Medearis v. Whiting
695 N.W.2d 226
S.D.
2005
Check Treatment

*1 226 jecting certainty certainty” the “virtual test for virtual standard

introduced exception Fryer). to workers See also Laidlow v. Hariton the intentional tort Harn, Co., Inc., 602, 506 N.W.2d at Mach. 170 N.J. 790 A.2d compensation cases. (intentional Jenos, Inc., 884, (N.J.2002); 95, 100; Fyffe torts 898 v. SDCL 62-3-2 115, 1108, 570 N.E.2d 1111- Again, Fryer, the Court re 59 Ohio St.3d excepted). (1991) statute; improper superseded by Bazley of this test. 12 v. affirmed its use Tortorich, 475, (La.1981); at 106. 397 So.2d 616 N.W.2d Sub 482 Indus., Inc., certainty appropriate is the stan Mandolidis v. Elkins 161 stantial (W.Va. 695, 907, dard, certainty. Brazones 246 914-15 not virtual See W.Va. S.E.2d statute; Prothe, 900, (S.D.1992); 1978), Gallapoo superseded 489 N.W.2d 906 v. v. Bowl, Inc., Stores, Inc., 172, Sport v. 469 N.W.2d Wal-Mart 197 W.Va. 475 Jensen (W.Va.1996). (S.D.1991); 172, 370, VerBouwens v. S.E.2d 175 Prod., Hamm Wood 334 N.W.2d they To the extent that use the [¶ 37.] (S.D.1983). test, certainty virtual is time to discard Section 8A of the Restatement Fryer Ham and and return to the correct “The word ‘intent’ is provides: of Torts assessing standard intentional conduct ... to denote that the actor desires used compensation in worker’s cases. act, consequences to cause of his or that he consequences

believes that the are substan- it.” 1

tially certain to result from Restate- (1965). § 8A Com- (Second) ToRts

ment (b) explains that “[i]f

ment section consequences

the actor knows that the are certain, certain, substantially result 2005 SD 42 act, ahead, goes from and still he his Cody Cheryl Medearis, & MEDEARIS by the law as if he had in fact treated Appellees, Plaintiffs and § produce desired to the result.” Id. 8A v. cmt b. WHITING, Sherri Defendant jurisdictions Other have like Appellant. wise endorsed the use of the substantial certainty standard as a lesser burden than No. 23235. certainty. actual or virtual Turner v. Supreme Court of South Dakota. Inc., (Fla PCR, 683, 687, n4 754 So.2d statute, 2000), superseded by for example, Considered on Briefs Nov. 2004. recognize the court stated: “We Reassigned on Feb. some courts have elevated the standard Decided March certainty from substantial to virtual certainty. Although we continue to find certainty requires

that substantial a show

ing greater gross negligence, than we em

phasize appropriate standard is certainty, heightened substantial not the ” certainty

virtual standard.... Id. at n4

(citations omitted). v. See Sorban Ster

ling Engineering Corp., Conn.App. (2003)

