Groves v. Clark

• Decision Date: 28 May 1999
• Docket Number: No. 98-050.,98-050.
• Citation: 982 P.2d 446,1999 MT 117
• Court: Montana Supreme Court
• Parties: Debbie GROVES, Petitioner and Respondent, v. Lon and Loralee CLARK, Respondents and Appellants.

982 P.2d 446

1999 MT 117

Debbie GROVES, Petitioner and Respondent, v. Lon and Loralee CLARK, Respondents and Appellants.

No. 98-050.

Supreme Court of Montana.

Submitted on Briefs October 1, 1998.

Decided May 28, 1999.

Darcy M. Crum, Great Falls, Montana, for Appellants.

David Stuft, Kalispell, Montana, for Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶ 1 Lon and Loralee Clark (the Clarks), adoptive parents of L.C., appeal from the Findings of Fact, Conclusions of Law, and Judgment entered by the Eighth Judicial District Court, Cascade County, allowing Debbie Groves(Groves), L.C.'s birth mother, monthly weekend visitation and weekly telephone contact with L.C. The Clarks also appeal the court's denial of their motion for a new trial. We affirm.

¶ 2 The Clarks present the following issues for review:

¶ 3 1. Did the District Court err in finding that post-adoption visitation with Groves was in the best interest of L.C.?

¶ 4 2. Did the District Court err in modifying sua sponte the parties' post-adoption visitation agreement?

¶ 5 3. Did the District Court err in denying the Clarks' Rule 59, M.R.Civ.P. motion for a new trial?

BACKGROUND

¶ 6 This is the second appeal filed in this case concerning post-adoption visitation between Groves and L.C. A more detailed account of the facts of this case can be found in Groves v. Clark (1996), 277 Mont. 179, 920 P.2d 981 (hereinafter Groves I). To summarize, in January 1994, when L.C. was three years old, Groves signed a document terminating her parental rights to L.C., relinquishing custody of L.C. to Lutheran Social Services (LSS), and consenting to adoption. Groves and the Clarks signed a written visitation agreement which provided the following: Groves would have unrestricted visitation with L.C. so long as she gave the Clarks two days notice; Groves would have unrestricted telephone contact with L.C.; and Groves would have the right to take L.C. out of school in the event she had to "go to Butte for some emergency." This agreement was drafted by the LSS and neither party consulted an attorney before signing it. In February 1994, the District Court entered an order terminating Groves' parental rights to L.C. and awarding custody of L.C. to LSS. In September 1994, the Clarks legally adopted L.C.

¶ 7 Groves and the Clarks abided by the terms of the visitation agreement until June 5, 1995, when Groves notified the Clarks that she wanted to take L.C. to Butte for the weekend and the Clarks refused. The Clarks told Groves that she was welcome to visit L.C. in their home, but could not take L.C. on extended out-of-town trips. Several weeks later, Groves filed a petition requesting specific performance of the visitation agreement. The Clarks filed an objection and brief in opposition to the petition which the parties agreed could be treated as a motion for summary judgment.

¶ 8 In December 1995, the District Court denied Groves' petition for specific performance of the visitation agreement. The court concluded that, pursuant to § 40-8-125, MCA, and our holding in In re C.P. (1986), 221 Mont. 180, 717 P.2d 1093, the document whereby Groves terminated her parental rights and relinquished custody of L.C. to LSS constituted the final, controlling agreement concerning relations between Groves and L.C. Because that document did not reserve any visitation, the court concluded that Groves was not entitled to post-adoption visitation. Based on these conclusions, the court held that the post-adoption visitation agreement was void and unenforceable. Groves appealed to this Court.

¶ 9 This Court reversed the District Court concluding that In re C.P. was distinguishable from the instant case. Groves I, 277 Mont. at 183, 920 P.2d at 983. We noted that in In re C.P., the parties had not discussed visitation rights of the birth parents let alone reached any agreement. In contrast, Groves and the Clarks specifically bargained for the right of visitation and voluntarily signed a written notarized agreement which provided the terms of the visitation arrangement. Groves I, 277 Mont. at 183, 920 P.2d at 983-84. We further noted that after deciding In re C.P., the Montana Legislature enacted § 40-8-136, MCA (1995), which we interpreted as providing for the recognition of agreements for post-adoption contact and visitation. Groves I, 277 Mont. at 184-85, 920 P.2d at 984. On this basis, we held:

[B]irth parents and prospective adoptive parents are free to contract for post-adoption visitation and ... trial courts must give effect to such contracts when continued visitation is in the best interest of the child.

