Smith v. Stillwell-Smith

Talmadge, J.

(concurring/dissenting) — While I agree with the majority’s holding that the plain language of RCW 26.10.160(3) and former RCW 26.09.240 provides the petitioners standing to seek visitation with the respective children in these consolidated cases, I disagree with the majority’s view that such visitation intrudes unconstitutionally into the realm of parents’ protected interests. By eliminating the limited right these statutes provides for nonparents to seek visitation with children, the majority opinion will have cruel and far-reaching effects on loving relatives, particularly grandparents of children like the Troxels here, depriving them in many instances of any contact with their grandchildren. For these reasons, I respectfully dissent.

The majority correctly determines the plain language of RCW 26.10.160(3) compels the conclusion that the petitioners in these cases had standing. But the majority holds RCW 26.10.160(3) and former RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the “ ‘care, custody and companionship of the child.’ ” Majority op. at 21 (quoting In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). This holding is based on two flawed premises: First, a parent’s fundamental right to autonomy in child-rearing decisions is unassailable, and, second, the State’s parens patriae power to act in a child’s welfare may not be invoked absent a finding of harm to the child or parental unfitness. Majority op. at 13-17.

A. Parental Rights Are Not Absolute

As the majority notes, parental rights regarding the care *24and custody of their children are well established. See Majority op. at 13-14. It is equally true, however, such rights are not absolute. As the majority asserts, the Supreme Court in Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), indeed noted “custody, care and nurture of the child reside first in the parents [,]” but went on to hold:

[b]ut the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither rights of religion nor rights of parenthood are beyond limitation . . . the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and . . . this includes, to some extent, matters of conscience and religious conviction.

Prince, 321 U.S. 166-67 (citations omitted). The majority focuses on only a portion of the equation. The constitutional issue in these consolidated cases concerns the parameters and balancing of rights and interests of the State and child, as well as those of the parents.

We have previously addressed the parameters of the rights of parents and the State’s parens patriae power to act in the child’s best interests in Sumey, 94 Wn.2d 757. There, we balanced the rights of the parents, child and State, broadly interpreting the State’s parens patriae right to intervene and protect a child as a valid justification for temporary residential placement of the child under RCW 13.32, stating:

The liberty and privacy protections of the due process clause of the Fourteenth Amendment establish a parental constitutional right to the care, custody, and companionship of the child. This constitutionally protected interest of parents has been described as a “sacred right” which is “ ‘more precious . . . than the right of life itself.’ ”
The parents’ constitutional rights, however, do not afford an absolute protection against State interference with the family relationship. Although “[historically, the natural parent’s right to custody of a child . . . [was considered to be] absolute, barring a showing of unfitness . . . [g]rowing concern *25for the welfare of the child and the disappearance of the concept of the child as property has led to a gradual modification in judicial attitude.” It is now well established that when parental actions or decisions seriously conflict with the physical or mental health of the child, the State has a parens patriae right and responsibility to intervene to protect the child. As we observed in State v. Koome, 84 Wn.2d 901, 907, 530 P.2d 260 (1975),
Although the family structure is a fundamental institution of our society, and parental prerogatives are entitled to considerable legal deference . . . they are not absolute and must yield to fundamental rights of the child or important interests of the State.
Thus, in assessing the constitutionality of a procedure which infringes upon parents’ rights to the care, custody, and companionship of their children, it is necessary to ascertain the proper balance between the parents’ constitutional rights and the State’s constitutionally protected parens patriae interest in protecting the best interests of the child.

Sumey, 94 Wn.2d at 762-63 (most citations omitted) (emphasis added) (alterations in original). Accord, Washington State Coalition for the Homeless v. Department of Soc. & Health Servs., 133 Wn.2d 894, 923, 929-30, 949 P.2d 1291 (1997).

Key to the balancing test we applied in Sumey was the degree of abridgment of parental rights which residential placement of the child entailed. We contrasted the temporary residential placement at issue with termination of parental rights and dependency proceedings. In so doing, we observed the requisite balancing called for appropriate justification for the severity of the abridgment of parental rights sought by the State. The termination of parental rights is an extreme abridgment of a parent’s constitutional rights to care, custody and companionship of a child which requires the commensurately grave circumstance of harm (physical, mental or emotional) to the child resulting from the parent’s conduct. But we contrasted this extreme abridgement with residential placement, explaining:

*26[temporary] residential placement . . . does not infringe upon parental rights as severely as does a dependency adjudication or termination of parental rights. . . . An adjudication of dependency (on grounds such as parental abuse, neglect, or abandonment) can result in placement of the child in a foster home and transfer of certain legal rights and duties to the foster parents . . ., and can ultimately result in full termination of parental rights if the parents do not correct the behavior which led to the finding of dependency. In contrast, a [temporary] residential placement. . . does not result in the transfer of any legal rights and duties to the custodians of the child and such a placement cannot serve as a basis for a subsequent termination of parental rights.