830 A.2d (specifically re- *2 Arendt, Pierre, Dakota,

Al Attor- South ney plaintiffs appellees. Jones, Dakota, Rapid City, B.J. Attorney appellant. for defendant and (on ZINTER, reassignment). gravated sexual assault and was sentenced Justice penitentiary. to 108 months a federal (Grandmother) Cheryl Medearis circuit court to obtain visi- petitioned the February On four-year-old tation with her permanent protection received a order *3 Although mother grandson, C.W. C.W.’s Father from the Rosebud Sioux objected, trial granted visita- protection pro- Tribal Court. The order application tion. Because the court’s contacting hibited Father from Mother or of the visitation statute vio- 2003, In April, the Rosebud Sioux un- process rights lated the mother’s due changed also Tribal Court C.W.’s name Granville, 57, der Troxel v. 530 U.S. Whiting. from Medearis to Mother and 2054, (2000), 147 L.Ed.2d 49 we re- C.W. later moved from the Rosebud Indi- verse. County, an Reservation to Marshall South History Facts and Procedural , Dakota. son, Cody [¶ 2.] Grandmother’s Me- dispute began This in Marshall (Father) (Moth- Whiting dearis and Sherri County Circuit Court when Grandmother er) were involved in a domestic relation- petitioned rights and Father1 for visitation son, C.W., ship. They had who was born Although under SDCL 25-4-52.2 Grand- on November 1999. Grandmother was mother conceded she had never for- present Following the birth. C.W.’s visitation, mally asked for she contended birth, together Mother and Father lived effectively that she had been denied visita- Valentine, Nebraska, Rapid City, tion. The basis Grandmother’s conten- couple South Dakota. The then moved to February tion was that in approxi- Mission, Dakota, they where resided mately one month after rapes, for four or five months Day refused Valentine’s cards Grand- years of age. C.W. was two Grand- mother had sent to C.W. Grandmother frequently babysat mother and cared for alleged also that November of she during they the time living were wrote a letter to Mother and enclosed with her Mission. birthday cards for C.W. Mother denied January 3, On Mother and letter, receiving the but Grandmother as- got Father into a disagreement, and Moth- serted that the letter was never returned er and C.W. moved out of Grandmother’s to her. thereafter, Shortly January house. on raped objected Mother was two times Fa- to Grandmoth- ultimately ther. He was ag- request convicted of er’s for court-ordered visitation for Although originally grandparents, Father was included in if the visitation is in the best petition, trial court stated trial "I grandchild of the interests and: phone think from our discussion on the (1) significantly If the visitation will not inter- forth, by plaintiff so and the made statements parent-child relationship; fere with the through attorney, really her [Father] (2) If the or custodian of the here, just not an issue it would be between the grandpar- child has denied or grandmother concerning grandchild, but opportunity ent reasonable to visit any any relationship [Fa- grandchild. ther] himself and that's understood then.” The circuit court shall issue orders nec- essary protect to enforce or to provides: SDCL 25-4-52 rights granted pursuant to this section. may grant grandparents The circuit court section, grandpar- As used in this the term reasonable of visitation with their great-grandparents. ents includes grandchild, petition by with or without First, happened about what “concerned reasons. severely had deteriorat- night rapes] with Grandmother car that [of whether conduct after Furthermore, ed due to Grandmother’s the truth was told.” Second, to control Mother desired rapes. evidence that when Father was violated father and learn about his how C.W. would conditions of his and was release want- his crimes. warrant, an arrest ed on Grandmother ini- him, tially having denied contact with but on began first concern 7.] Mother’s acknowledged spoken had later that she Although Mother night rapes. Finally, apparent- him. longer staying was no with Grandmother ly sorry never indicated that she was Mother went to Grandmoth- night, on had what her son done. There is raped. er’s home after she *4 testimony to occurred conflicting as what In foregoing addition to the con- arrived. Mother contends when Mother cerns, right Mother felt that had the she to merely Mother to that Grandmother told rapes control how C.W. would learn rest, get a while take shower and some the fact that was in his Father the contends that she offered Grandmother penitentiary. Mother wanted to control a ride to the Under give hospital. Mother four-year- of the reintroduction the then facts, the is no either there version family. old with Father’s was ex- She dispute rapes reported that the were not tremely concerned about how C.W. would Rather, at Grandmother’s home. Grand- incident learn of the and what he would boyfriend eventually gave Mother mother’s parents. think about his was also house, aunt’s the a ride to Mother’s where that the acciden- concerned incident would rapes reported. were tally intentionally or during be disclosed perspective, 8.] From [1f Consequently, Grandmother’s visitation. sup- inappropriately Grandmother also she, testified that rather than ported in his trial. Father criminal Grandmother, right to tell “ha[d] [C.W. the testified as for her Grandmother witness enough his old dad] [C.W. was] about son, indicating that she did not what know to understand.” Mother testified that happened night the that Mother was old enough, when C.W. was she intended raped. that Mother believed Grandmother him make his to let own decisions she testifying. did not the truth when tell if respect would those fact, Mother indicated that she believed in Father to be contact with his chose testimony made it sound as Grandmother’s However, all light the Grandmother. up story being if Mother had made trage- arising concerns from this foregoing also raped. upset Mother was because contact dy, Mother wished restrict Father her under had called while he was family at Father’s that time. to, be- a court restriction not and Mother phone lieved Father had obtained her that disagreed and Grandmother re- number from either Grandmother or quested rights un- court-ordered visitation attorney. Grandmother’s moved to der SDCL 25-4-52. Mother dis- ground that petition miss the on corroborat- 9.] These concerns were suit did not meet stan- Grandmother’s hearing. at the ed evidence required grandparent In that one of wit- dards hearing, Grandmother’s nesses the statute.3 She also contended conceded (severing constitutionality We 650 N.W.2d 273 upheld of the cur- 2002 SD pre- prior creating a Currey Currey, portion rent of the statute v. statute version pro- Currey violate her due violation of v. 2002 SD visitation would forced raise her child as she wished. cess 530 U.S. N.W.2d the motion to dis- The trial court denied 120 S.Ct. 147 L.Ed.2d 49. “We miss, that Grandmother was concluding questions review constitutional de novo.” evidentiary hearing. entitled to an Aesoph, State v. (ci (emphasis in original) evidence, hearing After omitted). tations although

