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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rebecca Christy and Samuel Christy v. Charles Conrad and Marcie Conrad (2/10/2023) sp-7640

Rebecca Christy and Samuel Christy v. Charles Conrad and Marcie Conrad (2/10/2023) sp-7640

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

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                     THE SUPREME COURT OF THE STATE OF ALASKA                                   

REBECCA  CHRISTY  and  SAMUEL                                     )  


CHRISTY,                                                          )   Supreme Court N                 

                                                                                                 o. S-17788  



                                                                  )   Superior Court No. 3PA-18-01838 CI  



                                                                  )   O P I N I O N  



CHARLES CONRAD and MARCIE                                                                                     

                                                                  )  No. 7640 - February 10, 2023  

CONRAD,                                                           )  


                              Appellees.                          )  




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


                    Judicial District, Palmer, Jonathan A. Woodman, Judge.  


                    Appearances: Lynda A. Limón and Randi R. Vickers, Limón  


                    Law Firm, Anchorage, for Appellants.  Herbert M. Pearce,  


                    Law Offices ofHerbert M. Pearce, Anchorage, for Appellees.  


                    Before:            Winfree,        Chief       Justice,       Maassen,          Carney,  


                    Borghesan, and Henderson, Justices.  


                    BORGHESAN, Justice.  



                    When a grandparent seeks court-orderedvisitation against parents' wishes,  


the grandparent must prove by clear and convincing evidence that it is detrimental to the  


child to limit visitation to what the child's otherwise fit parents have deemed reasonable.  


In this case the superior court granted visitation to grandparents after finding that the  

----------------------- Page 2-----------------------


children enjoyed a positive relationship "typical ofa grandparent-child relationship" and  


that the parents' motive for cutting off contact with the grandparents was spiteful.  We  


reverse the court's ruling.  The parents' motive for ending visitation does not show that  


the lack of visitation is detrimental to the children. And the mere fact that children enjoy  


a positive or typical relationship with their grandparents does not amount to clear and  


convincing evidence that ending visitation is detrimental to the children.  Absent such  


evidence, it is error to order visitation that a fit parent does not wish to allow.  




          A.        Background Facts  


                    Rebecca  and  Sam  Christy  were  the  paternal  grandparents  of  the  two  


children at issue in this case.  The Christys adopted the children in 2017.  Marcie and  


Charles Conrad were the maternal grandparents of the children prior to the adoption.  


This case concerns the Conrads' ability to seek visitation against the Christys' wishes.  


                    The children's birth parents struggled with substance abuse.  When the  


older child was born in May 2013, she and her birth mother - the Conrads' daughter  


- briefly lived with the Conrads.  Shortly after the birth the Conrads involved OCS  


because they were concerned about the mother's ability to safely parent the child.  


                    OCS took custody of the older child in July 2013.  Around that time, the  


Conrads and Christys agreed that the child should live with the Christys on weekdays  


and have unsupervised visitation with the Conrads on weekends.  OCS placed the child  


with the Christys in August 2013. This arrangement initially worked well for all parties.  


In May 2014 OCS began requiring supervision of the Conrads' visits because of reports  


that they allowed the mother unsupervised access to the child.  


                    Shortly thereafter the relationship between the Conrads and Christys began  


to deteriorate. The Conrads accused the Christys of using drugs and not providing a safe  

                                                               -2-                                                         7640

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and stable home for the child.                                                                                                        OCS investigated these claims and determined that                                                                                                                                                               

placement with the Christys was still proper.                                                                                                                                               

                                                        In April 2015 the younger child was born.                                                                                                                                              A few days later OCS took                                                                            

custody of                                     the younger child and placed him with the Christys.                                                                                                                                                                                      The Conrads had                                               

 supervised visitation with the younger child only once or twice per month.                                                                                                                                                                                                              

                                                        In February 2016 the Conrads requested a placement review hearing for                                                                                                                                                                                                                              

both children.                                              After a hearing the superior court affirmed OCS's decision to place both                                                                                                                                                                                                                 

children with the Christys.                                                                                      In March 2016 the parental rights of the birth mother and                                                                                                                                                                              

birth father were terminated.                                                                                            The children's birth mother later died in 2018.                                                                                                                                                         

                                                        In June 2017 the Christys adopted both children. Shortly after the adoption                                                                                                                                                                                                

was finalized, the Christys stopped all visitation between the children and the Conrads.                                                                                                                                                                                                                                                                                    

The Christys did not notify the Conrads directly of their decision; the Conrads learned                                                                                                                                                                                                                                                 

of the decision from OCS when they went to OCS for a scheduled visit.                                                                                                                                                                                                                

                            B.                          Proceedings  

                                                        In March 2018 the Conrads filed a complaint for visitation.1   The superior  


court held a trial to determine if visitation should be ordered.  


