject to strict

scrutiny. See, e.g., Ex parte E.R.G.

, 73 So. 3d 634, 645–46 (Ala. 2011)

(plurality opinion); id. at 662 (Murdock, J., concurring specially);

Linder v. Linder

, 72 S.W.3d 841, 855 (Ark. 2002); Roth v. Weston

, 789

A.2d 431, 441 (Conn. 2002); Doe v. Doe

, 172 P.3d 1067, 1079 (Haw.

2007); Lulay v. Lulay

, 739 N.E.2d 521, 532 (Ill. 2000); Rideout v.

Riendeau

, 2000 ME 198, ¶ 19, 761 A.2d 291 (plurality opinion); id.

¶¶ 47, 51 (Alexander, J., dissenting); Koshko v. Haining

, 921 A.2d

171, 187–91 (Md. 2007); SooHoo v. Johnson

, 731 N.W.2d 815, 821

(Minn. 2007); Moriarty

, 827 A.2d at 222; In re Herbst

, 1998 OK 100,

¶ 14, 971 P.2d 395; Hiller v. Fausey, 904 A.2d 875, 885–86 (Pa. 2006);

Smallwood v. Mann

, 205 S.W.3d 358, 362–63 (Tenn. 2006); In re

Parentage of C.A.M.A.

, 109 P.3d 405, 408–09, ¶¶ 9–13 (Wash. 2005)

(en banc); see also Von Eiff v. Azicri

, 720 So. 2d 510, 514 (Fla. 1998)Jones v. Jones

20110998

‐ CA 2013 UT App 174 11 (applying state constitution); Santi v. Santi

, 633 N.W.2d 312, 318

(Iowa 2001) (same). But see, e.g.

, Crafton v. Gibson

, 752 N.E.2d 78,

90–92 (Ind. Ct. App. 2001) (applying rational basis review because

the state’s grandparent visitation statute did not significantly

interfere with parents’ fundamental rights); Herndon v. Tuhey

, 857

S.W.2d 203, 208–10 (Mo. 1993) (en banc) (same).

¶22 Our supreme court has held that under the Utah

Constitution, “the proponent of legislation infringing parental

rights must show (1) a compelling state interest in the result to be

achieved and (2) that the means adopted are narrowly tailored to

achieve the basic statutory purpose.” Wells v. Children’s Aid Soc’y of

Utah

, 681 P.2d 199, 206 (Utah 1984) (citation and internal quotation

marks omitted). This holding has never been applied in the context

of grandparent visitation. It is true that in Campbell v. Campbell

, in

examining a federal constitutional challenge to the predecessor of

our current Grandparent Visitation Statute, we refused to “apply

strict scrutiny to determine the statute’s constitutionality” and

instead held “the statute to be constitutional because it is rationally

related to furthering a legitimate state interest.” 896 P.2d 635, 644

(Utah Ct. App. 1995). Campbell held that rational basis review was

appropriate because the statute in effect at the time did not

“substantially infringe upon the parent’s fundamental rights or the

autonomy of the nuclear family.” Id. at 642.

¶23 But Campbell’ s holding on this point was effectively

overruled by Troxel

. Although Troxel did not address the standard

of review, the fundamental nature of the parental right in question

and the significant impact a grandparent visitation statute has on

a fit parent’s rights both appear as strong undercurrents running

throughout the Troxel plurality’s decision that the statute

“unconstitutionally infringe[d] on that fundamental parental

right.” See Troxel v. Granville

, 530 U.S. 57, 67 (2000) (plurality

opinion); see also id. at 101 (Kennedy, J., dissenting) (“[A] domestic

relations proceeding in and of itself can constitute state

intervention that is so disruptive of the parent

‐ child relationshipJones v. Jones

20110998

‐ CA 2013 UT App 174 12 that the constitutional right of a custodial parent to make certain

basic determinations for the child’s welfare becomes implicated.”).

¶24 The Grandparent Visitation Statute qualifies as “legislation

infringing parental rights” in a substantial, not merely incidental,

way, because it allows the state to override a parent’s decision

regarding the care, custody, and control of her child. See Wells

, 681

P.2d at 206; see also Washington v. Glucksberg

, 521 U.S. 702, 767 n.8

(1997) (Souter, J., concurring in the judgment) (noting that “not

every law that incidentally makes it somewhat harder to exercise

a fundamental liberty must be justified by a compelling

counterinterest,” but only those laws that substantially infringe on

a fundamental liberty interest); Koshko v. Haining

, 921 A.2d 171,

187–91 (Md. 2007) (holding that the state’s grandparent visitation

statute infringed on a fundamental right in a direct and substantial

way). Furthermore, as noted above, the application of strict

scrutiny is consistent with the majority of other jurisdictions to

address the issue under the federal constitution. We agree with the

reasoning of those cases and thus conclude that strict scrutiny

review applies to Mother’s claim that the statute, as applied,

violated her rights under the Utah and United States Constitutions.

B. The Statute As Applied to the Facts of This Case Does Not

Withstand Strict Scrutiny.

¶25 As noted above, a “statute that infringes upon [a parent’s]

‘fundamental’ right is subject to heightened scrutiny and is

unconstitutional unless it (1) furthers a compelling state interest

and (2) ‘the means adopted are narrowly tailored to achieve the

basic statutory purpose.’” Jensen ex rel. Jensen v. Cunningham

, 2011

UT 17, ¶ 72, 250 P.3d 465 (quoting Wells

, 681 P.2d at 206). The

Grandparent Visitation Statute as applied to the facts of this case

satisfies neither element of this test.