Sumey, 94 Wn.2d at 763 (citations omitted). In Sumey, we upheld the placement of the child outside the home against the parent’s wishes because:

The degree of intrusion upon the parents’ rights is relatively minor in that the parents retain custody over the child, the placement outside the home is designed to be temporary and to end as soon as the family conflict has been resolved .... On balance, the substantial interests of the State and child are sufficient to justify the limited infringement upon the parents’ rights.

Id. at 765. Similarly, where visitation is awarded to non-parents in furtherance of the best interests of the child under the visitation statutes at issue here, the parents retain custody over the child. The allowance of visitation is even less intrusive than out-of-home residential placement of a child. Thus, our rationale in Sumey suggests where visitation is awarded under the statutes in question, the minor infringement on parental rights resulting from such visitation is permissible.

Furthermore, the United States Supreme Court cases striking down state action upon which the majority relies do not argue to the contrary. They involve substantial infringements of parents’ (or others’) rights. See Majority op. at 17-18, relying on Wisconsin v. Yoder, 406 U.S. 205, 219, 92 S. Ct. 1526, 1535, 32 L. Ed. 2d 15 (1972) (grave *27endangerment or destruction of free exercise of parents’ religious beliefs); Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 534, 45 S. Ct. 571, 573, 69 L. Ed. 1070, 39 A.L.R. 468 (1925) (unreasonable interference with liberty of parents to direct the upbringing and education of their children where parents wanted to send their children to established religious or military schools); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923) (a prohibition on teaching foreign languages in any school to children who had not yet completed eighth grade); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (presumptive termination of unwed father’s parental rights). San-tosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (termination of parental rights based on insufficient evidentiary standard). Such is not the case here.

Instructive is the response of the Indiana Appellate Court, addressing the same argument the majority makes here, based on many of the same cases upon which the majority relies. Upholding its Grandparent Visitation Act, the court in Sightes v. Barker, 684 N.E.2d 224, 230 (Ind. Ct. App.), transfer denied, 690 N.E.2d 1187 (Ind. 1997), opined:

Unlike these significant infringements, visitation rights by grandparents as defined by the Act are less than a substantial encroachment on the parent’s fundamental rights or the autonomy of the nuclear family. The Act contemplates occasional, temporary visitation, which may only be allowed if a trial court finds visitation to be “in the best interests of the child.” . . . the Act does not presume that grandparent visitation is necessarily in the children’s best interest. Instead, the burden is on the grandparent, as the petitioning party, to demonstrate . . . that court-ordered visitation is in the children’s best interest. If such a showing is made, it falls to the court to evaluate the evidence, assess the circumstances, and carefully devise a visitation schedule that is in the children’s best interest.
As such, permitting grandparent visitation over the adoptive parents’ objection does not unconstitutionally impinge upon the integrity of the adoptive family.

*28Sightes, 684 N.E.2d at 230 (citations omitted). The same is true of the visitation statutes in question here. The minor encroachment of parental rights possible under these statutes is permissible under Sumey.

B. Parens Patriae

The majority’s insistence that a showing of harm to the child or parental unfitness is required before the State’s parens patriae power may be brought to bear is incorrect. In Sumey, there was no assertion of parental unfitness or harm to the child, yet we upheld the temporary residential placement of a child outside the home as a valid exercise of the State’s parens patriae power to act in the child’s best interests. See Sumey, 94 Wn.2d at 762-65. See also State v. Steinbach, 101 Wn.2d 460, 679 P.2d 369 (1984), in which Justice Dolliver, dissenting on a different issue, explained our holding in Sumey as follows:

Sumey involved the question of whether the residential placement procedures of former RCW 13.32 violate due process by authorizing placement of a minor without a prior finding of parental unfitness. In that case, the child had petitioned the court and been granted an ARP [alternative residential placement]. Her parents challenged the constitutionality of the statute. As the majority points out, the case discusses the importance of the parent-child relationship. The holding, however, is that the “limited infringement upon parental rights” by the ARP does not violate due process.

Steinbach, 101 Wn.2d at 464-65 (Dolliver, J., dissenting) (emphasis added). Indeed, the provisions of RCW 13.32 may be invoked where a parent and child are in fundamental conflict, without any showing of parental unfitness. The majority’s analysis calls such statutes into question.

