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Bazen v. Bazen

Supreme Court of South Carolina

October 30, 2019

Laverne Bazen and Pansy Bazen, Respondents,
Tammie Bazen, Appellant. Appellate Case No. 2018-000337

          Heard June 12, 2019

          Appeal from Horry County Ronald R. Norton, Family Court Judge.

          Whitney Boykin Harrison, McGowan Hood & Felder, LLC, of Columbia; Carolyn R. Hills and Jennifer Darrow Hills, Hills & Hills, PC, of Myrtle Beach, for Appellant.

          Stuart Wesley Snow, Dusenbury, Snow & Evans, PA, of Florence; Charles Edward Parrish, Charles Edward Parrish, PA, of Conway, for Respondents.

          FEW JUSTICE.

         This is a challenge to the family court's order permitting grandparent visitation under subsection 63-3-530(A)(33) of the South Carolina Code (Supp. 2019). We reject the mother's argument the subsection is unconstitutional. We find the grandparents satisfied the requirements of the subsection and are entitled to have some visitation. Thus, we affirm. However, we find it necessary to accommodate reasonable restrictions the mother sought to impose on visitation. In light of this finding, we modify the visitation schedule.

         I. Facts and Procedural History

         Stacey and Tammie Bazen married in 1999 and lived in Myrtle Beach. The marriage was unstable, with frequent separations and accusations that Stacey was unfaithful. Their first daughter was born in 2004. They later had a son, but he never left neonatal intensive care and died before he was two months old. In 2008, they had twin girls. At the time of Stacey's death in 2013, he and Tammie were again separated. Stacey was living at the home of his parents-Laverne and Pansy Bazen-in Pamplico, South Carolina. Pamplico is located in eastern Florence County, approximately fifty miles from where the children live with Tammie in Myrtle Beach.

         The grandparents saw the children frequently until Stacey died, mostly in Myrtle Beach. During the periods of Stacey and Tammie's separation, including at the time of Stacey's death, the children would visit with Stacey at the grandparents' home. The grandparents developed a positive, loving relationship with the children. The children were 9 and 5 at the time of Stacey's death.

         As the family court found, Tammie and the grandparents "had a great amount of animosity between them." Tammie's relationship with the grandparents soured when the twins were very young. After she was told Stacey was having an affair, she discussed the situation with Stacey's father, Laverne. Tammie felt Laverne did not support her. When Tammie and Stacey eventually reconciled, she felt her relationship with his parents was different. She testified, "I didn't feel welcomed anymore. I didn't feel any kindness. It was really kind of like hands-off; kind of --in a way, fake to me; like they were going through the motions. There was no true kindness." She testified the grandparents resented her for reporting Stacey to the police for assaulting her, and Laverne told her she "never loved" his son.

         Soon after Stacey died, Tammie had a dispute with the grandparents over Stacey's estate. The dispute carried over into their communication about the grandparents seeing the children. At one point not long after Stacey's funeral, Tammie told the children-in the presence of the grandparents-"Y'all won't see Pawpaw [Laverne] any more." After that day, the grandparents saw the children only occasionally until early 2015 when their great grandmother passed away. After that, the grandparents did not see the children again until Thanksgiving 2015, when they went to Tammie's home unannounced. After a short visit that day, Tammie told them not to show up unannounced and said "you need to call before you come." The family court summed up the relationship between Tammie and the grandparents during trial, stating, "It's so painfully obvious to the court that these people do not get along."

         The grandparents filed suit in family court in July 2016 seeking an order pursuant to subsection 63-3-530(A)(33) requiring Tammie to allow visitation. The case went to trial in October 2017. The family court entered an order on November 17, 2017, granting visitation. Tammie appeals the November 2017 order. Because Tammie challenges the constitutionality of subsection 63-3-530(A)(33), the court of appeals transferred the appeal to this Court pursuant to Rule 203(d)(1)(A)(ii) of the South Carolina Appellate Court Rules, which requires appeals to be filed in the Supreme Court "where the principal issue is one of the constitutionality of the law," and pursuant to Rule 204(a), permitting the court of appeals to transfer an appeal to the appropriate appellate court.