trial court found Grandmoth- years, not seen er had requires 25-4-52 [¶ 15.] SDCL loving relationship was a close and be- First, grandparent showings. to make two and that it tween Grandmother and C.W. grandparent prove must that visitation for that would be in C.W.’s best interest grandchild’s is in the best interests. The trial court relationship to continue. Second, if visitation is found to be granting found that Grandmother visi- also child, best interests of the “significantly inter- tation would prove must signifi- visitation will not parent-child fere” with the cantly parent/child interfere with the rela- and that had been denied or, alternative, tionship ultimately visitation. The trial has denied or *5 restricted4 visitation to awarded parent opportunity a reasonable to visit Grandmother. grandchild. their Id. raising appeals two is- [¶ 18.] Presumptions and Burden of (1) sues: whether the trial court erred in Under the Statute Proof concluding that Grandmother met the re- Mother contends that trial [¶ 16.] the (2) 25-4-52; quirements of SDCL court erred in adopting presumption that whether the court violated Mother’s trial grandparent visitation was the child’s process rights by granting due visitation to generally best interest. This Court has conclude .that Grandmother. Because we stated that grandparent the must show trial of application the court’s the statute that their visitation inis the child’s best process rights, due violated Mother’s we interest under SDCL 25-4-52. only address the issue. second ¶98, 14, 650 at 277-278. Analysis and Decision Supreme The United States [¶ 17.] Mother claims that the tri [¶ 14.] specifically Court has more al addressed the applying by court erred in the statute presumptions constitutional that inappropriately shifting to Mother a must be bur given to a parent’s den of fit decision to restrict a demonstrating Grandmother’s grandparent’s visitation request. visitation would a detriment to See Trox contends that the el 530 120 further trial U.S. S.Ct. 147 L.Ed.2d court unconstitutionally applied pre Supreme 49. The began analysis Court its sumption in grandparent favor of visitation reaffirming principle the that the Due sumption grandparents parent year, eight- in favor of if a Grandmother was allowed one died). grandchild Today's of that had case period unsupervised per hour of visitation only application involves the of the current year, month. In the third statute. twenty-four-hour period allowed one of unsu- pervised per month. The 4. The restrictions as follows: For the were- also ordered that Grandmother should not year, first Grandmother was limited to one details, opinions, discuss or facts of the month, period per four-hour and the visita- crimes committed Father Mother. supervised. tion was to be For the second