¶26 Here, Grandparents have not demonstrated that the state’s

interest in ordering visitation is compelling. The classic justification

for state intervention in the parent–child relationship is to protectJones v. Jones

20110998

‐ CA 2013 UT App 174 13 “a child who is an abused child, neglected child, or dependent

child,” see Utah Code Ann. § 78A

‐ 6

‐ 103(3) (LexisNexis 2012). And

where the parent–child bond is to be severed altogether, the parent

“is entitled to a showing of unfitness, abandonment, or substantial

neglect before her parental rights are terminated.” In re J.P.

, 648

P.2d 1364, 1377 (Utah 1982).

¶27 In the context of grandparent visitation, many states hold

that a compelling state interest is established only where denial of

visitation would significantly harm the grandchild. See, e.g., Roth v.

Weston

, 789 A.2d 431, 445 (Conn. 2002) (“Without having

established substantial, emotional ties to the child, a petitioning

party could never prove that serious harm would result to the child

should visitation be denied. This is as opposed to the situation in

which visitation with a third party would be in the best interests of

the child or would be very beneficial. The level of harm that would

result from denial of visitation in such a situation is not of the

magnitude that constitutionally could justify overruling a fit

parent’s visitation decision.”); Beagle v. Beagle

, 678 So. 2d 1271, 1276

(Fla. 1996) (concluding, under the privacy clause of the Florida

Constitution, that the state has a compelling interest in ordering

grandparent visitation over the wishes of a fit parent only “when

it acts to prevent demonstrable harm to the child”); Brooks v.

Parkerson

, 454 S.E.2d 769, 772–74 (Ga. 1995) (holding that under

state and federal constitutional law, “state interference with

parental rights to custody and control of children is permissible

only where the health or welfare of a child is threatened”); Doe v.

Doe

, 172 P.3d 1067, 1079–80 (Haw. 2007) (“[P]roper recognition of

parental autonomy in child

‐ rearing decisions requires that the

party petitioning for visitation demonstrate that the child will

suffer significant harm in the absence of visitation before the family

court may consider what degree of visitation is in the child’s best

interests.”); In re Marriage of Howard

, 661 N.W.2d 183, 191 (Iowa

2003) (“If grandparent visitation is to be compelled by the state,

there must be a showing of harm to the child beyond that derived

from the loss of the helpful, beneficial influence of grandparents.”);

Moriarty v. Bradt

, 827 A.2d 203, 222 (N.J. 2003) (“Our priorJones v. Jones

20110998

‐ CA 2013 UT App 174 14 jurisprudence establishes clearly that the only state interest

warranting the invocation of the State’s parens patriae jurisdiction

to overcome the presumption in favor of a parent’s decision and to

force grandparent visitation over the wishes of a fit parent is the

avoidance of harm to the child.

. . . Although Troxel avoided

confronting that issue directly, we are satisfied that prior United

States Supreme Court decisions fully support our conclusion that

interference with parental autonomy will be tolerated only to avoid

harm to the health or welfare of a child.”); In re Herbst

, 1998 OK

100, ¶ 16, 971 P.2d 395 (“[A] vague generalization about the

positive influence many grandparents have upon their

grandchildren falls far short of the necessary showing of harm

which would warrant the state’s interference with this parental

decision regarding who may see a child.”); Hawk v. Hawk

, 855

S.W.2d 573, 577 (Tenn. 1993) (holding that, under the state

constitution’s right to privacy, “when no substantial harm

threatens a child’s welfare, the state lacks a sufficiently compelling

justification for the infringement on the fundamental right of

parents to raise their children as they see fit”); In re Parentage of

C.A.M.A.

, 109 P.3d 405, 413, ¶ 29 (Wash. 2005) (en banc)

(concluding that “the application of the ‘best interests of the child’

standard rather than a ‘harm to the child’ standard is

unconstitutional” under the Washington case that was affirmed on

narrower grounds by Troxel ); see also Tracy C. Schofield, Comment,

All the Better to Eat You With, My Dear: The Need for a Heightened

Harm Standard in Utah’s Grandparent Visitation Statute, 2006 BYU L.

Rev. 1669, 1734 (advocating an amendment to the Utah

Grandparent Visitation Statute to require grandparents to show

“that a parent is unfit and that his or her visitation decision will

substantially harm the children”). But see, e.g.

, Rideout v. Riendeau

,

2000 ME 198, ¶ 23, 761 A.2d 291 (“An element of ‘harm’ in the

traditional sense is not, however, the only compelling state interest

extant when matters relating to the welfare of children are under

scrutiny.”); Hiller v. Fausey, 904 A.2d 875, 886–90 (Pa. 2006)

(concluding that a harm requirement “would set the bar too high,”

but that the state has a compelling interest in “protecting the health

and emotional welfare of children” and that the state’s statute wasJones v. Jones

20110998

‐ CA 2013 UT App 174 15 narrowly tailored because it extended visitation rights only to

grandparents whose child had died, afforded special weight to a

parent’s decision regarding visitation, required the court to

consider the strength of the grandparent–grandchild relationship,

and required findings that visitation would not interfere with the

parent–child relationship and that visitation would serve the best

interests of the grandchild).

