In Re Alt & Sjt

#23453-a-JKK

2006 SD 28

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE
GUARDIANSHIP AND CONSERVATORSHIP OF
A.L.T. & S.J.T., Minor Children

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE STUART L. TIEDE
Judge

* * * *

TAMARA D. LEE Attorney for grandparents
Yankton, South Dakota appellants E.S. & C.S.

CYNTHIA M. BERREAU Attorney for appellee
Sioux Falls, South Dakota mother.

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

* * * *

CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2006

OPINION FILED 03/22/06
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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

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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

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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

1. The court ordered the mother and father to pay the grandparents, “as support
for the minor children, the sum of $265 each per month, in accordance with
the Child Support Guidelines of the State of South Dakota” and “shall split
equally (50/50) any medical, dental, orthodontic, counseling, pharmaceutical,
or optical expenses not covered by [the grandparents’] insurance.”

2. The statutory authority for joining the grandparents as guardians was SDCL
26-5A-10, which has since been repealed. See SDCL 26-5A-10 (repealed SL
2005, ch 137, §43).

3. These records were entered into evidence at a subsequent hearing and are
part of the settled record in this appeal.

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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,

Langenfled 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

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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

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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 father’s sister-in-law, viewed the videotapes from

the children’s interviews, met with the South Dakota authorities and reviewed their

case file, and spoke with the children’s therapist. However, no agency in South

Dakota or Minnesota ever brought criminal charges against the father.

4. Even though his initial report stated “possible” sexual abuse, Dr. Kaplan, in
his testimony at a hearing on March 22, 2002, reported that he would now
say “probable” sexual abuse.

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[¶15.] After the sexual abuse allegations, visitations between the father and

the girls ceased, but the children’s counseling continued. Even though the abuse

was not substantiated, the grandparents continued to express fear for the children’s

safety. On May 15, 2001, Langenfeld explored with the girls what had reportedly

happened. After her session, she remarked that she was unsure of what to make of

the children’s statements “since questioning and the children’s reactions by [the

grandparents] will have high influence—answers in line with what [the

grandparents] reported to me.” Langenfeld indicated that she would be

transitioning this case over to a new therapist as she was leaving Great Plains.

[¶16.] In June 2001, Patricia Brady took over Langenfeld’s responsibilities

with counseling the girls and documenting their treatment. Brady first conducted a

preliminary assessment of the children. On June 27, 2001, she established certain

treatment goals, which included building a level of trust. She, like Langenfeld, had

concerns regarding the grandparents expressing negativity about the father in front

of and to the children. Brady determined that the environmental factors were

contributing to the children’s trust and loyalty issues. As a result, on July 11, 2001,

Brady spoke with the grandparents about this and asked them to bear in mind the

confusion the children must feel due to the conflict. She further discussed with the

grandparents their responsibility to not speak negatively about the children’s

parents in front of them.

[¶17.] During the children’s July 24, 2001 session, Brady learned that the

grandparents had told the girls that they did not have to see their father anymore.

She also learned that their mother continued to see them on a regular basis at the

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grandparents’ home. Based on this information, Brady planned to work with the

girls on clarifying their feelings with what they were being told and identifying

certain methods that would assist them in protecting themselves. In October 2001,

Brady noted that the girls still did not want to see their father and were fearful that

he would take them. Brady continued to work on building trust and assisting the

children in identifying and sorting out their feelings about the parental conflict.

[¶18.] On September 26, 2001, Dr. Andre Clayborne from Great Plains wrote

a letter to all the attorneys as an update on the children’s counseling progress. The

letter reported that the children seemed to be adjusting to the sessions with Brady.

Also, the letter indicated that no recommendation could be made with respect to

resuming visitation with the father because of the alleged sexual abuse. Further,

the letter suggested that taking the matter for resolution through the court might

be appropriate.

[¶19.] Therefore, the father, in his desire to resume visitation with his

children, petitioned for dismissal of the guardianship. This came after the mother

and father stipulated to a settlement in the divorce action. They left the custody

issue to be determined at a later time. Judge McMurchie, in Turner County, held a

hearing concerning the guardianship on March 21 and 22, 2002. The court took

testimony from the mother, the father, the grandparents, Dr. Kaplan, who had

examined the children at Child’s Voice, and then Dr. Clayborne, Jeff Trammell, and

Patricia Brady, from Great Plains. The court also admitted into evidence all the

records from Langenfeld’s treatment and recommendations. Lastly, the court

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accepted and considered evidence from the parties relating to the alleged sexual

abuse.

