In Re Santoro

594 N.W.2d 174, 1999 WL 352989

• Court: Supreme Court of Minnesota
• Decided: June 3, 1999
• Docket: C7-97-1526
• Status: Published

Opinions

OPINION

BLATZ, Chief Justice.

This appeal presents the issue of whether the trial court abused its discretion in awarding visitation to the petitioning maternal grandparents, respondents Louis and Carole Santoro, over the objections of the children and their adoptive parents, appellants Stella and Kenneth Borgstrom. The Borgstroms are also the children’s paternal grandparents. The court of appeals ruled that the trial court had not abused its discretion in ordering visitation. We reverse the court of appeals and hold that the trial court abused its discretion by awarding visitation despite the children’s objections and the seven-year delay between the Santoros’ last contact with their grandchildren and their filing for visitation. As we do not uphold the award of visitation, we need not reach the constitutionality of MinmStat. § 257.022, subd. 1 (1994).

Lisa Santoro and Michael Borgstrom married in 1982. A.B. was born on March 30, 1983, and N.B. was born on December 20, 1984. On September 18, 1987, Lisa and Michael Borgstrom died in an automobile accident. The court appointed Michael Borgstrom’s parents, Stella and Kenneth Borgstrom, as the children’s guardians on October 28, 1987. On July 16, 1992, the Borgstroms legally adopted the children.

Prior to their daughter Lisa’s death, the Santoros had a tumultuous relationship with her. When Lisa was 16 years old, she ran away from home and petitioned to be placed in foster care. After being placed in foster care, she told her foster mother that her parents had physically abused her. She later told the Borgs-troms and several other people that her parents had physically abused her and that she did not want her parents to have custody of her children in the event of her death.

Although Lisa and Michael were not close to the Santoros, Lisa still took the children to visit the Santoros on holidays. However, on Thanksgiving Day in 1986, contact between Lisa and the Santoros ceased because Lisa’s younger sister, Elizabeth Santoro, claimed that Carole Santo-ro had abused her, and Elizabeth left her parents’ home to live with Lisa and Michael. Although Lisa attempted to contact her parents by phone, the Santoros severed ties with Lisa. The Santoros did not reconcile with Lisa before her death and did not have any contact with their grandchildren during this period. Because of the Santoros’ rejection of Lisa, Lisa’s children last saw the Santoros, prior to court-ordered visitation, in November of 1986.¹

During the 1987 guardianship hearing for A.B. and N.B., the Santoros requested visitation. Kenneth Borgstrom told Carole Santoro that he would never allow the Santoros to see the children unless he was physically present. The Santoros claim that they did not pursue visitation at that time because they could not afford an attorney. In addition, they assert that they tried to keep in contact with the children by phone calls and monthly letters starting immediately after Lisa’s and Michael’s deaths. The Borgstroms contend that the Santoros did not attempt to contact the children until four years later, in April of 1991, and admit that they returned most of the Santoros’ mail unopened.² On July 16, 1992, the Borgstroms legally adopted A.B. and N.B., who had been living with the Borgstroms since the deaths of their parents.

On September 26, 1994, over seven years after they had last seen their grandchildren, the Santoros filed a petition for visitation pursuant to Minn.Stat. § 257.022. The statute provides in relevant part:

If a parent of an unmarried minor child is deceased, the parents * * * of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district * * * court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship. The court shall consider the amount of personal contact between the parents * * * of the deceased parent and the child prior to the application.

Minn.Stat. § 257.022, subd. 1 (emphasis added).

The trial court initially ordered supervised visitation for the Santoros on August 2, 1995, almost a year after the Santoros first filed for visitation. The court also appointed a guardian ad litem for the children and ordered the guardian ad litem to submit a thorough report on the Santoros’ home environment. The court noted that the Santoros could file a petition requesting more extensive visitation after the report was filed. Although the guardian ad litem did not file a report until October 10, 1996, on May 2,1996, the court held another hearing to determine appropriate visitation. The court filed an order setting out a supervised visitation schedule on June 26,1996.

The Borgstroms facilitated ten visits between their children and the Santoros between August of 1995 and September of 1996. However, in September of 1996 the Borgstroms cancelled the children’s scheduled visit with the Santoros after N.B. allegedly ran away to avoid visitation. Soon after, the Borgstroms produced a written statement by A.B. and an affidavit from N.B. requesting that the court stop visitation with the Santoros. In response, the trial court appointed an attorney for the children on October 29, 1996. The children’s attorney submitted two letters and a Memorandum of Law on Behalf of the Children to the trial court arguing that the children did not want contact with the Santoros, that there was little indication that the guardian ad litem had taken into account the thoughts and concerns of the children in making his recommendations, and that the Santoros had not met the statutory requirements of Minn.Stat. § 257.022, subd. 1.

