In re the Matter of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1663

In re the Matter of:

Darrell Perry, et al., petitioners,
Appellants,

vs.

Carrie Ann Swatlowski,
Respondent.

Filed January 22, 2024
Affirmed
Connolly, Judge

Polk County District Court
File No. 60-FA-19-2575

Sarah M. Kyte, Kyte Law Office, Grand Forks, North Dakota (for appellants)

Carrie Ann Swatlowski, East Grand Forks, Minnesota (pro se respondent)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellants challenge the district court’s determination that Minn. Stat. § 518.18
(2022) does not apply to grandparent-visitation cases, which led to its denial of appellants’

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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motion to dismiss respondent’s petition as untimely, its not holding an evidentiary hearing,
and its termination of appellants’ grandparent visitation; they also argue that Minnesota
lacks subject matter jurisdiction over this matter. We affirm.
FACTS

Kristin Swatlowski and Kyle Perry , of Grand Forks, N orth Dakota, are the parents
of A.S., born in March 2011, and E.S., born in June 2012 . Their parental rights were
terminated in September 2012. In Feb ruary 2013, respondent Carrie Swatlowski, the
children’s maternal grandmother, adopted the children in Grand Forks, and took them to
live with her in East Grand Forks, M innesota.1 The children’s paternal grandparents,
appellants Darrell and Teresa Perry, of Grand Forks, had inconsistent contact with th e
children until 2015 and no contact from then until 2019.
In December 2019, appellants filed a motion for reasonable visitation with A.S. and
E.S., then 8 and 7 years old. In January 2020, respondent requested dismissal of the motion.
In March 2021, following mediation, a temporary stipulation providing a graduated
visitation schedule was filed with and approved by the district court.
The visitation schedule involved communication by video or letter betwe en
appellants and the children for one month (February), then online visits every two weeks
for two months (March and April), then in -person visits of up to two hours every two
weeks. Two in-person visits occurred in May, but disagreements about appellants’ desire

1 Respondent takes no part in this appeal.
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to have the children visit other relatives, including their father, prevented any further visits
for nine months.
In February 2022, a stipulation resolving all pending issues was filed with and
approved by the district court. Appellants were granted two-hour in-person visits twice
per month; in the summer, they were granted a two -hour visit once per month, with the
option of a second two-hour visit once per month on a weekday, and one-hour Zoom video
conferences at 10:00 a.m. on Thanksgiving Day and Christmas Eve. Conditions for the in-
person visits included having exchanges occur at a public location; not involving other
family members in the visits, and having visits either in a public place or in appellants’
home, provided no one else was present. After nine months, the parties would participate
in further mediation to determine if additional visitation would be in the children’s best
interests.
In March 2022, Teresa Perry attended A.S.’s basketball game with her daughter.
During a nother March visit, appellants showed the children pictures of their son , the
children’s biological father, and told the children they could meet him soon. A.S. was
upset and crying after this visit. Respondent filed a request for an emergency ex parte order
requesting immediate suspension and termination of visitation. The district court denied
her request and scheduled a review hearing for April 13, 2022. The issues addressed at the
hearing were whether visitation should be suspended pending the final hearing on
termination and whether the final hearing would be a motion hearing or an evidentiary
hearing. The district court concluded that immediate suspension of grandparent visitation
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should be denied and “ordered that the final hearing be set as a mot ion hearing (not an
evidentiary hearing).”
After the final motion hearing in July 2022, the district court issued an order :
determining that Minn. Stat. § 518.18 does not apply to grandparent visitation, which is
governed by Minn. Stat. § 257C.08, subd. 2 (2022); finding that appellants ha d not
complied with the conditions of the visitation plan and that their decisions have adversely
impacted the children; determining that termination of grandparent visitation is in the
children’s best interests; and terminating visitation.
Appellants challenge the order, arguing that the di strict court erred in: determining
that Minn. Stat. § 518.18 does not apply to modification of grandparent visitation and
therefore denying their motion to dismiss respondent’s motion as untimely under Minn.
Stat. § 518.18 , denying the evidentiary hearing required by Minn. Stat. § 518.18 , and
terminating appellants’ grandparent visitation by not invoking the standards of Minn. Stat.
§ 518.18; they also argue that Minnesota lacks subject matter jurisdiction over this matter.
DECISION
Appellate courts review an order denying grandparent visitation for an abuse of
discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). However, the central issue
here is whether Minn. Sta t. § 518.18, concerning modification of custody and parenting
time determinations, applies to the termination of grandparent visitation rights . The
interpretation and construction of statutes are questions of law that appellate courts review
de novo. Lewis-Miller v. Ross, 710 N.W.2d 565, 568 (Minn. 2006).