¶28 On the other hand, some states appear to interpret Troxel as

requiring the conclusion that a showing of harm is unnecessary.

See, e.g.

, In re Adoption of C.A.

, 137 P.3d 318, 325–26 (Colo. 2006) (en

banc). However, this interpretation does not square with Troxel and

is inconsistent with our supreme court’s reading of Troxel

. Rather

than ruling that a showing of harm is not required, “the plurality

[in Troxel ] specifically refused to determine whether the Due

Process Clause requires a showing of harm or potential harm to the

child as a condition precedent to granting visitation.” Uzelac v.

Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, ¶ 24, 144 P.3d 1083

(citing Troxel v. Granville

, 530 U.S. 57, 73 (2000) (plurality opinion)).

Indeed, other courts have found that a statutory scheme can meet

the requirements of Troxel but nonetheless fail a strict scrutiny

analysis absent a showing of harm. See, e.g.

, Doe

, 172 P.3d at 1077,

1080.

¶29 Our Grandparent Visitation Statute does not require a

showing of harm to the grandchild. Rather, harm to the grandchild

caused by termination of a substantial relationship with the

grandparent is listed as one of seven factors the court may

“consider[] to be relevant” in determining whether the grandparent

has rebutted the presumption that “a parent’s decision with regard

to grandparent visitation is in the grandchild’s best interest”:

(d) the petitioner has acted as the grandchild’s

custodian or caregiver, or otherwise has had a

substantial relationship with the grandchild, and the

loss or cessation of that relationship is likely to cause harm

to the grandchild

. . . .Jones v. Jones

3 The strength of the relationship was affected, no doubt,

by Mother’s restriction of Grandparents’ contact with Child prior

to the Grandparent Time Evaluation.

20110998

‐ CA 2013 UT App 174 16 Utah Code Ann. § 30

‐ 5

‐ 2(2)(d) (LexisNexis 2007) (emphasis added).

Moreover, as our supreme court observed in Uzelac

, the statute

“does not provide a district court with much guidance regarding

how the factors ought to be weighed or applied.” 2006 UT 46, ¶ 36

n.7.

¶30 Here, Mother contends that although the trial court ruled

that denial of visitation “has likely” harmed Child, the court “made

no fact findings in support of that conclusion, for the record was

barren of any such evidence.” Indeed, the grandparent visitation

evaluation contains no reference to harm suffered by Child.

Although the evaluator did testify that Child might someday

benefit from knowing her paternal grandparents in order to grieve

her father’s death and deal with inevitable questions about her

past, this prediction is speculative and in any event merely states

the rationale for statutory factor (e), the death of a parent. See Utah

Code Ann. § 30

‐ 5

‐ 2(2)(e).

¶31 In response, Grandparents assert that they had acted as

Child’s custodian or caregiver and enjoyed a substantial

relationship with Child. And although they assert that “harm has

and will result if visitation is denied,” they point to no record

evidence supporting that assertion. The expert testimony they cite

suggests only that harm would likely result in this type of

situation. The evaluator stated that she lacked sufficient

information to determine whether harm had actually resulted to

Child. Furthermore, the record evidence describes a healthy and

normal grandparent–grandchild relationship, but not an

exceptionally close one. 3 For example, the court found that in the

meeting the evaluator hosted between Grandparents and Child,

Child “exhibited no distress” and—tellingly—“recognized them.”Jones v. Jones

4 We understand the statutory term “unreasonably

limited” to mean that the limitation on visitation seems

disproportional to the reasons offered for it. See Utah Code Ann.

§ 30

‐ 5

‐ 2(2)(b) (LexisNexis 2007).

20110998

‐ CA 2013 UT App 174 17 ¶32 Grandparents maintain that harm may be inferred from the

fact that Mother abruptly ended visitation two years before trial,

and the trial court’s findings to this effect are uncontested. But the

only harm identified by Grandparents or by the trial court is loss

of the grandparent–grandchild relationship itself—a circumstance

inherent in every case likely to be brought under the statute—and

even at that, the testimony of harm to Child is speculative. In sum,

the evidence that Grandparents had a substantial relationship with

Child and that Child would be harmed by denied visitation was

not compelling.

¶33 Other statutory factors are either unchallenged here or

supported by clear and convincing evidence: Father died,

Grandparents and Mother are fit, Mother unreasonably limited

Grandparents’ visitation, and visitation is in Child’s best interest. 4

Consequently, the only factor distinguishing this case from any

other parent–grandparent visitation litigation between fit parties is

the fact that Father is deceased. Indeed, the present record does not

even demonstrate Child’s “understandable sadness resulting from

losing a family member and

. . . missing [her] grandparents” found

insufficient in In re Scheller

, 325 S.W.3d 640, 644 (Tex. 2010)

(applying a statute that was amended after Troxel to require

grandparents to rebut the parental presumption “by proving that

denial

. . . of access to the child would significantly impair the

child’s physical health or emotional well

‐ being” (citation and

internal quotation marks omitted)). No one in this case has claimed

that, without more, Father’s death justifies compelled visitation

under any standard, much less the compelling state interest

standard. We therefore conclude that the facts of this case are not

“sufficient

. . . to justify state interference.” See Uzelac v. Thurgood

( In re Estate of S.T.T. ), 2006 UT 46, ¶ 38, 144 P.3d 1083.Jones v. Jones

20110998

‐ CA 2013 UT App 174 18 ¶34 Even if Grandparents had demonstrated that the state’s

interest in requiring visitation here was compelling, they have not

shown that the visitation ordered in this case was narrowly tailored

to achieve that interest. Where a statute infringes on a fundamental

right, the means adopted must be “narrowly tailored to achieve the

basic statutory purpose.” Jensen ex rel. Jensen v. Cunningham

, 2011

UT 17, ¶ 72, 250 P.3d 465 (citation and internal quotation marks

omitted).