[¶20.] At the conclusion of the hearing, the court orally ordered that the

father have visitation with his children.5 The visitations were to be supervised and

occur on weekends at the Visitation Center in Sioux Falls. The court required that

the father submit to a psycho-sexual evaluation by Jeffrey Trammell of Great

Plains, who would then prepare a report with his findings and recommendations.

The father was examined by Robert Packard, a licensed psychologist. Both

Trammell and Packard concluded that there were no presentations that indicated a

pattern of psychological difficulties.6

[¶21.] After the hearing, the father complained that the grandparents were

defying the court order by frustrating the scheduled visitations. The grandparents,

on the other hand, asserted that it was the girls who refused to see their father.

The grandparents insisted that the children refused to get dressed, became defiant,

and threatened to run away if forced to go on the scheduled visitations. The

5. On June 6, 2002, the court entered a written order that set forth the father’s
right to visitation with his children. The court acknowledged “that the father
has not had the opportunity to visit his children for approximately one year.
This Court is of the opinion that this is too long. The goal of the counseling
recommendations and visitation plan is to reunify the children with both
parents.” The court also granted the mother and the father a divorce for
irreconcilable differences.

6. The father was administered another polygraph examination by Great
Plains. Even though some of the father’s answers were considered deceptive,
Trammell could not find any factual basis from which to conclude that the
sexual abuse occurred.

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grandparents, “sick at the turmoil and distress this is causing the children,”

claimed that they did not know what to do next.

[¶22.] Because the father was still having difficulty exercising visitation, he

moved to further establish his rights. The court held a telephonic hearing on July

10, 2002, in Turner County. Judge McMurchie entered another order on August 1,

2002, affirming his previous decision to allow the father visitation in accord with

the written order entered on June 6, 2002. Further, the court appointed Richard

Johnson as the attorney for the children and ordered that he contact Brady to

discuss what should be done to get visitation back on track. Brady and Johnson

met in August and established a proposed visitation plan.

[¶23.] After meeting with the children’s attorney, Brady wrote a letter to

Judge McMurchie on September 25, 2002. She noted that the continued purpose of

the counseling was to reinstate visitation with the father and children. She stated,

however, that the children were resisting such attempts and noted that the girls

were telling her that, she was making them see their father and “I don’t want to

talk to you.” She also expressed concern about the children’s growing anxiety and

agitation regarding counseling. In addition to their fear of their father, Brady

commented that the children were now verbalizing a distrust of their mother.

According to Brady, though, the children’s “remarks [were] mirroring comments

made by the [grandparents] and other family members.” She stated that the

negative statements have increased the children’s fears and anxieties. Therefore,

she declared that “[a]s of September 25, 2002, all counseling sessions have been

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stopped until the court can determine a course of action, due to [her] concern of

victimization of the children.”

[¶24.] In reference to Brady’s September letter, the children’s attorney

requested a hearing in October 2002, to determine a further course of action in

regard to the custody and visitation of the children. The grandparents moved for a

continuance and a change of venue from Turner County to Lincoln County in

December 2002. After a telephonic hearing on the matter, Judge Gienapp entered

an order on January 23, 2003, granting the change of venue and requiring that the

father continue to have visitation on every weekend at the Visitation Center in

Sioux Falls until further order of the court.

[¶25.] Now in Lincoln County, Judge Tiede held a hearing on February 7,

2003, to determine the future plan for reinstating visitation with the father. On

February 27, 2003, the court entered an order requiring that visitation continue as

set forth in Judge McMurchie’s oral order and his subsequent August 5, 2002 order

as modified by Judge Gienapp’s January 23, 2003 order.

[¶26.] On July 15, 2003, the father petitioned the court for unsupervised

visitation. Hearings were held on August 11 and 26, 2003. Judge Tiede considered

the issue of the alleged sexual abuse through testimonial and documentary

evidence. In addition to their own testimony, the grandparents and the father also

offered expert testimony: Adrianne Fricker-Elhai for the grandparents and Patricia

Brady for the father. Before entering his decision on visitation, Judge Tiede

“reviewed all the files including the record from both Turner County and Lincoln

County, all the transcripts that [were] part of the [c]ourt file or in the personal files

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of Judges McMurchie and Gienapp, the Child’s Voice videotapes of the interviews of

[the children], and the videotapes of five visitation sessions by [the father] with the

children at the visitation center in the time period from January through March

2003.”