231 (upholding the at 277 constitution- parents affords funda- N.W.2d the Process Clause ality portions they raise children as of South Dakota’s right mental to their statute). parent upheld at We wish. Id. S.Ct. Therefore, Supreme provisions the those that did at 57. not “unreason- L.Ed.2d ably deprive are limited in in- the custodial parent Court noted states parent’s in a fit decisions con- fundamental con- tervening make decisions care, rearing: cerning custody, and control of cerning child so, In doing children.” Id. we noted long parent adequately as a cares so that the (i.e., fit) placed burden had to be for his or her children there on the un- grandparents, that it was no for the normally will reason State constitutional to create “a presumption inject private itself into the realm of ¶¶ favor of grandparents.” Id. 13-14. ability to further family question “special weight” requirement The was also best parent make the (Zinter, J., concurring). noted. concerning rearing parent’s of that children. reviewing ap- trial court’s 68-69, restrictions, 147 plication Id. at of these must be added). (emphasis L.Ed.2d at 58 reiterated improperly burden is imposed pre- on a when a court Moreover, even when grandparent sumes that visitation is justified, state intervention is are best interests of the child. The United applied must be restrictions Supreme point States Court made this First, a decision-making process. bur very clear by specifically disapproving the disproving den of visita Washington trial court’s that: tion interests would be best I think in most situations a commonsen- may placed upon parent. not be *6 normally in approach that] sical it is [is may This that a trial court not means spend the best interest of the children to visitation presume grandparent is quality with the un- grandparent, time 69, the best interests the child. at are grandparent, less the [sic] 2062, 120 at 147 L.Ed.2d at 59. The S.Ct. problems some issues or involved where- Supreme specifically disapproved of Court lifestyles are grandparents, their Washington presumption trial court’s the chil- going impact adversely upon to favoring grandparent visitation because dren. effectively placed presumption such a on Troxel, 2062, at disproving

that mother “the at 120 S.Ct. burden 530 U.S. would be in the 147 L.Ed.2d at 59. [children’s] visitation pre best interest. court’s [T]he [trial] 21.]Although pre type this [¶ provide any to sumption protection failed Troxel, sumption prohibited is was fundamental constitutional [her] now applied by the trial court in the case concerning rearing to make granting before In Grandmother visi us. 69-70, daughters.” of her own Id. at 120 “[ijt’s a rights, tation the trial court stated 2062, 147 S.Ct. at L.Ed.2d at 59. The premise people basic that we work on trial second restriction is that parents and their should know their special weight “must accord at least some grandparents possible as much as unless to own at parents determination.” Id. problem there is real or real detri some at 120 S.Ct. 147 L.Ed.2d at 59. added.) Thus, (Emphasis like ment.” Troxel, the court here Troxel trial court prin- We embraced these improperly grandparent ciples presumed 650 And, if a fit parent’s in the best interests of the first instance. deci- visitation was problem some real or real of the kind at here becomes child unless sion issue Furthermore, review, judicial shown. subject detriment could be to the court must Troxel, presumption improperly this special weight under accord at least some disprov- the burden of placed upon Mother parent’s own determination. visitation was ing Grandmother’s Id. at at 147 L.Ed.2d at S.Ct. of the child.5 the best interests added). (emphasis Special Weight or Deference 23.]Here, the record reflects that a Fit Parent’s Decision regarding own determination if correct burden of Even family how and when Fathers would be trial court applied, had been given no reintroduced into C.W.’s life was Troxel re- failed to adhere to the second Instead, special weight or deference. par- deference to a fit requiring striction presumed trial court that Grandmother’s This means that some ent’s decision. child’s best interest given par- be to the “special weight” must problem and that there must a “real own Troxel stated: ent’s determination. grandparent detriment” before a would world, parents might always normally having an ideal from visita [i]n Therefore, grandchild. seek to cultivate the bonds between tion with a grandparents grandchildren. and their like the trial court in the trial court however, say, failing give any Needless to our world is here erred in “special weight” far and in it perfect, from the decision or deference to Mother’s determi intergenerational way whether such an rela- nation of the best to reintroduce C.W. any spe- be beneficial in tionship family.6 would to his Father’s See id. at 2062, 147 cific case is for the to make in the L.Ed.2d applied child-rearing court had concerning Even if the trial this ent's determination and Grandmother been re- had visitation: quired proof, to bear her burden of she failed petition [o]nce has been filed to establish that it was in the best interests of placed in court and the matter before a require grandparent C.W. to visitation at this judge, parent's decision that visitation fact, pre- improper time. aside from the *7 would not be in the child’s best interest sumption, produced evi- Grandmother no accorded no deference. Section required dence that the best interests of C.W. 26.10.160(3) requirement contains no that a Grandmother's visitation. Grandmother’s ev- any grandpar- idence did establish parent’s any pre- not recent court accord the decision Although relationship. ent C.W. lived with sumption validity any weight of whatso- for four or five months in 2001- Instead, Washington ever. statute years C.W. was less when than two of places solely the best-interest determination age, at the of the trial time Grandmother-had judge. judge in the hands of the Should the years. seen C.W. two in There was also disagree parent's with the estimation of the showing by no that Mother was interests, judges child's best view neces- Thus, parent. proof an unfit Grandmother's Thus, effect, sarily prevails. practical in nothing established other than the fact Washington the State of a court can disre- C.W. had resided in Grandmother's house gard and overturn decision a fit and Grandmother had a concerning custodial visitation approximately years C.W. when he was of party whenever a third affected the deci- age. petition, solely sion files a visitation based judge's on the of determination the child's discussing validity Washington Troxel, best interests. Supreme high- statute Court Id. at lighted failing 120 S.Ct. at 147 L.Ed.2d at constitutional defect special weight par- (emphasis accord original). or deference to a 57-58 significant weight to accord to [Mother’s Conclusion decision], show that this case involves disagreement involved a 24.]This case [¶ more nothing simple disagree- than a concerning a fit mother’s decision over ment between the and [trial court] informed how and would be concerning best inter- [Mother] [C.W.’s] crimes and incarceration of his father’s ests. It a dis- penitentiary. also involved fit con- agreement a mother’s decision over Id. at S.Ct. 147 L.Ed.2d at reintroducing method cerning the best of And, in 60-61. such involving cases dis- family of father that her child to the agreements concerning the child’s best in- disagreements involve raped her. Such terests, must be mindful that “the Due we decision-making that does not parental permit Process Clause does not a State to normally More- justify State intervention. infringe right par- on the fundamental over, justi- even if state intervention were rearing ents to make child simply fied, imposed improperly the trial court judge because believes deci- ‘better’ and it upon proof Mother the burden of 72-73, sion could be made.” Id. at special failed to accord her decision (emphasis 147 L.Ed.2d at 61 Troxel, weight. application this added). Under Dakota’s appli- Because the trial court’s infringe- an unconstitutional statute was cation of SDCL 25-4-52 violated the core right

