Medearis v. Whiting

SABERS, Justice

(dissenting).

[¶ 29.] FOUR HOURS PER MONTH OF SUPERVISED VISITATION BY THE GRANDMOTHER IS IN THE BEST INTEREST OF GRANDSON AND DOES NOT SIGNIFICANTLY INTERFERE IN THE LIFE OF MOTHER.

[¶ 30.] The majority opinion mistakes the burden of proof with the burden of going forward with the evidence and reverses. The trial court placed the burden of proof on the Grandmother and she met it, which puts the burden of going forward with the evidence on the Mother. She failed to meet it and we should affirm.

[¶ 31.] SDCL 25-4-52 mandates a two-part test. First, the court must find visitation to be in the grandchild’s best interests. Second, the visitation will not sig*234nificantly interfere with the parent/child relationship or, in the alternative, the parent has denied or prevented the grandparent reasonable opportunity to visit the grandchild. These conditions exist and we should affirm.

[¶ 32.] In regard to the first prong of the test, this Court held that a grandparent must show that their visitation is in the child’s best interest in accordance with SDCL 25-4-52. Currey, 2002 SD 98, ¶ 18, 650 N.W.2d at 278. Mother claims that the trial court erred when it inappropriately shifted the burden to her to demonstrate why Grandmother’s visitation would be a detriment to C.W. However, contrary to her assertions, the trial court’s order does not place the burden of proof on Mother. Here, the trial court found that there has been a close and loving relationship between Grandmother and C.W. This is evidenced by testimony' which established that Grandmother provided food, clothing, shelter, and emotional support to C.W. during his first two years of life, and by Mother’s own admission that C.W. had the benefit of a close grandparent/grandchild relationship from the moment of his birth until Mother terminated that relationship. Given this close and loving relationship between Grandmother and C.W., the trial court held that it would be in C.W.’s best interest for the relationship to continue.

[¶ 33.] Mother also contends that the trial court erred in applying the second prong of the two-part test mandated by SDCL 25-4-52.' Specifically, she asserts that the trial court erred in finding that the interference caused by the visitation would not be significant enough to deny the request, and also in finding that Grandmother had in fact been denied visitation. The record is clear that the trial court correctly considered each of these issues.

[¶ 34.] Mother admitted that there was nothing in the relationship between C.W. and Grandmother that had been detrimental in the past. Furthermore, the trial court specifically sought to minimize any potential future interference resulting from the visitation through its order specifying the terms and conditions of the visitation. This includes allowing only supervised visits in the first year, gradually stepping-up the length of each visit, and specifically prohibiting Grandmother from discussing with C.W. any details, opinions, or facts relating to the sexual assault that Father committed against Mother. Therefore, it has not been shown that visitation would significantly interfere with the mother-child relationship.

[¶ 35.] In regard to the finding that Grandmother had been denied visitation, the trial court relied on evidence which showed that Mother refused to accept Valentine’s Day cards that were sent by Grandmother to C.W. and his older sister, that Grandmother made additional attempts to contact Mother to request visitation, and that in spite of the established grandmother/grandchild relationship Mother made no attempt or offer to allow, encourage, or permit visitation.

[¶ 36.] Based on the above, it has not been shown that the trial court erred in finding that Grandmother satisfied the requirements of SDCL 25-4-52, and therefore we should affirm.

[¶ 37.] Mother alleges that the trial court’s decision violated her due process rights by forcing her to allow visitation between C.W. and his Grandmother. Mother contends that under the facts of this case, SDCL 25^4-52 is unconstitutional as applied to her because it significantly interferes with her relationship with her son.

*235[¶ 38.] There is a strong presumption in favor of constitutionality for laws enacted by the legislature. State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175. This Court has stated that:

[T]he presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.

Id. In Cwrrey, this Court specifically upheld the constitutionality of SDCL 25-4-52. 2002 SD 98, ¶ 15, 650 N.W.2d at 278. Grandparent visitation that does not “significantly interfere” with the parent/child relationship is constitutional. Id. ¶ 13.

[¶ 39.] Although Mother contends under the facts of this case that grandparent visitation will result in “significant interference,” she failed to identify anything through her testimony as to how her relationship with her son will be negatively impacted. Mother has only indicated that she has a vague, generalized fear that her son may someday ask his Grandmother about his Father. Yet, she acknowledges that this is a question that she herself may be asked by him at some point in the future.

[¶40.] Mother’s other concerns in regard to Grandmother deal directly with the relationship between the two of them and have very little to do with Mother’s relationship with C.W. Accordingly, the trial court found that visitation would not significantly interfere with the mother-child relationship. The trial court held that Grandmother met her burden of proof that visitation was in the best interests of child and would not significantly interfere with the mother-child relationship.

[¶ 41.] Finally, the majority opinion claims under Troxel, that the trial court failed to give special weight or deference to the Mother’s own determination regarding the reintroduction of Father’s family into C.W.’s life. I disagree because the trial court specifically prohibited Grandmother from discussing with C.W. any details, opinions or facts relating to the sexual assault that Father committed against Mother. Accordingly, I would affirm the trial court.