Appeal from the Circuit Court of Jefferson County. No. 93-F-92 Honorable Terry H. Gamber, Judge, presiding.
The opinion of the court was delivered by: Justice Maag delivered the opinion of the court:
IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
This action was brought in April of 1993 by Carolyn and John West (grandparents) to obtain visitation rights with their grandson, Jacob Dean West. Jacob was born January 27, 1992. He is the biological son of Ginger West and Gregory West, Carolyn and John's deceased son. In June of 1993, when Jacob was approximately 17 months old, the grandparents were granted accelerating visitation privileges. The visitation began with brief visits every Saturday for six consecutive weeks in the presence of Ginger and culminated with alternating weekends, two weeks every summer, and December 26 and 27 yearly.
In June of 1995, Ginger filed a petition to modify the order of visitation, which was denied. In February of 1996, after various petitions were filed requesting Ginger to show cause why she should not be held in contempt for not complying with the June 1993 order of visitation, Ginger filed a petition to terminate the grandparental visitation privileges of Carolyn and John. On May 15, 1996, Ginger filed a notice of claim of unconstitutionality of the grandparental visitation statute (750 ILCS 5/607(b) (West 1996)). The trial court denied Ginger's motion to declare the statute unconstitutional. A notice of appeal was filed on this issue in December of 1996.
The relevant facts are as follows. Carolyn and John West are the paternal grandparents of Jacob West. Jacob is the biological son of Gregory and Ginger West. Gregory West, son of Carolyn and John, committed suicide in January of 1993.
In June of 1993, the circuit court of Jefferson County entered an order establishing visitation privileges for Carolyn and John with Jacob. The trial court made a finding that it was in the best interest of the child that such visitation should occur, but the court did not disclose the basis of its finding.
In July of 1995, Ginger filed a petition to modify the June 1993 order of visitation. In August of 1995, Ginger unilaterally terminated the scheduled visitations. After Ginger refused to comply with the 1993 visitation order, Carolyn and John filed a series of petitions seeking a rule to show cause why Ginger should not be held in contempt of court for her noncompliance. In February of 1996, Ginger filed a petition to terminate Carolyn's and John's visitation privileges. In May of 1996, Ginger filed a motion to declare the grandparental visitation statute unconstitutional. In June of 1996, a hearing was held on the various issues in this case.
At this hearing, there was testimony that soon after Jacob began visiting with John and Carolyn, he began exhibiting changes in his behavior, all of which coincided with the visits. He began to speak with a speech impediment caused by a disfigurement of his face, which involved him twisting his mouth downwards and to the right. He regressed in his toilet training. He experienced periods of hysterical crying and nightmares. He became fearful of his mother and exhibited instances of self-abuse, when he would hit or bite himself when he thought he had done something wrong.
In August of 1995, Ginger took Jacob for a psychiatric evaluation. During this evaluation, Ginger found out that Jacob had been told how his father died. She had not told him the details of his father's death because she felt he was too young to cope with them. Carolyn and John deny telling him the details. Jacob told his maternal grandmother that Carolyn and John told him Ginger did not love him. Carolyn and John also deny telling him this.
The doctors concluded that Jacob suffered from traumatic stress disorder that is related to some aspect of visitation with Carolyn and John. The doctors could not determine with certainty whether the disorder was caused by something that transpired during visitation or whether it was caused by the active conflict between his mother and grandparents. One doctor opined that the disorder was caused by the visitation schedule that was set up with his paternal grandparents when he was less than two years old, which caused him to be separated from his mother.
Based upon findings by the doctors and the changed behavior patterns of Jacob, the Illinois Department of Children and Family Services (DCFS) conducted an investigation. DCFS determined that there was a risk of harm to the child from future contact with John. This was based on statements made by Jacob that he and his grandfather had a "bad secret" that he could not tell anyone and was based on other statements by Jacob which suggested he had been sexually abused. DCFS made a further finding of credible evidence of child abuse and/or neglect. These findings, combined with the findings of the doctors during the psychiatric evaluations, led Ginger to stop the visits between Jacob and his grandparents and to seek the modification and later termination of Carolyn's and John's visitation privileges.
The trial court denied Ginger's motion challenging the constitutionality of the grandparental visitation statute. The trial court chose to modify the visitation privileges of Carolyn and John to supervised visitation to take place one Sunday per month for three hours in the home of Jacob's maternal grandmother, instead of terminating visitation. Carolyn and John appealed the restriction of visitation. Ginger cross-appealed the ruling of the trial court denying her motion to find the grandparental visitation statute unconstitutional.
On April 24, 1997, John West moved for a voluntary dismissal of the grandparents' appeal, Carolyn West then being deceased. John's motion was granted. Ginger proceeded with her cross-appeal.
The issue presented for review on appeal is whether section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607(b) (West 1996)), insofar as it pertains to grandparental visitation privileges, is unconstitutional as violative of the fundamental liberty rights of parents to the care and custody of their children, which are guaranteed to them by the fourteenth amendment to ...