Similarly, in In re Welfare of Key, 119 Wn.2d 600, 836 P.2d 200, cert. denied, 507 U.S. 927, 113 S. Ct. 1302, 122 L. Ed. 2d 691 (1993), in the context of a dependency hearing, we rejected the natural parent’s assertion that, absent a finding of parental unfitness, the court’s finding that the handicapped daughter is dependent violated the mother’s *29due process rights. Applying the Sumey balancing test, we held a finding of unfitness was not required in a dependency proceeding, noting:

Ms. Key’s interest is the same as that of any parent in a dependency proceeding. Her interest does not depend on whether she is found unfit. Instead, the presence or absence of unfitness would seem to affect only the weight of the State’s interest.

Key, 119 Wn.2d at 611 (emphasis added). Thus, even in a dependency proceeding, again a more severe abridgment of parental rights than that possible under the visitation statutes at issue here, unfitness is not a threshold trigger for exercise of the State’s parens patriae power. Both parental unfitness and harm to the child speak rather to the allowable degree of abridgment of parental rights which the state may impose in exercising its parens patriae power.6

Likewise, even in custody cases, the best interests of the child govern and unfitness is not a prerequisite for the state to exercise its parens patriae power to act on behalf of the child’s welfare. In In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16 (1981), a dissolution custody case in which the Court of Appeals affirmed the trial court’s award of custody to the stepmother of a 7-year-old deaf son born of the father’s prior marriage based on the stepmother’s extraordinary measures to aid the child, the Court of Appeals held a custody proceeding required a middle ground.

[T]o give custody to a nonparent there must be more than the “best interests of the child” involved, but less than a showing of unfitness. In extraordinary circumstances, where placing the child with an otherwise fit parent would be detrimental to *30the child, the parent’s right to custody is outweighed by the state’s interest in the child’s welfare. There must be a showing of actual detriment to the child, something greater than the comparative and balancing analyses of the “best interests of the child” test. Precisely what might outweigh parental rights must be determined on a case-by-case basis. But unfitness of the parent need not be shown.

Mien, 28 Wn. App. at 649 (emphasis added). Thus, even in a custody proceeding unfitness of a parent need not necessarily be shown. Each case is unique, save for the overarching principle that the welfare of the child is the paramount concern.

The majority’s position that, absent a threshold finding of parental unfitness or harm to the child, no intrusion on parental rights, no matter how slight, may be undertaken by the State as parens patriae acting on the child’s behalf, cannot be reconciled with the above case law.

The majority also goes too far in claiming “the Supreme Court cases which support the constitutional right to rear one’s child and the right to family privacy indicate that the state may interfere only ‘if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burden.’ Yoder, 406 U.S. at 234.” Majority op. at 17 (emphasis added). The cited case does not so hold. In Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held the Free Exercise Clause of the First Amendment barred the application of compulsory school attendance law to Old Order Amish who did not send their children to school after the eighth grade because “only those interests of the highest order and those not otherwise served pan overbalance legitimate claims to the free exercise of religion.” 406 U.S. at 215, 92 S. Ct. at 1533. Yo-der turns on the free exercise claim asserted by the Amish parents and the unique facts of that case. The Supreme Court held where the interests of parents was combined with a free exercise, claim of the nature present in that *31case, the state must show a compelling interest in requiring Amish parents to send their children to school beyond the eighth grade contrary to their religious beliefs. Referencing Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944), however, the Court went on to note that even where such greater justification for state action is required in light of the Amish parents’ free exercise claim, parental action threatening harm to the child would not be tolerated.

To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.

Yoder, 406 U.S. 233-34. Thus, the Supreme Court, in Yoder did not hold that harm is a threshold requirement for any encroachment upon parental rights, as the majority implies; but rather notes even where the circumstances of a particular case provide heightened protections for parental rights, the extreme circumstance of harm to the child clearly justifies state intervention. Accord Prince, 321 U.S. 158.

Likewise, the majority errs in concluding “[i]t is clear from Supreme Court precedent that some harm threatens the child’s welfare before the state may constitutionally interfere with a parent’s right to rear his or her child[,]” citing Prince, 321 U.S. at 170. Majority op. at 18. In Prince, the Supreme Court upheld, against assertions of free exercise and parental control, application of Massachusetts’ child labor law prohibiting girls under 18 from selling publications (here religious literature) on the streets, finding the state’s power to protect the child from harm was not diminished by the presence or direction of the child’s guardian. The exact parameters of the state’s power to intrude into parental rights/free exercise were not dis*32cussed.7 Regarding the limits of state power, the Court held only “the rightful boundary of [the state’s] power has not been crossed in this case” and noting “[o]ur ruling does not extend beyond the facts the case presents.” Prince, 321 U.S. at 170-71. Although Prince indicates state intervention in areas of religious practices or parental control is appropriate to prevent harm to a child, that case does not suggest harm to a child is a threshold requirement for any and all types of state encroachment of parental rights.