¶35 As of June 2012, Grandparents are entitled under the trial

court’s order to visitation on alternating weekends, one of which

is an overnight visit. This level of visitation is well below the

minimum statutory schedule for a parent. See Utah Code Ann. § 30

‐

3

‐ 35 (LexisNexis Supp. 2012); id. § 30

‐ 3

‐ 35.5(3)(f). But it is more

substantial than the visitation many grandparents enjoy, especially

those who, like Grandparents here, live in a different city from

their grandchild.

CONCLUSION

¶36 In sum, we conclude that the Grandparent Visitation Statute

is unconstitutional under the Utah and United States Constitutions

as applied to Mother in this case. We need not reach any other

claims presented in this appeal. The judgment of the trial court is

accordingly reversed.

DAVIS, Judge (dissenting):

¶37 I respectfully dissent from the majority opinion because I

believe it is inconsistent with our supreme court’s holding in Uzelac

v. Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, 144 P.3d 1083.

Accordingly, I would consider Mother’s other arguments on appeal

and ultimately affirm the trial court’s award of grandparent

visitation.Jones v. Jones

20110998

‐ CA 2013 UT App 174 19 I. Constitutionality of the Grandparent Visitation Statute

¶38 The Uzelac court explained that the Grandparent Visitation

Statute is constitutional as applied where “the grandparents

. . . have clearly and convincingly rebutted the [parental] presumption

. . . [,] the district court

. . . [has] found that grandparent visitation

[is] in the child’s best interests,” and the trial court’s

“determination [is] accompanied by sufficient findings of fact to

justify state interference.” Id. ¶ 38. Although the Uzelac court never

explicitly discussed the appropriate level of scrutiny to apply in

grandparent visitation cases, it is clear from the parties’ briefs in

that case that the scrutiny issue was raised and that the supreme

court would have been cognizant of it. Brief for Appellee at 26–27,

Uzelac

, 2006 UT 46 (No. 20040796); Reply Brief for Appellant at

5–13, Uzelac

, 2006 UT 46 (No. 20040796). Thus, it appears that, like

the Supreme Court in Troxel

, our supreme court consciously

declined to explicitly identify the appropriate level of scrutiny. See

Troxel v. Granville

, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in

the judgment).

¶39 The Uzelac court did examine the Grandparent Visitation

Statute in detail and gave extensive instructions regarding how it

should be constitutionally applied. For example, the court explicitly

limited the applicability of two particular factors—grandparent

fitness and best interests—because of their tendency to “allow[] a

judge to supercede a parent’s decisions based solely on a

disagreement between the parent and the judge.” Uzelac

, 2006 UT

46, ¶ 33. The court further clarified that in order to withstand

constitutional scrutiny, the parental presumption must be rebutted

by clear and convincing evidence. Id. However, the court went on

to explain that the statute provides “several means by which a

grandparent can rebut the parental presumption” and explained

that the Grandparent Visitation Statute withstood constitutional

scrutiny by “ensuring that courts give ‘special weight’ to the

decisions of fit parents.” Id. ¶¶ 34–35. Although the Uzelac court

suggested that “the presumption is most clearly rebutted when the

court finds the existence of several relevant factors,” it did notJones v. Jones

5 A harm requirement would make it nearly impossible for

grandparents of very young grandchildren with fit parents to

obtain an award of grandparent visitation. While the legislature

might very well deem it appropriate to impose such a limitation,

I do not think due process mandates that the state’s interest in

preserving a child’s relationship with both sides of her family

where the family unit has been divided be limited to

circumstances where the child is old enough to have suffered

severe emotional harm at the severing of that relationship.

6 While the Uzelac court did not explicitly employ strict

scrutiny in its analysis, it certainly appears to have employed

something greater than rational basis scrutiny in its evaluation of

the Grandparent Visitation Statute. The majority observes that a

number of other courts have concluded “that a compelling state

interest is established only where denial of visitation would

significantly harm the grandchild.” See supra ¶ 27. However, the

Uzelac court’s analysis strongly suggests that another state

interest may justify an award of grandparent visitation, i.e.,

(continued...)

20110998

‐ CA 2013 UT App 174 20 identify any particular number of factors that must be established

and made no suggestion that harm or parental fitness should be

elevated over any of the other factors. 5 Id. ¶ 34; see also id. ¶ 24

(pointing out that Troxel ’s “plurality decision does not impose the

requirement that the parental presumption be rebutted by a

showing of harm to the child” and “specifically refused to

determine whether the Due Process Clause requires a showing of

harm or potential harm to the child as a condition precedent to

granting visitation” (citing Troxel

, 530 U.S. at 73 (plurality

opinion))).

¶40 Thus, even if we assume our supreme court did not, in

effect, apply strict scrutiny, I do not believe we should employ a

higher level of scrutiny than that employed by our supreme court

or read additional constitutional requirements into a statute that

our supreme court has thoroughly analyzed. 6 Thus, I wouldJones v. Jones

6 (...continued)

preserving the child’s right to a relationship with both sides of

her family where that “family has been divided by some turn of

fate—death, divorce, loss of custody, a missing person, or a

declaration that a parent is unfit or incompetent.” Uzelac v.

Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, ¶ 30, 144 P.3d 1083;

see also discussion infra ¶ 53. The court took no issue with the

legislature’s identification of such circumstances as factors

tending to rebut the parental presumption and took pains to

explain why that category of factors furthered a state interest. See

Uzelac

, 2006 UT 46, ¶ 30. I do not know whether the supreme

court intended by this discussion to suggest that preserving a

child’s bonds with both sides of her family is a compelling state

interest or whether it reached this conclusion by employing an

intermediate level of scrutiny rather than strict scrutiny.

However, it appears to me that the supreme court’s discussion

approved this state interest as constitutionally sufficient to

justify an award of grandparent visitation, under appropriate

circumstances, even in the absence of significant harm.

20110998

‐ CA 2013 UT App 174 21 conclude that by determining that Grandparents had clearly and

convincingly rebutted the parental presumption by means of a

sufficient combination of the statutory factors, the trial court

applied the Grandparent Visitation Statute in a manner that

adequately protected Mother’s constitutional parental rights.

Accordingly, I would address Mother’s other arguments on appeal.

II. Factual Findings

¶41 Mother first challenges several of the trial court’s factual

findings. A trial court’s findings of fact are reviewed for clear error.

Houskeeper v. State

, 2008 UT 78, ¶ 18, 197 P.3d 636. Specifically,

Mother maintains that there was insufficient evidence to support

the court’s findings that Mother “believed the visits [with

Grandparents] went well” during the two and a half months

following Father’s death; that Mother “denied any unsupervised

visitation and contact” after July 24, 2009; that Mother “testifiedJones v. Jones

20110998

‐ CA 2013 UT App 174 22 that she denied visitation only after [Grandparents] wanted too

much”; and that “[f]inancial matters and [Child’s maternal

grandmother’s] involvement may have contributed to the cessation

of contact between [Grandparents] and [Child].” I do not agree

with Mother that these findings were unsupported by the evidence.

¶42 Mother asserts that because her relationship with

Grandparents was not ideal during the two and a half months

immediately following Father’s death, the trial court erred in

finding that Mother believed the visits with Grandparents went

well during that period. However, read in context, that finding

appears to relate primarily to Mother’s feelings about the visits

themselves, i.e., Grandparents’ ability to care for Child and Child’s

relationship with Grandparents, rather than Mother’s personal

feelings toward Grandparents. Her feelings about the visits were

related in email communications between Mother and

Grandparents during the relevant time period. Although Mother

expressed concern about allowing Child to stay overnight with

Grandparents, she assured them that this was based on the fact that

Child had struggled with her bedtime routine rather than a desire

to keep Child from Grandparents. Mother expressed her opinion

that Child should not “have overnight visits with others until she

is at about 3 years old” and suggested that she might reconsider the

possibility of overnights in the future. Mother told Grandparents

that she was “not trying to keep [Child] from [them] in any way”

and that she knew Grandparents loved Child. Though Mother may

have expressed concerns about visitation later in the course of

litigation, the evidence was sufficient to support the trial court’s

finding that during the period when visitation was occurring,

Mother believed the visits went well.

¶43 Although Mother concedes that “the district court could

have inferred that [Mother] did not grant [Grandparents’] requests

for visits in August and no visits took place after July 2009

. . . ;

[Child] did not have weekday telephone calls with [Grandparents]

after July 2009

. . . ; and [Mother] requested supervised visitation

in September 2009,” she takes issue with its finding that sheJones v. Jones

20110998

‐ CA 2013 UT App 174 23 “denied any unsupervised visitation and contact” after July 2009.

While it does appear that at least some weekend phone calls may

have taken place after July 2009 and that the lack of visits in August

may have been related to scheduling concerns rather than a blanket

restriction by Mother (though in September Mother admittedly

requested that visits be supervised), I see Mother’s objection to this

finding as overly punctilious. I see no practical difference between

the succinct finding made by the trial court and the more detailed

facts identified by Mother; the gist of the facts, no matter how they

are related, is that Mother severely restricted Grandparents’

visitation with Child beginning soon after July 2009.

¶44 Mother objects to the trial court’s finding that she “denied

visitation only after [Grandparents] wanted too much” because she

maintains that there were other reasons for her decision to restrict

Grandparents’ visitation. While Mother’s email to Grandparents

does suggest that there were a number of factors impacting her

decision to restrict visitation, it is clear that one of those reasons

was Grandparents’ request for extensive visitation. It also appears

that the email was written directly in response to Grandparents’

August 27 email requesting additional time. Furthermore, the

evaluator suggested that Grandparents’ demands for more time

were “linked to [Mother’s] decision to cut [off] contact.” While the

trial court’s finding may have oversimplified Mother’s reasons, it

was not clearly erroneous and is supported by the evidence.

¶45 Finally, Mother objects to the trial court’s finding that

Mother may have restricted contact due to financial matters and

Child’s maternal grandmother’s involvement. The evidence shows

that the maternal grandmother urged Mother to deny overnight

visits to Grandparents and that Grandparents and Mother had at

least a minor confrontation over an ambulance bill for Father that

the maternal grandmother taped to Grandparents’ front door. The

evaluator also opined that financial issues increased friction

between the parties and appeared to have contributed to Mother’s

decision to restrict contact. Again, while these may not have been

the only reasons for Mother’s restricting contact, and may evenJones v. Jones

20110998

‐ CA 2013 UT App 174 24 have been minor factors, the finding that they “may have

contributed to the cessation of contact” is not clearly erroneous.

