82
Stevens, J., dissenting
statute.2 Any as-applied critique of the trial court's judgment that this Court might offer could only be based upon a guess about the state courts' application of that State's statute, and an independent assessment of the facts in this case—both judgments that we are ill-suited and ill-advised to make.3
2 As the dissenting judge on the state appeals court noted, "[t]he trial court here was not presented with any guidance as to the proper test to be applied in a case such as this." In re Troxel, 87 Wash. App. 131, 143, 940 P. 2d 698, 703 (1997) (opinion of Ellington, J.). While disagreeing with the appeals court majority's conclusion that the state statute was constitutionally infirm, Judge Ellington recognized that despite this disagreement, the appropriate result would not be simply to affirm. Rather, because there had been no definitive guidance as to the proper construction of the statute, "[t]he findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings." Ibid.
3 Unlike Justice O'Connor, ante, at 69-70, I find no suggestion in the trial court's decision in this case that the court was applying any presumptions at all in its analysis, much less one in favor of the grandparents. The first excerpt Justice O'Connor quotes from the trial court's ruling, ante, at 69, says nothing one way or another about who bears the burden under the statute of demonstrating "best interests." There is certainly no indication of a presumption against the parents' judgment, only a " 'commonsensical' " estimation that, usually but not always, visiting with grandparents can be good for children. Ibid. The second quotation, " 'I think [visitation] would be in the best interest of the children and I haven't been shown it is not in [the] best interest of the children,' " ibid., sounds as though the judge has simply concluded, based on the evidence before him, that visitation in this case would be in the best interests of both girls. Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 1994), p. 214. These statements do not provide us with a definitive assessment of the law the court applied regarding a "presumption" either way. Indeed, a different impression is conveyed by the judge's very next comment: "That has to be balanced, of course, with Mr. and Mrs. Wynn [a.k.a. Tommie Granville], who are trying to put together a family that includes eight children, . . . trying to get all those children together at the same time and put together some sort of functional unit wherein the children can be raised as brothers and sisters and spend lots of quality time together." Ibid. The judge then went on to reject the Troxels' efforts to attain the same level of visitation that
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