#23453-a-JKK

2006 SD 28

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

IN THE MATTER OF THE

GUARDIANSHIP AND CONSERVATORSHIP OF

A.L.T. & S.J.T., Minor Children

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE STUART L. TIEDE

Judge

* * * *

TAMARA D. LEE Attorney for grandparents

Yankton, South Dakota appellants E.S. & C.S.

CYNTHIA M. BERREAU Attorney for appellee

Sioux Falls, South Dakota mother.

ROBERT L. SPEARS of

Spears Law Office Attorney for appellee

Watertown, South Dakota father.

* * * *

 

CONSIDERED ON BRIEFS

ON FEBRUARY 13, 2006

 OPINION FILED 03/22/06
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KONENKAMP, Justice

[¶1.] In this case, what began as a divorce, ended as a custody dispute 

between the parents and the maternal grandparents. Because the parents were 

unable at first to independently care for their two little girls, the grandparents 

agreed to care for them. They have done so since birth. Eventually, the 

grandparents obtained guardianship. Over the next several years, issues 

concerning visitation and custody of the children were extensively litigated between 

the grandparents and the parents. In the end, the circuit court terminated the 

guardianship. The court found that the parents were fit and awarded sole physical 

custody to the mother, with the father given scheduled visitation. Further, because 

the court found that the grandparents had deliberately alienated the relationship 

between the father and the children, the court imposed several restrictions before 

the grandparents could have visitation with the girls. Now, the grandparents 

appeal the termination of the guardianship and the court’s decision to restrict their 

visitation. Although there is evidence in conflict, we cannot say that we have a 

definite and firm conviction that the circuit court judge was clearly erroneous. 

Therefore, we affirm.

Background

[¶2.] The mother and father (L.D.T and P.D.T.) were married on May 14, 

1994, and are the biological parents of A.L.T. and S.J.T, twin girls born on October 

22, 1994. After the children were born, the mother, father, and children moved in 

with the mother’s parents, E.S. and C.S. This arrangement continued for six 

months, until the mother and father moved into a home that was under 
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construction. When the parents moved out, however, the girls remained with the 

mother’s parents because the new home was not yet suitable for children.

[¶3.] Over the next several years, the mother regularly visited the children 

at her parents’ home and occasionally provided financial support. The father’s 

visits were intermittent, and little or no support was provided. At no time, 

however, did the girls leave the maternal grandparents’ home to live with their 

parents. On May 25, 1999, the mother sued the father for divorce in Turner 

County, South Dakota. While the divorce was pending, and because the girls had 

always remained at the maternal grandparents’ home, the grandparents petitioned 

for temporary guardianship of the children in Minnehaha County, South Dakota. 

The court granted the temporary guardianship on December 8, 1999.

[¶4.] The father moved to dismiss the temporary guardianship on January 

7, 2000. One month later, and before the motion to dismiss was addressed, all 

parties stipulated to a change of venue on the guardianship matter from Minnehaha 

County to Lincoln County, and an order was entered to that effect. Then on August 

11, 2000, a hearing was held in Lincoln County on the father’s motion to dismiss. 

The court, per Judge Bogue, ordered that the temporary guardianship be continued 

pending further hearing on the custody issues in the underlying divorce action in 

Turner County.

[¶5.] At this same hearing, the court ordered that the mother and father 

shall be entitled to supervised visitation at “such dates and times to be mutually 

agreed upon by and between the parties and their legal counsel upon reasonable 

advance notice.” The court also required the mother and father to pay the 
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grandparents child support, in accordance with the South Dakota guidelines.1 

Lastly, the court appointed Deb Langenfeld of Great Plains Psychological Services 

to counsel the children and make recommendations regarding visitation with the 

parents.

[¶6.] In the divorce action in Turner County, Judge McMurchie took judicial 

notice of the pending guardianship in Lincoln County and then declared that the 

temporary physical and legal custody of the children should remain with the 

grandparents. But the court also stated that the mother and father shall continue 

to have supervised visitation based on the recommendations of the court appointed 

expert, Langenfeld. Further, in its December 12, 2000 order, the court joined the 

grandparents as interested parties in the divorce action.2

[¶7.] The mother and father exercised their rights to visitation with the 

children at the Visitation Center in Sioux Falls. These visits were supervised, 

videotaped, and a record was made documenting each visit. The record detailed the 

interactions between the parents and the children, as well as the conduct of the 

grandparents.3 Langenfeld, as the court-appointed therapist for the children, also 

 

1. The court ordered the mother and father to pay the grandparents, “as support 

for the minor children, the sum of $265 each per month, in accordance with 

the Child Support Guidelines of the State of South Dakota” and “shall split 

equally (50/50) any medical, dental, orthodontic, counseling, pharmaceutical,

or optical expenses not covered by [the grandparents’] insurance.”

