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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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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,  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.  

                   BOLGER, Justice.  


                  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.  



                   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  


                   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.  


                     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  




                     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  



          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  


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  



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).  



                   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

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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.   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  


                          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  



                          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  



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  

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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  


                                                                       -8-                                                               6858

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