                                                        At  trial  the  Conrads  described  their  relationship  with  the  children  as  


positive, noting that the children appeared excited to see them and referred to them as  


"Grandma"  and  "Grandpa."                                                                                                       The  Conrads  described  their  supervised  visits,  which  


entailed reading to the children, playing with them, and celebrating holidays and their  


birthdays.   The Conrads stated that they tried to see the children "as much as [they]  


                            1                           After  the   adoption   the   Conrads   were   no   longer   the   children's   legal  

grandparents.     AS   25.23.130(a)(1).     However,   the   Conrads  were   still   able   to   seek  

visitation   as   former  grandparents   because   they   did   not   intervene   in   the   adoption  

proceeding.    See   AS 25.20.065(b) (providing when visitation rights of grandparents                                                                                                                                                                                                                          

 survive post-adoption);                                                                          C.L. v. P.C.S.                                          , 17 P.3d 769, 778 & n.35 (Alaska 2001) (applying                                                                                                                     

and explaining AS 25.20.065(b)).                                                                                                               

                                                                                                                                                                              -3-                                                                                                                                                                  7640

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could" and that they sought additional visitation.  The Conrads stated that they wished  


only to be involved as grandparents; they did not want to interfere with how the Christys  


were raising the children.   The Conrads also emphasized the general importance of  


grandparents being involved ingrandchildren's lives, asserting that alack of grandparent  


involvement would be harmful because "[k]ids need family."  


                    The Christys testified about why they cut off contact with the Conrads.  


First, the Christys expressed concerns about the Conrads disrupting their ability to parent  


the children.  Specifically, they stated that the Conrads disregarded the boundaries they  


set for the children by, for example, feeding the older child dairy products despite the  


child's allergies.  Second, the Christys testified to substantial friction between the two  


families. Rebecca Christy described an incident in which the Conrads visited their home  


and  Charles  Conrad  "spoke  about  me  to  [the  older  child]  in  the  other  room in  an  


aggressivemanner,"which madeRebeccafeel "extremely uncomfortable." TheChristys  


also described feeling "attack[ed]" by the Conrads' accusations - voiced both to OCS  


and to members of the Christys' community - that the Christys were unfit parents,  


including false claims that Sam Christy used synthetic marijuana.  Third, the Christys  


stated that they felt it was their "constitutional right to choose who [their] children see  


and who [their] children don't see."  


                    The Christys also put on testimony that the children were not harmed by the  


Conrads' absence. Rebecca testified that, after visitation stopped, the older child had not  


asked about the Conrads and had not asked to see them.  The older child's elementary  


school teacher and the younger child's preschool teacher testified that the children have  


been doing quite well since the adoption.  The older child's teacher said the Christys  


"were fantastic" in working with the older child and her learning disabilities.   The  


teacher reported that the older child was "really happy" and "everything seemed really  


solid."  The younger child's teacher said that the child has been making great progress  

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and is "super confident now in [his] own abilities."                                                                                                       The teacher said she believes the                                                         

younger child was "getting a lot of the things he needs at home."                                                                                                                            Additionally, a family      

friend of the Christys testified that visitation with the Conrads did not seem                                                                                                                                           to benefit the               

children.  Specifically, the friend testified that, after a visit with the Conrads, the older                                                                                                                                                  

child seemed "very somber," which was "very unlike her."                                                                                                       

