In Re Al

#25086-rev & rem-JKK

2010 SD 33

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

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.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA

* * * *

HONORABLE STEVEN R. JENSEN
Judge

* * * *

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

CRAIG K. THOMPSON Attorney for respondents
Vermillion, South Dakota and appellants.

* * * *

ARGUED ON OCTOBER 7, 2009

OPINION FILED 04/14/10
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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.

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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

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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

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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.

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[¶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 US 57, 68,

120 SCt 2054, 2061, 147 LEd2d 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

1. Standard of Review: “We review the circuit court’s findings of fact under the
clearly erroneous standard, giving due regard to the ‘court’s opportunity to
judge the credibility of the witnesses.’” In re L.S., 2006 SD 76, ¶31, 721
NW2d 83, 92 (quoting In re T.G., 1998 SD 54, ¶16, 578 NW2d 921, 923
(citation omitted)). A claim of a constitutional violation is reviewed de novo.
State v. Tiegen, 2008 SD 6, ¶14, 744 NW2d 578, 585 (citations omitted).

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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’ decision merited

deference and special weight. But even then the special weight element appeared to

be limited in the court’s remarks to whether there were “safety or health” risks the

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grandparents might pose. Those observations seemingly placed the onus on the

parents to show why their decision should be honored. See Medearis v. Whiting,

2005 SD 42, ¶¶14, 23, 695 NW2d 226, 230, 232 (mother asserted, and this Court

agreed that the court improperly placed burden on her).

[¶17.] The circuit court made no finding on the first factor in SDCL 25-4-52,

whether “visitation will not significantly interfere with the parent-child

relationship.” See SDCL 25-4-52(1). Basing its decision solely on the second

statutory factor, the court found that Scott and Maria “denied or prevented the

grandparent[s] reasonable opportunity to visit the grandchild[ren].” See SDCL 25-

4-52(2). Since the court found that Scott and Maria denied the grandparents

reasonable visitation, our statute requires no consideration of whether visitation

would significantly interfere with the parent-child relationship. The two statutory

factors stand in the disjunctive. 2 In this regard, the court appears to have followed

our precedent.

[¶18.] In 2002, we upheld most of South Dakota’s grandparent visitation

statute. Currey v. Currey, 2002 SD 98, ¶13, 650 NW2d 273, 277 (placing burden of

proof on grandparents so as to avoid unconstitutionality); see also Medearis, 2005

2. Scott and Maria argue that SDCL 25-4-52 is unconstitutional because the
court was not required to consider whether visitation would significantly
interfere with their parent-child relationship. Under SDCL 25-4-52, the
court must find first that visitation is in the children’s best interests, and
second, either that visitation would not significantly interfere with the
parent-child relationship or that the parents have denied the grandparents a
reasonable opportunity for visitation. Although the statute might well have
stood on firmer constitutional ground if an “and” instead of an “or” had been
placed between subsections (1) and (2), in view of our holding that the statute
(continued . . .)

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SD 42, ¶16, 695 NW2d at 230. In Currey, we noted that unlike the Washington

statute in Troxel, South Dakota’s grandparent visitation statute “does not allow any

individual to petition for visitation nor does it deprive the custodial parent of the

fundamental right to make decisions concerning the care, custody, and control of the

children.” 2002 SD 98, ¶13, 650 NW2d at 277 (emphasis omitted).

[¶19.] While we have ruled this statute constitutional, that does not

necessarily preclude us from finding the statute unconstitutional as applied to the

facts of this case. See Troxel, 530 US at 75, 120 SCt at 2065, 147 LEd2d 49 (statute

unconstitutional as applied). “[A] court may apply a sufficient statute in an

unconstitutional manner.” Punsly v. Ho, 87 CalApp4th 1099, 1104 (2001). “The

practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its

future application in a similar context, but not to render it utterly inoperative.”

People v. Rodriguez, 66 CalApp4th 157, 167 (1998) (quoting Ada v. Guam Soc’y of

Obstetricians and Gynecologists, 506 US 1011, 1012, 113 SCt 633, 634, 121 LEd2d

564 (1992) (Scalia, J., dissenting)); see also Crafton v. Gibson, 752 NE2d 78, 92

(IndCtApp 2001). Thus, even though this Court has found the statute facially

sufficient, it must still be applied in a constitutional manner to comply with Troxel’s

mandate. When faced with more than one possible statutory interpretation, our

duty is to choose the interpretation, if feasible, that will uphold the validity of the

statute. State v. Allison, 2000 SD 21, ¶5, 607 NW2d 1, 2 (citation omitted). Other

__________________
(. . . continued)
was unconstitutionally applied, the issue is subsumed in our ruling
incorporating into the statute the Troxel requirements.

