Rebecca Christy and Samuel Christy v. Charles Conrad and Marcie Conrad ( 2023 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
REBECCA CHRISTY and SAMUEL )
CHRISTY, ) Supreme Court No. S-17788
)
Appellants, ) Superior Court No. 3PA-18-01838 CI
)
v. ) OPINION
)
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 of Herbert M. Pearce, Anchorage, for Appellees.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
When a grandparent seeks court-ordered visitation 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
children enjoyed a positive relationship “typical of a 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.
II. FACTS AND PROCEEDINGS
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
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
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 in grandchildren’s lives, asserting that a lack 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
aggressive manner,” which made Rebecca feel “extremely uncomfortable.” The Christys
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
-4- 7640
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
interests”).
-5- 7640
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.4
We review factual findings under the clearly erroneous standard.5 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.6
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
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.7 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
judicial business on the record and in open court.8 Yet this rule is not ironclad. When
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
regularity).
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
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.9
In this case the inadvertent omission is harmless. 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.10
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
children.”11 This right includes the ability to determine with whom the children may
have contact.12 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 evidence had an appreciable effect on the court’s decision.”).
11
Ross, 353 P.3d at 827.
12
Id. at 827-29.
-8- 7640
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
determined to be reasonable.”14 The purpose of this rule is to give “special weight . . .
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.
The superior court’s primary explanation for why terminating the children’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
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
damage” to them.16 The Christys’ “spite” was not enough to support the court’s ruling
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”).
17
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
and visitation matters we have declined to place substantial weight on broad assumptions
about the importance of children having a relationship with their grandparents.18 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
these children’s best interests that it would cause them harm.19 Absent evidence of
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
rejecting assumption that grandparent-grandchild relationship is presumptively beneficial
to a child).
19
Ross, 353 P.3d at 829.
-11- 7640
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 the recommendations
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
made.”).
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
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