C. Grandparent Visitation Cases

Cases concerning the constitutionality of grandparent visitation statutes are also instructive as they address the constitutional legitimacy of intrusions into parental rights. The majority mentions only two such cases, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S. Ct. 377, 133 L. Ed. 2d 301 (1995). See Majority op. at 19-21. Hawk was decided on state constitutional grounds. Hawk, 855 S.W.2d at 582. See also Beagle v. Beagle, 678 So. 2d 1271, 1275-76 (Fla. 1996) (holding Florida’s grandparent visitation statute violative of the enhanced privacy rights found in art. 1, § 23 of the Florida Constitution, which provides privacy protections “broader in scope” than the federal constitution). Given the state constitutional bases of the Hawk and Beagle holdings, they are of little precedential or persuasive value here since the Washington Constitution (art. 1, § 7) affords no greater protection than the minimum protection conveyed by the federal constitution on matters other than search and seizure. See Ramm v. City of Seattle, 66 Wn. App. 15, 27, 830 P.2d 395, review denied, 120 Wn.2d 1018, 844 P.2d 437 (1992). Brooks adopted the reasoning of Hawk but declared Georgia’s grandparent visitation statute violative of both the state *33and federal constitutions. The Brooks majority, relying on termination cases, premised its holding on the notion that the extent of the intrusion upon parental rights to custody and control was irrelevant. No infringement of such rights, regardless of how small, was permissible absent a showing of harm to the child. Brooks, 265 Ga. at 194 n.6. We rejected such approach in Sumey. Indeed, our pronouncements on parens patriae in Sumey are more in harmony with the Brooks dissent which chided the majority there for its restrictive view, opining:

Following Tennessee’s lead, the majority maintains that the State’s authority to assert itself as parens patriae “is permissible only where the health or welfare of a child is threatened.” Majority, p. 193. However, in Georgia, the courts have acted as parens patriae when considering such nonthreatening items as a child’s name change, and a purported father’s petition of legitimation. In Georgia, the exercise of the parens patriae power has always had as its paramount consideration the best interests of the child, and its exercise has become synonymous with the child’s best interests and welfare.

Brooks, 265 Ga. at 199-200 (Benham, Presiding J., dissenting).

The majority cites only the minority view and fails to mention cases such as King v. King, 828 S.W.2d 630 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289 (1992), upholding Kentucky’s grandparent visitation statute against a federal constitutional challenge. See also Hawk, 855 S.W.2d at 577 n.l (“[t]he United States Supreme Court was asked to review the King case on a right-to-privacy theory and declined. The Supreme Court has never entertained a case involving the right to visitation of grandparents or other third parties.” (citation omitted)). In fact, the majority of cases in the United States have upheld grandparent visitation statutes. In upholding the constitutionality of Utah’s Grandparent Visitation Statute, the Utah Court of Appeals noted:

the vast majority of courts that have addressed the constitutionality of grandparent visitation statutes authorizing visitation if in the best interest of the child, have upheld those *34statutes as constitutional. See Sketo v. Brown, 559 So.2d 381, 382 (Fla.App. 1990); Bailey v. Menzie, 542 N.E.2d 1015, 1020 (Ind.App.1989); Spradling v. Harris, 13 Kan.App.2d 595, 778 P.2d 365, 368 (1989); King v. King, 828 S.W.2d 630, 631-32 (Ky.), cert. denied, [506 U.S. 941], 113 S.Ct. 378, 121 L.Ed.2d 289 (1992); Herndon v. Tuhey, 857 S.W.2d 203, 208 (Mo. 1993) (en banc); Roberts v. Ward, 126 N.H. 388, 493 A.2d 478, 481 (1985); People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 445 N.Y.S.2d 420, 423, 429 N.E.2d 1049, 1052 (1981); Deweese v. Crawford, 520 S.W.2d 522, 526 (Tex.App. 1975). While the Tennessee Supreme Court has held that Tennessee’s grandparent visitation statute is unconstitutional under the Tennessee Constitution, the court did not decide whether the statute is unconstitutional under the United States Constitution. See Hawk v. Hawk, 855 S.W.2d 573, 582 (Tenn. 1993). To date, only Georgia has declared a statute permitting court-ordered grandparent visitation, if in the best interest of the child, to be unconstitutional under the United States Constitution. See Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, 773-74 (1995).

Campbell v. Campbell, 896 P.2d 635, 643-44 n.18 (Utah Ct. App. 1995).

