In re the Marriage of: Kelly Elizabeth Bennett, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1021

In re the Marriage of:
Kelly Elizabeth Bennett, petitioner,
Appellant,

vs.

Joseph Arnold Bennett,
Respondent,

Judith Leske,
Respondent.

Filed May 8, 2017
Reversed
Ross, Judge

St. Louis County District Court
File No. 69DU-FA-14-641

John N. Phung, Legal Aid Service of Northeastern Minnesota, Duluth, Minnesota (for
appellant)

Joseph A. Bennett, Duluth, Minnesota (pro se respondent)

Judith Leske, Duluth, Minnesota (pro se respondent)

Considered and decided by Ross, Presiding Judge; Rodenberg, Judge; and
Toussaint, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
Respondent Judith Leske moved for grandparent visitation with Appellant Kelly
Bennett’s two children. The district court informed the parties that it intended to hold an
evidentiary hearing on the motion, but it instead awarded grandparent ing time to Leske
without an evidentiary hearing, concluding that Bennett did not dispute that the award is in
the children’s best interests and the visitation w ould not interf ere with the parent -child
relationship. We reverse the order because Leske failed to make a prima facie showing on
these essential elements and because Bennett indeed disputed them.
FACTS
Kelly Bennett (“Mother”) and Joseph Bennett (“Father”) divorced in June 2015.
During their dissolution proceeding, their two daughters, M.B. and L.B., were the subjects
of a separate child-protection p roceeding. The district court judge presiding over the
dissolution proceeding deferred to the child-protection proceeding as to the custody of the
children. The district court eventually granted Mother physical and legal custody.
Father’s mother, Judith Leske, moved the district court for an order for
grandparenting time under Minnesota Statutes section 257C.08 (2016). Leske’s motion
included her affidavit, which stated that the family once lived with her for several months.
It also stated that M.B. visited her almost every weekend since moving out until Mother
and Father separated, when Mother refused to let the children visit her.
Mother opposed Leske’s motion. Mother’s response also included an affidavit. In
it, she stated that she and Father had lived with Leske for “about a year total” before and
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after the oldest child was born, but that Leske had “not had much recent involvement with
the children and does not have a relationship with them ” despite having been given the
opportunity to have one. The affidavit declared that she and Father had a “rocky” past and
that Leske repeatedly involved herself in the couple’s disputes. It stated that despite
Father’s being prohibited by the district court from having contact with the children, Leske
took the children to her home where Father resided . It also stated that L eske’s inaccurate
description of where she would be with the children resulted in a search for the children in
a movie theater and that social services staff determined that it was not in the children’s
best interests for Leske to take the children “due to Ms. Leske’s poor decision making.”
The affidavit also stated that Father continued to abuse drugs and lived w ith Leske,
resulting in “an unsafe environment[] in [Leske’s] home.”
Mother and Leske (but not Father) appeared for a hearing on Leske’s motion. Leske
explained the movie -theater-search incident. She responded to concerns about Father’s
contact with the children and his continued residence in her home by offering that her time
with the children “could be anywhere” and that she understood that Father was prohibited
from being near them.
Mother, through counsel, discussed Mother’s previous lifestyle difficulties and
argued that she needed to avoid being pulled “back into the system that [she was] trying to
avoid.” She argued that the district court should deny the motion because Leske still lived
with the children’s violent and chemically dependent father and that based on prior
circumstances Leske could not be trusted to spend her grandparenting time away from
Father.
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The district court inquired about Leske’s prior visits with the children as follows:
Q: So, Ms. Leske[], he’s telling me that the only two times you
had the kids, you screwed up on both times?
A: No, that’s not true, Your Honor.
Q: Since this CHIPS proceeding happened, how many
times --
A: No, that’s not true, either.
Q: Okay. So tell me what other visits you had.
. . .
A: Went to the circus, brought them to the -- to see the
princesses, brought them to the rodeo, brought them
swimming, brought them to Edgewater, and brought them
to [McDonald’s].
Q: All during the CHIPS proceeding?
A: I believe it was.

Mother argued through counsel, “Further, we question Ms. Leske[]’s judgment. She
is -- she has her son living with her who . . . was using narcotics in the home.” The district
court raised the option of visitation away from Leske’s home, and counsel responded: “It’s
[Leske’s] judgment. She hasn’t made good decisions.”
The district court then had the following exchange with Mother’s counsel:
Q: All right. I’m going to give you one more o pportunity. . . .
You have yet to tell me what having supervised visits at the
Visitation Center would do to, that would not put -- that
would put the children in a position where they’re not safe
or not protected. . . . So, what about the Visitation Center
would be a problem?
A: And, Your Honor, and certainly I’m not saying the kids
wouldn’t be safe at the Visitation Center, but what I’m
saying is that the statute provides that it’s [Leske’s] burden
to show it’s in the [children’s] best interest for her to have
visits.

