Howlett v. Stellingwerf

• Decision Date: 28 February 2018
• Docket Number: 27835
• Parties: Christopher HOWLETT, Plaintiff and Appellant, v. Karlyn STELLINGWERF, Defendant, and Amber Stellingwerf, Defendant and Appellee.
• Court: South Dakota Supreme Court

908 N.W.2d 775

Christopher HOWLETT, Plaintiff and Appellant,

v.Karlyn STELLINGWERF, Defendant,andAmber Stellingwerf, Defendant and Appellee.

27835

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON OCTOBER 2, 2017

OPINION FILED February 28, 2018

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.

KERN, Justice

[¶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.¹ 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 over to [Father]. Unless, of course, [Grandmother] would file some sort of petition under Timmy’s Law to go ahead and try and get custody of [L.S.] at that point." The court observed that "[w]hen ... looking at visitation, whether it is visitation or custody, the [c]ourt has to consider the Fuerstenberg factors" and that "the reality is that we opened up custody[.]" In examining SDCL 25-5-29 and 25-5-30, the court stated that it believed it had touched on some of the extraordinary circumstances outlined in SDCL 25-5-30 at the prior hearing, highlighting the "bonded relationship in [ SDCL 25-5-30(4) ] between [L.S.] and, of course, [Grandmother.]" The court denied the motion and instructed Father to resolve the guardianship case with the guardianship court.

[¶8.] Accordingly, Father filed a motion to terminate the temporary guardianship pending before the guardianship court. That court granted the motion and dismissed the case because the temporary guardianship ordered on May 28, 2015, expired of its own accord after 90 days pursuant to SDCL 29A-5-315. With the guardianship resolved, Father again sought reconsideration from the custody court, which was denied.²

[¶9.] Father appeals,³ arguing the circuit court deprived him of an important liberty interest as a parent. See Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (observing that parents have a fundamental liberty interest "in the care, custody, and control of their children"). We consolidate the three issues raised by Father on appeal as follows:

Whether the circuit court erred by analyzing the case as a custody dispute between parents rather than between a parent and a nonparent.

Analysis and Decision

[¶10.] Father claims that the circuit court erred by applying the Fuerstenberg factors in analyzing this custody dispute.⁴ According to Father, Fuerstenberg does not apply when a nonparent seeks custody of a parent’s child. Father contends that for a nonparent like Grandmother to seek custody, she must first offer proof under SDCL 25-5-29 rebutting Father’s presumptive right to custody. Further, Father argues that the circuit court failed to evaluate whether Grandmother possessed standing in the first place.

[¶11.] We first address the issue of standing. "Whether a party has standing to maintain an action is a question of law reviewable by this Court de novo." Arnoldy v. Mahoney , 2010 S.D. 89, ¶ 12, 791 N.W.2d 645, 652. Father contends that Grandmother failed to establish standing under SDCL 25-5-29 and that without standing, Grandmother could not call witnesses and present evidence to rebut his presumptive right to custody. Father concedes that he admitted at trial that Grandmother had standing. However, Father argues the court made no finding on this issue. Grandmother argues that the circuit court heard evidence that she acted as L.S.’s primary caretaker and that L.S. formed a close bond with her, thereby establishing standing under SDCL 25-5-29. We agree with Grandmother that she possesses standing. "[S]tanding requires that an individual ‘maintain a "personal stake" in the outcome of the litigation....’ " In re Baby Boy K. , 1996 S.D. 33, ¶ 60, 546 N.W.2d 86, 102 (quoting Gollust v. Mendell , 501 U.S. 115, 126, 111 S.Ct. 2173, 2180, 115 L.Ed.2d 109, 121 (1991) ). Grandmother undoubtedly has a personal stake in the outcome of this case; and SDCL 25-5-29 confers standing to a party other than the parent, contemplating precisely the kind of issue now before us. Further, the circuit court’s findings of fact and conclusions of law reflect recognition of these facts. Although the court made no formal ruling on the matter, it is undisputed that Grandmother has standing, so the issue presents no bar to the current litigation.

[¶12.] Father next argues the circuit court erroneously applied the Fuerstenberg factors, impinging on his constitutional rights as a parent. Father contends SDCL 25-5-29 and 25-5-30 govern when a nonparent attempts to obtain custody from a parent. "Statutory interpretation is a question of law, reviewed de novo." Veldheer v. Peterson , 2012 S.D. 86, ¶ 14, 824 N.W.2d 86, 92. Cases involving an award of custody to nonparents allegedly in violation of the parent’s constitutional rights are reviewed de novo. Id. We review a court’s factual findings for clear error, meaning this...