As with RCW 26.10.160(3) and former RCW 26.09.240, the Kentucky statute at issue in King allowed visitation by nonparents (i.e., grandparents) if in the best interest of the child. Cf. Ky. Rev. Stat. Ann. § 405.021, RCW 26.10.160(3) and former RCW 26.09.240. The denial of certiorari by the Supreme Court suggests the Kentucky Supreme Court correctly determined the application of the similar Kentucky statute did not go too far in intruding into the fundamental rights of parents under the federal constitution. As the Washington Constitution affords no greater protection than the federal constitution in this area, see Ramm v. City of Seattle, 66 Wn. App. 15, 27, 830 P.2d 395, review denied, 120 Wn.2d 1018, 844 P.2d 437 (1992), Washington’s similar provisions likewise withstand a constitutional challenge.8 See also Sightes v. Barker, 684 N.E.2d 224 (Ind. Ct. App.) *35(upholding Indiana’s Grandparent Visitation Act against a federal constitutional challenge as a less than substantial encroachment on the parent’s rights and a legitimate exercise of the state’s parens patriae power where such visitation serves the child’s best interests), transfer denied, 690 N.E.2d 1187 (Ind. 1997).

Even in the absence of specific statutory authority a court may exercise its parens patriae power to act in the child’s best interests regarding visitation matters, as the New Hampshire supreme court did in Roberts v. Ward, 126 N.H. 388, 493 A.2d 478 (1985). Recognizing the changing circumstances of modem families, the Roberts court awarded visitation rights to grandparents, over objections of the natural parent, based on the court’s equitable powers. While noting the importance of parental rights the court opined:

Parental autonomy is grounded in the assumption that nat*36ural parents raise their own children in nucléar families, consisting of a married couple and their children. The family has been seen as the “basic building block” of society. Parental autonomy strengthens the family and the entire social fabric “by encouraging parents to raise their children in the best way they can by making them secure in the knowledge that neither the state nor outside individuals may ordinarily intervene.”
The realities of modern living, however, demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded. . . . More varied and complicated family situations arise as divorces, and decisions not to marry, result in single-parent families; as remarriages create step-families; as some parents abandon their children; as others give them to temporary caretakers; and as still others are judged unfit to raise their own children.
One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. Stepparents, foster parents, grandparents and other caretakers often form close bonds and, in effect, become psychological parents to children whose nuclear families are not intact.
It would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship which has formed in the absence of a nuclear family.

Roberts, 126 N.H. at 391-92 (citations omitted). Emphasizing the best interests of the child to be of paramount concern the Roberts court held exercise of the parens pa-triae power to act in the child’s welfare was appropriate here:

. . . the better view is that the superior court, as an instrumentality of the State, may use its parens patriae power to decide whether the welfare of the child warrants court-ordered visitation with grandparents to whom close personal attachments have been made.
*37In determining whether or not to grant grandparental visitation, the court must consider the best interests of the child. In doing so, it recognizes that it is primarily “the right of the child to . . . know her grandparents” which is being protected and not the interests of the grandparents.
Moreover, in balancing the child’s rights to know and associate with her grandparents against the parent’s right to custodial autonomy, we note that we are dealing here only with visitation rights. “[G]ranting visitation is a far lesser intrusion, or assertion of control, than is an award of custody” and thus not nearly as invasive of parents’ rights.
Our holding today is in accord with the position taken by a number of other jurisdictions, which have found non-statutory bases for granting grandparents visitation rights.

Roberts, 126 N.H. at 392-93 (citations omitted).

D. Sufficiency of the “Best Interest” Standard

Although the majority recognizes that the severing of a meaningful relationship a child enjoys with a nonparent may be harmful to the child,9 its disposition of this case undermines the opportunity to sustain such relationships. This need not be the case. The faults the majority sees in RCW 26.10.160(3) and former RCW 26.09.240 are more imagined than real. Both RCW 26.10.160(3) and former 26.09.240 provide that the trial court may order visitation rights for a nonparent “when visitation may serve the best interest of the child[,]” but the majority finds this standard insufficient, and faults the statutes for lacking enumerated factors such as a substantial relationship between petitioner and child or consideration of any past abuse of the child by the petitioner. Majority op. at 20-21. However, such factors/ considerations are clearly subsumed under the “best *38interests of the child” determination10 which is unique in each case. See Washington State Coalition for the Homeless v. Department of Soc. & Health Servs., 133 Wn.2d 894, 931-32, 949 P.2d 1291 (1997) (“Ultimately what is in the best interests of a particular child depends on ‘a highly fact-specific inquiry that cannot be reduced to a mathematical equation.’ ”).11