                    C.                 The Superior Court's Order                                            

                                       After the trial the superior court issued a written order granting the Conrads                                                                                                                  

visitation. The court applied the legal framework established in                                                                                                                          Ross v. Bauman                                  , which   

requires that a grandparent seeking court-ordered visitation against a fit parent's wishes                                                                                                                                                 

must establish (1) that visitation is in the child's best interests and (2) that the parent's                                                                                                                               

preferred level of visitation is detrimental to the child.                                                                                                     2  


                                       The superior court first ruled that visitation with the Conrads was in the  


children's best interests. It found that "the children enjoyed a positive relationship" with  


the Conrads that was "typical of a grandparent-child relationship."  The court ruled that  


continuing this relationship was "in the children's best interests."  The court also ruled  


that the manner in which the relationship was severed was contrary to the children's best  


interests, because "the children . . . [had not] anticipated" the "sudden cessation" of visits  


and had not received "[any] explanation . . . as to what happened to the Conrads."  


Finally the court ruled it was best for the children "to maintain a connection to their  

                    2                  Ross v. Bauman                                 , 353 P.3d 816, 828-29 (Alaska 2015) (requiring that third                                                                                                 

parties   seeking   visitation   must   "prove   by   clear   and   convincing   evidence   that   it   is  

detrimental   to   the   child   to  limit   visitation   with   the   third   party   to   what   the   child's  

otherwise   fit   parents   have   determined   to   be   reasonable");   AS   25.20.065   (allowing  

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

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


                                                                                                                           -5-                                                                                                                  7640

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biological maternal side" of the family, which would only be possible through contact     

with the Conrads, the children's only living relatives on that side.                                                                                                              

                                    The court next ruled that ceasing all visitation would be detrimental to the                                                                                                                

children.    This ruling rested on the court's finding that "the only reason the Christys                                                                                                                        

denied visitation with the Conrads is pure spite."                                                                                 The court concluded that "[t]his toxic                                                  

impetus is clearly detrimental to the best interests of the children."                                                                                                              

                                    The Christys appealed, challenging (1) an evidentiary ruling and (2) the                                                                                                                    

adequacy of the superior court's findings.                                                                       3  After considering the parties' briefing and  

oral arguments, we issued an order reversing the superior court's grant of visitation to  

the Conrads.  We explain our reasoning here.  


III.              STANDARD OF REVIEW  



                                    We review a court's method of admitting evidence for abuse of discretion.   




We review factual findings under the clearly erroneous standard.                                                                                                                            Whether factual  


findings are sufficient to support an award of visitation to a third party is a legal issue to  



which we apply our independent judgment. 

                  3                 Shortly  after   filing   their   appeal,   the   Christys   moved   for   a   stay   of   the  

superior court's order pending appeal, which the superior court denied.                                                                                                                             The Christys   

then moved for a stay from this court, which we denied.                                                                            

                  4                 See Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330,  1339  


(Alaska 1982) ("[O]ur cases hold that the trial judge is vested with wide discretion in  


controlling the order of proof.  [A judge's] decision will not be upset unless an abuse of  


discretion is clearly shown.").  


                  5                 Hawkins v. Williams, 314 P.3d 1202, 1204 (Alaska 2013).  


                  6                 Ross, 353 P.3d at 823.  


                                                                                                                -6-                                                                                                        7640

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IV.	         DISCUSSION  


             A.	          Any Error In The Court's Decision Not To Admit A Recording Of  


                          Prior Testimony Was Harmless.  


                          We first address a threshold evidentiary matter. At trial the Christys sought  


to introduce a compact disc (CD) containing the testimony of a now-deceased social  


worker, who testified at the 2016 placement review hearing about relations between the  


 Conrads, the Christys, and the children.  The superior court agreed that this testimony  


was admissible.  Yet the court declined to admit the CD as an exhibit, telling the parties  


 it would listen to the prior testimony by accessing it through the court system's recording  


 archives.  The Christys did not object to this approach.  


                          On appeal the Christys argue that the superior court erred by declining to  


 admit the testimony and suggest the court may not have actually listened to it before  


making its ruling.  But it is clear from the record that the court deemed the testimony  


 admissible. And we presume, absent indications otherwise, that the court listened to the  



 audio recording.                   The Christys' argument therefore fails.  