Groves I, 277 Mont. at 186, 920 P.2d at 985. We remanded the case to the District Court for a hearing on whether enforcement of the parties' visitation agreement would be in the best interest of L.C. Groves I, 277 Mont. at 187, 920 P.2d at 985-86.

¶ 10 The District Court held a hearing on September 3, 1997. Based on the evidence produced at trial, the court found that a bond existed between Groves and L.C. and that it was highly likely L.C. would suffer from issues of abandonment, identity, and grieving unless appropriate visitation with Groves was granted. Ultimately, the court found that continued visitation between Groves and L.C. was in L.C.'s best interest. The court ordered continued visitation and telephone contact between Groves and L.C., but not in accordance with the terms of the parties' liberal visitation agreement. Rather, the court found that a more structured visitation arrangement was in the best interest of L.C. Specifically, the court granted Groves unsupervised monthly weekend visitation with L.C. and required the parties to share equally in the transportation costs. Additionally, the court granted Groves telephone contact with L.C. at least once per week. The court recommended that the parties seek adoption counseling and attempt to agree upon future visitation modifications that may be appropriate as L.C. matures.

¶ 11 Unsatisfied with this outcome, the Clarks filed with the court a motion for a new trial pursuant to Rule 59, M.R.Civ.P. In their brief in support of the motion, the Clarks set forth evidence which they alleged was newly discovered and asked the court to reconsider whether post-adoption visitation between Groves and L.C. was in L.C.'s best interests. The Clarks also argued that the court was without jurisdiction to modify sua sponte the express terms of the visitation agreement.

¶ 12 In an order dated December 15, 1997, the court denied the motion. The court stated that the evidence presented at trial overwhelmingly supported the finding that continued visitation between Groves and L.C. was in the best interest of L.C. The court stated that the post-trial evidence presented by the Clarks was not "newly discovered" because the Clarks had ample opportunity before trial to discover the evidence. The court stated that its "best interests" ruling was limited to the evidence produced at trial, but suggested that the post-trial evidence presented by the Clarks could be considered upon a properly filed petition for modification of visitation rights. Regarding the sua sponte modification of the parties' visitation agreement, the court stated that modification was within its discretion in accordance with determining the best interests of the child. More facts will be provided as necessary to dispose of the issues raised.

DISCUSSION

Issue 1

¶ 13 Did the District Court err in finding that post-adoption visitation with Groves was in the best interest of L.C.?

¶ 14 Like other family law disputes involving parental visitation, we review a district court's findings relating to a birth parent's right to post-adoption visitation to determine whether those findings are clearly erroneous. See In re Marriage of Syverson (1997), 281 Mont. 1, 21, 931 P.2d 691, 703. A finding is clearly erroneous if it is not supported by substantial evidence, the court misapprehended the effect of the evidence, or this Court's review of the record convinces it that a mistake has been made. Syverson, 281 Mont. at 21-22, 931 P.2d at 703.

¶ 15 The Clarks make several arguments in support of their assertion that the court erred in finding that visitation between Groves and L.C. was in L.C.'s best interests. The first argument is somewhat confusing. The Clarks first quote verbatim § 40-4-212, MCA, which lists the factors that a district court may consider when conducting a "best interests" analysis. The Clarks assert that this "best interests" standard controls in determining whether a post-adoption visitation agreement should be enforced. However, in the following paragraphs, the Clarks assert that the adoptive parents' wishes are paramount in deciding whether a post-adoption visitation agreement should be enforced. The Clarks cite several cases from other jurisdictions purportedly holding that adoptive parents have the right to determine whether it is in the best interest of the adopted child to maintain contact with the birth mother. See e.g., People in Interest of M.M. (Colo.1986), 726 P.2d 1108; In re Adoption of Hammer (1971), 15 Ariz.App. 196, 487 P.2d 417; Commonwealth ex rel. Flannery v. Sharp (1943), 151 Pa.Super. 612, 30 A.2d 810; Spencer v. Franks (1937), 173 Md. 73, 195 A. 306. The Clarks also cite cases from other jurisdictions purportedly holding that the mere fact that the adoptive parents oppose visitation provides a sufficient basis for finding that visitation is not in the best interest of the child. See e.g., Geri v. Fanto (1974), 79 Misc.2d 947, 361 N.Y.S.2d 984; In re Benjamin (1978), 93 Misc.2d 1084, 403 N.Y.S.2d 877.

¶ 16 We reject the Clarks' assertions that the adoptive parents have sole discretion, or that the adoptive parents' wishes are paramount, in deciding whether a post-adoption visitation agreement should be enforced. The law in Montana, which also happens to be the law of this case, is clear: whether a...