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1. Statutory determination
Under Minn. Stat. § 257C.08, subd. 6 (2022), a district court may grant visitation
rights to grandparents of a child who has been adopted by a stepparent if (1) the grandparent
seeking visitation is the parent of a child whose parental relationship was terminated by a
decree of adoption and (2) the court determines that the visitation is in the best interest of
the child and would not interfere with the parent-child relationship. The parental rights of
appellants’ son were terminated; r espondent adopted his children, and appellants were
granted grandparent visitation. Respondent moved to terminate appellants’ visitation
rights 39 days later.
Appellants claim that respondent’s motion violated Minn. Stat. § 518.18(a), which
provides: “Unless agreed to in writing by the parties, no motion to modify a custody order
or parenting plan may be made earlier than one year after the date of the entry of a decree
of dissolution or legal separation containing a provision dealing with custody.” They argue
that Minn. Stat. § 518.18 (a) applies to a motion to terminate grandparent visitation, that
respondent therefore had no right to move to terminate their visitation until a year after the
stipulation was filed and approved, i.e., February 9, 2022, and that respondent’s motion to
terminate on March 20, 2022, only 39 days after that date, should not have been accepted.
For this argument, appellants rely on Minn. Stat. § 257C.06 (2022), which provides
that “[t]he procedures in section 518.18 for modification of a custody order also govern
modification of an order under this chapter.” But chapter 257C pertains to de facto custody
and third -party custody . See, e.g ., Minn. Stat. § 257C.02(a) (2022) (providing that
“[c]hapters 256, 257, and 518 . . . apply to third party and de facto custody proceedings
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unless otherwise specified in this chapter .” This court has recently construed Minn. Stat.
§ 257C.02: “Because the statute is clear, we conclude that the unambiguous text of section
257C.02 incorporates chapter 518 for interested third -party custody and de facto
proceedings, not a grandparent -visitation order.” Ewald v. Nedrebo , ____ N.W.2d ___,
___, 2023 WL 8533713, at *3 (Minn. App. Dec. 11, 2023) (emphasis omitted). Thus, “the
reference to chapter 518 in section 257C.02 does not apply to a grandparent -visitation
order.” Id.
Like their argument that respondent’s motion to terminate was brought too soon,
appellants’ arguments on the denial of the evidentiary hearing and on terminating visitation
without having found endangerment or interference with the parent -child relationship are
based on the premise that Minn. Stat. § 518.18 applies to motions to terminate grandparent
visitation. Absent that application, those arguments fail.
Moreover, Minn. Stat. § 518.18 (c) provides that, if there has been “persistent and
willful denial of or interference with parenting time,” the requirement to wait a year before
moving to modify does not apply. Analogously, appellants’ “ persistent and willful”
disregard of the requirement that they not involve other family members in visits supports
the district court’s finding that they
do not appear willing to abide by [r]espondent’s parenting
decisions or even this Court’s Order. [Ap pellants’] actions
took place within days of the Court issuing the existing Order
in this case. What this tells the Court is that there will be
ongoing litigation regarding the terms of grandparent
visitation. Ongoing litigation is not in the children’s best
interests.

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The children did not have contact with [appellants] for
many years. Respondent attempted to work on a compromise
visitation plan that considered [appellants’] desires and
provided protection to the children. [Appellants] were unable
to comply with those agreed upon provisions. [Appellants’]
decisions have adversely impacted the minor children. The
Court finds that [r]espondent has proven, by clear and
convincing evidence, that termination of grandparent visitation
is in the children’s be st interests and that the existing
grandparent visitation schedule has interfered with the
parent/child relationship.

Minn. Stat. § 518.18 does not apply to termination of grandparent visitation rights,
and the district court did not abuse its discretion in denying appellant s’ motion to dismiss
respondent’s petition as untimely.
2. Jurisdiction

The district court found that “ [r]espondent and the minor children reside in East
Grand Forks, Minnesota. This court has jurisdiction over this matter as [r]espondent and
the minor children reside in Polk County, Minnesota. ” In 2019, a ppellants filed their
motion for visitation in Minnesota; the matter has been conducted in the Minnesota courts
since then. Appellants argued for the first time at the July 2022 hearing that North Dakota
has exclusive jurisdiction over this matter, relying on N.D. Cent. Code § 14-14.1-13 (2022),
which provides that “a court of this state which has made a custody determination . . . has
exclusive, continuing jurisdiction over the determination until . . . [a] court of this state or
of another state determines that th e child, the child’s parents, and any person acting as a
parent do not presently reside in this state.” Because the district court found that respondent
and the children reside in Minnesota, the North Dakota statute does not apply.
Affirmed.