[¶27.] Ultimately, on February 18, 2004, Judge Tiede issued an exhaustive

thirty-eight page memorandum opinion detailing and assessing the complex legal

and personal history of the case. The court found

by the greater convincing force of the evidence that the
grandparents have intentionally, deliberately, maliciously and
wrongfully prevented [the father] from exercising his lawful
rights of visitation with his children. They have improperly and
maliciously influenced [the children] by their words and conduct
in a deliberate effort to alienate these children from [the father].
They have repeatedly and flagrantly refused to comply with the
lawful orders of four separate judges, all of whom have ordered
visitation for [the father]. The evidence in support of these
findings is overwhelming, beginning with the records of Ms.
Langenfeld, the children’s initial therapist extending back to
2000.

On the sexual abuse accusation, the court set forth a detailed analysis of the

allegations made by the grandparents and the children, the investigations by the

South Dakota and Minnesota authorities, the children’s interview at Child’s Voice,

and the results of the father’s polygraph tests. The court evaluated this evidence

and concluded that based on the evidence no sexual abuse had occurred.

[¶28.] With respect to the polygraph tests, which the grandparents placed

significant emphasis on, the court stated:

I completely discount the polygraph for several reasons. First of
all, the polygraph evidence is not admissible in South Dakota. It
is not admissible because polygraphs are inherently unreliable.
Secondly, the police administered the polygraph in the course of
an allegation of sexual abuse with no credible evidence to

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support such allegations. This polygraph was administered
clearly in an effort to induce [the father] to confess or admit
culpability. The allegation that he failed the polygraph was
made in an effort by the police to obtain a confession from [the
father]. [The father] continued to profess his innocence. The
questions to which the responses of [the father] were deemed
deceptive were general and non-specific.

[¶29.] In the end, the issues whether the guardianship should continue and

whether the children were sexually abused were clearly matters of credibility, and

the court found the grandparents to be not credible:

I have been asked to believe that a father desperately fighting to
have visitation with his children would on the first opportunity
that he was given to have overnight visitation with his children,
while in the home of his brother and sister-in-law, and while at
least the sister-in-law was present, went into a bedroom where
[one child] was sleeping with four other children, took all of his
clothes off, took all of the clothes off of [the child], had sexual
intercourse with [the child], [the child] screamed and [the
father] threatened her and threatened to kill the Grandparents,
and then took [the other child] into the bathroom where he
touched [that child] in her vaginal area with his thumb outside
of her clothes. I am asked to believe this by a Grandmother who
has not just a dislike for [the father], but a real hatred of the
man. I am being asked to believe this by a Grandmother who
prior to the allegation of sexual abuse had done everything
within her power to frustrate visitation and the reestablishment
of any relationship between these children and [the father]. I
am being asked to believe this by a Grandmother who just a
month and a half prior to the allegations told a therapist that
she is worried something will have to happen before the girls
can be safe again. I am being asked to believe this by a
Grandmother who is the person who made the initial report of
sexual abuse. I am being asked to believe this by a
Grandmother who knew that the therapists were reporting that
visitations were going well between [the father] and the children
and the therapists were recommending that supervision by the
therapists end and that transition be made ultimately to
unsupervised visitation with [the father]. I am being asked to
believe this by a Grandmother who knew that the therapists
were reporting that the principal cause of the children’s
problems in their behavior in school, and otherwise, was the
Grandmother.

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Not only is there very little evidence of sexual abuse, there
is no credible evidence.

[¶30.] Along these same lines, the court addressed the grandparents’ several

petitions for protection orders against the father. The latest was September 8,

2003, the fourth protection order they requested.7 This petition alleged that the

father sexually abused the children, but was “in complete contradiction to the

earlier allegations which were thoroughly investigated by Minnesota law

enforcement officers, Child’s Voice, and the children’s therapists.” Based on this,

the court ruled that the grandparents “have wholly failed to sustain their burden of

proof to prove domestic abuse by a preponderance of the evidence.” The court

rejected the allegation and dismissed the case “as not being supported by any

credible evidence.”

[¶31.] The court concluded that no reason existed to deny the father

visitation with his children. On March 3, 2004, it entered an order that established

the schedule for unsupervised visitation between the father and his children.8 On

March 15, 2004, the father requested a change in custody and termination of the

custodial guardianship. At the time of the hearing, however, the children had been

7. The first protection order was filed in 2001, and was dismissed for the
grandparents’ failure to appear for the hearing. The second and third
petitions were from January 2003, and alleged the same instance of sexual
abuse from 2001. The petitions were dismissed by Judge Tiede because the
grandparents failed to “provide sufficient evidence to support, by a
preponderance of the evidence, a finding that domestic abuse between a
family or household member had occurred.”