2. The statutory authority for joining the grandparents as guardians was SDCL 

26-5A-10, which has since been repealed. See SDCL 26-5A-10 (repealed SL 

2005, ch 137, §43).

3. These records were entered into evidence at a subsequent hearing and are 

part of the settled record in this appeal.
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kept a record of her treatment of the girls and her recommendations for the future 

with respect to the parents. A review of her record is essential.

[¶8.] On October 24, 2000, Langenfeld wrote a letter to the attorneys 

involved and summarized the children’s progress. She recommended that the 

children continue to have supervised visitation with their parents. She also noted 

that both girls expressed a fear of their father because they claimed he was violent. 

She noted that reunification is a slow process, recognizing that the grandparents 

have been the only consistent and stable element in the children’s lives. In 

describing a visit between the father and the girls on December 10, 2000, 

Langenfled reported that the father was relaxing more.

[¶9.] In January 2001, Langenfeld indicated that the grandparents may be 

overacting in front of the children and that the children were picking up on the 

grandparents’ stress. Langenfeld sent another letter to the attorneys on February 

28, 2001. Even though neither parent had been highly involved in the children’s 

lives in the past, and the grandparents had been left with the responsibility of 

parenting them, she declared that “[t]he why and wherefores of the past reasons for 

lack of contact are not as important as is the need now for visitation continuity and 

furthering the development of a relationship between the girls and each parent.”

[¶10.] In her assessment of the mother, Langenfeld stated that she had had 

only minimal contact with her, but through the girls had learned that the mother 

had been visiting them on a daily basis. Langenfeld could not comment on the 

quality of the mother-child relationship, as she had nothing from which to do so. 

However, with respect to the father, she noted that it had been difficult for her to 
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work on reunifying the children with him because of “the ongoing caviling that 

takes place, as well as the covert and overt messages and coding that takes place 

from the adults around the children.” Specifically, Langenfeld was concerned “with 

the quality and the amount of negative messages the [children] are getting about 

their father through/from the grandparents.” The grandparents, however, relayed 

to her that they were in fear for the children’s safety and only desired to keep them 

protected. Langenfeld discussed with them that their issues with the father were 

only interfering, contaminating, and fueling the loyalty issues with the girls.

[¶11.] In summing up, Langenfeld remarked that she needed to continue to 

monitor the covert and overt contamination by all adults involved. She also stated 

that it would be helpful if everyone would begin to regard the children’s biological 

father as “dad” in front of them. This was because the children were calling the 

grandparents mom and dad, and addressing their biological parents by their 

respective first names. Because as a whole the visitations were going well and the 

children were beginning to bond with their father, she also recommended that the 

therapist-supervised visitations cease and supervised visitation with the father be 

allowed with his family. If all were to go well, Langenfeld would recommend that 

the father receive regular visitation as allowed under the South Dakota guidelines.

[¶12.] On her recommendations, the father exercised supervised visitation at 

his brother and sister-in-law’s home on April 14 and 28, 2001, in Minnesota. The 

girls were six at the time. Two days after the second visit, on April 30, 2001, the 

grandparents reported that the father sexually abused the children in Minnesota 

during the overnight visit. According to the grandparents, on a walk after school 
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one afternoon, one of the girls stated that “her potty thing hurts.” When questioned 

by the grandparents, the child stated that “[the father] hurt my potty thing” and 

that he “used his finger.” The other child stated that the father had come into the 

room she was sleeping in and had “stuck his thumb in her potty thing, and it hurt.”

[¶13.] The grandparents took the girls to the emergency room, where they 

were examined by medical personnel. On May 8, 2001, a forensic interview and 

medical examination were done with both children at Child’s Voice Evaluation 

Center, by Colleen Brazil and Dr. Rich A. Kaplan, a pediatrician. The interview 

was videotaped and recorded through written documentation. Dr. Kaplan, in his 

examination of the children at Child’s Voice, did not find any abnormality, trauma, 

injury, or other evidence of sexual abuse. Nevertheless, in his assessment and 

examination of the girls, Dr. Kaplan concluded that sexual abuse was possible.4 

Law enforcement was contacted.