                          A slight problem with the court's handling of this exhibit is that the court  


 inadvertently excluded the testimony it contained from the record.  It is best to conduct  

                                                                                                8   Yet this rule is not ironclad.  When  


judicial business on the record and in open court. 

 all parties agree to the court reviewing prior testimony off the record, are on notice of  


             7            See United States v. Manthei's Bondsmen, 2 Alaska 459, 466 (D. Alaska   

 1905) ("When the jurisdiction of a competent court has attached, every act is presumed                                                               

to have been rightly done until the contrary appears.");                                                      see also Brigman v. State                          , 64   

P.3d 152, 158 n.7 (Alaska App. 2003) (collecting cases applying the presumption of                                                                                  


             8            See Alaska R. Admin. 21(a) ("So far as practicable, all judicial business  


 involving the trial of causes and conferences with members of the Bar or litigants shall  


be on the record and transacted in open court.").  


                                                                                  -7-	                                                                         7640

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

what  is  being  reviewed,  and have  had  an opportunity  to  object  to portions  of  the  prior  

testimony,  there  is  no  need  to  spend  precious  trial  time  reviewing  the  testimony  in  open  

court.   But  the  trial  court  must  ensure  that  the  prior  testimony  becomes  part  of  the  record  


to  facilitate  appellate  review.   

                                      In  this c   ase  the  inadvertent  omission  is h                                                                    armless.   The  parties  included  a  

transcript of the  prior  testimony with the record on appeal, allowing  us to evaluate  the  

evidence  the  court  considered.   And  the  Conrads  do  not  argue  that  they  were  denied  the  

opportunity  to   object  to  portions   of   the  prior  testimony.    Therefore  this   issue  has  no  


effect  on  the  appeal.                                          

                   B.	                There  Is  Insufficient  Evidence  To  Show  That  Denying  Visitation  With  

                                      The  Grandparents  Would  Be  Detrimental  To  The  Children.  

                                      Parents  have  a  constitutional  right  "to  the  care,  custody,  and  control  of  their  


                                   This  right includes  the  ability  to  determine  with  whom  the  children  may  


have  contact.                             Grandparents  have  a  statutory  right  to  visitation  with  their  grandchildren,  

                   9                  See In re P.N.                          , 533 P.2d 13, 19 n.13 (Alaska 1975) ("If an appellate court                                                                                               

does not have a complete record of what took place in the superior court it makes it                                                                                                                                                               

difficult, and sometimes impossible, for the appellate court to exercise to its fullest extent                                                                                                                                         

its power and duty to review the actions of the superior court."); Alaska R. App. P.                                                                                                                                                             

210(a) ("The record on appeal consists of the entire trial court file, including the original                                                                                                                                     

papers and exhibits filed in the trial court, the electronic record of proceedings before the                                                                                                                                                   

trial court, and transcripts, if any, of the trial court proceedings.").                                                                          

                   10                 See Alderman v. Iditarod Props., Inc., 104 P.3d 136, 142 (Alaska 2004)  


("The admission of evidence, even if erroneous, is harmless when there is no reasonable  


likelihood that the admitted evidencehad an appreciable effect on the court's decision.").  


                   11                 Ross, 353 P.3d at 827.  


                   12                 Id. at 827-29.  


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but this right is subordinate to parents' constitutional rights.                                                                        13  For that reason we held   

in  Ross v. Bauman                          that a grandparent seeking court-ordered visitation over a parent's                                                                  

objection "must prove by clear and convincing evidence that it is detrimental to the child                                                                                               

to limit visitation with the third party to what the child's otherwise fit parents have                                                                                                  

                                                                    14  The purpose of this rule is to give "special weight . . .  

determined to be reasonable."                                                                                                                           

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


to provide "effective protection for a parent's choice."15  


                              The Conrads conceded that the Christys are fit parents.  To obtain court- 


ordered visitation against the Christys' wishes, the Conrads therefore had to prove that  


the Christys' decision to end visitation was detrimental to the children.  The superior  


court ruled that the Conrads had met their burden of showing detriment by clear and  


convincing evidence. After reviewing the record, we conclude the Conrads did not meet  


their burden to make this showing.  