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jurisdictions have similarly interpreted their nonparent visitation statutes in such a

way as to conform with Troxel’s minimum requirements. 3

[¶20.] To apply our grandparent visitation statute constitutionally, three

pieces from Troxel must be accommodated. First, parents have a “liberty interest”

in the rearing of their children. Troxel, 530 US at 65, 120 SCt at 2060, 147 LEd2d

49. Fit parents are presumed to act in the best interests of their children. Id.

Second, given a parent’s liberty interest in childrearing, the state will “normally”

have no reason to question parental decisions. Id. at 68, 120 SCt at 2061, 147

LEd2d 49. Troxel emphasized that its ruling did not rest on a fit parent’s “normal”

right to be free of state intervention in parenting decisions, but instead rested on a

“combination of . . . factors.” Id. at 68, 71, 120 SCt at 2060, 2063, 147 LEd2d 49.

Third, the Court established a “special-weight” requirement. Id. at 70, 120 SCt at

2062, 147 LEd2d 49. The trial court in Troxel failed to give “at least some special

weight” to the mother’s “determination of her daughters’ best interests.” Id. at 70,

120 SCt at 2062, 2063, 147 LEd2d 49. This “special-weight” prerequisite was

highlighted in Justice Zinter’s concurrence in Currey. See 2002 SD 98, ¶25, 650

NW2d at 279 (Zinter, J., concurring); see also Medearis, 2005 SD 42, ¶18, 695 NW2d

3. J.W.J., Jr. v. P.K.R., 976 So2d 1035, 1039-40 (AlaCtApp 2007); McGovern v.
McGovern, 33 P3d 506, 511-12 (ArizCtApp 2001); Barry v. McDaniel, 934
So2d 69, 76-77 (LaCtApp 2006); Rideout v. Riendeau, 761 A2d 291, 299-300
(Me 2000); Koshko v. Haining, 921 A2d 171, 184 (Md 2007) (to save
grandparent visitation statute from invalidation, the court must read into the
statute the parental presumption); SooHoo v. Johnson, 731 NW2d 815, 824
(Minn 2007); Deem v. Lobato, 96 P3d 1186, 1191-92 (NMCtApp 2004); E.S. v.
P.D., 863 NE2d 100, 106 (NYCtApp 2007); Glidden v. Conley, 820 A2d 197,
204-05 (Vt 2003).

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at 231. In light of Troxel, the best interests determination cannot be left solely to

the trial court’s discretion without considering and giving deference to a fit parent’s

decision. 530 US at 67, 72-73, 120 SCt at 2060, 2064, 147 LEd2d 49.

[¶21.] In Troxel, the Supreme Court noted that the mother consented to some

grandparent visitation, but proposed something less than the grandparents wanted.

530 US at 71, 120 SCt at 2063, 147 LEd2d 49. The Court observed disapprovingly

that rather than deferring to the mother’s wishes the trial court imposed its own

visitation schedule. Id. at 69, 120 SCt at 2062, 147 LEd2d 49. From this we deduce

that either the statute, by its terms, must generally defer to a parent’s wishes or a

court must defer, by dint of the facts, to the terms of a parent’s offer. Thus, the fact

that the parent offers some visitation becomes part of the analysis.4 There is a

qualitative difference between disagreement on the amount of visitation as opposed

to denial of any access. In the latter instance, a grandparent would be pursuing the

right to have a relationship with the child, while, in the former case, the divergence

is merely over how much visitation is appropriate.

[¶22.] We believe that our Legislature placed the “best interests of the child”

standard in the grandparent visitation statute to grant courts the authority, over

parental objection, to impose grandparent visitation in appropriate cases, so long as

the visitation complies with constitutional limitations. See In re Adoption of C.A.,

4. Joan Catherine Bohl, That “Thorny Issue” Redux: California Grandparent
Visitation Law in the Wake of Troxel v. Granville, 36 GoldenGateULRev 121,
141-42 (2006).

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137 P3d 318, 326-28 (Colo 2006). While the Troxel plurality recognized that only in

limited circumstances should a state intervene in a fit parent’s decision, the Court

did not declare that grandparent visitation should never be allowed when a fit

parent makes a decision to deny or restrict visitation.5 Rather, the Supreme Court

emphasized that a parent’s decision regarding the best interests of his or her child

must be given special weight: “The problem here is not that the [court] intervened,

but that when it did so, it gave no special weight at all to [the mother’s]

determination of her daughters’ best interests.” Troxel, 530 US at 58, 120 SCt at

2056, 147 LEd2d 49; see also Medearis, 2005 SD 42, ¶18, 695 NW2d at 231. When a

court goes no further than to conclude that visitation is in the best interests of the

child, the court has neither given special weight to the parent’s decision nor applied

the presumption that the fit parent’s choice, as opposed to the court’s choice, is in

the best interests of the child. In most instances, parents must have the final word.

