CHAFFEE COUPLE ARGUES FOR RIGHTS AS GRANDPARENTS

For all but a few months of her life, a baby girl from Chaffee, Mo., has been at the center of a court battle pitting grandparents' rights against parents' will.

So far in Missouri courts, the grandparents are winning.

Cape Girardeau Circuit Judge John Grimm decided in January 1999 the state statute governing grandparents' rights to see their grandchildren was constitutional and applicable to the case of Robert and Linda Cabral of rural Bollinger County.

Missouri's Eastern District Appeals Court upheld the ruling last month, but if you ask Robert and Linda Cabral, they don't feel like winners.

"It has been a long, difficult ordeal," said Linda Cabral.

The Cabrals have not seen their granddaughter, who will be 3 in November, since May 1998.

The girl's parents, Joseph and Mary Cabral, have said they should be able to raise their daughter without interference from Joseph Cabral's parents or the state.

The parents have asked the Missouri Supreme Court to hear their case.

"This is going to determine how far the government can intrude on the rights of a parent," said attorney James McClellan of Sikeston, Mo., who represents the girl's parents.

When the baby was born Nov. 5, 1997, everyone got along, court records say. Joseph Cabral was working for his father's construction firm, and the baby had regular visits with her paternal grandparents.

During some visits, the parents have said they were not happy with the way Linda Cabral was treating their baby. They stated that the girl was held without proper neck support. Medication and diaper rash ointment were used by the grandmother against parents' wishes, and an alleged shaking occurred once to make the baby stop crying.

However, the grandparents have said they were never told of any problems until June 1998. That's when Robert Cabral fired his son.

After Joseph Cabral lost his job, he told his brother their parents would never see the baby again, the court states.

Although the grandparents attempted to reconcile their disagreements, Joseph and Mary Cabral would not change their minds.

Instead, Joseph Cabral filed assault charges against his father for allegedly throwing an air compressor at him in June 1998, and an order of protection was sought to keep the grandparents away.

Eventually the grandparents took Joseph and Mary Cabral to court to see their granddaughter. Three days of hearings were held in November and December 1998. In January 1999, Grimm announced his decision after receiving a report from a court-appointed guardian.

"The evidence is clear that Respondents are good parents and have done a proper job in taking care of their child," Grimm wrote. "Nevertheless, it appears that their reasons for denying visitation to the Petitioners were mostly petty and immature, and therefore unreasonable."

Grimm allowed visitation under the following conditions:

* Visits could take place once every three months for two hours.

* Staff of an independent family services firm would supervise the visits.

* The parents could choose to be present at the visits.

The first visit was scheduled for March 27, 1999. Robert and Linda Cabral had asked if they could take photographs of their granddaughter and were told this would be fine.

When Joseph Cabral was contacted, he said he did not want his parents touching, holding or taking photographs of the baby. Donald S. Johnson of Youth and Family Services Inc. told Joseph Cabral that, in light of the court decision, these would be allowed as long as the baby wasn't upset.

The maternal grandfather, David Kieffer, was listening to the conversation on another phone in his son-in-law's home. He called the court-ordered visitation "communist activity," Johnson said.

On the day of the 2 p.m. visit, the grandparents arrived at 1:30 p.m., but neither the baby nor her parents came, Johnson wrote in a letter to Grimm. They waited until 4 p.m., but no phone call was made by the parents, he said.

Joseph and Mary Cabral had decided to appeal Grimm's decision through attorney McClellan.

Before the Eastern District Appeals Court, McClellan presented evidence Missouri's law providing grandparents visitation rights is unconstitutional, violating the due process clause of the Fourteenth Amendment.

McClellan cited a 1993 Missouri Supreme Court case, Herdon v. Tuhey. Even though the case ultimately found in favor of the grandparents, McClellan highlighted the dissenting opinions of justices Ann Covington and Stephen Limbaugh Jr., who wrote that the "fundamental liberty interest" of the parents must be protected.

It was also argued that a U.S. Supreme Court decision in June regarding a Washington state case found in favor of the parents.

However, the three-judge panel for the Appeals Court ruled the Washington visitation law was extremely broad compared to Missouri's, which ultimately protects parents' rights, stated Judge Mary R. Russell.

In Missouri, grandparents can only seek court intervention if a denial of visitation is both unreasonable and has continued for at least 90 days. Russell stated the Herdon v. Tuhey decision came to the same conclusion.

McClellan still believes the U.S. Supreme Court's decision should be used to overturn the Herdon v. Tuhey decision, and plans to argue this before the state Supreme Court.

The majority of judges in the Herdon case had decided that occasional visits were permissible if a court found that the visits were in a child's best interests.

"But in the U.S. Supreme Court's decision, if you have a fit parent, his decision is presumed to be in the best interest of the child," McClellan said.

With two new judges added to the Missouri Supreme Court since the 1993 Herdon case, McClellan hopes this might make for a different interpretation of the law.

Changes in society, with increased divorce rates and family mobility from city to city, makes the issue of grandparents' rights much larger, said James Hahn II, attorney for Robert and Linda Cabral.

"The custodian of last resort before the state has always been the grandparents," Hahn said.