*39We have long held that trial courts have broad discretion to determine the best interests of a child in cases touching upon a child’s welfare, and such determinations are given great deference. In the context of a dependency proceeding, we stated in Aschauer:

While the criteria for establishing the best interests of the child are not capable of specification, each case being largely dependent upon its own facts and circumstances, the proof necessary in order to deprive a person of his or her parental rights must be clear, cogent and convincing. If there is substantial evidence which the lower court could reasonably have found to be clear, cogent and convincing, an appellate court should not disturb the trial court’s findings. Deference paid to the trial judge’s advantage in having the witnesses before him is particularly important in deprivation proceedings, when it is borne in mind that continuity in the parent-child relationship, whether the parent figure be the natural parent or not, is increasingly recognized as a significant factor in a child’s normal development.
*40. . . Courts are always reluctant to deprive parents of rights with respect to their children, and it is particularly sad when the parent cares for the child and desires to be a good parent, as appears to be the case here. However, it is the court’s duty to see that those rights yield, when to accord them dominance would be to ignore the needs of the child.

In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980) (citations omitted).

The best interests of the child remain the court’s paramount concern. This inquiry is the touchstone by which all other rights are tested and concerns addressed in various contexts dealing with children. See, e.g., Washington State Coalition for the Homeless v. Department of Soc. & Health Servs., 133 Wn.2d 894, 923, 949 P.2d 1291 (1997) (“As in all matters dealing with the welfare of children, the court must additionally act in the best interests of the child.”); Aschauer, 93 Wn.2d at 695) (“This court has repeatedly said that the goal of a dependency hearing is to determine the welfare of the child and his best interests.”); In re Welfare of Sego, 82 Wn.2d 736, 738, 513 P.2d 831 (1973) (“a child’s welfare is the court’s primary consideration . . . when the rights of parents and the welfare of their children are in conflict, the welfare of the minor children must prevail”); In re Marriage of Littlefield, 133 Wn.2d 39, 51-52, 940 P.2d 1362 (1997) (noting in the absence of parental cooperation in a postseparation action, the trial court is given broad discretion to develop and order a parenting plan according to the guidelines set forth in RCW 26.09.187(3) and based upon the best interests of the children at the time of trial); State ex rel. Campbell v. Cook, 86 Wn. App. 761, 771, 938 P.2d 345, review denied, 133 Wn.2d 1019, 948 P.2d 387 (1997) (noting the best interests of the child are paramount in paternity proceedings, the Court of Appeals upheld trial court’s denial of the putative father’s attempt to reopen/challenge paternity determination made 13 years prior).

While our case law supports use of the “best interest” standard in matters relating to the welfare of children, *41Judge Ellington’s dissent in Troxel deftly explains why this standard is particularly appropriate here:

The statute itself contains the Legislature’s standard for both threshold and standing, in its requirement that the visitation serve the best interests of the child.
Many considerations could explain a legislative decision to leave RCW 26.10.160(3) unamended. Grandparent visitation issues come most readily to mind. For if a custody action must be pending before a grandparent may petition, then a grandparent whose child is dead—as is the Troxels’ son—and who can thus never expect a RCW 26.09 petition opportunity (because no petition will ever be pending under that chapter) also has no recourse under RCW 26.10 unless willing to allege the remaining parent is unfit—hardly a prelude to amicable relations among family members. Is there never then to be a circumstance where a child indeed has a fit parent, but also has strong ties to grandparents, warm and beneficial ties which the child’s best interests call for protecting?
The limitations which public policy may place on such petitions are fertile grounds for debate. . . . But these are matters for the Legislature, and for now, the current statute expresses one policy approach: any person may petition at any time, so long as the child’s best interests are served. It cannot be said that this approach is absurd, or even out of harmony with RCW 26.09.240.

In re Visitation of Troxel, 87 Wn. App. 131, 142-43, 940 P.2d 698 (1997) (Ellington, J., dissenting) (italics and footnotes omitted), review granted, 133 Wn.2d 1028, 950 P.2d 478 (1998). Indeed, the broad language of RCW 26.10.160(3) and former RCW 26.09.240 furthers the best interests of the child by tacitly recognizing the growth of nontraditional families and the important role members of such families may play in the child’s life.

The best interest standard lacks nothing in its brevity and retains the necessary flexibility required by a trial court in addressing the infinite circumstances and possibilities which surround child welfare determinations such as the nonparent visitation at issue in these cases. We should reiterate the best interests of the child remain the *42touchstone by which all other rights are tested and concerns addressed in various contexts dealing with children.12 In the consolidated cases before us, the trial courts in Troxel and Smith entered specific findings that visitation with the petitioners would be in the respective children’s best interest. See Troxel Findings of Fact 2.3E, Clerk’s Papers at 128; and Smith Findings of Fact 2.17, Clerk’s Papers at 6; Conclusions of Law 3.3, Clerk’s Papers at 9. The majority ignores these findings.