Disputes between parents and grandparents on visitation are not contests between

equals. See Stacy v. Ross, 798 So2d 1275, 1280 (Miss 2001); Glidden, 820 A2d at

205.

[¶23.] To accommodate both our Legislature’s best interests standard and

Troxel’s “special-weight” and “special-factors” requirements, a court, before ordering

5. See Adoption of C.A., 137 P3d at 326-28 (special weight requirement does not
insulate parental wishes from judicial review); Deem, 96 P3d at 1190 (nothing
in Troxel suggests that the Supreme Court considered the presumption that a
fit parent acts in the best interests of his or her child to be other than a
rebuttable presumption); Harrold v. Collier, 836 NE2d 1165, 1172 (Ohio
2005) (nothing in Troxel indicates that the fit parent presumption is
irrefutable); Crafton, 752 NE2d at 96-97 (same).

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grandparent visitation under SDCL 25-4-52, must (1) presume that a fit parent acts

in his or her child’s best interests, (2) give special weight to a fit parent’s decision to

deny or limit visitation, (3) consider whether the parent has completely denied

visitation or simply limited visitation, (4) shift the burden to the parent to offer

evidence in support of the parent’s decision only if the grandparents overcome the

parental presumption, and (5) require the grandparents to bear the ultimate burden

of establishing by clear and convincing evidence that special factors exist showing

that the visitation they seek is in the child’s best interests. 6 See Evans v.

McTaggart, 88 P3d 1078, 1083 (Alaska 2004) (clear and convincing proof required,

except where the choice is plainly contrary to child’s best interests); Adoption of

C.A., 137 P3d at 328-29 (clear and convincing burden is needed to comply with due

process rights of parents); Polasek v. Omura, 136 P3d 519, 522-23 (Mont 2006)

(same); Hamit v. Hamit, 715 NW2d 512, 528 (Neb 2006) (clear and convincing); see

also Spaulding v. Williams, 793 NE2d 252, 260 (IndCtApp 2003).

[¶24.] If a court orders grandparent visitation, it must make findings of fact

and conclusions of law identifying the “special factors” on which it relies. See

Troxel, 530 US at 68, 120 SCt at 2061, 147 LEd2d 49 (courts should consider and

resolve those “special factors that might justify the State’s interference” with the

parents’ decision). Special factors might include, but are not limited to, such

6. We express no opinion on how these standards should be applied in a
grandparent visitation proceeding where the objecting parent is unfit, or
where both parents are fit but one opposes the petition and the other does
not. Those questions and others must be left to future cases. As Justice
O’Connor cautioned, “the constitutional protections in this area are best
‘elaborated with care.’” Troxel, 530 US at 73, 120 SCt at 2064, 147 LEd2d 49.

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matters as physical or emotional harm to the grandchild if visitation is denied or

limited, preference for grandparent visitation expressed by a child of sufficient age,

or some other compelling circumstance warranting state interference in parental

decision making. See Troxel, 530 US at 72-74, 120 SCt at 2063-64, 147 LEd2d 49.

But it is not sufficient that grandparents seek visitation by mere assertion that the

grandchild will gain some benefit. See Lulay v. Lulay, 739 NE2d 521, 533 (Ill 2000).

Generalities about the positive influence grandparents have on their grandchildren

fall short of the necessary showing for government interference with parental

decisions. See Glidden, 820 A2d at 205.

[¶25.] This case and many others like it bear witness to the terrible

emotional and financial costs suffered in grandparent visitation disputes. Ideally,

loving grandparents should always be a part of their grandchildren’s lives. Yet it

remains a painful dilemma for courts whether forcing visitation against parental

wishes serves children torn between family factions. Ordinarily, though, we must

defer to the fundamental rights our constitution affords to the choices parents

make, even if we might deem those choices regrettable. Although we continue to

uphold our grandparent visitation statute as facially constitutional, we conclude

that the circuit court applied the statute unconstitutionally by failing to employ the

parental presumption, as well as the compulsory “special-weight” and “special-

factors” analysis, before ordering visitation over the parents’ objections.

Accordingly, we reverse the judgment of the circuit court and remand for further

proceedings consistent with this decision.

[¶26.] Reversed and remanded.

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[¶27.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY, and

SEVERSON, Justices, concur.

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