Friday, August 8, 2014
Court of Appeal Holds:
Order Granting Grandmother Child-Visitation Rights Was Valid
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that an order giving visitation rights to a child’s paternal grandmother did not contravene the objecting mother’s fundamental right to control the upbringing of her child.
The child, designated in the opinion as “J.T.,” had been declared a ward of the court in December 2009, when he was a year old and the mother was 16, herself a dependent child. In September 2012, the child was returned to the mother’s custody, with the paternal grandmother—with whom J.T. had been living for the preceding two years—to have unmonitored overnight visits.
Eleven months later, Los Angeles Superior Court Commissioner Marilyn Martinez terminated juvenile court jurisdiction. At the same hearing, she denied the mother’s petition to trim her mother-in-law’s visitation rights, limiting them to a three-hour monthly get-together in a public place, with the mother present.
Martinez said in a written order:
“There is a presumption that a custodial parent’s objections to a grandparent’s visitation is in the best interest of a child, and the court must accord that position of the custodial parent with great weight. However, that parent’s decision regarding visitation is not immune from judicial review, and I’m the judge and I’ve reviewed what we have here. [J.T.] is young, and he has spent a substantial part of his life in the care of his paternal grandmother. He has a positive relationship with her. He is bonded to her.”
It was in the best interests of the child, she declared, that the visitation order not be altered.
(Parental ties with the father had been judicially severed while he was in prison.)
Supreme Court Decision
The mother protested on appeal that the visitation order contravenes the United States Supreme Court’s 2000 opinion in Troxel v. Granville, 530 U.S. 57. There, in a plurality opinion, the high court found unconstitutional a Washington statute that permitted a court to grant visitation rights to “any person” where it might “serve the best interest of the child.”
The statute was found to be violative of the substantive due process rights of a mother who challenged a visitation order granted to the father’s parents. Then-Justice Sandra Day O’Connor (since retired) wrote:
“The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”
The order in question, she said, “unconstitutionally infringes on that fundamental parental right.”
Case Not Application
In yesterday’s Court of Appeal opinion, Presiding Justice Tricia Bigelow of Div. Eight found that Troxel was not controlling. She explained:
“Although mother may have regained the presumption of parental fitness after dependency jurisdiction was terminated, while the matter was still before the juvenile dependency court it had a special responsibility in issuing its last orders in the role of parens patriae to look at the totality of J.T.’s circumstances, including the maintenance of relationships with other adults with whom he had a strong bond….The plurality opinion’s analysis in Troxel hinges on the fact that a fit parent is entitled to a presumption that she is acting in her child’s best interest in objecting to grandparent visitation. Mother here was involved in a dependency proceeding in which she was not entitled to such a presumption.”
Martinez did not abuse her discretion in declining to modify the visitation order, Bigelow said.
The case is In re J.T., B251780.
Janette Freeman Cochran represented the mother, serving under appointment by the Court of Appeal. Deputy County Counsel Tracey F. Dodds acted for the Los Angeles County Department of Children and Family Services.
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