Feist v. Lemieux-Feist

793 N.W.2d 57

2010 S.D. 104

Leon R. FEIST and Becky Lemieux-Feist, Petitioners and Appellees,

v. Zachary E. LEMIEUX-FEIST, Respondent,andAshley Fousek, Respondent and Appellee,andState of South Dakota, Intervenor and Appellant.

No. 25530.

Supreme Court of South Dakota.

Argued Oct. 5, 2010.

Decided Dec. 29, 2010.

Rehearing Denied March 21, 2011.

Debra D. Watson of Watson Law Office, P.C., Rapid City, South Dakota, Attorney for petitioners and appellees Feist & Lemieux-Feist.

Courtney R. Stottler, Patrick M. Ginsbach of Farrell, Farrell and Ginsbach, P.C., Hot Springs, South Dakota, Attorneys for respondent and appellee Fousek.

Marty J. Jackley, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dakota, Attorneys for intervenor and appellant.

MEIERHENRY, Justice.

[¶ 1.] We must decide in this case whether South Dakota's third party custody statutes are constitutional. The two statutes in question are SDCL 25-5-29 and 25-5-30. The circuit court found these statutes unconstitutional because they do not specifically require "a finding of parental unfitness prior to awarding custody to a non-parent." We hold that the statutes can be construed constitutionally, and therefore, the circuit court must be reversed.

FACTS

[¶ 2.] Zachary Lemieux-Feist (Father) and Ashley Fousek (Mother) had a daughter (A.L.F.). Father and Mother had a strained relationship that dissolved after A.L.F. was born. Leon Feist and Becky Lemieux-Feist (Grandparents) filed a petition against Father and Mother to gain custody of A.L.F. under SDCL ch. 25-5. Before the circuit court decided whether to grant Grandparents' petition, an agreement was reached between Father, Mother, and Grandparents. This agreement resulted in joint legal custody between Father and Mother, with primary physical custody with Mother and visitation for Grandparents. The circuit court approved this agreement. Grandparents later filed another petition to gain custody of A.L.F.Mother filed a motion to dismiss this petition, arguing that SDCL 25-5-29 and 25-5-30 are unconstitutional. The circuit court granted Mother's motion to dismiss. The circuit court declared these two South Dakota statutes unconstitutional because they "contain no requirement for a finding of parental unfitness prior to awarding custody to a non-parent." The circuit court based its ruling on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). The circuit court did not enter findings of fact or consider whether the statutes at issue were capable of constitutional interpretation or application.

ANALYSIS

[¶ 3.] This Court reviews "a challenge to the constitutionality of a statute [ ] de novo." Currey v. Currey, 2002 S.D. 98, ¶ 7, 650 N.W.2d 273, 276 (citations omitted). Therefore no deference is given to the circuit court. In re S.M.N., T.D.N., and T.L.N., 2010 S.D. 31, ¶ 10, 781 N.W.2d 213, 218. If a statute "can be construed so as not to violate the [C]onstitution, we will adopt such a construction." State v. Page, 2006 S.D. 2, ¶ 73, 709 N.W.2d 739, 763 (citations omitted). The party challenging the constitutionality of a statute bears a heavy burden: "There is a strong presumption that the laws enacted by the [L]egislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the [C]onstitution." Burlington N.R.R. Co. v. Green, 2001 S.D. 48, ¶ 18, 624 N.W.2d 826, 831 (citations omitted).

[¶ 4.] SDCL 25-5-29 and 25-5-30 prescribe the circumstances permitting non-parents to seek visitation or custody of a child. See S.M.N., T.D.N., and T.L.N., 2010 S.D. 31, ¶ 16, 781 N.W.2d at 220. These statutes require that the person seeking custody have a relationship with the child as "a primary caretaker" or "a parental figure" or that person and the child have "otherwise formed a significant and substantial relationship." SDCL 25-5-29. These statutes also establish that "a parent's presumptive right to custody" may be rebutted only by proof of abandonment or neglect, surrender, abdication of parental rights, or "other extraordinary circumstances [ ] result[ing] in serious detriment to the child." Id. SDCL 25-5-29, in its entirety, provides as follows:

Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child's parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent's presumptive right to custody of his or her child may be rebutted by proof:

(1) That the parent has abandoned or persistently neglected the child;

(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;

(3) That the parent has abdicated his or her parental rights and responsibilities; or

(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.