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The district court announced, “All right. Well, I can tell you that I am going to issue
an order. I am going to provide for supervised visits at the Visitation Center. . . . I will also
be setting an evidentiary hearing . . . .”
Mother then had the following unsworn direct exchange with the district court:
MOTHER: I’ve never denied [Leske’s] rights to come up
and see the children at my mom and dad’s house,
and that was still the understanding. And I don’t
understand why that’s not just being in play, and
continue down that road . . . .
COURT: So what I’m hearing is that you don’t have any
problem with her seeing your kids?
MOTHER: At a secured location that we as in CHIPS court
and everything have already dissolved in the
CHIPS matter, which was --
COURT: And that’s exactly what I’m talking about, Ms.
Bennett.
MOTHER: -- at my mom and dad’s house. That was already
discussed, that it would be at my mom and dad’s
house.
COURT: And, obviously, that’s not working, so we’re
going to do it somewhere that’s a more neutral
location.
MOTHER: She’s not made contact in several months.
COURT: We’re going to do it in a more neutral location.
MOTHER: That was [a] neutral location.
COURT: I’ve heard enough, Ms. Bennett. This is the
neutral location where they’re going to be now.

The district court concluded the hearing by telling the parties that it would “see
[them] all back at [the] pre-trial and then the trial date. But in the meantime, once a month
for a couple hours.”
But the district court did not wait for an evidentiary hearing before deciding the
motion. The next day it issued an order granting Leske’s motion for grandparenting time.
In relevant part, the district court found that: Leske had been involved with the children;
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Mother said Leske could visit the children at Mother’s parents’ home; Mother’s counsel
had no answer as to whether visitation was in the children’s best interests; there was “no
dispute” as to grandparent -visitation being in the children’s best interests; visitati on with
Leske was in the children’s best interests; visitation would not adversely affect the parent-
child relationship; and, “ [a]s there are no facts in dispute, the Court will not hold an
evidentiary hearing.”
The district court awarded Leske grandparenting time “of at least two hours per
month commencing immediately” with visits increasing to twice monthly beginning in July
2016. It elaborated, “At the motion hearing, [Mother] stated that [Leske] can visit with the
children whenever she wants to do so. Therefore, there is no dispute that visitation is in the
best interest of the children and that it does not interfere with the parent-child relationship.”
Mother appeals.
D E C I S I O N
Mother challenges the district court’s order granting Leske grandparen ting time
under Minnesota Statutes section 257C.08. Under the common law and the Constitution,
“[a] parent has the fundamental right to make parenting decisions, including deciding who
spends time with the child.” In re C.D.G.D., 800 N.W.2d 652, 655–56 (Minn. App. 2011),
review denied (Minn. Aug. 24, 2011) (citing Olson v. Olson, 534 N.W.2d 547, 550 (Minn.
1995) (citing common-law precedent and observing that “[h]istorically, grandparents had
virtually no legal right to maintain a relationship with a grandc hild independent of the
wishes of the child’s parents”)); Troxel v. Granville, 530 U.S. 57, 66–68, 120 S. Ct. 2054,
2060–61 (2000) (plurality) (holding that grandparent visitation must satisfy the due process
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protection in the fundamental right of parents to make decisions concerning the care,
custody, and control of their children); SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn.
2007) (“[A] parent’s right to make decisions concerning the care, custody, and cont rol of
his or her children is a protected fundamental right.”).
The legislature has carved a grandparent -visitation exception out of the common -
law rule that parents may prohibit their child’s association with others. See Minn. Stat.
§ 257C.08, subd. 2. We review the district court’s visitation decision for an abuse of
discretion, asking “whether the court made findings unsupported by the evidence or
improperly applied the law.” SooHoo, 731 N.W.2d at 825. We will reverse the district
court’s findings if they are clearly erroneous. Id. “A finding is clearly erroneous if we are
left with the definite and firm conviction that the court made a mistake.” Id.
The district court may grant a grandparent visitation to a child only if it finds that
granting visitation is in the best interests of the child and that the visitation will not interfere
with the parent-child relationship. Minn. Stat. § 257C.08, subd. 2. The second element—
that grandparent visitation will not interfere with the parent -child relationship —is a n
element that the grandparent must prove by clear and convincing evidence. SooHoo, 731
N.W.2d at 823; In re C.D.G.D., 800 N.W.2d at 656, 662.
Mother argues that the district court abused its discretion by awarding visitation
despite Leske’s failure to present a prima facie case that would justify even an evidentiary
hearing, by awarding grandparent visitation in the face of fact ual disputes, and by
disregarding Mother’s due process right not to have grandparent visitation imposed without
an evidentiary hearing. We need only address two of these arguments.
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Prima Facie Case for Visitation
Mother accurately asserts that Leske did not establish a prima facie case for
visitation. We have held that Minnesota Statutes section 257.022, subdivision 2b (Supp.
1989), the predecessor to section 257C.08, required a prima facie showing of each statutory
element for third -party visitation before warranting an evidentiary hearing . Kulla v.
McNulty, 472 N.W.2d 175, 184 (Minn. App. 1991), review denied (Minn. Aug. 29, 1991).
The district court did not exp ressly find that Leske established a prima facie case by