ment of Mother’s fundamental principles of reverse. we make decision” on these matters. “the best Justice, 27.]GILBERTSON, [¶ Chief 25.]Ironically, the unconstitution [¶ MEIERHENRY, KONENKAMP application al of the statute is demonstrat Justices, concur. conclusion, by restating ed Troxel’s substi tuting parties this trial court’s these 28JSABERS, Justice, dissents. findings: SABERS, (dissenting). Justice together with the [trial Considered PER MONTH FOUR HOURS awarding reasons for court’s] OF SUPERVISED VISITATION [Grandmother], the combination of THE IS IN BY GRANDMOTHER these factors demonstrates that the visi- THE BEST OF INTEREST in this case an uncon- tation order AND DOES NOT GRANDSON SIG- infringement stitutional on [Mother’s] INTERFERE IN NIFICANTLY to make decisions fundamental LIFE THE OF MOTHER. care, and con- concerning custody, majority opinion The mistakes trol of The failed to [trial court] [C.W]. the burden the burden [Mother], a accord the determination of *8 and evidence re- going the forward any weight. parent, fit material custodial placed The trial court the burden verses. fact, only court] the made [trial the and she met proof on findings support in of its visita- formal it, puts going the burden of forward which close tion order. had been a [“[T]here with the evidence on the Mother. She rela- loving relationship and ... which to meet and we should affirm. failed be in the interests of tionship would best slender SDCL 25-4-52 mandates two- continue.”] [¶ 31.]

