Howlett v. Stellingwerf, 022818 SDSC, 27835-r-JMK
|Opinion Judge:||KERN, JUSTICE|
|Party Name:||CHRISTOPHER HOWLETT, Plaintiff and Appellant, v. KARLYN STELLINGWERF, Defendant, and AMBER STELLINGWERF, Defendant and Appellee.|
|Attorney:||JANET C. OLSON Sioux Falls, South Dakota Attorney for plaintiff and appellant. JASON R. ADAMS Tschetter & Adams Law Offices, PC Sioux Falls, South Dakota Attorneys for defendant and appellee.|
|Judge Panel:||GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and WILBUR, Retired Justice, concur. JENSEN, Justice,|
|Case Date:||February 28, 2018|
|Court:||Supreme Court of South Dakota|
CONSIDERED ON BRIEFS ON OCTOBER 2, 2017
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN PEKAS Judge
JANET C. OLSON Sioux Falls, South Dakota Attorney for plaintiff and appellant.
JASON R. ADAMS Tschetter & Adams Law Offices, PC Sioux Falls, South Dakota Attorneys for defendant and appellee.
[¶1.] Christopher Howlett appeals from an order granting primary physical custody of his minor child to her maternal grandmother. Howlett argues the circuit court erred by analyzing the issue as a custody case between parents rather than between a parent and a third party. Further, Howlett contends the grandmother failed to rebut his presumptive right to custody. We reverse and remand.
Facts and Procedural History
[¶2.] Howlett (Father) and Karlyn Stellingwerf (Mother) are the biological parents of L.S. In June 2011, Father, a 42-year-old married man, initiated a sexual relationship with Mother, who was sixteen years old. Mother became pregnant as a result. At the time of the relationship, Mother lived with her mother Amber Stellingwerf (Grandmother) and Mother's two younger siblings, a thirteen-year-old sister and a six-year-old brother with special needs. Grandmother obtained a temporary protection order against Father because Mother continued to visit him despite Grandmother's wishes. The temporary protection order was later dismissed. Father had little communication with Mother during her pregnancy.
[¶3.] On September 22, 2012, Mother gave birth to a baby girl, L.S. Mother continued living with Grandmother. Within a year of L.S.'s birth, Mother briefly ran away from home, leaving L.S. with a friend. Mother's friend called the Department of Social Services, who placed L.S. with a foster family for two weeks before releasing L.S. into Grandmother's care. According to Father, DSS did not involve him in the case because L.S.'s birth certificate did not list him as the father. Further, it became difficult to maintain contact with Mother as she did not have a consistent residence or workplace. Grandmother disputes this, claiming Father neither cared about the pregnancy nor attempted to be involved with raising L.S. By the time of her first birthday, L.S. was in the primary care of Grandmother.
[¶4.] In May 2015, Grandmother petitioned to become guardian and conservator of L.S. On May 28, 2015, the court handling the guardianship proceeding granted the petition and appointed Grandmother as temporary guardian and conservator. Shortly thereafter, Father served Mother and Grandmother with a summons and complaint seeking to terminate the temporary guardianship and to obtain legal and physical custody of L.S. Grandmother counterclaimed, requesting dismissal of Father's complaint, permanent guardianship over L.S., child support, and attorney's fees. Mother did not respond to Father's summons and complaint. On July 15, 2015, Father filed a motion for interim visitation in the custody case, which was assigned to a different judge. The custody court-which is the circuit court appealed from in this case-held a hearing and deferred ruling. The parties later agreed to additional visitation through stipulation and agreement.
[¶5.] On August 27, 2015, and September 2, 2015, the circuit court in the custody case held a trial. Mother, Grandmother, and Father testified. Mother advised the court she was not seeking primary custody of L.S. because she had a pending felony charge for possession of a controlled substance, was homeless at the time, and felt it was in L.S.'s best interests to remain with Grandmother. The court also heard testimony from L.S.'s counselor and Dr. Himler, a licensed psychologist called as an expert witness by Father. Dr. Himler reviewed footage of one of Father's visits with L.S. and testified about Father's interactions with her. At the conclusion of the evidence, the court made oral findings, applying factors taken from Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798, to the evidence. In the court's view, because Mother "turned over her authority to [Grandmother] to be the guardian of [L.S.] . . . really this [was] a case between [Father] and [Grandmother.]" The court denied the motion to terminate the guardianship and awarded Grandmother full physical custody of L.S. while granting Father liberal visitation rights.
[¶6.] Father filed a motion to reconsider, arguing the circuit court should evaluate the case as a guardianship proceeding. Father also argued that even if the court viewed the case as a custody proceeding, it should analyze the issue under the provisions of SDCL 25-5-29 and 25-5-30, which govern when a nonparent may be granted custody. On November 23, 2015, the court held a hearing on Father's motion. Grandmother agreed at the hearing that SDCL "25-5-29 and 25-5-30 are the appropriate statutes to be looking at when it is a non-parent looking at custody." However, Grandmother claimed that because Father filed a custody action against her and Mother, application of Fuerstenberg was nevertheless appropriate. Further, Grandmother argued that transferring custody to Father would be seriously detrimental to L.S., highlighting evidence of extraordinary circumstances enumerated in SDCL 25-5-30 that justify a grant of custody to a nonparent.
[¶7.] After hearing arguments from the parties, the court stated that if the guardianship had been terminated, then the case would be on a "different footing completely" and the court would have "no choice but to turn [L.S.] back...
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