8. The court’s findings of fact and conclusions of law from the February 2003
hearing were entered on August 18, 2004.

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admitted to Avera McKennan Hospital in Sioux Falls. The grandparents took the

girls there to receive treatment for their anxiety and depression. The children were

still in the hospital when the custody hearing was held on March 22 and 25, 2004.

[¶32.] The court heard testimony from the mother, the father, the

grandmother, and Jeff Hayes, a pastor in the community contacted by the

grandparents. At the conclusion of the hearing, Judge Tiede orally ordered that the

mother and father be given temporary joint legal custody of the children. The

mother received sole physical custody, and the father received unsupervised

visitation as previously set forth by the court.

[¶33.] Because this was a temporary custody arrangement, the father moved

for a modification and a hearing was scheduled for May 25, 2004. At this hearing,

the court heard further testimony from the mother, the father, the grandparents,

the father’s sister-in-law, and Erin Olson, a home-based therapist who had been

referred to the mother from Avera McKennan. The court entered a written order on

August 18, 2004. In forty-two factual findings and fifteen conclusions of law, the

court ruled that the guardianship should be terminated. The court found that from

the time temporary custody was transferred to the mother, the children’s anxiety

levels had “markedly decreased,” and their performance in school remained

constant for one child and improved for the other. Also, the school counselor, who

the court found to be credible, “reported that the children seem less fearful than

they were in March of 2004.”

[¶34.] Nevertheless, the grandparents continued to insist that the father had

sexually abused the children and the children needed protection. In this respect,

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the court noted that it “has consistently ruled it is more probable than not that the

sexual abuse supposedly perpetrated by [the father] never happened and such

allegations are false.” The court found that since physical custody has been given to

the mother, the children’s visitations with the father have gone reasonably well.

Also, the court concluded that the children were not acting fearful around him and

were enjoying themselves.

[¶35.] The court further found that the mother’s and father’s home

environments were stable, that they had the capacity to provide for their children,

and that both parents were fit. Therefore, the court ordered that, in the best

interests of the children, the mother and father would share joint legal custody of

the children and the mother would have sole physical custody. The court denied the

grandparents visitation with the children unless the mother consented to the

visitation, advance notice of such was given to the father and his attorney, the

visitation was recommended by the children’s counselor, and the visitation was

specifically authorized by the court.

[¶36.] Consequently, the grandparents brought this appeal asserting the

following issues: (1) Whether the circuit court erred in terminating the

guardianship over the children; (2) Whether the circuit court erred in ruling that

the grandparents could not see the children unless certain stringent requirements

were met.

Standard of Review

[¶37.] Our standard of review is of critical importance in cases where the

outcome turns on the credibility of witnesses. Under the rules of appellate review,

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we are not free to retry the case as if it had never been heard before. A circuit

court’s factual findings are reviewed under the clearly erroneous standard.

Meldrum v. Novotny, 2002 SD 15, ¶18, 640 NW2d 460, 463 (quoting Langerman v.

Langerman, 336 NW2d 669, 670 (SD 1983)). This means that we must give

“considerable deference” to the trial court’s findings. In re J.S.B., Jr., 2005 SD 3,

¶12, 691 NW2d 611, 615 (citing SDCL 15-6-52(a)). We are bound to “give due

regard” to the judge’s unique opportunity to assess whose testimony is more

deserving of belief. Meldrum, 2002 SD 15, ¶18, 640 NW2d at 463 (quoting

Langerman, 336 NW2d at 670). Findings are clearly erroneous only “when we are

left with a definite and firm conviction that a mistake has been made.” J.S.B., Jr.,

2005 SD 3, ¶12, 691 NW2d at 615 (citing In re T.H., 396 NW2d 145, 148 (SD 1986)).

Analysis and Decision

[¶38.] The grandparents first claim that the circuit court erred when it

terminated their guardianship over the girls. In South Dakota, a court may

terminate a guardianship under SDCL 29A-5-506 after it “determines that the

minor is no longer in need of the assistance of protection of a guardian. . . .” 9 In this

case, the court considered the father’s motion to terminate the guardianship in the

9. There is reference in the briefs regarding whether the guardianship was
temporary and terminated by operation of law. According to the father, if
this were the case, then termination by the court was not necessary. Yet,
because the matter was not argued below, we will not address it on appeal.
See Watertown Coop. Elevator Ass’n v. S.D. Dept. of Rev., 2001 SD 56, ¶11
n5, 627 NW2d 167, 171-72 n5.

