Keenan v. Dawson

• Decision Date: 05 June 2007
• Docket Number: Docket No. 265725.
• Parties: Kevin KEENAN and Tamara Keenan, Plaintiffs-Appellees, v. Timothy Allen DAWSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 681

275 Mich. App. 671

Kevin KEENAN and Tamara Keenan, Plaintiffs-Appellees, v. Timothy Allen DAWSON, Defendant-Appellant.

Docket No. 265725.

Court of Appeals of Michigan.

Submitted March 13, 2007. at Grand Rapids.

Decided June 5, 2007, at 9:00 a.m.

Released for Publication September 28, 2007.

Dykema Law Office, P.C. (by Jayne A. Dykema), and Scott Bassett, Grand Rapids, Bradenton, FL, for the plaintiffs.

Bregman & Welch (by Judy E. Bregman) Grand Haven, for the defendant.

Before: O'CONNELL, P.J., and MURRAY and DAVIS, JJ.

MURRAY, J.

This case involves a constitutional challenge to MCL 722.27b(4), as amended in 2004, which codifies the standards and procedures for awarding "grandparenting time." In this case the trial court ruled that the maternal grandparents, plaintiffs Kevin and Tamara Keenan, were entitled to grandparenting time, and subsequently ordered a stipulated grandparenting time schedule. On appeal, defendant, Timothy A. Dawson, makes several challenges to the constitutionality of this statute. We hold that the trial court's findings were not clearly erroneous, and that the statute is constitutional as applied to defendant. Consequently, we affirm.

I. Facts and Proceedings

On March 28, 2003, Alexander Lyle Dawson was born to Julia Dawson and defendant, Timothy Dawson.¹ However, on January 3, 2005, approximately 20 months later, Julia was found dead, very likely the result of murder. After Julia's death, and after Dawson refused to allow them to visit with Alex, the Keenans sought grandparenting time with Alex through the court system. The trial court conducted an evidentiary hearing over the course of two days. During the hearing the Keenans presented their own testimony, as well as that of Paul Terrell (Julia's first husband) and clinical psychologist, Julia Schaefer-Space. Dawson presented the testimony of psychologist Dr. Thomas Spahn.

Rather than recounting the testimony of all these witnesses, we will merely summarize the evidence, and let the trial court's more extensive findings of fact speak to the details. In general, the evidence showed that Julia had a good relationship with her parents until 2000, when she "met" Dawson on the Internet and quickly moved in with him. Thereafter, and continuing until a few months before Julia disappeared in December 2004, Julia and her mother had a very strenuous relationship. Things became so bad that at one point, Julia sought, but was denied, a personal protection order against her mother. There were also bad feelings between Dawson and Tamara Keenan, with threats being made by Dawson to Tamara, and with Tamara testifying against Dawson in a child custody case between Dawson and his ex-wife.² The evidence suggested that, because of this strained relationship, Tamara had only seen Alex on four occasions during his first 20 months of life.

The first time Tamara had contact with Julia after Alex was born was in the summer of 2003, when Julia called and asked if she could move back home. According to Tamara, Dawson told Julia that "she could never leave with [Alex]." Julia discussed divorcing Dawson in the fall of 2003, but decided to wait until after the holidays to file for divorce. Julia then told Tamara that she was going to wait until after she got her income tax refund in February 2004, so that she could use the money to file for divorce. Tamara testified that Julia hired an attorney, put the retainer on her credit card, and had the receipt mailed to the Keenans' address. Tamara testified that by the fall of 2004, Julia "very much wanted to leave Tim, but did not have a certain time that she wanted to, but still did." By that time, Julia "did not care if she got in trouble."³

To the contrary, the evidence showed that, during the 2000-2004 period, Julia had a much better, and closer, relationship with her father. Kevin testified that after Alex was born, Julia would bring Alex with her when they met for lunch. According to Kevin, he spent a good number of hours with Alex during these lunches, as well as at other times when he met Julia and Alex. Kevin believed it was important for him to continue his relationship with Alex, because Alex "is going to want to know about his mother. There's just no doubt about it. He's going to start asking all kinds of questions. . . . He's going to go to school, Mother's Day is going to come up and he's going to want to know why . . . . So nobody knows our daughter better than us, and a good way to tell Alex about Julia would be to allow grandparenting time." In Kevin's opinion, "all kids need their grandparents, even if for a little bit of time."

