IN RE AL

• Decision Date: 14 April 2010
• Docket Number: No. 25086.,25086.
• Citation: 781 N.W.2d 482,2010 SD 33
• Parties: In re A.L. and S.L.-Z., Minor Children, David and Joyce Zimmer, Petitioners and Appellees, v. Scott and Maria Zimmer, Respondents and Appellants.
• Court: South Dakota Supreme Court

781 N.W.2d 482

2010 SD 33

In re A.L. and S.L.-Z., Minor Children,

David and Joyce Zimmer, Petitioners and Appellees, v. Scott and Maria Zimmer, Respondents and Appellants.

No. 25086.

Supreme Court of South Dakota.

Argued on October 7, 2009.

Decided April 14, 2010.

Thomas H. Frieberg of Frieberg, Nelson & Ask, LLP, Beresford, South Dakota, Attorneys for petitioners and appellees.

Craig K. Thompson, Vermillion, South Dakota, Attorney for respondents and appellants.

KONENKAMP, Justice.

¶ 1. In this dispute over grandparent visitation, we are confronted with the question of what due process safeguards a court must apply in weighing a parental decision to deny visitation. When the grandparents petitioned the circuit court for visitation, both parents opposed asserting that it would harm the children and significantly interfere with their parent-child relationship. But the court concluded that the parents' opposition was unreasonable and not in the best interests of the children. It allowed two annual, seven-day visits in California. Because a court must give deference to the parents' decision and apply the "special weight" and "special factors" analysis required by the United States Supreme Court, we reverse and remand for further proceedings.

Background

¶ 2. Scott and Maria Zimmer have two children, A.L., born July 20, 1999, and S.L.-Z., born May 10, 2005. Scott's parents, David and Joyce Zimmer, live in Vermillion. When Scott graduated from the University of South Dakota, he moved to California. He chose California as a place to distance himself from his parents. Scott and his parents have been in long-standing conflict.

¶ 3. Despite these tensions, after A.L. was born, David and Joyce traveled several times to California to visit their grandchild. One visit, at A.L.'s first Christmas, resulted in a six-month rift between Scott and his parents. During another visit, in July of 2000, Maria refused to speak with David and Joyce. But Scott was able to communicate with his parents, and they were able to visit A.L. Over the years, David and Joyce continued to visit Scott, Maria, and A.L. in California, although the relationship remained strained.

¶ 4. At the time of A.L.'s third birthday, however, an incident between Scott and Joyce resulted in a two-year estrangement. David and Joyce had purchased plane tickets for Scott, Maria, and A.L. to visit them in South Dakota. During the visit, Scott believed that Joyce had interjected herself into his discipline of A.L. Since the incident took place in A.L.'s presence, Scott saw this as a direct challenge to his parenting. Infuriated, he sent his parents an expletive-filled email, saying he wanted no further contact with them unless they first obtained "a minimum of 6 months of individual and couples therapy."

¶ 5. Even with the clashes Scott had with his parents, Maria, in keeping with her cultural heritage of cherishing extended family, sought to maintain a connection with David and Joyce. While Scott remained detached, she facilitated all contact with the grandparents. David and Joyce would come to California, speak only with Maria, and arrange visitation. A.L. would sometimes spend the night with his grandparents.

¶ 6. In 2005, prompted by their financial difficulties, Scott and Maria decided to move to South Dakota. According to Scott, in addition to economics, the move was also contemplated because Maria's mother, who previously lived with them, had moved to Mexico. David and Joyce assisted Scott and Maria in the move and helped them prepare their condominium for sale. In May 2006, Scott and Maria moved to Vermillion. They lived with David and Joyce for six weeks. David and Joyce helped Scott and Maria purchase their home. Although Scott and Maria had sufficient money for a down payment, they could not obtain a loan. David and Joyce cosigned the note.

¶ 7. For a time, there were no major upheavals, but tensions remained. One source of friction was David's smoking habit. In the spring of 2007, Maria tried to talk to Joyce about A.L.'s asthma and his need to avoid cigarette smoke. Joyce responded defensively, saying that David would never stop smoking, and therefore, if smoking became an obstacle she would never see her grandchildren again. This generated several tense email exchanges.