showing that grandparent visitation is in the children’s best interests and that it would not
interfere with the parent -child relationship. B ut the finding is impl ied by its promise to
schedule an evidentiary hearing. Leske’s motion and affidavit establish only that Leske is
the children’s grandmother. The closest she came to establishing either element was her
urging to the district court that her absence might mislead the children to think she does
not care for them. This does not bear on the children’s best interests or whether Leske’s
visitation would interfere with Mother’s relationship with the children. Without Leske’s
alleging that visitation would both be in the children’s best interests and not interfere with
the parent -child relationship, the district court had no ground to order an evidentiary
hearing, much less to award visitation without a hearing. We als o address Mother’s
additional argument that the district court awarded visitation wrongly in the face of fact
disputes.
Ordering Grandparent Visitation Despite Disputed Facts
The district court concluded that there w as “no dispute” that grandparent visitation
was in the children’s best interests and that visitation would not interfere with the parent -
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child relationship. We agree with Mother’s contention that these conclusions rested on
confusion over the court’s exchange with counsel and that the conclusions contradict the
disputed facts reasonably construed in Mother’s favor.
Mother accurately contends that the district court mischaracterized her couns el’s
best-interests statements to hold that “there is no dispute that visitation is in the best interest
of the children.” The district court asked Mother’s counsel to explain how visitation would
“put the children in a position where they’re not safe or not protected.” Mother’s counsel
responded by reminding the court that the issue is the children’s best interests. The district
court found that visi tation was in the children’s best interest s based on its reasoning that
Mother’s counsel “had no response” to the court’s inquiry about why visitation with Leske
was not in the children’s best interests. Given the context of Leske’s failure to show or
explain how (let alone meet her burden to prove by clear and convincing evidence that)
grandparent visitation is in the children’s best interests, t he district court’s rationale and
findings indicate that it mistakenly put the burden on M other to disprove that grandparent
visitation would meet the children’s best interests. And Mother’s counsel had already
emphasized Mother’s concern about Leske’s “poor judgment.” Mother indeed disputed
whether visitation was in the children’s best interests.
We see other factual issues bearing on whether or to what extent grandparent
visitation should be ordered. For example, Mother disputed the amount of personal contact
Leske previously had with the children. The record shows that Mother maintained that
there were only two relevant instances of Leske’s contact with the children, while Leske
said there were more. We need not address Mother’s argument that the district court
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improperly ignored or discredited her affidavit; suffice it to say, the affidavit highlighted a
disputed fact. And given that this disputed fact bears on a statutory circumstance that must
be weighed before awarding visitation, the dispute was material.
Another fact dispute centers on whether visitation will impact the parent -child
relationship. The district court seems to have relied on Mother’s unsworn statements as her
admission that visitation would not adversely affect her relationship with the children. The
district court found , “[Mother] stated at the hearing that Ms. Leske can see the children
whenever she wants to so long as she does so at [Mother’s] parents’ home.” That summary
is not the only or even the most reasonable way to interpret Mother’s exchange with the
court, and it seems to stretch all ambiguities against Mother. Mother correctly points out
that her comments during the exchange were not sworn and that her sworn affidavit
includes facts that establish a material dispute. More important to us is the context; the
exchange occurred after the dis trict court had already declared that it would t emporarily
allow visitation and that it would finally decide the visitation motion after an evidentiary
hearing. A fact finder might therefore reasonably construe Mother’s unsworn statements
to address only that period. That is, her comments could be taken as her urging that, during
the pre-evidentiary-hearing period of temporary visitation (visitation that Mother opposed),
Leske’s visitation should occur only in the home of Mother’s parents. Even if the exchange
were truly a concession about a potential visitation award after the temporary period,
Mother’s statements could be construed as addressing only the location of visitation, not
the propriety of visitation generally. That is, she may have been addressing only the district
court’s choice to require visitation at the Visitation Center rather than at Mother’s parents’
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home, which had been the prior arrangement. The context of the exchange makes either of
these constructions reasonable, and n either of them concedes the element in the way the
district court seems to have concluded.
Conclusion
Leske failed to make a prima facie case requiring an evidentiary hearing on her
motion for grandparent visitation. She consequently also failed to introduce clear and
convincing evidence warranting an award of grandparent visitation without any evidentiary
hearing, where disputed material facts could have been resolved. Because we hold that the
district court abused its discretion by awarding visitation on an inadequate showing, we do
not consider Mother’s due -process argument. We reverse the district court ’s order
awarding grandparent visitation.
Reversed.