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context of a divorce proceeding.10 The court treated this custody matter as a

dispute between parents and non-parents and concluded that physical custody

should be with the mother. 11

[¶39.] When a non-parent seeks custody, the threshold question is whether

the parent is fit to have custody of the child. Matter of Guardianship of Sedelmeier,

491 NW2d 86, 87 (SD 1992). “The parents’ right to custody over their own children

should never be disturbed except upon a clear showing against the parent of ‘gross

misconduct or unfitness, or of other extraordinary circumstances affecting the

welfare of the child.’” Matter of Guardianship of T.L.R., 2002 SD 54, ¶13, 645

NW2d 246, 250 (quoting Sedelmeier, 491 NW2d at 88). In this case, the court

awarded sole physical custody of the children to the mother. Therefore, the

grandparents had the burden of proving that the mother was unfit, that she

committed gross misconduct, or that other extraordinary circumstances affected the

welfare of these children such that parental custody should be denied. See

Sedelmeier, 491 NW2d at 87-88.

10. For the father’s motion, the circuit court required that he plead and prove
that there had been a substantial or material change in circumstances
affecting the welfare and best interests of the children. See Berens v. Berens,
2004 SD 121, ¶12, 689 NW2d 207, 212; Price v. Price, 2000 SD 64, ¶52, 611
NW2d 425, 436; SDCL 25-4-45. Accordingly, the court found that “any
continued custody of the children by the grandparents would be detrimental
to the children’s welfare.”

11. The grandparents had been joined as interested parties in the divorce action,
which originated in Turner County. Venue for the divorce action was
changed from Turner County to Lincoln County in January 2003 per Judge
Gienapp’s order.

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[¶40.] With respect to fitness of the biological parents, the circuit court held

that the mother and father

have stable home environments and have the capacity to provide
the children with their basic need and have the ability to give
their children love, affection, guidance, education, and have the
willingness to maturely encourage and provide meaningful
contact with the other parent and prepare the children for
meaningful adulthood.

See Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶24, 591 NW2d 798, 807. The

grandparents do not dispute the mother or father’s capacity to provide the children

with their basic needs. Rather, the greater part of the grandparents’ allegations on

appeal are against the father.12 They contend that extraordinary circumstances

exist in this case because it is “never in the best interests of a child to be returned to

an abusive situation.”

[¶41.] We recognize that the grandparents have articulated considerable

fears about the father and his relationship with his twin daughters, their

grandchildren. They have cared for and nurtured these children since the time they

were born. Their concern for them is expressed throughout the voluminous record

and in their brief to this Court, where they insist that the father sexually abused

the children in 2001. However, the circuit judge who presided over the case for two

years thoroughly examined the record and made a specific factual finding that it

was more probable than not that the sexual abuse did not occur.

12. The grandparents also assert that the parents abandoned their children
under SDCL 25-7-17. However, they did not argue this in circuit court, and
“[w]e refrain from addressing matters brought for the first time on appeal.”
See Watertown Coop. Elevator Ass’n, 2001 SD 56, ¶11 n5, 627 NW2d at 171-
72 n5.

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[¶42.] The grandparents ask us to engage in our own assessment of the facts.

Yet our standard of review requires us to give deference to the circuit court.

Meldrum, 2002 SD 15, ¶18, 640 NW2d at 463 (quoting Langerman, 336 NW2d at

670). In order for the circuit court’s findings to be disturbed, we must have a

definite and firm conviction that a mistake has been made. J.S.B., Jr., 2005 SD 3,

¶12, 691 NW2d at 615 (citing T.H., 396 NW2d at 148). From our review of the

record, not only the guardianship termination hearing in May 2004, but the entire

settled record submitted for purposes of this appeal, we cannot say that we are left

with such a conviction.

[¶43.] First, the court awarded the mother, not the father, sole physical

custody of the children. This is important because the grandparents make no

showing that the mother is unfit. Rather, the record supports the court’s finding of

fitness. Before the guardianship was terminated, the children had lived with their

mother for approximately two months as part of a temporary custody arrangement.

When the court held the final hearing, it was able to compare the children’s current

behavior to their past behavior during the time they lived with the grandparents.

