In re Richard G. Jr.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 78
Docket:	Cum-00-452
Submitted
on Briefs:	April 2, 2001
Decided:	May 10, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

IN RE RICHARD G. JR.

DANA, J.

	[¶1]  The paternal grandmother of Richard G. appeals from a judgment
of the District Court (Portland, Lawrence, J.) denying her request that
Richard be placed in her home.  The grandmother contends that she has a
fundamental liberty interest in having Richard placed with her pursuant to
the Due Process Clause, U.S. Const. amend. XIV, § 1;{1} Me. Const. art. 1,
§ 6-A,{2} and the court should have awarded her custody unless the court
found that to do so would have placed the child in jeopardy, 22 M.R.S.A.
§ 4002(6) (1992).{3}  Instead, the court applied the best interests of the child
standard, 22 M.R.S.A. § 4005-B(4) (Supp. 2000),{4} and continued interim
custody with unrelated foster parents.   We affirm the judgment.{5}
	[¶2]  The Department of Human Services removed Richard G. from his
mother's residence on May 4, 1999, primarily because of her substance
abuse.  Richard's father is in prison.  Following a determination that Richard
was in jeopardy with his mother, Richard's paternal grandmother
intervened and requested that Richard be removed from his foster home to
be placed in her home.  The court conducted a hearing, after which it
concluded that it was not in Richard's best interest to be placed with his
grandmother because Richard has a history of seizures; the grandmother
planned to allow her thirteen-year-old daughter or her live-in boyfriend,
against whom she had obtained a protection from abuse order,{6} to care for
Richard while she worked; the grandmother has a son living with her who
has an attention deficit disorder; they live in a small apartment; and the
grandmother failed to consider Richard's needs when she concluded that
Richard's foster mother was "blowing [her] off" on Richard's birthday when
the foster mother reported to the grandmother that Richard was too tired
from the Thanksgiving holiday to visit the grandmother.
	[¶3]  The grandmother contends that the court should have applied
the jeopardy standard, 22 M.R.S.A. § 4002(6), instead of the best interests
of the child standard, 22 M.R.S.A. § 4005-B(4), because she has a
fundamental liberty interest in having Richard placed with her pursuant to
the Due Process Clause.  According to the grandmother, the jeopardy
standard protects her fundamental right while also protecting Richard's
health and welfare.
	[¶4]  DHS contends that the court's actions did not deprive the
grandmother of any due process rights.  According to DHS, the grandmother
does not have a fundamental liberty interest in the placement of Richard,
and the best interests of the child standard set forth in section 4005-B(4) is
constitutional.
	[¶5]  The Legislature provided for child protective proceedings
because it "[r]ecogniz[ed] that the health and safety of children must be of
paramount concern and that the right to family integrity is limited by the
right of children to be protected from abuse and neglect . . . ."  22 M.R.S.A.
§ 4003 (Supp. 2000).  The statute provides only that interference with
parents' rights to custody of their children requires a finding of jeopardy. 
22 M.R.S.A. § 4003(2) (1992).  When considering a grandparent intervenor
for the purposes of placement, "the court shall give the grandparents
priority for consideration for placement if that placement is in the best
interests of the child and consistent with the purposes listed in section
4003."  22 M.R.S.A. § 4005-B(4).
	[¶6]  We presume that the challenged statute, i.e., section 4005-B(4),
is constitutional.  See Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d
291, 297.  "[T]he person challenging the constitutionality has the burden of
establishing its infirmity." Id. (citation and internal quotation marks
omitted).  "[I]f we can reasonably interpret [the] statute as satisfying [the]
constitutional requirements, we must read it in such a way . . . ."  Id. ¶ 14,
761 A.2d at 297-98.  We may decide only the limited constitutional issue
presented in a case.  Id. ¶ 15, 761 A.2d at 298.
	[¶7]  The United States Supreme Court has established the following
analysis for substantive due process:

First, we have regularly observed that the Due Process Clause
specially protects those fundamental rights and liberties which
are, objectively, deeply rooted in this Nation's history and
tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were
sacrificed.  Second, we have required in substantive-due-process
cases a careful description of the asserted fundamental liberty
interest.  Our Nation's history, legal traditions, and practices
thus provide the crucial guideposts for responsible
decisionmaking that direct and restrain our exposition of the
Due Process Clause.