SDCL 25-5-30 further defines the extraordinary circumstances that constitute serious detriment to a child:

Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances:

(1) The likelihood of serious physical or emotional harm to the child if placed in the parent's custody;

(2) The extended, unjustifiable absence of parental custody;

(3) The provision of the child's physical, emotional, and other needs by persons other than the parent over a significant period of time;

(4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody;

(5) The substantial enhancement of the child's well-being while under the care of a person other than the parent;

(6) The extent of the parent's delay in seeking to reacquire custody of the child;

(7) The demonstrated quality of the parent's commitment to raising the child;

(8) The likely degree of stability and security in the child's future with the parent;

(9) The extent to which the child's right to an education would be impaired while in the custody of the parent; or

(10) Any other extraordinary circumstance that would substantially and adversely impact the welfare of the child.

The circuit court reviewed these two statutes in light of Troxel and held them to be constitutionally inadequate because they do not specifically require a finding of parental unfitness.

[¶ 5.] Troxel involved a Washington visitation statute that permitted "any person" to petition for visitation rights "at any time." 530 U.S. at 61, 120 S.Ct. at 2057-58. The Washington Supreme Court determined that the statute was unconstitutional because "parents have a right to limit visitation of their children with third persons, and that between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas." Id. at 63, 120 S.Ct. at 2059 (citations omitted).

[¶ 6.] The Troxel plurality, in affirming the Washington Supreme Court, recognized that parents have an interest in the care, custody, and control of their children. Id. at 65, 120 S.Ct. at 2060 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that the liberty interest protected by the Due Process Clause includes a parent's right to "establish a home and bring up children" and to "control the education of their own [children]."); Pierce v. Soc. of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (recognizing parents' liberty interests to "direct the upbringing and education of children under their control."); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder."). Troxel also recognized that the relationship between "parent and child is constitutionally protected" under the Fourteenth Amendment Due Process Clause. Id. at 66, 120 S.Ct. at 2060 (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)). A majority of theCourt recognized parents' fundamental right to direct the upbringing of their children. See id. at 66, 120 S.Ct. at 2060; Id. at 77, 120 S.Ct. at 2066 (Souter, J., concurring); Id. at 80, 120 S.Ct. at 2068 (Thomas, J., concurring); Id. at 86, 120 S.Ct. at 2071 (Stevens, J., dissenting).

[¶ 7.] Unlike the circuit court, we do not read Troxel as specifically requiring a finding of parental unfitness in third party visitation or custody cases. As we have noted before, Troxel only requires that "special weight" be given to a fit parent's determinations regarding her children. See id. at 70, 120 S.Ct. at 2062. See, e.g., In re A.L. and S.L.-Z., 2010 S.D. 33, ¶ 20, 781 N.W.2d 482, 487 (recognizing Troxel's "special weight" requirement); Clough v. Nez, 2008 S.D. 125, ¶ 21, 759 N.W.2d 297, 306 (same).

[¶ 8.] We recently applied Troxel to South Dakota's grandparent visitation statutes. See A.L., 2010 S.D. 33, ¶ 20, 781 N.W.2d at 487. As noted in Clough, the application of Troxel to visitation statutes also applies to custody statutes. As such, our reasoning in A.L. applies here. In Clough, this Court noted that "[t]he right of visitation derives from the right of custody and is controlled by the same legal principles." Clough, 2008 S.D. 125, ¶ 15, 759 N.W.2d at 304 (citi...