Rosalind LEHRER et al.
Phillip DAVIS et al.
Argued Jan. 3, 1990.
William H. Narwold, with whom was Karen L. Goldthwaite, Hartford, for appellants (defendants).
Bruce A. Chamberlain, for appellees (plaintiffs).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, GLASS and HULL, JJ.
PETERS, Chief Justice.
This appeal comes to us, by way of reservation, as a challenge to the constitutionality of our visitation statute, General Statutes § 46b-59.  The [214 Conn. 233] plaintiffs, Rosalind and Irving Lehrer, brought this action seeking a court order to permit them to visit Rosalind Lehrer's grandchildren, who are the minor children of the defendants, Phillip and Penny Davis. The defendants moved to strike the plaintiffs' cause of action on two related grounds, that the common law afforded them no authority for such relief and that the visitation statute was unconstitutional. At the request of all the parties, the trial court granted a motion for reservation upon stipulated facts to have this court resolve the question of the constitutional validity of § 46b-59.  Because we conclude that the question was improvidently reserved, we remand the case for trial.
Although the question reserved for our advice asks us to determine the constitutionality of § 46b-59 as applied to the facts of this case, the facts to which the parties have stipulated are extremely sparse. As background information, the stipulation acknowledges that the plaintiff Rosalind Lehrer is the natural paternal grandmother of the defendants' children, and that the plaintiff Irving Lehrer is their step-paternal grandfather. The stipulation notes the status of the children as minors, their respective dates of birth being March 16, 1977, and April 23, 1981. The stipulation also [214 Conn. 234] lists the domicile of each of the parties. Only two paragraphs of the stipulation, however, touch on the merits of the issue of visitation: "[t]he defendants and their children are an intact family, living together; no separation or dissolution of the marriage is contemplated"; Paragraph 8; and "[t]he defendants' children have never lived with the plaintiffs and have had virtually no face-to-face or telephone contact with the plaintiffs for over one year." Paragraph 9.
This stipulation is noteworthy for what it does not reveal. Without intending to be exhaustive, we observe the absence of any stipulated facts about: the extent of the earlier relationship between the plaintiffs and the children; the reasons for the defendants' termination of face-to-face or telephone contact between the plaintiffs and the children; the presence or absence of reason to believe that one or both of the plaintiffs may abuse the children or act in some other way inconsistent with their best interest; the presence or absence of reason to believe that one or both of the defendants may be abusing the children or may be acting in some other way inconsistent with their best interest; or the opinions of the children themselves with respect to the proposed visitation. For all practical purposes, this stipulation is a request for advice
about the facial validity of our visitation statute.
Several recent cases in this court counsel against the adjudication of constitutional questions in a factual vacuum. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78, 502 A.2d 896 (1985). "A party mounting a constitutional challenge to the validity of a statute must provide an adequate factual record in order to meet its burden of demonstrating the statute's adverse impact on some protected interest of its own, in its own particular case, and not merely under some hypothetical [214 Conn. 235] set of facts as yet unproven. Whether a case comes to us by way of reservation or after a final judgment, the rule is the same. We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments. 'Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.' International Longshoremen's & Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, , 98 L.Ed. 650 (1954). In the absence of weighty countervailing circumstances, facial invalidation of a statute is improvident. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S.Ct. 2794, [2800-01,] 86 L.Ed.2d 394 (1985)." Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, supra.
Without an adequate factual record, we are confronted with severe obstacles in undertaking a constitutional review of § 46b-59. The problem we face is illustrated by the parties' disparate view of the underlying events that precipitated this litigation. The defendants, who are the moving parties on the constitutional claim, take issue with the plaintiffs' factual assertions in their brief to this court about their prior relationship with the children and their communication difficulties with the defendants. The defendants maintain, in their reply brief, that we should disregard the plaintiffs' assertions because their accuracy is disputed and because they are irrelevant, since "these 'facts' are not part of the record...." The defendants apparently would have us rely on the record despite its failure to resolve a factual controversy that obviously bears on the determination of the best interest of the children, the only statutory criterion for the exercise of judicial discretion provided by § 46b-59. Temple v. Meyer, 208 Conn. 404, 410, 544 A.2d 629 (1988). If we [214 Conn. 236] were to subscribe to such an approach, we would be turning the well established principles that govern due process jurisprudence on their head. Until the defendants establish a factual basis for the alleged violation of their constitutional rights, they have not established the predicate conditions for the adjudication of their constitutional claim. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O'Neill, supra; Weil v. Miller, 185 Conn. 495, 501-502, 441 A.2d 142 (1981); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966).
The fact-bound nature of the defendants' constitutional challenge to § 46b-59 permeates every aspect of their due process claim. Neither their general parental rights to raise their children without unwarranted state interference nor their stipulated status as an intact family provides a basis for us to consider their constitutional claims, on the present record, as a matter of law.
"It is, of course, true that 'freedom of personal choice in matters of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.' Cleveland Board of Education v. LaFleur, [414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974) ]." Smith v. O.F.F.E.R., 431 U.S. 816, 842, 97 S.Ct. 2094, 2108, 53 L.Ed.2d 14 (1977); Nye v. Marcus, 198 Conn. 138, 144, 502 A.2d 869 (1985). Our law "recognizes that parents have significant constitutionally protected rights to the companionship, care, custody and management of their children. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511, reh. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645,
651, 92 S.Ct. 1208, [1212,] 31 L.Ed.2d 551 (1972); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985)." Cappetta v. Cappetta, 196 [214 Conn. 237] Conn. 10, 14, 490 A.2d 996 (1985); see also Wisconsin v. Yoder, 406 U.S. 205, 232-33, 92 S.Ct. 1526, 1541-42, 32 L.Ed.2d 15 (1972); Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195, reh. denied, 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). "This right to family integrity includes 'the most essential and basic aspect of familial privacy--the right of the family to remain together without the coercive interference of the awesome power of the state.' Duchesne v. Sugarman, [566 F.2d 817, 825 (2d Cir.1977) ]." In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983).
The family is not, however, beyond regulation in the public interest, and the rights of parenthood are not beyond limitation. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); McGaffin v. Roberts, supra, 193 Conn. at 401, 479 A.2d 176. The state's countervailing interest in the welfare of a child justifies appropriately bounded state intervention; In re Juvenile Appeal (83-CD), supra, 189 Conn. at 285, 455 A.2d 1313; State v. Anonymous, 179 Conn. 155, 165, 425 A.2d 939 (1979); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 661-62, 420 A.2d 875 (1979);  as long as the state acts in accordance with the requirements of procedural due process.  What process [214 Conn. 238] is due depends upon the intrusiveness of the competing state concern. Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982); Lavertue v. Niman, 196 Conn. 403, 408, 493 A.2d 213 (1985); In re Juvenile Appeal (83-CD), supra, 189 Conn. at 297, 455 A.2d 1313; see also Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Significantly, even when the contemplated state intrusion is most severe, as in an action for termination of parental rights, the state is required only to provide an appropriately demanding standard of proof so as to guarantee "fundamentally fair procedures." (Emphasis added.) Santosky v. Kramer, supra, 455 U.S. at 754, 102 S.Ct. at 1395. Lesser intrusions, such as custody orders, represent a "difference in kind and not in degree"; McGaffin v. Roberts, supra, 193 Conn. at 406, 479 A.2d 176; from termination proceedings, and thus permit intervention on a lesser standard of proof. The constitutional requirement of procedural due process thus invokes a balancing ...