Based on all the evidence, including expert testimony, the court specifically found

that since the transfer of custody to the mother the children have been doing

remarkably better. Their anxiety levels had decreased and they were doing well in

school.

[¶44.] Second, even though the brunt of the grandparents’ argument is

against the father and concerning the alleged abuse, at no time were criminal

charges brought against him. He has consistently denied that it happened and has

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relentlessly fought to maintain a parental relationship with his daughters. In

response, the grandparents insist that it is necessary to take into account the fact

that the father failed his polygraph examinations. The grandparents place

significant emphasis on this, yet we have repeatedly held that the results from a

polygraph examination are not admissible in South Dakota civil or criminal

proceedings. Sabag v. Continental South Dakota, 374 NW2d 349, 352 (SD 1985)

(citing State v. Muetze, 368 NW2d 575, 588 (SD 1985); State v. Watson, 248 NW2d

398, 399 (SD 1976); State v. O’Connor, 86 SD 294, 301, 194 NW2d 246, 250-51

(1972)). This is because the examinations have “no ‘general scientific acceptance as

a reliable and accurate means of ascertaining truth or deception.’” See id. at 353

(citation omitted).

[¶45.] The circuit court acknowledged the inherent unreliability of polygraph

examinations, but it nevertheless reviewed the examination conducted by the

Minnesota authorities. The court identified several factors that discredited the

results. First, the sole purpose of the examination was to extract a confession from

the father. Second, the court found particularly significant that the father’s answer

to the question on whether he intended to answer truthfully with respect to the

questions regarding the alleged sexual abuse was found to be non-deceptive. Third,

the court scrutinized the questions that resulted in deceptive responses from the

father, discussing the fact that they were general and non-specific questions.

Therefore, and in consideration of the lack of scientific reliability for the polygraph

examinations, the circuit court concluded that the results of the father’s polygraph

examination were unpersuasive.

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[¶46.] Based on the court’s review of videotapes from the scheduled

visitations and its consideration of the therapists’ observations, the court found

compelling the fact that the relationship and interactions between the children and

the father were appropriate. The girls were not acting as if they were fearful of

him. Indeed, the court, through the same video review, found that the children

were enjoying themselves when interacting with their father.

[¶47.] Third, these children are now eleven and have consistently been in

counseling since the time of the alleged abuse. Their counselors have been

reinforcing with them what is appropriate behavior and what is not. While the

grandparents’ concerns about the alleged sexual abuse should not be taken lightly,

these children have been informed and educated on how to protect themselves. It is

also relevant to note that the court gave great weight to the effect of the

grandparents’ actions on the children’s well being. Specifically, the court regarded

the grandparents’ behavior to be the direct cause of the children’s emotional and

behavioral problems. It concluded that continued custody with the grandparents

would only be detrimental. Therefore, the court held that “[b]ased on the totality of

the circumstances, the custodial and guardianship rights of the grandparents

should be terminated and such termination would be in the best interests of the

children.” We cannot say that the circuit court was clearly erroneous.

[¶48.] The grandparents next assert that the court erred when it set forth

stringent requirements before they, the grandparents, could see their

grandchildren. On the recommendation of the children’s therapist and their

attorney, the court ordered that before the grandparents can visit the children: (1)

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the mother must consent, (2) advance notice must be given to the father and his

attorney, (3) Erin Olson, the current counselor, must recommend the visit, and (4)

the visit must be specifically authorized by a written order of the court. The effect

of these restrictions is to limit substantially the grandparents’ visitation. According

to the grandparents, this is extreme considering that they have raised and cared for

the girls since birth.

[¶49.] South Dakota recognizes the importance of relationships between

grandparents and grandchildren. See SDCL 25-4-52. However, grandparent

visitation can only occur when it is in the best interests of the grandchild, and when

it will not significantly interfere with the parent-child relationship. See id. In this

case, the court considered the influence and actions of the grandparents to be

detrimental to the welfare of the children. This conclusion is supported in the

record. The restrictions were clearly established to protect the emotional and

mental well being of the children. Moreover, both the mother and father are not

opposed to the children having a relationship with their grandparents. But before

this can happen, both parents believe that the grandparents must adjust their own

negative behaviors.

[¶50.] Both the father and the grandparents seek appellate attorney’s fees

and have submitted verified, itemized statements of costs incurred and legal

services rendered for purposes of this appeal. In the interests of justice, we award

no fees to either side.

[¶51.] Affirmed.
[¶52.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.
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