In light of the trouble enforcing visitation, the trial court held a hearing on April 17, 1997, to determine the appropriateness of continued forced visitation. At the hearing, both children testified that they did not want to continue court-ordered visitation with the Santoros. At the time of the hearing, A.B. was 14 years old and N.B. was 12 years old.

The guardian ad litem also testified at the hearing, stating that the Borgstroms were hostile to him, were nonsupportive of visitation, influenced the children’s opinions of the Santoros by talking about them in front of the children, and coached the children to make disparaging comments about visitation. He also explained that the children did “very well” during the visits and seemed to have a good time, but that the Borgstroms’ open hostility did not allow the children to admit that they enjoyed the visits. He related that two of the Santoros’ three adult children told him that they left their children in the Santo-ros’ care for overnight visits and full weekends and had “absolutely no concerns about the way the children are cared for.”³ The guardian ad litem concluded that the Santoros are “good people today” and that visitation would be in the best interests of the children. However, he indicated that he had little familiarity with the children’s home and school lives.

After the hearing, both sides submitted written final arguments to the court. In their final argument, in addition to arguing that visitation was not in the children’s best interests, the Borgstroms contested the constitutionality of Minn.Stat. § 257.022, subd. 1, on due process, privacy, and equal protection grounds. The Santo-ros declined to respond to this argument, deeming it frivolous.

Almost three years after the Santoros filed the petition for visitation, the trial court filed its final order. The July 25, 1997 order quickly dispensed with the Borgstroms’ argument that section 257.022, subd. 1, was unconstitutional. It then found that there “had been no face-to-face contact by [the Santoros] with [A.B. or N.B.] between the time the Borgs-troms were appointed guardians for the children and the time the Santoros began their pursuit of this matter,” a period of seven years, but that the Santoros had sent “numerous items, letters, cards, presents, and remembrances” by registered mail that were rejected and returned by the Borgstroms. Focusing on the Borgs-troms’ behavior, the trial court found that the Borgstroms had “actively, vindictively and without reason obstructed any contact whatsoever between the Santoros and the minor children,” and that the Borgstroms’ animosity toward the Santoros was unfounded but “likely to continue to the detriment of the minor children.” It concluded that visitation was in the best interests of the children and that visitation would not interfere with the parent-child relationship. The Borgstroms appealed to the court of appeals.

The court of appeals first held that the grandparent visitation statute is constitutional. Petition of Santoro, 578 N.W.2d 369, 376-77 (Minn.App.1998). It then ruled that the trial court had not abused its discretion in granting visitation to the Santoros, basing its decision largely on the Borgstroms’ interference with contact between the Santoros and their grandchildren. Id. at 378-80.

We granted the Borgstroms’ petition for review.

I.

We first turn to whether the trial court abused its discretion in ordering visitation for the Santoros. Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995). At the outset of this inquiry, we must state that it is difficult to adjudicate with the wisdom of King Solomon when both parties are willing to split the baby. See I Kings 3.T6-28. The emotional welfare of these children has been neglected as both parties have resolutely refused to bow to the children’s desire and need for stability. This is particularly troubling given the children’s sudden loss of their parents. While the alleged conduct of the Borgstroms, if true, is reprehensible, contempt sanctions and fines are more appropriate tools to punish such behavior and to deter other families from engaging in such tactics. Children should not become pawns in the wars of adults. When the law states that the best interests of children should guide the courts, then children must be the beneficiaries of justice, not the gavel pounding out the acrimony existing between adults.

To begin our analysis, we start with the relevant statute. By statute, the trial court is required to determine whether visitation is in the best interests of the child and will interfere with the parent-child relationship. Minn.Stat. § 257.022, subd. 1. In its analysis, the trial court is required to “consider the amount of personal contact between the parents * * * of the deceased parent and the child prior to the application.” Id.; see also Olson, 534 N.W.2d at 550. An additional best interests factor is relevant in this case: “the reasonable preferences of the child, if the court deems the child to be of sufficient age to express [a] preference.” Minn.Stat. § 518.17, subd. 1(2) (1998).