         II. Analysis

         The Due Process Clause of the Fourteenth Amendment to the Constitution of the United States protects a parent's "fundamental right" to make decisions concerning the welfare and upbringing of her minor children. Camburn v. Smith, 355 S.C. 574, 579, 586 S.E.2d 565, 567 (2003) (citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56-57 (2000)). However, subsection 63-3-530(A)(33) grants the family court power "to order visitation for the grandparent of a minor child" against the wishes of a parent if the grandparent establishes the elements set forth in the subsection. Those elements are:

1) at least one parent must be deceased, or the parents must be divorced or "living separate and apart in different habitats," § 63-3-530(A)(33);
2) the parent has unreasonably deprived the grandparent of the opportunity to visit with the child for more than ninety days, § 63-3-530(A)(33)(1);
3) the grandparent visitation will not interfere with the parent's relationship with the child, § 63-3-530(A)(33)(2); and
4) the family court finds by clear and convincing evidence that the parents are unfit, or "there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest," § 63-3-530(A)(33)(2)(a), (b).

         Tammie argues subsection 63-3-530(A)(33) is unconstitutional because it infringes on her right as a parent to decide when and under what circumstances the grandparents may visit the children over her objection. She also argues-even if the subsection is not unconstitutional-the family court applied it in her case in such a way as to unconstitutionally infringe on her parental decision-making authority.

         A. Constitutionality of Subsection 63-3-530(A)(33)

         Tammie relies primarily on Troxel, in which the Supreme Court of the United States found a "nonparental visitation statute" in the State of Washington to be "breathtakingly broad." 530 U.S. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57. "Thus," the Supreme Court held, "in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests." 530 U.S. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d at 57-58. The Court recognized that the Due Process Clause of the Fourteenth Amendment "'provides heightened protection against government interference with certain fundamental rights and liberty interests, '" 530 U.S. at 65, 120 S.Ct. at 2060, 147 L.Ed.2d at 56 (quoting Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772, 787 (1997)), and "the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interests," 530 U.S. at 65, 120 S.Ct. at 2060, 147 L.Ed.2d at 56; see also 530 U.S. at 66, 120 S.Ct. at 2060, 147 L.Ed.2d at 57 (stating "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children"). A plurality of four Justices stated "the visitation order in this case was an unconstitutional infringement on [the parent's] fundamental right to make decisions concerning the care, custody, and control of her two daughters." 530 U.S. at 72, 120 S.Ct. at 2063, 147 L.Ed.2d at 60. Two other Justices concurred in the judgment. 530 U.S. at 75, 80, 120 S.Ct. at 2065, 2067, 147 L.Ed.2d at 62, 65.

         Although the Court left open "the precise scope of the parental due process right in the visitation context," 530 U.S. at 73, 120 S.Ct. at 2064, 147 L.Ed.2d at 61, the Court's plurality set out general parameters a nonparental visitation statute should include to avoid infringement on a parent's constitutional rights. Tammie argues- and we agree-those parameters include "three key principles to promote proper visitation: (1) there must exist a 'presumption that a fit parent will act in the best interest of his or her child,' (2) the decision of a fit parent concerning grandparent visitation is entitled deference, and (3) the impact to the parent-child relationship should be considered." Appellant's Br. 12 (citing and quoting Troxel, 530 U.S. at 68-70, 120 S.Ct. at 2061-62, 147 L.Ed.2d at 58-59).

         Subsection 63-3-530(A)(33) addresses each of the "parameters" Tammie contends are not addressed. First, subsection 63-3-530(A)(33)(2)(b) specifically recognizes a "presumption that the parental decision is in the child's best interest." Second, we have repeatedly interpreted subsection 63-3-530(A)(33) to require that the decision of the parent-protected by Due Process-be given substantial deference. See Marquez v. Caudill, 376 S.C. 229, 248, 656 S.E.2d 737, 747 (2008) (repeating "the court must give 'special weight' to a fit parent's decision regarding visitation" (citing Camburn, 355 S.C. at 579, 586 S.E.2d at 567)).[1] Third, subsection 63-3-530(A)(33)(2) specifically requires the family court to find "grandparent visitation would not interfere with the parent-child relationship."