III. Application of Grandparent Visitation Statute

¶46 Mother next asserts that the trial court erred in determining

that Grandparents had rebutted the parental presumption. See Utah

Code Ann. § 30

‐ 5

‐ 2(2) (LexisNexis 2007). This is a mixed question

of law and fact. See generally State v. Pena

, 869 P.2d 932, 936 (Utah

1994) (explaining that a mixed question involves “the application

of law to fact or, stated more fully the determination of whether a

given set of facts comes within the reach of a given rule of law”).

Thus, the “trial court’s factual findings are reviewed deferentially

under the clearly erroneous standard, and its conclusions of law

are reviewed for correctness with some discretion given to the

application of the legal standards to the underlying factual

findings.” State v. Brake

, 2004 UT 95, ¶ 12, 103 P.3d 699 (citations

and internal quotation marks omitted).

¶47 As our supreme court noted in Uzelac v. Thurgood ( In re

Estate of S.T.T. ), 2006 UT 46, 144 P.3d 1083, the structure of the

Grandparent Visitation Statute is “confusing” and “provides very

little guidance to a district judge trying to resolve a grandparent

visitation dispute.” Id. ¶ 36. The statute provides,

There is a rebuttable presumption that a parent’s

decision with regard to grandparent visitation is in

the grandchild’s best interests. However, the court

may override the parent’s decision and grant the

petitioner reasonable rights of visitation if the court

finds that the petitioner has rebutted the

presumption based upon factors which the court

considers to be relevant, such as whether:

(a) the petitioner is a fit and proper person to

have visitation with the grandchild;

(b) visitation with the grandchild has been

denied or unreasonably limited;Jones v. Jones

20110998

‐ CA 2013 UT App 174 25 (c) the parent is unfit or incompetent;

(d) the petitioner has acted as the grandchild’s

custodian or caregiver, or otherwise has had a

substantial relationship with the grandchild, and the

loss or cessation of that relationship is likely to cause

harm to the grandchild;

(e) the petitioner’s child, who is a parent of the

grandchild, has died, or has become a noncustodial

parent through divorce or legal separation;

(f) the petitioner’s child, who is a parent of the

grandchild, has been missing for an extended period

of time; or

(g) visitation is in the best interest of the

grandchild.

Utah Code Ann. § 30

‐ 5

‐ 2(2). Because a parent’s decisions regarding

grandparent visitation are presumed to be in the child’s best

interests and a parent’s right to make such decisions is a protected

liberty interest, grandparents seeking court

‐ ordered visitation must

rebut the parental presumption by clear and convincing evidence.

Uzelac

, 2006 UT 46, ¶ 28.

¶48 Mother’s analytical approach seems to assume that all of the

statutory factors are to be employed as a sort of balancing test, with

all the factors being weighed against all the others. Accordingly,

her argument relies on factors that do not serve to rebut the

parental presumption in this case, such as the fact that she is a fit

parent. However, applying the factors in the Grandparent

Visitation Statute as a balancing test would be inappropriate

because the presumption does not need to be bolstered by the

factors in order to remain intact—it persists unless and until

Grandparents satisfy their burden to establish that a sufficient

combination of the factors, supported by clear and convincing

evidence, rebut the parental presumption. If the presumption has

been rebutted by clear and convincing evidence, Mother can

reestablish it only by undermining the evidence supporting theJones v. Jones

7 In fact, some may be mutually exclusive. For example,

the parent who is a child of a grandparent is unlikely to be both

dead and missing, though those factors are listed separately. See

Utah Code Ann. § 30

‐ 5

‐ 2(2)(e)–(f) (LexisNexis 2007).

20110998

‐ CA 2013 UT App 174 26 factors that rebut the presumption, not by alleging the nonexistence

of other factors that Grandparents never relied on.

¶49 In an attempt to clarify the Grandparent Visitation Statute

and its application, the Uzelac court recognized that the statute

actually identifies three separate categories of factors. Id. ¶ 29. The

first category, which includes factors (c), (e), and (f), relates to

special circumstances “where a family has been divided by some

turn of fate—death, divorce, loss of custody, a missing person, or

a declaration that a parent is unfit or incompetent.” Id. ¶ 30. The

second category, which includes factors (b) and (d), “encompasses

situations where the state has an interest in protecting the child

from harm.” Id. ¶ 31. The third category, which includes factors (a)

and (g), identifies threshold findings that must be made “even if

the petitioner has satisfied other statutory factors.” Id. ¶ 32. While

findings relating to these threshold factors are necessary to an

award of custody, they are not sufficient to justify such an award

because that “would come too close to allowing a judge to

supercede a parent’s decisions based solely on a disagreement

between the parent and the judge.” Id. ¶ 33. As to the other factors,

the court observed that “the presumption is most clearly rebutted

when the court finds the existence of several relevant factors” but

that the Grandparent Visitation Statute identifies “several means”

by which this may be accomplished. Id. ¶ 34.

¶50 The supreme court’s analysis makes clear that the various

factors may be of different weight and may not all apply in the

same way. See id. ¶ 36 n.7. Some factors must be established as a

threshold in every case in order to satisfy due process, see id.