Green v. Comm'r of Mental Health & Mental Retardation, 2000 ME 92,
¶ 13, 750 A.2d 1265, 1270 (quoting Washington v. Glucksberg, 521 U.S.
702, 720-21 (1997)).  "When a state infringes on one of these fundamental
rights or liberties, the infringement must be narrowly tailored to serve a
compelling government interest."  Id. (citation omitted).
	[¶8]  The grandmother cites Moore v. City of East Cleveland, 431 U.S.
494 (1977), contending that she is entitled to the jeopardy standard
because grandparents have a constitutionally protected right to maintain
their families.  In Moore, the Supreme Court held unconstitutional a
municipal housing ordinance that defined "family" so narrowly that a
grandson could not legally occupy his grandmother's dwelling following the
death of his mother.  Id. at 495-98, 506.  The Court reasoned that the child
rearing decisions of a grandparent residing with the child were entitled to
constitutional protection because the grandparent may have a major
responsibility for rearing the child and because in times of adversity,
economic need may bring the grandparent and child together.  Id. at
504-05.
	[¶9]  The right of a grandparent to have her grandchild live with her
unfettered by a municipal housing ordinance is not equivalent to the right of
a grandparent to have her grandchild, who was found to be in jeopardy,
placed with her notwithstanding the best interests of that child.  Cf. Mullins
v. Oregon, 57 F.3d 789, 794 (9th Cir. 1995) ("Moore was a case about
breaking up an existing family unit, not a case about creating an entirely new
one. . . . A negative right to be free of governmental interference in an
already existing familial relationship does not translate into an affirmative
right to create an entirely new family unit out of whole cloth.").  The holding
of Moore does not suggest that a noncustodial grandparent's rights are
equivalent to those of a custodial parent in the context of child protective
proceedings.  See People in the Interest of C.E., 923 P.2d 383, 385 (Colo.
Ct. App. 1996) (rejecting argument of maternal aunt that Moore "establishes
a fundamental liberty interest in favor of an extended family member to the
society or custody of a related child").
	[¶10]  We recently concluded, in response to a challenge by fit parents
to the Grandparents Visitation Act, that the Act withstands constitutional
scrutiny because it is narrowly tailored to serve the "compelling state
interest in addressing the children's relationship with the [grandparents]
who have cared for them as parents."  Rideout, ¶ 33, 761 A.2d at 303. 
"This interest springs not from any common law right of the grandparent to
visitation with the child, but from the child's significant need to be assured
that he or she will not unnecessarily lose contact with a grandparent who
has been a parent to that child."  Id. ¶ 26, 761 A.2d at 301.  We indicated
that "[g]randparents simply do not have a general common law or
constitutional right of access to their grandchildren."  Id. ¶ 26, n.16, 761
A.2d at 301, n.16; see also Orange County Soc. Servs. Agency v. Frances S.
(In re Gary P.), 46 Cal. Rptr. 2d 929, 930 (Cal. Ct. App. 1995)
("grandparents have no absolute right to custody of their grandchildren").
	[¶11]  In challenging the constitutionality of section 4005-B(4), the
grandmother lacks the "fundamental liberty interest" of the parents who
challenged the Grandparents Visitation Act.  Rideout, ¶ 18, 761 A.2d at 299. 
A grandparent possesses no constitutional right to access the child.  Id.
¶ 26, n.16, 761 A.2d at 301, n.16.  Furthermore, her interests do not align
with the state's interest, articulated in Rideout, that the needs and well-
being of the child must be paramount.  See id., ¶ 26, 761 A.2d at 301.  The
grandmother lacks a constitutionally protected interest in Richard's
placement.
	[¶12]  We conclude that the "best interests of the child" standard is
constitutional when applied to a grandparent after a finding that the child is
in jeopardy with his parents.  Because a non-custodial grandparent lacks a
constitutional right equivalent to the right of a custodial parent, the
grandmother has no constitutionally protected interest to weigh against the
state's interest in the well-being of the child.  The statute's provision that a
grandparent shall have priority consideration for placement if it is in the
child's best interests, 22 M.R.S.A. § 4005-B(4), does not deprive the
grandmother of due process.
	The entry is:
			Judgment affirmed.

Attorney for appellant:

Philip A. Notis, Esq.
71 Ocean Street
South Portland, ME 04106

Attorneys for appellee:

G. Steven Rowe, Attorney General
Michael C. Kearney, Asst. Attorney General
Chad Cloutier, Law Student Intern
6 State House Station
Augusta, ME 04333-0006

Guardian ad Litem:

Willo Scott Wright, CASA
P O Box 310
West Bath, ME 04530

Attorneys for parents:

Christopher Dilworth, Esq.
P O Box 6105
Falmouth, ME 04105

James Hewes, Esq.
80 Exchange Street
Portland, ME 04101

FOOTNOTES******************************** {1} . The Fourteenth Amendment provides, in relevant part: "No State . . . shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." {2} . Article I, section 6-A provides, in relevant part: "No person shall be deprived of life, liberty or property without due process of law . . . ." {3} . 22 M.R.S.A. § 4002 provides, in relevant part: 6. Jeopardy to health or welfare or jeopardy. "Jeopardy to health or welfare" or "jeopardy" means serious abuse or neglect, as evidenced by: A. Serious harm or threat of serious harm; B. Deprivation of adequate food, clothing, shelter, supervision or care, including health care when that deprivation causes a threat of serious harm; C. Abandonment of the child or absence of any person responsible for the child, which creates a threat of serious harm; or D. The end of voluntary placement, when the imminent return of the child to his custodian causes a threat of serious harm. {4} . 22 M.R.S.A. § 4005-B provides, in relevant part: 4. Request for placement. In any proceeding when standing and intervenor status have been granted, the grandparent may request the court to order that the child be placed with the grandparent. In making a decision on the request, the court shall give the grandparents priority for consideration for placement if that placement is in the best interests of the child and consistent with the purposes listed in section 4003. Section 4003 lists five purposes for the child protection statutes: (1) to authorize DHS to protect and assist abused or neglected children, children at risk, and their families; (2) to authorize the removal of children in jeopardy from their parents' custody; (3) to prioritize reunification and rehabilitation of families without causing needless delays in making permanent plans for children; (4) to promote the swift establishment of permanent plans; and (5) to require periodic DHS reports to the legislature. 22 M.R.S.A. § 4003 (1992 & Supp. 2000). {5} . Ordinarily no appeal is available from an order entered pursuant to 22 M.R.S.A. §§ 4005-B or 4038. See 22 M.R.S.A. § 4006 (Supp. 2000). In these unique circumstances, when a party has challenged the constitutionality of the statute and that challenge may evade review, we accept the matter for appellate review. {6} . The grandmother failed to inform DHS of the protection from abuse order until she had had two months of in-home visits with Richard.