         Tammie's primary argument, however, focuses on the fourth element, and in particular, the requirement of "compelling circumstances." Tammie argues that because the term "compelling circumstances" is undefined, "the statute fails to provide the necessary tailoring to withstand [the] strict scrutiny" the Due Process Clause requires. See In re Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d 338, 347 (2002) ("Legislation restricting or impairing a fundamental right 'is subject to "strict scrutiny" in determining its constitutionality.'" (quoting Hamilton v. Board of Trustees, 282 S.C. 519, 523, 319 S.E.2d 717, 720 (Ct. App. 1984))). She contends, "The statute effectively permits the family court to second guess parental decisions for any reason it wants by not providing criteria, like harm," and the statute "improperly allows the State to override parental decisions based on its own determination that the circumstances presented are compelling." For reasons we will explain in Section II B in our discussion of each element in the factual context of this case, we reject Tammie's argument.[2]

         Therefore, we find subsection 63-3-530(A)(33) is not unconstitutional. See Marquez, 376 S.C. at 249, 656 S.E.2d at 747 (stating "we have already ruled that the grandparent visitation statute is not facially invalid because it can be constitutionally applied in the appropriate circumstances" (citing Camburn, 355 S.C. at 579-80, 586 S.E.2d at 568)).[3]

         B. Subsection 63-3-530(A)(33) as Applied

         Our finding subsection 63-3-530(A)(33) is constitutional means that if the subsection is applied correctly, there will be no unconstitutional infringement on the parent's fundamental right to make decisions concerning the welfare and upbringing of her minor children. If the subsection is not applied correctly, however, there could be such an unconstitutional deprivation. Because we review substantive decisions of the family court de novo, Stoney v. Stoney, 422 S.C. 593, 596, 813 S.E.2d 486, 487 (2018), we proceed to ensure the subsection is applied correctly in this case by examining each of the elements the grandparents must satisfy.

         Stacey's death satisfies the first element.[4] The remaining elements will require more analysis.

         As to the second element, we find Tammie deprived the grandparents of the opportunity to visit. Officially, Tammie contends she is willing to permit visitation. In her answer, Tammie denied the allegation she did not allow Laverne and Pansy to visit their grandchildren. She testified she never said "no" when they requested visitation. While she admitted she is "not accommodating them the way they would like for me to," she testified she has "no issues" with them calling and visiting the children. As the family court found, "[Tammie] stated several times that she had no objection to the grandparents seeing the children at extracurricular functions, school functions, visits at or near the vicinity of the children's home, and had no issue with the children having telephone contact with the grandparents."

         In reality, however, Tammie has consistently refused to permit the grandparents to visit with the children. Laverne and Pansy both testified they attempted to call and visit on numerous occasions. Tammie conceded this in her testimony. However, Tammie repeatedly refused to accept or return their calls when they tried to schedule a visit. On several occasions, they called and asked one of the children to check with Tammie for permission to visit, but Tammie never responded. Even at trial Tammie resisted allowing visitation. When asked whether she would be willing to provide the grandparents with a calendar of school and extracurricular functions so the grandparents could attend, Tammie repeatedly stated they could find that information on "the website."

         The family court found Tammie "has . . . denied the grandparents opportunity to visit with the minor children by failing to allow communications." We agree with that finding. Tammie claims she is willing to allow visitation. Nevertheless, the grandparents have not been able to see the children since Thanksgiving 2015, except on a few occasions when they showed up unannounced at the children's home or at sporting events, despite Tammie's admonition against doing so.

         Also as to the second element, we must consider whether Tammie depriving the grandparents the opportunity to visit the children has been unreasonable. The family court found Tammie's denial was unreasonable, and we agree. Tammie testified, "I know they love [their grandparents]." The guardian wrote in her report, "There is certainly a benefit to maintaining a connection and contact between the girls and their father's side of the family." Tammie explained the children had a hard time getting over the death of their father and described her own efforts to ensure "the girls would never forget their father." Tammie testified she frequently needs someone to stay with the eldest daughter or the twins while she is out with one of the others. The children's grandparents could easily fill this role, and they have clearly indicated their eagerness to serve it. There are, therefore, several reasons Tammie should welcome and encourage visitation.

         The important question for the "unreasonably" requirement of the second element, however, is whether Tammie has any reason to prevent the visitation. If she has a legitimate reason to do so, the Due Process Clause and subsection 63-3-530(A)(33) require that her reasonable decision be honored. In Camburn, for example, the mother refused visitation with the grandparents "because she felt it was not a 'healthy environment.'" 355 S.C. at 577, 586 S.E.2d at 567. We stated, "She objects that Grandfather drinks, uses abusive language, and denigrates the children's fathers. Because Grandfather was physically and mentally abusive to her when she was a child, she does not consider him her father." Id. Refusing visitation under those circumstances was reasonable, and in Camburn we upheld the mother's refusal on that basis. 355 S.C. at 580, 586 S.E.2d at 568; see also Brown v. Key, 425 S.C. 490, 498, 823 S.E.2d 212, 216 (Ct. App. 2019) (finding the mother's decision to ...

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