[¶14.] The South Dakota authorities conducted a preliminary investigation in 

South Dakota, but because the incident allegedly occurred in Minnesota, further 

investigation was conducted by Minnesota authorities. The Minnesota investigator, 

John Nuernberg, interviewed the father’s sister-in-law, viewed the videotapes from 

the children’s interviews, met with the South Dakota authorities and reviewed their 

case file, and spoke with the children’s therapist. However, no agency in South 

Dakota or Minnesota ever brought criminal charges against the father.

 

4. Even though his initial report stated “possible” sexual abuse, Dr. Kaplan, in 

his testimony at a hearing on March 22, 2002, reported that he would now 

say “probable” sexual abuse.
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[¶15.] After the sexual abuse allegations, visitations between the father and 

the girls ceased, but the children’s counseling continued. Even though the abuse 

was not substantiated, the grandparents continued to express fear for the children’s 

safety. On May 15, 2001, Langenfeld explored with the girls what had reportedly 

happened. After her session, she remarked that she was unsure of what to make of 

the children’s statements “since questioning and the children’s reactions by [the 

grandparents] will have high influence—answers in line with what [the 

grandparents] reported to me.” Langenfeld indicated that she would be 

transitioning this case over to a new therapist as she was leaving Great Plains.

[¶16.] In June 2001, Patricia Brady took over Langenfeld’s responsibilities 

with counseling the girls and documenting their treatment. Brady first conducted a 

preliminary assessment of the children. On June 27, 2001, she established certain 

treatment goals, which included building a level of trust. She, like Langenfeld, had 

concerns regarding the grandparents expressing negativity about the father in front 

of and to the children. Brady determined that the environmental factors were 

contributing to the children’s trust and loyalty issues. As a result, on July 11, 2001,

Brady spoke with the grandparents about this and asked them to bear in mind the 

confusion the children must feel due to the conflict. She further discussed with the 

grandparents their responsibility to not speak negatively about the children’s 

parents in front of them.

[¶17.] During the children’s July 24, 2001 session, Brady learned that the 

grandparents had told the girls that they did not have to see their father anymore. 

She also learned that their mother continued to see them on a regular basis at the 
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grandparents’ home. Based on this information, Brady planned to work with the 

girls on clarifying their feelings with what they were being told and identifying 

certain methods that would assist them in protecting themselves. In October 2001, 

Brady noted that the girls still did not want to see their father and were fearful that 

he would take them. Brady continued to work on building trust and assisting the 

children in identifying and sorting out their feelings about the parental conflict.

[¶18.] On September 26, 2001, Dr. Andre Clayborne from Great Plains wrote 

a letter to all the attorneys as an update on the children’s counseling progress. The 

letter reported that the children seemed to be adjusting to the sessions with Brady. 

Also, the letter indicated that no recommendation could be made with respect to 

resuming visitation with the father because of the alleged sexual abuse. Further, 

the letter suggested that taking the matter for resolution through the court might 

be appropriate.

[¶19.] Therefore, the father, in his desire to resume visitation with his 

children, petitioned for dismissal of the guardianship. This came after the mother 

and father stipulated to a settlement in the divorce action. They left the custody 

issue to be determined at a later time. Judge McMurchie, in Turner County, held a 

hearing concerning the guardianship on March 21 and 22, 2002. The court took 

testimony from the mother, the father, the grandparents, Dr. Kaplan, who had 

examined the children at Child’s Voice, and then Dr. Clayborne, Jeff Trammell, and 

Patricia Brady, from Great Plains. The court also admitted into evidence all the 

records from Langenfeld’s treatment and recommendations. Lastly, the court 
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accepted and considered evidence from the parties relating to the alleged sexual 

abuse.

[¶20.] At the conclusion of the hearing, the court orally ordered that the 

father have visitation with his children.5 The visitations were to be supervised and 

occur on weekends at the Visitation Center in Sioux Falls. The court required that 

the father submit to a psycho-sexual evaluation by Jeffrey Trammell of Great 

Plains, who would then prepare a report with his findings and recommendations. 