E. Harassment Suits

The majority also faults the statutes in question for lacking safeguards “to prevent stable families from defending in court against frivolous petitions for visitation.” Majority op. at 20. This imagined threat is also unfounded. Courts are amply provided with the means of deterring such abuses. See CR 11 (authorizing sanctions, expenses and attorney fees for frivolous claims which may be imposed sua sponte by a trial court); see also RCW 26.10.080 and 26.09.140 (providing for costs and attorney fees at the court’s discretion regarding “any proceeding under this chapter”).

CONCLUSION

The majority correctly holds the nonparents in these consolidated cases have standing to petition for visitation under the plain language of RCW 26.10.160(3) and former RCW 26.09.240. The majority is incorrect, however, in holding that such visitation, when awarded upon determination of the best interests of the child, impermissibly infringe the rights of parents. Since we have previously approved an *43encroachment of parental rights of greater magnitude than that possible under the statutes in question, the majority’s position is untenable.

In practical terms, the majority would deprive nonparties to custody proceedings in dissolutions from any opportunity to have visitation with a child even where the relationship with the child is significant and in the child’s best interest. This is cruel both to the child who may want and need a relationship with grandparents, relatives, and others, and to those third parties, many of whom are the child’s blood relatives. I decline to apply such an approach that is oblivious to the varied relationships that flourish in our society.

As the requisite finding of best interest of the child has been made in Troxel and Smith, the trial courts’ orders granting visitation should be reinstated/affirmed. Because the trial court in Wolcott found petitioner Clay to have no standing under a theory we reject, and did not reach the issue of best interest of the child, that case should he remanded for further proceedings including a determination regarding the best interest of the child. I would reverse the Court of Appeals in Wolcott and remand for further proceedings, reverse the Court of Appeals in Troxel and reinstate the trial court’s order, and affirm the trial court in Smith.

Durham, C.J., and Guy and Alexander, JJ., concur with Talmadge, J.

Motions for reconsideration denied April 6, 1999.

Thus the majority’s reliance on Sumey in asserting “[t]his court has emphasized that a state can intrude upon a family’s integrity pursuant to its parens patriae right only when ‘parental actions or decisions seriously conflict with the physical or mental health of the child’ ” is misplaced. Majority op. at 18 (emphasis added). Indeed, recognizing that the State has not merely a right, but the responsibility to intervene when the severe circumstance of harm to the child is present is the starting point of Sumey’a parens patriae analysis. It does not end there however, as the above discussion explains. See Sumey, 94 Wn.2d at 762-65.

After noting the “custody, care and nurture of the child reside first in the parents,” the Court went on to hold “neither rights of religion nor rights of parenthood are beyond limitation . . . the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare!.]” Prince, 321 U.S. 161-67 (citations omitted).

The majority has correctly refrained from an analysis based on state constitutional grounds as urged by appellant Stillwell who asserted “[ajrticle 1, *35§ 7 of the Washington Constitution mandates greater protection of the ‘private affairs’ of the family under the six . . . factors ... in State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986)[,]” Br. of Appellant at 14-18. This argument was rejected in Ramm v. City of Seattle, 66 Wn. App. 15, 23-27, 830 P.2d 395, review denied, 120 Wn.2d 1018, 844 P.2d 437 (1992), wherein the Court of Appeals held:

Our examination of the six Gunwall factors persuades us that, on matters not involving search and seizure, Const, art. 1, § 7 affords no greater protection than the minimum protection afforded by the federal constitutional analysis.

Ramm, 66 Wn. App. at 27 (emphasis added). Stillwell cites In re Detention of D.A.H., 84 Wn. App. 102, 110, 924 P.2d 49 (1996), for the proposition that our state constitution provides greater privacy protection than the expectations created by the Fourth Amendment. Reply Br. of Appellant at 9. D.A.H. relies, however, on a search and seizure case, State v. Boland, 115 Wn.2d 571, 577-78, 800 P.2d 1112 (1990), for that statement and failed to recognize the distinction between autonomy and search and seizure cases as Ramm does. See Ramm, 66 Wn. App. at 23-27, discussing Boland.

