In re A.L.T. & S.J.T.

• Decision Date: 22 March 2006
• Docket Number: No. 23453.,23453.
• Citation: 712 N.W.2d 338,2006 SD 28
• Parties: In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF A.L.T. & S.J.T., Minor Children.
• Court: South Dakota Supreme Court

Page 338

712 N.W.2d 338

2006 SD 28

In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF A.L.T. & S.J.T., Minor Children.

No. 23453.

Supreme Court of South Dakota.

Considered on Briefs February 13, 2006.

Decided March 22, 2006.

Tamara D. Lee, Yankton, South Dakota, Attorney for grandparents appellants E.S. & C.S.

Cynthia M. Berreau, Sioux Falls, South Dakota, Attorney for appellee mother.

Robert L. Spears of Spears Law Office, Watertown, South Dakota, Attorney for appellee father.

KONENKAMP, Justice.

[¶ 1.] In this case, what began as a divorce, ended as a custody dispute between the parents and the maternal grandparents. Because the parents were unable at first to independently care for their two little girls, the grandparents agreed to care for them. They have done so since birth. Eventually, the grandparents obtained guardianship. Over the next several years, issues concerning visitation and custody of the children were extensively litigated between the grandparents and the parents. In the end, the circuit court terminated the guardianship. The court found that the parents were fit and awarded sole physical custody to the mother, with the father given scheduled visitation. Further, because the court found that the grandparents had deliberately alienated the relationship between the father and the children, the court imposed several restrictions before the grandparents could have visitation with the girls. Now, the grandparents appeal the termination of the guardianship and the court's decision to restrict their visitation. Although there is evidence in conflict, we cannot say that we have a definite and firm conviction that the circuit court judge was clearly erroneous. Therefore, we affirm.

Background

[¶ 2.] The mother and father (L.D.T and P.D.T.) were married on May 14, 1994, and are the biological parents of A.L.T. and S.J.T., twin girls born on October 22, 1994. After the children were born, the mother, father, and children moved in with the mother's parents, E.S. and C.S. This arrangement continued for six months, until the mother and father moved into a home that was under construction. When the parents moved out, however, the girls remained with the mother's parents because the new home was not yet suitable for children.

[¶ 3.] Over the next several years, the mother regularly visited the children at her parents' home and occasionally provided financial support. The father's visits were intermittent, and little or no support was provided. At no time, however, did the girls leave the maternal grandparents' home to live with their parents. On May 25, 1999, the mother sued the father for divorce in Turner County, South Dakota. While the divorce was pending, and because the girls had always remained at the maternal grandparents' home, the grandparents petitioned for temporary guardianship of the children in Minnehaha County, South Dakota. The court granted the temporary guardianship on December 8, 1999.

[¶ 4.] The father moved to dismiss the temporary guardianship on January 7, 2000. One month later, and before the motion to dismiss was addressed, all parties stipulated to a change of venue on the guardianship matter from Minnehaha County to Lincoln County, and an order was entered to that effect. Then on August 11, 2000, a hearing was held in Lincoln County on the father's motion to dismiss. The court, per Judge Bogue, ordered that the temporary guardianship be continued pending further hearing on the custody issues in the underlying divorce action in Turner County.

[¶ 5.] At this same hearing, the court ordered that the mother and father shall be entitled to supervised visitation at "such dates and times to be mutually agreed upon by and between the parties and their legal counsel upon reasonable advance notice." The court also required the mother and father to pay the grandparents child support, in accordance with the South Dakota guidelines.¹ Lastly, the court appointed Deb Langenfeld of Great Plains Psychological Services to counsel the children and make recommendations regarding visitation with the parents.

[¶ 6.] In the divorce action in Turner County, Judge McMurchie took judicial notice of the pending guardianship in Lincoln County and then declared that the temporary physical and legal custody of the children should remain with the grandparents. But the court also stated that the mother and father shall continue to have supervised visitation based on the recommendations of the court appointed expert, Langenfeld. Further, in its December 12, 2000 order, the court joined the grandparents as interested parties in the divorce action.²

[¶ 7.] The mother and father exercised their rights to visitation with the children at the Visitation Center in Sioux Falls. These visits were supervised, videotaped, and a record was made documenting each visit. The record detailed the interactions between the parents and the children, as well as the conduct of the grandparents.³ Langenfeld, as the court-appointed therapist for the children, also kept a record of her treatment of the girls and her recommendations for the future with respect to the parents. A review of her record is essential.