While the trial court does not have to make the detailed best interest findings required in custody determinations by section 518.17, subd. 1, see Olson, 534 N.W.2d at 550 (distinguishing the factual findings required for visitation cases from those required for custody determinations), we are unable to determine where the trial court focused on the best interests of these children.⁴ Rather, the trial court looked almost exclusively at the Borgstroms’ conduct to the neglect of all other considerations, and made only, conclusory statements that the children’s best interests would be served by visitation. While the record is unclear as to the extent and the effects of the Borgstroms’ manipulation of the two children, the amount of time that passed before the Santoros filed for visitation is undisputed. The trial court found that A.B. and N.B. had not had “face-to-face contact” with the Santoros between the time the Borgstroms were appointed as the children’s guardians and the time the Santoros petitioned for visitation, a lapse of seven years.

While we have concerns about the Borgstroms’ role in thwarting the Santo-ros’ attempts to contact A.B. and N.B. in recent years, we cannot ignore the length of time the Santoros waited before filing for visitation and the lack of contact in the interim. Examination of the record shows that there was at a minimum a gap in contact of four years before letters began to be sent. This lapse in the relationship is significant, particularly in light of the clear statutory language that a trial court is to consider the amount of contact between the grandparents and grandchildren before the visitation application is made.⁵

One of the strongest justifications for grandparent visitation is to encourage the continuation of lasting bonds and a sense of security for children. However, in this case forcing visitation will only create a sense of disruption, not security, for A.B. and N.B. The trial court was obligated by statute to weigh heavily the lack of contact between the Santoros and their grandchildren prior to the Santoros’ application for visitation. This statutory mandate was not followed.

Also disturbing to us is the absence of findings of fact with regard to A.B.’s and N.B.’s preferences. Trial courts have considered the preferences of children as young as 11 years old in determining visitation, see State ex rel. Rys v. Vorlicek, 229 Minn. 497, 40 N.W.2d 350 (1949) (respecting the wishes of 11-year-old child to remain in third party’s home rather than return to father); see also LaBelle v. LaBelle, 296 Minn. 173, 174-76, 207 N.W.2d 291, 292-93 (1973) (crediting 13-year-old child’s preference to modify placement order and grant father custody), in part because of the futility of forcing unwilling teenagers to cooperate with visitation. By now, A.B. is 16 years old and N.B. is 14 years old. The children have repeatedly indicated through their attorney and their testimony at the visitation hearing that they wish to end court-ordered visitation with the Santoros. However, the trial court’s findings focused solely on the Borgstroms’ alleged manipulation of the children, and did not address the children’s stated opinions. Although the children’s desire not to see the Santoros may have been influenced by the Borgstroms’ attitude and conduct, the trial court is not now free to disregard the children’s wishes. The purpose of the grandparent visitation statute is not to punish or reward adult misbehavior but to serve children’s best interests. On this record it is difficult, if not impossible, to see how anything more than an idealized notion of familial love is being served by forcing continued visitation.⁶

The grandparent visitation statute clearly requires that visitation be in the children’s best interests. Given the trial court’s lack of findings in support of its conclusion and the significant amount of time that transpired, during which the children had no relationship with the San-toros, we hold that the trial court abused its discretion in ordering visitation for the Santoros. As we overturn the visitation award, we need not address the constitutionality of Minn.Stat. § 257.022, subd. 1.

Reversed.

1 . The Santoros saw A.B. at Lisa and Michael's joint funeral, but there was no contact between the Santoros and their grandchild at the funeral.

2 . The record shows that the Santoros began saving returned mail in April of 1992. They have no earlier record of their letters to their grandchildren.

3 . Their third adult child, Elizabeth Santoro, filed an affidavit arguing against the Santo-ros' petition for visitation.

4 . Indeed, the Children's Law Center and the Family Law Section of the Minnesota State Bar, groups which promote the rights of children in the judicial system, both submitted amicus briefs arguing strenuously that the trial court “made no findings of fact on any relevant factor concerning [the children’s] best interests.’’

5 . In minimizing the amount of time that passed before the Santoros attempted to contact their grandchildren, the dissent gives little weight to the legislature’s mandate that a court consider the amount of personal contact between the grandparents and grandchildren prior to the petition. While we recognize that the absence of contact between grandparents and grandchildren for an extended period of time is a critical fact in determining whether visitation is appropriate, we are not establishing a bright-line rule. Further, we recognize that a trial court may deny visitation even if a shorter period of time has lapsed if the denial of visitation is in the child’s best interests.

6 . The dissent contends that in determining that visitation is not in the best interests of A.B. and N.B. we rely only on a seven-year gap in contact, the wishes of the adolescent children, and "certain non-specific allegations” that the Santoros abused two of their daughters. We fail to understand what more we need to rely on in order to determine that visitation will not be in these children’s best interests.