The father was examined by Robert Packard, a licensed psychologist. Both 

Trammell and Packard concluded that there were no presentations that indicated a 

pattern of psychological difficulties.6

[¶21.] After the hearing, the father complained that the grandparents were 

defying the court order by frustrating the scheduled visitations. The grandparents, 

on the other hand, asserted that it was the girls who refused to see their father. 

The grandparents insisted that the children refused to get dressed, became defiant, 

and threatened to run away if forced to go on the scheduled visitations. The 

 

5. On June 6, 2002, the court entered a written order that set forth the father’s 

right to visitation with his children. The court acknowledged “that the father 

has not had the opportunity to visit his children for approximately one year. 

This Court is of the opinion that this is too long. The goal of the counseling 

recommendations and visitation plan is to reunify the children with both 

parents.” The court also granted the mother and the father a divorce for 

irreconcilable differences.

6. The father was administered another polygraph examination by Great 

Plains. Even though some of the father’s answers were considered deceptive, 

Trammell could not find any factual basis from which to conclude that the 

sexual abuse occurred.
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grandparents, “sick at the turmoil and distress this is causing the children,” 

claimed that they did not know what to do next.

[¶22.] Because the father was still having difficulty exercising visitation, he 

moved to further establish his rights. The court held a telephonic hearing on July 

10, 2002, in Turner County. Judge McMurchie entered another order on August 1, 

2002, affirming his previous decision to allow the father visitation in accord with 

the written order entered on June 6, 2002. Further, the court appointed Richard 

Johnson as the attorney for the children and ordered that he contact Brady to 

discuss what should be done to get visitation back on track. Brady and Johnson 

met in August and established a proposed visitation plan.

[¶23.] After meeting with the children’s attorney, Brady wrote a letter to 

Judge McMurchie on September 25, 2002. She noted that the continued purpose of 

the counseling was to reinstate visitation with the father and children. She stated, 

however, that the children were resisting such attempts and noted that the girls

were telling her that, she was making them see their father and “I don’t want to 

talk to you.” She also expressed concern about the children’s growing anxiety and 

agitation regarding counseling. In addition to their fear of their father, Brady 

commented that the children were now verbalizing a distrust of their mother. 

According to Brady, though, the children’s “remarks [were] mirroring comments 

made by the [grandparents] and other family members.” She stated that the 

negative statements have increased the children’s fears and anxieties. Therefore, 

she declared that “[a]s of September 25, 2002, all counseling sessions have been 
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stopped until the court can determine a course of action, due to [her] concern of 

victimization of the children.”

[¶24.] In reference to Brady’s September letter, the children’s attorney 

requested a hearing in October 2002, to determine a further course of action in 

regard to the custody and visitation of the children. The grandparents moved for a 

continuance and a change of venue from Turner County to Lincoln County in 

December 2002. After a telephonic hearing on the matter, Judge Gienapp entered 

an order on January 23, 2003, granting the change of venue and requiring that the 

father continue to have visitation on every weekend at the Visitation Center in 

Sioux Falls until further order of the court.

[¶25.] Now in Lincoln County, Judge Tiede held a hearing on February 7, 

2003, to determine the future plan for reinstating visitation with the father. On 

February 27, 2003, the court entered an order requiring that visitation continue as 

set forth in Judge McMurchie’s oral order and his subsequent August 5, 2002 order 

as modified by Judge Gienapp’s January 23, 2003 order.

[¶26.] On July 15, 2003, the father petitioned the court for unsupervised 

visitation. Hearings were held on August 11 and 26, 2003. Judge Tiede considered 

the issue of the alleged sexual abuse through testimonial and documentary 

evidence. In addition to their own testimony, the grandparents and the father also 

offered expert testimony: Adrianne Fricker-Elhai for the grandparents and Patricia 

Brady for the father. Before entering his decision on visitation, Judge Tiede 

“reviewed all the files including the record from both Turner County and Lincoln 

County, all the transcripts that [were] part of the [c]ourt file or in the personal files 
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of Judges McMurchie and Gienapp, the Child’s Voice videotapes of the interviews of 

[the children], and the videotapes of five visitation sessions by [the father] with the 

children at the visitation center in the time period from January through March 

2003.”