¶¶ 32–33, 36 n.7, and other factors may not be relevant at all under

a given set of circumstances. 7 The trial court may even consider

additional factors not listed in the Grandparent Visitation Statute.Jones v. Jones

8 This is not to say that a grandparent must necessarily

have assumed the role of a parent in order to establish a

substantial relationship under the Grandparent Visitation

Statute. But because I do not think it was essential for

(continued...)

20110998

‐ CA 2013 UT App 174 27 See Utah Code Ann. § 30

‐ 5

‐ 2(2) (providing that the trial court may

find the parental presumption rebutted “based upon factors which

the court considers to be relevant” and then identifying the

specifically enumerated statutory factors as examples of factors

that might be relevant). Accordingly, there is no magic number of

factors necessary to rebut the parental presumption; rather, the

determination of whether the parental presumption has been

rebutted is highly fact dependent and must take into account the

particular facts and circumstances of the case as a whole. With

these parameters in mind, I proceed to discuss the trial court’s

determination that the facts in this case justified an award of

visitation to Grandparents under the Grandparent Visitation

Statute.

¶51 Mother’s argument focuses largely on her assertion that

Child does not have a substantial relationship with Grandparents

and that Child has not been harmed by being out of contact with

them. Mother asserts that a substantial relationship arises only

where the grandparents have a relationship with the child akin to

that of a “custodian or caregiver,” see Utah Code Ann. § 30

‐ 5

‐ 2(2)(d) (LexisNexis 2007), and that Grandparents’ relationship with

Child does not satisfy that standard. She further points out that

neither the evaluator nor the trial court made any specific findings

relating to whether Child had been harmed by Mother’s decision

to deny Grandparents visitation. These points are well taken. The

only Utah case to consider the substantial relationship factor did so

with respect to grandparents who had lived with the child and

taken care of her “on a daily basis throughout most of the child’s

first four years of life.” Uzelac

, 2006 UT 46, ¶ 42. The relationship

between Grandparents and Child clearly does not reach that level. 8Jones v. Jones

8 (...continued)

Grandparents to establish this factor in order to rebut the

parental presumption, see infra ¶ 52, I will not delve into the

question of what constitutes a substantial relationship. It is clear,

however, that the relationship between Child and Grandparents

was not as substantial as the relationship between the

grandparents and grandchild in Uzelac.

20110998

‐ CA 2013 UT App 174 28 Furthermore, although the trial court concluded that “the denial [of

visitation] has likely caused harm to [Child],” it made no findings

in support of that conclusion, and there appears to be little support

for it in the record.

¶52 I would not analyze these factors in depth, however, because

in light of the parameters outlined above, I am not convinced that

Grandparents must demonstrate such an involved relationship or

harm resulting from severance of the relationship in order for the

trial court to consider an award of visitation where the combination

of other compelling factors is sufficient to rebut the parental

presumption. Specifically, in this case, the trial court found that

Father had died, that Mother unreasonably restricted

Grandparents’ visitation, that Grandparents are fit to care for

Child, and that visitation is in Child’s best interests. These findings

are supported by clear and convincing evidence and are sufficient

to rebut the parental presumption.

¶53 Although the fact of Father’s death alone would not justify

a court award of grandparent visitation where the living parent

continued to permit reasonable visitation between the child and the

grandparents, I consider this factor very relevant in circumstances,

such as those presented in this case, where the parent has “denied

or unreasonably limited” visitation. See Utah Code Ann. § 30

‐ 5

‐ 2(2)(b).

The [Grandparent Visitation S]tatute recognizes that

when a family unit has been touched by

. . . eventsJones v. Jones

9 The record does suggest that Grandparents demanded

extensive visitation comparable to that afforded to non

‐ custodial

parents, see generally Utah Code Ann. § 30

‐ 3

‐ 35 (LexisNexis

Supp. 2012), and that they threatened to sue for court

‐ ordered

visitation if Mother did not honor their demands. However, like

the trial court, I fail to see “the nexus between a request for more

contact and cutting off all but supervised visitation when that

didn’t exist before.” The parental presumption relates to whether

(continued...)

20110998

‐ CA 2013 UT App 174 29 [dividing it,] a situation may arise where the child’s

interests differ from those of the parent. This is

particularly true where the direct family line between

grandparents and grandchildren has been severed,

leaving the “in

‐ law” relationship as the only

remaining adult connection. Recognizing the

potential for conflict in the relationship between the

parent and the “in

‐ law” and the resulting potential

for interference with the grandparent–grandchild

relationship, the statute provides an avenue for

grandparents and grandchildren to maintain their

relationship.

Uzelac v. Thurgood ( In re Estate of S.T.T. ), 2006 UT 46, ¶ 30, 144 P.3d

1083 (citation omitted).

¶54 The concerns identified by the supreme court proved

justified in this case when, following a number of disputes between

Mother and Grandparents, Mother informed Grandparents that she

intended to limit them to only one phone call with Child per month

and one supervised visit “for a few hours” every other month.

Although Mother maintains that these restrictions were reasonable

under the circumstances, the trial court found—and the evidence

supports, see supra ¶ 44—that they were primarily the result of

Grandparents wanting what Mother perceived to be too much

visitation, 9 and possibly related to “[f]inancial matters and [Child’sJones v. Jones

9 (...continued)

a parent’s decisions regarding grandparent visitation are in the

best interests of the child. Although Mother may have

understandably felt pressured by Grandparents, I fail to see how

their request for more time or even their threats to seek a court

order leads to the conclusion that supervision and reduced

contact was in Child’s best interests.

