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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hawkins v. Williams (12/20/2013) sp-6858

Hawkins v. Williams (12/20/2013) sp-6858

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



MARCI HAWKINS,                                         )  

                                                       )         Supreme Court No. S-14964  

                            Appellant,                 )  

                                                       )         Superior Court No. 3PA-12-00927 CI  

         v.                                            )  

                                                       )         O P I N I O N  

SONIA M. WILLIAMS and                                  )                

DANIEL WILLIAMS,                                       )         No. 6858 - December 20, 2013      

                                                       )  

                            Appellees.                 )  

                                                       )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                                                                                    

                   Judicial District, Palmer, Gregory Heath, Judge.  



                  Appearances:   Marci Hawkins, pro se, Wasilla, Appellant.  

                                         

                   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  


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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.  



                   Marci was present at the birth of each of the Williams children, and she  



                                                    

occasionally babysat the two oldest children before Sonia and Daniel were married.  But  



                                                                                                             

Sonia and Marci "have butted heads a lot since about 2001."  According to Marci, their  



                                                                                                     

relationship  has  worsened  since  2009,  when  Marci  divorced  her  ex-husband  and  



remarried.  



                   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.       



                                                             -2-                                                      6858
  


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                     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  

                                                             1  "A factual finding is clearly erroneous when a  

findings of fact are clearly erroneous."                                                                                      

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 AS 25.20.065(a), a grandparent may petition the superior court for  

                                                                                   

                                                                                 4  A superior court may order such  

"reasonable rights of visitation" with a grandchild.  

                                                                                                                



visitation if:  "(1) the grandparent has established or attempted to establish ongoing  



           1         Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010) (quoting R.I. v. C.C. ,  



9 P.3d 274, 277 (Alaska 2000)) (internal quotation marks omitted).  



          2          Id.  



          3          Harris v. AHTNA, Inc. , 193 P.3d 300, 305 (Alaska 2008) (explaining that  



this court generally reviews allocation of the burden of proof de novo).  



          4          A grandparent's ability to petition for visitation under AS 25.20.065(a) is   



limited by AS 25.20.065(b), which addresses the ability of a grandparent to petition for          

visitation after certain child custody orders are issued.  



                                                                  -3-                                                           6858
  


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personal contact with the child; and (2) visitation by the grandparent is in the child's best  

                                                                             

interest."5  



          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 AS 25.20.060,  



which states that a court making a custody decision "shall provide for visitation by a  



                                                                                                        6  

grandparent or other person if that is in the best interests of the child."   We explained  



that in order to protect a parent's constitutional rights, "special weight must be given to  

a  fit  parent's  determination  as  to  the  desirability  of  visitation  with  third  parties."7  



Therefore,  a  grandparent  seeking  visitation  must  bear  "the  burden  of  proving  that  



                                                                                                                              8  

                                                                                              

visitation . . . is in the best interests of the child . . . by clear and convincing evidence." 



                    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  



          5	        AS 25.20.065(a).  



          6	        88 P.3d 1078, 1087 n.40 (Alaska 2004) (quoting AS 25.20.060(a)).  



          7        Id.  at  1089;  see  also  Troxel  v.  Granville,  530  U.S.  57,  71-73  (2000)  



(plurality opinion) (holding third-party visitation statute violated a parent's due process  

                                          

right to make decisions concerning the care, custody, and control of her children because  

                                                                                    

it did not accord "any material weight" to the parent's decision).  



          8  

                                                                                                                

                   Evans , 88 P.3d at 1089 (construing AS 25.20.060 narrowly to preserve its  

constitutionality); see also 69 AM .  JUR . 3d Proof of Facts  5 (2002) (noting that in most  

states the burden of proving that visitation is in the best interests of the child will be on  

                                                                                                    

the grandparent as a moving party).  



                                                             -4-	                                                       6858
  


----------------------- Page 5-----------------------

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"      



                9  

of a child.   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  



                                                                                                      

AS 25.020.065(a)(1), the ongoing personal contact requirement.  Marci argues that the  



superior  court  clearly  erred  in  finding  that  she  "voluntarily  disconnected  from  her  



                                                                                                

grandchildren."  Marci argues that although she did not want to communicate with her  



daughter, she did not intend to cut off communication with her grandchildren.  Marci  



                                                                                      

relies on her testimony that she sought help from friends and family to establish visitation  



with her grandchildren before filing the complaint and that she attempted to add the  



oldest child as a friend on Facebook.  



          9         See Troxel, 530 U.S. at 66.  



                                                                -5-	                                                             6858  


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                          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  



             10  

Marci.              



                          The superior court also stated that Marci had not seen the children in "four  

                                                                                                         



years."          This statement is arguably  incorrect.                                       Marci testified  that she had  seen  the  

                                                                                                                                                       



children during two visits since 2009:  a visit in January 2011 and a visit at another  

                                                                                                                                       



grandchild's birthday party in April 2011. But we conclude that any misstatement in this  

                                                                                                                   



finding was harmless. Marci had such limited interaction with her grandchildren that the  

                                             



superior court did not commit clear error when it concluded that she had not clearly  

                  



established ongoing personal contact.  



             10           See Evans, 88 P.3d at 1089 (explaining that non-parents have the burden  



of proof).  



                                                                                 -6-                                                                                6858  


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                    We  will  not  reverse  a  custody  or  visitation  decision  for  a  factual  

                                                                                               



misstatement unless "the entire record demonstrates that the controlling findings of fact  

                                                                                                             



                                     11  

are clearly erroneous[.]"                 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  

                                                    12  But Marci presented little direct evidence showing  

                                                                                                

allowed to visit their grandparents. 



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  



          11	       Melendrez v. Melendrez , 143 P.3d 957, 959 (Alaska 2006).  



          12        See Troxel, 530 U.S. at 72-73 (holding that superior court's findings that  



petitioners were loving people and children benefit from grandparents were insufficient  

                                                

to overcome the weight which must be given to fit parents' objection to visitation).   



                                                               -7-	                                                            6858  


----------------------- Page 8-----------------------

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.  



                                                                       -8-                                                               6858
  

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