[¶27.] Ultimately, on February 18, 2004, Judge Tiede issued an exhaustive 

thirty-eight page memorandum opinion detailing and assessing the complex legal 

and personal history of the case. The court found

by the greater convincing force of the evidence that the 

grandparents have intentionally, deliberately, maliciously and 

wrongfully prevented [the father] from exercising his lawful 

rights of visitation with his children. They have improperly and 

maliciously influenced [the children] by their words and conduct 

in a deliberate effort to alienate these children from [the father]. 

They have repeatedly and flagrantly refused to comply with the 

lawful orders of four separate judges, all of whom have ordered 

visitation for [the father]. The evidence in support of these 

findings is overwhelming, beginning with the records of Ms. 

Langenfeld, the children’s initial therapist extending back to 

2000.

On the sexual abuse accusation, the court set forth a detailed analysis of the 

allegations made by the grandparents and the children, the investigations by the 

South Dakota and Minnesota authorities, the children’s interview at Child’s Voice, 

and the results of the father’s polygraph tests. The court evaluated this evidence 

and concluded that based on the evidence no sexual abuse had occurred.

[¶28.] With respect to the polygraph tests, which the grandparents placed 

significant emphasis on, the court stated:

I completely discount the polygraph for several reasons. First of 

all, the polygraph evidence is not admissible in South Dakota. It 

is not admissible because polygraphs are inherently unreliable. 

Secondly, the police administered the polygraph in the course of 

an allegation of sexual abuse with no credible evidence to 
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support such allegations. This polygraph was administered 

clearly in an effort to induce [the father] to confess or admit 

culpability. The allegation that he failed the polygraph was 

made in an effort by the police to obtain a confession from [the 

father]. [The father] continued to profess his innocence. The 

questions to which the responses of [the father] were deemed 

deceptive were general and non-specific.

[¶29.] In the end, the issues whether the guardianship should continue and 

whether the children were sexually abused were clearly matters of credibility, and 

the court found the grandparents to be not credible:

I have been asked to believe that a father desperately fighting to 

have visitation with his children would on the first opportunity 

that he was given to have overnight visitation with his children, 

while in the home of his brother and sister-in-law, and while at 

least the sister-in-law was present, went into a bedroom where 

[one child] was sleeping with four other children, took all of his 

clothes off, took all of the clothes off of [the child], had sexual 

intercourse with [the child], [the child] screamed and [the 

father] threatened her and threatened to kill the Grandparents, 

and then took [the other child] into the bathroom where he 

touched [that child] in her vaginal area with his thumb outside 

of her clothes. I am asked to believe this by a Grandmother who 

has not just a dislike for [the father], but a real hatred of the 

man. I am being asked to believe this by a Grandmother who 

prior to the allegation of sexual abuse had done everything 

within her power to frustrate visitation and the reestablishment 

of any relationship between these children and [the father]. I 

am being asked to believe this by a Grandmother who just a 

month and a half prior to the allegations told a therapist that 

she is worried something will have to happen before the girls 

can be safe again. I am being asked to believe this by a 

Grandmother who is the person who made the initial report of 

sexual abuse. I am being asked to believe this by a 

Grandmother who knew that the therapists were reporting that 

visitations were going well between [the father] and the children 

and the therapists were recommending that supervision by the 

therapists end and that transition be made ultimately to 

unsupervised visitation with [the father]. I am being asked to 

believe this by a Grandmother who knew that the therapists 

were reporting that the principal cause of the children’s 

problems in their behavior in school, and otherwise, was the 

Grandmother.
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Not only is there very little evidence of sexual abuse, there 

is no credible evidence.

[¶30.] Along these same lines, the court addressed the grandparents’ several 

petitions for protection orders against the father. The latest was September 8, 

2003, the fourth protection order they requested.7 This petition alleged that the 

father sexually abused the children, but was “in complete contradiction to the 

earlier allegations which were thoroughly investigated by Minnesota law 

enforcement officers, Child’s Voice, and the children’s therapists.” Based on this, 

the court ruled that the grandparents “have wholly failed to sustain their burden of 

proof to prove domestic abuse by a preponderance of the evidence.” The court 

rejected the allegation and dismissed the case “as not being supported by any 

credible evidence.”

