Marci HAWKINS, Appellant, v. Sonia M. WILLIAMS and Daniel Williams, Appellees.
No. S-14964.
Supreme Court of Alaska.
Dec. 20, 2013.
2013 WL 6698623
Sonia Williams and Daniel Williams, pro se, Wasilla, Appellees.
Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.
BOLGER, Justice.
I. INTRODUCTION
A grandmother petitioned for visitation with her daughter‘s four children. After a trial, the superior court denied the petition, finding that the grandmother failed to show by clear and convincing evidence that visitation was in the best interests of the children. The grandmother appeals, arguing that: (1) the superior court erred by applying the clear and convincing burden of proof; (2) the record does not support the superior court‘s conclusion that the grandmother had not established ongoing personal contact with the children; and (3) the record does not support the superior court‘s conclusion that the grandmother failed to prove visitation was in the best interests of the children. We conclude that the superior court applied the correct burden of proof and that its conclusions were adequately supported by the evidence presented at trial.
II. FACTS AND PROCEEDINGS
Sonia and Daniel Williams have four children. Marci Hawkins is Sonia‘s mother. Marci has two other living daughters; she also had a son who died in April 2011 at the age of 27.
At the beginning of 2011, Sonia and Marci were beginning to work on improving their relationship. But after Marci‘s son died, Marci and her three daughters had a conflict over his funeral arrangements. Marci sent an emotional email to her daughters, followed by a similar letter. Both communications indicated that Marci wanted “no further contact” with her daughters.
In January 2012, Marci filed a petition for grandparent visitation. She alleged that Sonia and Daniel had denied her contact with her grandchildren since April 2011. In their answer, Sonia and Daniel responded that visitation was not in the best interests of the children because Marci had “not been in the children‘s life since August 2009” and Marci had ended all communication with their family.
The superior court held a half-day trial in July 2012. After the trial, the superior court denied the petition for grandparent visitation. The court found that “[i]t has been four years since Marci has seen the children, and she has not made attempts to reunify without court involvement.” The court also concluded that Marci had failed to show by clear and convincing evidence that visitation was in the children‘s best interests. Marci now appeals to this court.
III. STANDARD OF REVIEW
We review the best interests determination supporting a visitation award to determine whether “the superior court has abused its discretion or if its controlling findings of fact are clearly erroneous.”1 “A factual finding is clearly erroneous when a review of the record leaves a definite impression that a mistake has been made.”2 Whether the superior court applied the correct burden of proof to a visitation issue is a question of law this court reviews de novo.3
IV. DISCUSSION
Under
A. The Superior Court Properly Required Marci To Prove That Visitation Was In The Children‘s Best Interests By Clear And Convincing Evidence.
In Evans v. McTaggart, we considered the application of
Marci argues that the superior court erred when it required her to prove by clear and convincing evidence that visitation was in the children‘s best interests. She challenges the superior court‘s order, which stated that “[v]isitation can be ordered over the objection of a legal parent if the court finds by clear and convincing evidence that the parent is unfit to make visitation decisions.” Marci contends that there was no valid objection to visitation because Sonia did not testify and Daniel did not object to having Marci see the children under certain circumstances. Therefore, she reasons that the clear and convincing standard should not apply.
Marci‘s argument is unpersuasive. Any visitation order infringes on a parent‘s due process right to make decisions regarding “the care, custody, and control” of a child.9 It follows that a parent can oppose a petition for court-ordered visitation without objecting to all types of visitation with the third party. Sonia and Daniel objected to court-ordered visitation by opposing Marci‘s petition in their answer. And although Daniel testified that he had no objection to Marci seeing the children generally, his testimony showed that he had concerns about allowing any visitation with the children until Marci could communicate with him and Sonia. It was not a clear error for the superior court to conclude from these circumstances that Sonia and Daniel objected to court-ordered visitation. The court correctly required Marci to show that visitation was in the best interests of the children by clear and convincing evidence.
B. It Was Not A Clear Error For The Superior Court To Find That Marci Did Not Establish Ongoing Personal Contact With the Children.
Marci challenges several of the superior court‘s findings with respect to
In particular, Marci disputes the superior court‘s finding that she “cut off all contact with her daughter and the children after the death of her son.” But there was uncontradicted evidence that Marci sent two communications to her daughters indicating that she wanted “no further contact” with them as a result of the conflict surrounding her son‘s funeral. The record also shows that Marci had no direct contact with Sonia and Daniel or their children after the funeral. From this record, it was not a clear error for the court to find that Marci intended to cut off all contact with Sonia, Daniel, and their family.
Marci also disputes the court‘s statement that “[a]lthough Sonia has reached out to Marci, Marci has not wanted a relationship with Sonia.” While the superior court did not identify specific evidence in the record when it made this finding, Marci did admit that she had not spoken to Sonia and Daniel since her son‘s funeral. Any error here is harmless: it was Marci‘s burden to show that she had attempted to maintain ongoing contact with the children, rather than Sonia‘s burden to show that she contacted Marci.10
The superior court also stated that Marci had not seen the children in “four
We will not reverse a custody or visitation decision for a factual misstatement unless “the entire record demonstrates that the controlling findings of fact are clearly erroneous[.]”11 In this case, none of the alleged misstatements that Marci relies on would warrant reversal.
C. It Was Not An Abuse Of Discretion To Find That Visitation Was Not In The Best Interests Of the Children.
Marci also challenges the court‘s conclusion that visitation was not in the best interests of the children. The superior court stated that “[i]t is not in the children‘s best interests to be involved in family drama, particularly when Sonia has stated that she would permit visitation if Marci would seek help with grief issues relating to the death of her son.”
Marci had the burden to show that visitation was in the best interests of the children. It was not enough for Marci to allege generally that grandchildren should be allowed to visit their grandparents.12 But Marci presented little direct evidence showing that visitation was in the best interests of her grandchildren. She primarily presented general evidence of her experience with children and her good character.
In contrast, Sonia and Daniel presented evidence that supported the superior court‘s conclusion. Sonia‘s sister testified that she was concerned Marci had not addressed her grief over her son‘s death and she believed that Marci presented a risk to her grandchildren. Daniel testified that he was concerned that Marci would have a mental breakdown if her son was mentioned during a visit. Daniel clarified that he was not opposed to the children seeing Marci; he explained that he “would like her to communicate with us,” so he and Sonia could evaluate whether visitation would be good for the children. In contrast, when Marci was asked whether it would be in the best interests of the children to fix her relationship with her daughter before involving the children, Marci answered, “I don‘t know.”
We conclude that the superior court did not abuse its discretion when it determined that it would not be in the best interests of the children to have court-ordered visitation with Marci.
V. CONCLUSION
We AFFIRM the superior court‘s order denying the petition for grandparent visitation.