¶ 8. Another incident occurred after Scott wrote a letter to his grandparents (Joyce's parents) explaining that he wanted to continue to have a relationship with them, but did not think he could continue to have a relationship with his parents. When David and Joyce learned of this letter, David went to Scott and Maria's home at ten one evening and knocked on their basement door. Scott and Maria did not answer, thinking it was a prankster. But the knocking continued, and A.L. and S.L.-Z. became scared. When Scott finally answered the door, David asked Scott to come outside. Scott refused. Then, with the children in earshot, David berated Scott. David ended with, "Have a nice life, monster."

¶ 9. After that episode, Scott and Maria cut off all contact with their children and the grandparents. Two months later, in August or September 2007, Scott and Maria prepared to sell their home and move back to California. According to Scott, David and Joyce would not cooperate with the sale (their names were on the loan), unless Scott and Maria met with them, discussed visitation, and resolved all issues between them. When Scott and Maria began to notice that David and Joyce were driving by their house when the children were outside playing, they instructed their children to turn their backs on their grandparents as they drove by.

¶ 10. In January 2008, Joyce and Maria were at the same restaurant for a knitting group they both belonged to. Maria recounted that Joyce called David to come to the restaurant. Once David was there, Maria claims that Joyce began pointing at her and S.L.-Z. and attempted to interact with them. During this exchange, David and Joyce learned that A.L. was with Scott. They went to Scott's workplace and refused to leave. Scott threatened to have them removed; Joyce threatened to file assault charges. This confrontation occurred in front of A.L., then age 8.

¶ 11. In May 2008, David and Joyce petitioned the circuit court for grandparent visitation under SDCL 25-4-52. They asserted that visitation was in the children's best interests and that Scott and Maria denied them a reasonable opportunity to visit their grandchildren. They also alleged that visitation would not significantly interfere with the parent-child relationship.

¶ 12. Scott and Maria opposed the petition contending the visitation would significantly interfere with their parent-child relationship because of David and Joyce's demeaning comments and continual challenges to their parental authority in front of the children. They also alleged that it was not in the best interests of the children to continue to have contact with their grandparents because David and Joyce would exact the same emotional damage on the children that they had inflicted on Scott.

¶ 13. An evidentiary hearing was held, at which David and Joyce, their friends, and Scott and Maria testified. After the hearing, Scott and Maria moved to California. The court ordered that David and Joyce be allowed two, seven-day visits with the children each year in California. Included would be one overnight with the children during each seven-day period. David and Joyce were ordered not to comment on their relationship with Scott and Maria, and David was ordered not to smoke in the children's presence. Scott and Maria appeal.¹

Analysis and Decision

¶ 14. Scott and Maria contend that because they are fit parents, a court "cannot and should not interfere to question their ability to make decisions regarding the rearing of their children." In Troxel v. Granville, the United States Supreme Court ruled that "so long as a parent adequately cares for his or her children (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." 530 U.S. 57, 68, 120 S.Ct. 2054, 2061, 147 L.Ed.2d 49 (2000). In its findings, the circuit court ruled that "David and Joyce Zimmer have had significant contact with the grandchildren over the years and do have a bonded relationship with both grandchildren, particularly with A.L.," that "Scott and Maria have unreasonably denied David and Joyce Zimmer the opportunity to have visitation with their grandchildren," that Scott and Maria's decision "to deny visitation was not reasonable based upon the totality of circumstances," that "the complete denial of visitation by Scott and Maria is not reasonable nor in the best interest of the children or the circumstances," and that "the best interest of the children requires that they have continued and ongoing visitation with their grandparents, provided the grandparents do not discuss their relationship with Scott and Maria during periods of visitation." The court made no finding on parental fitness, but there was no contention that Scott and Maria are unfit.

¶ 15. Under SDCL 25-4-52, a circuit court has authority to order grandparent visitation.

The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:

(1) If the visitation will not significantly interfere with the parent-child relationship; or

(2) If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.

Id.

¶ 16. Nothing in the circuit court's written findings or conclusions indicates that the court gave any special weight to the parents' decision, although in its oral comments the court mentioned several times that the parents'...