20110998

‐ CA 2013 UT App 174 30 maternal grandmother’s] involvement.” Furthermore, both the

evaluator and the trial court considered Mother’s other claimed

concerns to have arisen only after the breakdown of the parties’

relationship, and observed that she seemed to have previously

been untroubled by Grandparents’ ability to care for Child. In

short, the evidence clearly and convincingly shows that Mother’s

decision to restrict Grandparents’ visitation was based primarily on

factors other than Child’s best interests and was therefore

unreasonable.

¶55 The evidence also supports the trial court’s determinations

that Grandparents were fit and that visitation was in Child’s best

interests. The trial court found that Grandparents had cared for

Child on many occasions prior to the time their visitation was

restricted and that Mother permitted them to spend time with

Child because she knew they loved Child. The evaluator stated that

Mother had relied on Grandparents for child care in the past and

opined that Grandparents “appeared to love [Child] very much

and would not harm her.” She also testified that Grandparents “are

fit and proper to have grandparent time.” Witnesses at trial also

testified as to Grandparents’ fitness and stability. As to best

interests, the evaluator opined,

The more time this child spends with her

grandparents and her paternal relatives, the better off

she will be in terms of knowing and understanding

that many people love her. She will be more self

confident and well rounded having full access toJones v. Jones

10 I do acknowledge that this is a very close case.

Nevertheless, as the trial court’s factual findings are entitled to

deference and those findings are sufficient to rebut the parental

presumption, I would not think it appropriate for us to

substitute our judgment for that of the trial court by disturbing

its visitation award.

20110998

‐ CA 2013 UT App 174 31 both sides of [her] family as well as her stepfather’s

family.

Thus, the threshold fitness and best interests factors were also

established by clear and convincing evidence. Accordingly, the trial

court did not err by determining that the parental presumption was

rebutted or by awarding visitation to Grandparents. 10

IV. Other Constitutional Issues

¶56 Finally, Mother asserts that the trial court’s award of

approximately thirty

‐ six hours of grandparent visitation per month

violated her constitutional rights because it was not narrowly

tailored. The Grandparent Visitation Statute instructs that the court

may order “reasonable rights of visitation if the court finds that the

petitioner has rebutted the [parental] presumption.” Utah Code

Ann. § 30

‐ 5

‐ 2(2) (LexisNexis 2007). Although trial courts might

benefit from legislative guidance on what constitutes “reasonable

rights of visitation” for a grandparent, I fail to see how an award of

reasonable visitation is not narrowly tailored to the state’s interest

in preserving the grandparent–grandchild relationship under

circumstances such as those presented in this case. See generally

Uzelac

, 2006 UT 46, ¶ 30. And Mother has failed to explain why the

trial court’s award of visitation was unreasonable, other than to

assert that “a far more limited order—or none at all—would have

sufficed.” Because I would consider an award of reasonable

visitation to be narrowly tailored to advance the state’s interest,

and because Mother has not adequately contested theJones v. Jones

20110998

‐ CA 2013 UT App 174 32 reasonableness of the trial court’s visitation award, I would reject

Mother’s argument.

¶57 Finally, Mother challenges the standing provisions of the

Grandparent Visitation Statute. She asserts that a statute

“authorizing all grandparents to sue at any time” is not narrowly

tailored and permits “[f]it parents

. . . [to] be hauled into court to

defend suits for temporary custody absent pleading and a

preliminary showing of compelling circumstances that would tend

to override the presumption that the parent’s visitation decision is

entirely appropriate.” Even accepting Mother’s assertions as true,

I do not read the Grandparent Visitation Statute so broadly. The

statute provides, “Grandparents have standing to bring an action

in district court by petition, requesting visitation in accordance

with the provisions and requirements of this section.” Utah Code

Ann. § 30

‐ 5

‐ 2(1). Because the Grandparent Visitation Statute goes

on to outline the limited circumstances under which grandparent

visitation may be considered, see id. § 30

‐ 5

‐ 2(2), permitting a

grandparent to bring an action “in accordance with the provisions

and requirements of this section” does require the grandparent to

plead circumstances that might override the parental presumption,

see id. § 30

‐ 5

‐ 2(1). Thus, contrary to Mother’s assertion, the

Grandparent Visitation Statute does not broadly grant standing to

all grandparents and is sufficiently narrowly tailored to protect

parents from unwarranted infringement on their constitutional

rights.

V. Conclusion

¶58 Ultimately, I disagree with the majority regarding the

constitutionality of the Grandparent Visitation Statute as applied

in this case in light of our supreme court’s holding in Uzelac

. Accordingly, I would examine the merits of Mother’s other

arguments. Having done so, I would conclude that the trial court’s

factual findings were not clearly erroneous. I would also determine

that Grandparents rebutted the parental presumption by clear andJones v. Jones

20110998

‐ CA 2013 UT App 174 33 convincing evidence and that the trial court did not err by

awarding grandparent visitation under the facts and circumstances

of this case. Finally, I would conclude that the trial court did not

violate Mother’s constitutional rights by awarding Grandparents

reasonable visitation and that the Grandparent Visitation Statute’s

standing provision is not overly broad. Accordingly, I would affirm

the trial court’s visitation award.