                              Thesuperiorcourt'sprimaryexplanation for why terminatingthechildren's  


visitation with the Conrads was detrimental was that the Christys acted out of "pure  


spite" when deciding to halt all visitation.   Yet a parent's motive for a decision is  


separate from the impact of that decision on the child.  Just as parental decisions driven  


by good intentions can be detrimental, parental decisions driven by spite might in some  


cases be beneficial, or at least harmless.   Although  the court stated that the "toxic  


               13             AS 25.20.065;                     Ross, 353 P.3d at 828-29 (explaining interaction between                                

grandparents' statutory rights and parents' constitutional rights).                                                                                 

               14             Ross, 353 P.3d at 828-29.  


               15             Id. at 827 (emphasis omitted) (quoting Evans v. McTaggart, 88 P.3d 1078,  


 1089 (Alaska 2004)); accord Troxel v. Granville, 530 U.S. 57, 69-70 (2000) (explaining  


that  parents'  substantive  due  process  rights  to  control  their  children's  upbringing  


includes ability to control whom child interacts with).  


                                                                                               -9-                                                                                       7640

----------------------- Page 10-----------------------

impetus" for the Christys' decision to stop visitation was "clearly detrimental to the best                                                                            

interests of the children," the court did not point to any evidence that stopping visitation                                                                

with the Conrads was detrimental to the children - i.e., that it would cause "injury or   

                                    16   The Christys' "spite" was not enough to support the court's ruling  

damage" to them.                                                                                                                                                   

that ceasing visitation would be detrimental to the children.  


                           On  appeal  the  Conrads  identify  a  number  of  alternative  bases  for  the  


detriment ruling.  The Conrads point to the superior court's finding - made in support  


of its separate ruling that visitation with the Conrads would be in the children's best  


interests  -  that  "the  children  enjoyed  a  positive  relationship  with  their                                                                          maternal  


grandparents typical of a grandparent-child relationship."  The Conrads argue that the  


sudden, permanent, and unexplained severance of this relationship was detrimental.17  


These arguments fail because they rest on assumptions rather than evidence. In custody  


              16           Detriment,                WEBSTER 'S                 THIRD            NEW          INTERNATIONAL                        DICTIONARY,  

UNABRIDGED  (1993) ("injury or damage or something that causes it").                                                                   



                           The Conrads argue that we should follow two other jurisdictions' lead and  

accord special weight to the fact that visitation was totally stopped instead of merely                                                                         


reduced.   There are two flaws in this argument.   First, neither of the two cases the  


Conrads cite actually accord special weight to whether visitation is totally severed -  

instead, the cases merely state that trial courts should "consider" the degree to which                                                                           


visitation is denied.  In re C.S.N., 14 N.E.3d 753, 757 (Ind. Ct. App. 2014) (trial courts  


must consider four factors, which include "whether the parent has denied visitation or  


has simply limited visitation"); In re A.L., 781 N.W.2d 482, 488 (S.D. 2010) ("[A] court,  


before ordering grandparent visitation . . . must . . . consider whether the parent has  


completely denied visitation or simply limited visitation . . . .").  Second, the degree of  


restriction on the child's contact with the third party is ancillary to the inquiry under  


Ross.  A fit parent's decision to limit or eliminate contact with a grandparent may only  


be displaced if the decision is clearly shown to be detrimental to the child.  Ross, 353  


P.3d at 828-29.                      In  some cases,  totally  stopping grandparents'  visitation  would  be  


detrimental to  the child,  whereas simply  limiting  visitation  would  not be.                                                                               But the  


distinction is immaterial here, because the Conrads have not produced any evidence of  


detriment to the children.  

                                                                                   -10-                                                                             7640

----------------------- Page 11-----------------------

and visitation matters we have declined to place substantial weight on broad assumptions                                                                                                                         


about the importance of children having a relationship with their grandparents.                                                                                                                                                       The  


Conrads failed to produce specific evidence showing that the lack of visitation with their  


grandparents caused or would likely cause injury or damage to the children. Instead, the  


unrefuted testimony of the Christys and the children's teachers was that the children had  


not exhibited distress about the lack of contact with the Conrads and were currently  


thriving. The assumption that it is generally beneficial for children to have a relationship  


with  their  grandparents  is  not  clear  and  convincing  evidence  that  denying  this  


relationship will be detrimental to particular children.  