Julia Schaefer-Space, the clinical psychologist offered as a witness by the Keenans, testified that if the Keenans were a positive influence, "[i]t would be vital to have as much extended family involved in a two-year-old's life as possible upon the tragedy of losing his birth mother." She acknowledged that "memory doesn't really start for children until about two-and-a-half years of age" and that Alex "will not actually have absolute memories related to his mother," but opined that "it would be vital to make sure that a link connecting [Alex] to his mother through her parents would be available to him because . . . that's how they'll be able to keep her memory alive in [Alex's] world, in his mind and in his memory." Schaefer-Space indicated her general belief that "a grandparent's relationship is vital in a child's life," even if no prior relationship existed.

Dr. Thomas Spahn, a psychologist offered by Dawson, testified that Dawson was "quite supportive" of Julia, and he never heard Julia "talk very favorably about her contact with her parents or believing that that was . . . extremely . . . valuable to her or the child." And although Dr. Spahn found no evidence to suggest that Tim prevented Julia from seeing her parents, Dr. Spahn testified that a two-year-old would have no memory, or a very light memory, of people that he had not seen for more than six months. Interestingly, Dr. Spahn declined to offer an opinion about whether Alex would be at a substantial risk of emotional harm if he did not see the Keenans.

In ruling for the Keenans, the trial court opined on the record as follows:

This is an emotional issue and an emotional time for the Keenans and Mr. Dawson. It is unfortunate that Mr. Dawson was unable to participate and testify in these proceedings today.⁴ However, the Court has considered the testimony of Dr. Spahn who has had quite a lengthy relationship with Mr. Dawson, and the Court does find that it is appropriate to assert the presumption considered by the legislature of this state that Mr. Dawson is a fit parent and that denial of grandparenting time does not create a substantial risk of harm to Alex's mental, physical, or emotional health. The legislature further goes on to say that the Court shall impose the standard, the burden of proof upon the grandparents by the preponderance of the evidence. Although the statute goes on to indicate that if that is deemed to be unconstitutional by a higher court, that then the legislature would adopt the clear and convincing standard.

The Court would indicate that today the standard applied by the Court is the preponderance of the evidence or majority of the evidence. The Court is called to determine whether Mr. and Mrs. Keenan have proven by the preponderance of the evidence that the denial by Mr. Dawson [of] grandparenting time will create a substantial risk of harm to Alex's mental, physical, or emotional health. The Court has considered the testimony of Mr. and Mrs. Keenan. I believe that both testified honestly about difficult family matters that were heartfelt. They testified that their daughter Julia, was acknowledged to be missing on December 12, 2004, and that tragically she was found to be deceased on January 3, 2005. Foul play is suspected as a result of her death. And further, the Court has received tangential information that Mr. Dawson is a suspect in her alleged murder.

* * *

The Court would note that Alex was born on March 28, 2003. He was not even two years old at the time of his mother's disappearance and subsequent death. It is true that regardless of whether the Keenans had a strong established relationship or weak established relationship, it is likely that Alex would have no memory of those young years and experiences. Ms. Schaefer-Space did indicate that, in her opinion, to support Alex's mental, physical, and emotional health, it was vital for Alex to have his mother's memory kept alive for him since he had lost his mother through these tremendously unfortunate circumstances.

The Court further was persuaded by Mr. Keenan's testimony that it is his desire to establish a relationship with Alex to enhance Alex's knowledge of his mother and to inform him about his maternal role, including what foods his mom liked, his mom's medical history, her preference with regard to music, instruments, and other quirky behaviors that it's just nice to know about your parents.

The Court does find that this child has experienced such a tragedy in his life that it is critical to Alex's mental and emotional health to have additional support with regard to his maternal grandparents to enhance his memory and recollection, love and support that he received from his mother during the time that she was alive and loved and cared for him.

Therefore, the Court does make a finding that Mr. and Mrs. Keenan have proven by the preponderance of the evidence that Mr. Dawson's decision to deny all access to Alex will create a substantial risk of harm to Alex's mental and emotional health. We shall proceed to phase two of the proceeding where the Court will consider the best interest factors prior to setting the grandparenting time. [Emphasis supplied.]

On September 19, 2005, the trial court entered a stipulated order regarding grandparenting time. The order reiterated the trial court's...