said child to These First, the find part the test. court must visi- findings, [trial] in combination with grandchild’s in the best inter- in favor tation to be court’s announced Second, not sig- failure will visitation and its ests. nificantly parent/child interfere with the that [¶ 34.] Mother admitted there was or, alternative, in relationship par- nothing relationship between C.W. ent denied or has and Grandmother that had been detrimen- opportunity reasonable to visit the Furthermore, past. tal grandchild. These conditions exist and specifically sought any to minimize should affirm. we potential future interference resulting from the through speci- its order In regard prong to the first fying the terms and conditions of the visi- test, grandpar- this Court held that a tation. allowing only This includes super- ent must show their visitation is year, gradually vised visits the first child’s best interest in accordance with visit, stepping-up length of each SDCL 25-4-52. specifically prohibiting 278. Mother claims that Grandmother from inappropriate- details, the trial court erred when it discussing opinions, C.W. ly shifted the burden to her to demon- relating or facts to the sexual assault that why strate Grandmother’s visitation would Father committed Mother. There- However, a detriment to contrary be C.W. fore, it has not been shown that visitation assertions, to her the trial court’s order significantly would interfere with the place does not the burden of on mother-child relationship. Here, Mother. the trial court found that In regard to the finding 35.] loving has been close and relation- visitation, Grandmother had been denied ship between Grandmother and C.W. This the trial court relied on evidence which by testimony'

is evidenced which estab- showed that accept Mother refused to Val- food, lished that provided Day entine’s cards that by were sent shelter, clothing, support and emotional sister, Grandmother to C.W. and his older life, during years his first two that Grandmother made additional at- by Mother’s own admission that C.W. had tempts to request contact Mother to visita- grandparent/grand- the benefit of a close tion, and that in spite of the established relationship from the moment of his grandmother/grandchild birth until Mother terminated that rela- attempt allow, made no or offer to tionship. loving Given this close and rela- encourage, permit C.W., visitation. tionship between Grandmother and the trial court held that it would above, Based on it has not C.W.’s best interest for the relationship to been shown that the trial court erred in continue. finding that Grandmother satisfied the re- Mother also contends that quirements 25-4-52, of SDCL and there- trial court in applying erred the second fore we should affirm. prong of the two-part test mandated alleges [¶ 37.] Mother the trial

SDCL 25-4-52.' Specifically, she asserts court’s decision process violated her due that the trial court finding erred in rights by forcing her to allow visitation the interference caused the visitation between and his Grandmother. would not significant enough deny contends under the request, facts of finding also case, this SDCL 25^4-52 is Grandmother had in fact been denied unconstitution- visi- *9 tation. applied The al as to her it significantly record is clear that the trial because court correctly relationship considered each of these interferes with her with her issues. son. Finally, opinion strong presumption majority is a There laws enact- claims under the trial court constitutionality favor Hauge, special legislature. give weight v. failed or deference

ed State ¶ 4, regard- 175. the Mother’s own determination ing family has stated that: the reintroduction of Father’s This Court life. I disagree into C.W.’s because the only is rebutted [T]he specifically prohibited trial court Grand- clearly, palpably plainly appears discussing mother from with de- provision that the statute violates tails, opinions relating or facts to the sexu- Further, party the constitution. al that Father assault committed constitutionality of a challenging the Accordingly, Mother. I would affirm the be- proving statute bears the burden of trial court. yond a reasonable doubt that the statute violates a state federal constitutional

provision. up- Cwrrey, specifically this Court constitutionality 25-4-

held the SDCL ¶98, 15, at 278.

52. 2002 SD 650 N.W.2d “sig-

Grandparent visitation that does nificantly parent/child interfere” with the 2005 SD 45 is constitutional. Id. 13. relationship Elkjer, David ELKJER and Cindi Although contends un- Appellants, Plaintiffs and der of this case that the facts v. in “significant inter- visitation will result ference,” identify anything failed to she Dakota, CITY, CITY RAPID OF South testimony as her rela- through her to how municipal corporation, Defendant negatively her son will tionship with Appellee. impacted. only Mother has indicated that generalized that her No. 23341. vague, she has a fear may someday son ask his Grandmother Supreme Court Dakota. Yet, acknowledges about his Father. she may question is a that she herself that this Argued on Feb. point him at some asked Decided March future. in re- Mother’s other concerns

[¶40.]

gard directly deal them relationship between the two of very little to have do with Accordingly, found that visitation would not mother-

significantly interfere with the The held relationship.

child trial court met her burden of was in the interests of best significantly and would not interfere relationship.

with the mother-child