Fardig v. Fardig

BRYNER, Justice,

with whom MATTHEWS, Justice, joins, dissenting in part.

I join today's opinion in concluding that the superior court did not abuse its discretion by awarding physical custody of Bethany and Edith to Fardig. But because our case law unequivocally requires express findings explaining the need for supervised visitation, because the superior court failed to comply with this requirement, and because the record establishes a need for specific findings here, I would remand the visitation order and would direct the superior court to specify how Bethany and Edith would be harmed by having unsupervised visitation with their mother, Owen.

In J.F.E. v. J.A.S.-decided just five years ago-this court articulated the legal standards that must be met in a private custody proceeding before a court may restrict parental visitation by requiring third-party supervision; we concluded that Alaska law makes unsupervised visitation the norm in such cases and that supervised visitation may be ordered only when the trial court makes express findings specifying why supervision is actually necessary to protect the children's best interests:

[Alaska Statutes] 47.10.084 recognizes in the context of child-in-need-of-aid proceedings that noneustodial parents have certain residual rights and responsibilities including "the right and responsibility of reasonable visitation." AS 47.10.084(c). It follows that a similar residual right of reasonable visitation should exist in private custody proceedings since parents in such proceedings are no less deserving of contact with their children than parents of children whose custody has been committed to the state.
Based on these provisions and on the statutes dealing with child custody, we infer that the best interests of the child standard normally requires unrestricted visitation with the noncustodial parent. Therefore, an order requiring that visitation be supervised must be supported by findings that specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being and the other interests set out at AS 25.24.150.! 1

Today's opinion silently overrules this precedent by disregarding its unequivocal command that, before imposing a supervision requirement on parental visitation, the trial court must make express findings explaining how unsupervised visits would violate the children's best interests. For the superior court utterly neglected to specify how unsupervised visitation by Owen would adversely affect Bethany's and Edith's physical, emotional, mental, religious, or social well-being; *16indeed, though the superior court comprehensively addressed the children's best interests in deciding to award primary physical custody to Fardig, it failed even to mention their best interests in summarily imposing Owen's supervised visitation requirement. Nor does the trial court's discussion of the children's best interests in its custody findings explain its separate and conceptually different decision to require supervised visitation. Although the custody findings do explain why the court believed Fardig to be a better custodial parent than Owen, they contain nothing akin to a finding that unsupervised visitation would actually harm either child or adversely affect the children's best interests.

Yet this court's opinion glosses over this glaring deficiency, as if J.F.E.'s holding meant nothing at all: without any attempt to justify the absence of express findings (indeed, without even acknowledging the superi- or court's failure to make J.F.E. findings), the opinion proceeds to tackle the fact-finding problem on its own, combing the record for traces of evidence that might have supported a supervised visitation requirement; and after considerable stretching and straining, the most the court can say is that Bern-zott's expert testimony "provides support for" the superior court's decision.2 But this minimal appellate finding of fact hardly fills the void left by the trial court's failure to make appropriate findings, for it lands well short of the mark established in J.F.E., which demands "findings that specify how unsupervised visitation will adversely affect the child's physical, emotional, mental, religious, and social well-being and the other interests.3 Thus, today's opinion simply adds this court's own name to the list of other participants in the case-Fardig, Bern-zott, and the superior court judge-who have been unable to comply with J.F.E.'s standard. And this court's failure is especially glaring, since the standard it violates is its own creation.

To be sure, the trial court's failure to make express findings in compliance with J.F.L. might be excused were it clear that Bern-zott's testimony had a solid factual basis, that her testimony showed how unsupervised visitation would harm Betbany and Edith, and that the trial court actually found this testimony convincing. But the record supports none of these inferences. Bernzott's testimony that the children's best interests would be served by unsupervised visitation was itself wholly conclusory. It addressed none of the statutory best interests factors and offered no meaningful explanation to support Bern-zott's "expert opinion"; moreover, when asked to describe her factual basis for concluding that Owen suffered from substance abuse problems, Bernzott could point to only two equivocal statements by Edith, which Bernzott "interpreted" as references to drug use or impairment.4

Notably, the superior court neither expressly nor implicitly accepted Bernzott's testimony as credible proof that Owen suffered from a substance abuse problem or posed a danger to her children. To the contrary, the court's oral comments demonstrate that it found insufficient evidence to allow any meaningful conclusions on these issues. In evaluating the statutory best interests factor of parental drug abuse for purposes of awarding custody, for example, the court noted:

*17Ms. Owen presents me with a tough problem. So far, I have two letters-two letters from two doctors. [The] first is by Dr. Mike Beirne.... I don't know what underlies it. I tell you what my problem is: both doctors did not testify here in person. I have essentially an unsworn statement by 2 doctors that ... don't tell me very much. I don't know exactly what [each doctor] has done. What I find critically lacking here is anybody who can get on the stand and testify and tell me one way or the other, you know, what medications Ms. Owen is on, what sort of testing procedures she has undergone, what sort of assessment, and what is essentially the situation with the drugs.! 5

Far from concluding that eredible evidence of drug use by Owen existed, then, the trial court expressly acknowledged that the evidence on this issue was speculative. But the court nonetheless faulted Owen for failing to disprove these speculative allegations:

Ms. Owen says, "Oh well, that's all speculation." Well, sometimes the best way to refute speculation is to have somebody come into court to state under oath what's going on. That's credible, reliable evidence. So although I see those letters, I'm not going to put much credibility into [them] because I don't know exactly the contours of those things.

The court returned to this theme later: in imposing Owen's supervised visitation requirement, despite its express recognition that the evidence of Owen's substance abuse was speculative, the superior court took the view that Owen should be restricted to supervised visitation unless and until she affirmatively proved that she would not pose any danger:

I have considered the issue of visitation. I'm going to essentially allow visitation after these conditions have been met: Ms Owen, I know you don't want to hear this. You think Judge Michalski dealt with this question. But I tell you what. It hasn't been dealt with ... to my satisfaction. I want a drug and alcohol assessment. Okay. I want somebody telling me that they have assessed you. And you have been assessed clean and sober. That you don't need any drug treatment. It's been years. I haven't really seen any proof that that has occurred. You send me two letters. I'm telling you now they are insufficient. You've gotta do better. If you think you're really clean, it should be very easy. It shouldn't take you very long to submit that evidence to the court. Okay. Then we'll do a follow up and I'll decide what sort of visitation you shall have. Because until that time, I'm going to essentially restrict you to supervised visitation.

Hence, the superior court decreed a strict regime of supervised visitation not because it was persuaded by credible evidence that supervised visitation was needed to prevent harm to the children's best interests, but rather because Owen had failed to prove her own innocence; she had failed to convince the court that unsupervised visitation would not harm her children. As Judge Tan himself tellingly put it, "What I find critically lacking here is anybody who can ... tell me one way or the other ... what is essentially the situation."

In my view, this finding strongly suggests that the superior court restricted Owen to supervised visitation because it believed that she bore the burden of overcoming speculative assertions of possible drug use by affirmatively proving her fitness to engage in risk-free unsupervised visitation. Even though Owen had parented eight children over a marriage spanning some twenty-seven years and had not been credibly shown to have caused them any actual harm, the trial court required her to prove to its satisfaction that unsupervised visitation would be in her children's best interests. Yet this requirement cuts directly against our decision in J.F.E., which adopts unsupervised visitation as the norm in the absence of affirmative proof to the contrary and categorically precludes restrictions imposing supervised visitation unless the trial court expressly specifies how unsupervised visitation would adversely affect the children's best interests.

In summary, then, nothing in the record excuses the trial court's failure to comply *18with J.F.E.'s requirement of express findings focusing on the need for supervised visitation. Because the trial court failed to specify any adverse effect that unsupervised visitation might actually have on the children's best interests, and because it appears instead to have mistakenly shifted to Owen the burden "to refute speculation," I would vacate the supervised visitation requirement and remand for reconsideration, allowing the restriction on Owen's visitation rights to be reimposed only upon the entry of findings in compliance with J.F.E.'s standards.

I thus dissent from this court's decision affirming the supervised visitation order.

. J.F.E. v. J.A.S., 936 P.2d 409, 413-14 (Alaska 1996) (internal footnotes omitted) (emphasis added).

. Opinion at 14-15.

. 930 P.2d at 413-14.

. Over Owen's understandable but unsuccessful hearsay objection, Bernzolt described two statements by Bethany as her basis for believing that Owen had a substance abuse problem:

Bethany reported to me that "mom had a lot of medicine" and that "mom hurt a lot" as far as drug use. There was an occasion that Bethany also reported to me she asked her mom to stop the car because she believed her mom was-'drunk'-was the word Bethany used. I interpreted that to be impaired in some way. And Bethany asked her mom to take her back home. She would not continue in the car.

Evidently, these statements were made to Bern-zott sometime shortly after she began seeing Bethany and Edith in February 1999-more than a year before the custody hearing. Bernzoit gave no further details and failed to describe the context in which these statements were made or to specify when the reported incidents were alleged to have occurred. When Owen challenged the accuracy of Bernzott's claim that Bethany made these statements, Bernzott quickly altered her testimony and attributed the statements to Edith instead.

. Emphasis added.