Stillwell also misstates Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); which found the Florida grandparent visitation statute violative of the state constitution, asserting the case to note “Washington’s Constitution provides express privacy protections similar to those relied upon by the Florida Supreme Court. 678 So. 2d at 1275 n.9.” Br of Appellant at 18. However, in Beagle, the Florida court actually notes the Florida Constitution provides greater privacy protection than the federal constitution and lists Washington among states which include privacy protections in their search and seizure constitutional provisions. See Beagle, 678 So. 2d at 1275 & n.9. This interpretation comports with the Ramm holding (cited above) noting heightened protection regarding searches and seizures only.

“We recognize that in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child.” Majority op. at 20.

Although it appears the majority would be more comfortable with an enumeration of “best interest” factors such as those appearing in the current version of RCW 26.09.240(6), even that statute makes clear that such enumeration is illustrative only. See RCW 26.09.240(6) (“The court may consider the following factors when making a determination of the child’s best interests:”) (emphasis added) and .240(6)(h) (“Any other factor relevant to the child’s best interest.”). RCW 26.09.240(6) states in full:

(6) The court may consider the following factors when making a determination of the child’s best interests:
(a) The strength of the relationship between the child and the petitioner;
(b) The relationship between each of the child’s parents or the person with whom the child is residing and the petitioner;
(c) The nature and reason for either parent’s objection to granting the petitioner visitation;
(d) The effect that granting visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(e) The residential time sharing arrangements between the parents;
(f) The good faith of the petitioner;
(g) Any criminal history or history of physical, emotional, or sexual abuse or neglect by the petitioner; and
(h) Any other factor relevant to the child’s best interest.

Should a listing of “best interest” factors be necessary, as the majority insists, we are not without authority to provide them. Again, the New Hampshire supreme court’s approach in Roberts is instructive. Like the majority here, the Roberts court recognized the importance of continuity and stability in children’s close relationships, Roberts, 126 N.H. at 392-93, and, relying on its equity powers, established six factors to be considered when acting in the child’s best interests when considering a petition for visitation by grandparents.

Factors which the court may consider in determining whether or not to grant grandparental visitation include: [1] whether the child has lived with the grandparents and the length of that residence; [2] whether the grandparents have stood in loco parentis to the child; [3] the effect on the child’s physical and emotional health engendered by visitation or lack of it; [4] the circumstances which resulted in the absence of a nuclear family; and [5] the child’s preference regarding visitation. ... [6] The fact that there is friction *39between the parents and grandparents will not in and of itself preclude granting visitation rights but may be considered among all the surrounding circumstances.

Roberts, 126 N.H. at 394 (citations omitted). Substituting “petitioner” for “grandparents” in the above criteria would provide the factors the majority seeks, and like the New Hampshire supreme court, we may provide trial courts with guiding considerations in matters concerning a child’s well-being. See In re Dependency of J.B.S., 123 Wn.2d 1, 11, 863 P.2d 1344 (1993) (holding the best interests of the child prevail when the rights of parent and child conflict, and providing guiding considerations for the trial court in the event of a future motion for change of placement). Any such enumeration of factors, however, would be illustrative only, and subsumed under the “best interest” standard in any event. Such listing is therefore unnecessary. Under the umbrella of the best interest standard a trial court considers the unique circumstances of each case when deciding issues affecting a child’s welfare. As we stated in the dependency case of In re Welfare of Becker, 87 Wn.2d 470, 477-78, 553 P.2d 1339 (1976):

While our statutes and judicial opinions may set forth the goal, the criteria for establishing the best interests for the welfare of the child are conspicuous by their absence. The complexity of the cases and the need for careful individual treatment militates against the mandatory consideration of certain specified factors in every case. Nevertheless, the courts have broad discretion and are allowed considerable flexibility to receive and evaluate all relevant evidence in reaching a decision that recognizes both the welfare of the child and parental rights.

(Citations omitted.)

See Beagle v. Beagle, 678 So. 2d 1271, 1275 (Fla. 1996). While finding the Florida grandparent visitation statute violative of the state constitution, the Florida Supreme Court acknowledged other states had upheld their grandparent visitation statutes against federal constitutional challenges, noting: “[i]n those cases a best interest standard was deemed to be sufficient.” Id. at 1275 (citing Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993); Lehrer v. Davis, 214 Conn. 232, 571 A.2d 691 (1990); Bailey v. Menzie, 542 N.E.2d 1015 (Ind. Ct. App. 1989); Spradling v. Harris, 13 Kan. App. 2d 595, 778 P.2d 365 (1989); King v. King, 828 S.W.2d 630 (Ky.), cert. denied, 506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289 (1992); Ridenour v. Ridenour, 120 N.M. 352, 901 P.2d 770 (Ct. App.), cert. denied, 120 N.M. 68, 898 P.2d 120 (1995)).