[¶ 8.] On October 24, 2000, Langenfeld wrote a letter to the attorneys involved and summarized the children's progress. She recommended that the children continue to have supervised visitation with their parents. She also noted that both girls expressed a fear of their father because they claimed he was violent. She noted that reunification is a slow process, recognizing that the grandparents have been the only consistent and stable element in the children's lives. In describing a visit between the father and the girls on December 10, 2000, Langenfeld reported that the father was relaxing more.

[¶ 9.] In January 2001, Langenfeld indicated that the grandparents may be overacting in front of the children and that the children were picking up on the grandparents' stress. Langenfeld sent another letter to the attorneys on February 28, 2001. Even though neither parent had been highly involved in the children's lives in the past, and the grandparents had been left with the responsibility of parenting them, she declared that "[t]he why and wherefores of the past reasons for lack of contact are not as important as is the need now for visitation continuity and furthering the development of a relationship between the girls and each parent."

[¶ 10.] In her assessment of the mother, Langenfeld stated that she had had only minimal contact with her, but through the girls had learned that the mother had been visiting them on a daily basis. Langenfeld could not comment on the quality of the mother-child relationship, as she had nothing from which to do so. However, with respect to the father, she noted that it had been difficult for her to work on reunifying the children with him because of "the ongoing caviling that takes place, as well as the covert and overt messages and coding that takes place from the adults around the children." Specifically, Langenfeld was concerned "with the quality and the amount of negative messages the [children] are getting about their father through/from the grandparents." The grandparents, however, relayed to her that they were in fear for the children's safety and only desired to keep them protected. Langenfeld discussed with them that their issues with the father were only interfering, contaminating, and fueling the loyalty issues with the girls.

[¶ 11.] In summing up, Langenfeld remarked that she needed to continue to monitor the covert and overt contamination by all adults involved. She also stated that it would be helpful if everyone would begin to regard the children's biological father as "dad" in front of them. This was because the children were calling the grandparents mom and dad, and addressing their biological parents by their respective first names. Because as a whole the visitations were going well and the children were beginning to bond with their father, she also recommended that the therapist-supervised visitations cease and supervised visitation with the father be allowed with his family. If all were to go well, Langenfeld would recommend that the father receive regular visitation as allowed under the South Dakota guidelines.

[¶ 12.] On her recommendations, the father exercised supervised visitation at his brother and sister-in-law's home on April 14 and 28, 2001, in Minnesota. The girls were six at the time. Two days after the second visit, on April 30, 2001, the grandparents reported that the father sexually abused the children in Minnesota during the overnight visit. According to the grandparents, on a walk after school one afternoon, one of the girls stated that "her potty thing hurts." When questioned by the grandparents, the child stated that "[the father] hurt my potty thing" and that he "used his finger." The other child stated that the father had come into the room she was sleeping in and had "stuck his thumb in her potty thing, and it hurt."

[¶ 13.] The grandparents took the girls to the emergency room, where they were examined by medical personnel. On May 8, 2001, a forensic interview and medical examination were done with both children at Child's Voice Evaluation Center, by Colleen Brazil and Dr. Rich A. Kaplan, a pediatrician. The interview was videotaped and recorded through written documentation. Dr. Kaplan, in his examination of the children at Child's Voice, did not find any abnormality, trauma, injury, or other evidence of sexual abuse. Nevertheless, in his assessment and examination of the girls, Dr. Kaplan concluded that sexual abuse was possible.⁴ Law enforcement was contacted.

[¶ 14.] The South Dakota authorities conducted a preliminary investigation in South Dakota, but because the incident allegedly occurred in Minnesota, further investigation was conducted by Minnesota authorities. The Minnesota investigator, John Nuernberg, interviewed the...