                                      The Conrads' emphasis on the children's need for a connection to their  


birth mother's side of the family rests on a similarly deficient assumption.  Although  


having a connection with both sides of one's family is generally regarded as beneficial,  


there was no evidence showing that lacking this connection was "so clearly contrary" to  

                                                                                                                                                                                  19       Absent evidence of  



these children's best interests that it would cause them harm. 

                   18                See, e.g.               ,  Moore v. Ketah                              , No. S-17325, 2020 WL 4345027, at *4 (Alaska                                                                    

July 29, 2020) (holding grandmother failed to establish that her grandchildren would be                                                                                                                                                      

harmed by a lack of visitation, because she "presented no evidence on this issue" and                                                                                                                                                   

instead relied on "the inference of detriment" from severing a grandparent-grandchild                                                                                      

relationship);  cf. Hawkins v. Williams                                                                   , 314 P.3d 1202, 1206 (Alaska 2013) (describing                                                          

assertion   "that   grandchildren   should   be   allowed   to   visit   their   grandparents"   as  

insufficient to satisfy grandparent's burden that having visitation was in the child's best                                                                                                                                             

interests);   Ross,   353 P.3d at 829 n.51 (discussing Supreme Court plurality opinion                                                                                                                                      

rejectingassumptionthatgrandparent-grandchildrelationshipispresumptively                                                                                                                                               beneficial  

to a child).      

                   19                Ross, 353 P.3d at 829.  


                                                                                                                    -11-                                                                                                             7640

----------------------- Page 12-----------------------

 detriment   to   the   children,   it   was   error   for   the   superior   court   to   substitute   its   own  

judgment for that of the parents.                             20  

                          The Conrads argue OCS's and the guardian ad litem's prior support for  


their visitation with the children during the 2016 placement review hearing is evidence  


that denying this visitation would be detrimental.21   OCS has a duty to offer "reasonable  


visitation" between a child in its custody "and the child's parents, guardian, and family"  


but can deny visitation based on clear and convincing evidence that it is not in the child's  


best interests.22              But, as discussed above, Ross requires a clear and convincing showing  


 of detriment.  There is a meaningful difference between an action being contrary to the  


 children's best interests and it being harmful to them.23  Even when therecommendations  


to increase visitation are considered together with the court's finding that the children's  


relationship with the Conrads was "typical" and "positive" and their only connection to  


             20           Troxel v. Granville                 , 530 U.S. 57, 72-73 (2000) ("[T]he Due Process Clause                                     

 does not permit a State to infringe on the fundamental right of parents to make child                                                                      

rearing decisions simply because a state judge believes a 'better' decision could be                                                                             


             21           The Christys also argue that there is no evidence in the record that OCS or  


the  guardian  ad  litem affirmatively  recommended  increased  visitation.                                                                     We  do  not  


resolve this factual dispute and instead assume, arguendo, that OCS and the guardian ad  


 litem affirmatively recommended increased visitation.  


             22           AS 47.10.080(p).  


             23           See Ross, 353 P.3d at 829 ("Thus it appears that the superior court found  


by clear and convincing evidence that court-ordered visitation is in the children's best  

 interests.  This legal standard ignored Stefanie and John's parental preferences, and its  


 application violated their constitutional rights." (footnote omitted)).  


                                                                               -12-                                                                         7640

----------------------- Page 13-----------------------

the maternal side of the family, it does not amount to clear and convincing evidence that                                                                                                                                                                                                                                                                                      

denying the Conrads visitation was detrimental to the children.                                                                                                                                                                                                                         24  

                                                           The superior court therefore erred in ordering visitation.  


V.                            CONCLUSION  

                                                           We VACATE the superior court's grant of visitation to the Conrads and  


REMAND for entry of judgment consistent with this opinion.  


                              24                           The Christys also challenge the superior court's ruling that terminating                                                                                                                                                                                                        

visitation was not in the children's best interests. Because we reverse the visitation order                                                                                                                                                                                                                                                                             

due to insufficient evidence that denial of visitation is detrimental to the children, we                                                                                                                                                                                                                                                                                         

need not address the Christys' challenge to the court's best interests determination.                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                       -13-                                                                                                                                                                                7640

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