[¶31.] The court concluded that no reason existed to deny the father 

visitation with his children. On March 3, 2004, it entered an order that established 

the schedule for unsupervised visitation between the father and his children.8 On 

March 15, 2004, the father requested a change in custody and termination of the 

custodial guardianship. At the time of the hearing, however, the children had been 

 

7. The first protection order was filed in 2001, and was dismissed for the 

grandparents’ failure to appear for the hearing. The second and third 

petitions were from January 2003, and alleged the same instance of sexual 

abuse from 2001. The petitions were dismissed by Judge Tiede because the 

grandparents failed to “provide sufficient evidence to support, by a 

preponderance of the evidence, a finding that domestic abuse between a 

family or household member had occurred.”

8. The court’s findings of fact and conclusions of law from the February 2003 

hearing were entered on August 18, 2004.
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admitted to Avera McKennan Hospital in Sioux Falls. The grandparents took the 

girls there to receive treatment for their anxiety and depression. The children were 

still in the hospital when the custody hearing was held on March 22 and 25, 2004.

[¶32.] The court heard testimony from the mother, the father, the 

grandmother, and Jeff Hayes, a pastor in the community contacted by the 

grandparents. At the conclusion of the hearing, Judge Tiede orally ordered that the 

mother and father be given temporary joint legal custody of the children. The 

mother received sole physical custody, and the father received unsupervised 

visitation as previously set forth by the court.

[¶33.] Because this was a temporary custody arrangement, the father moved 

for a modification and a hearing was scheduled for May 25, 2004. At this hearing, 

the court heard further testimony from the mother, the father, the grandparents, 

the father’s sister-in-law, and Erin Olson, a home-based therapist who had been 

referred to the mother from Avera McKennan. The court entered a written order on 

August 18, 2004. In forty-two factual findings and fifteen conclusions of law, the 

court ruled that the guardianship should be terminated. The court found that from 

the time temporary custody was transferred to the mother, the children’s anxiety 

levels had “markedly decreased,” and their performance in school remained 

constant for one child and improved for the other. Also, the school counselor, who 

the court found to be credible, “reported that the children seem less fearful than 

they were in March of 2004.”

[¶34.] Nevertheless, the grandparents continued to insist that the father had 

sexually abused the children and the children needed protection. In this respect, 
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the court noted that it “has consistently ruled it is more probable than not that the 

sexual abuse supposedly perpetrated by [the father] never happened and such 

allegations are false.” The court found that since physical custody has been given to 

the mother, the children’s visitations with the father have gone reasonably well. 

Also, the court concluded that the children were not acting fearful around him and 

were enjoying themselves.

[¶35.] The court further found that the mother’s and father’s home 

environments were stable, that they had the capacity to provide for their children, 

and that both parents were fit. Therefore, the court ordered that, in the best 

interests of the children, the mother and father would share joint legal custody of 

the children and the mother would have sole physical custody. The court denied the 

grandparents visitation with the children unless the mother consented to the 

visitation, advance notice of such was given to the father and his attorney, the 

visitation was recommended by the children’s counselor, and the visitation was 

specifically authorized by the court.

[¶36.] Consequently, the grandparents brought this appeal asserting the 

following issues: (1) Whether the circuit court erred in terminating the 

guardianship over the children; (2) Whether the circuit court erred in ruling that 

the grandparents could not see the children unless certain stringent requirements 

were met.

Standard of Review

[¶37.] Our standard of review is of critical importance in cases where the 

outcome turns on the credibility of witnesses. Under the rules of appellate review, 
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we are not free to retry the case as if it had never been heard before. A circuit 

court’s factual findings are reviewed under the clearly erroneous standard. 

Meldrum v. Novotny, 2002 SD 15, ¶18, 640 NW2d 460, 463 (quoting Langerman v.

Langerman, 336 NW2d 669, 670 (SD 1983)). This means that we must give 

“considerable deference” to the trial court’s findings. In re J.S.B., Jr., 2005 SD 3, 

¶12, 691 NW2d 611, 615 (citing SDCL 15-6-52(a)). We are bound to “give due 

regard” to the judge’s unique opportunity to assess whose testimony is more 

deserving of belief. Meldrum, 2002 SD 15, ¶18, 640 NW2d at 463 (quoting 

Langerman, 336 NW2d at 670). Findings are clearly erroneous only “when we are 

left with a definite and firm conviction that a mistake has been made.” J.S.B., Jr., 

2005 SD 3, ¶12, 691 NW2d at 615 (citing In re T.H., 396 NW2d 145, 148 (SD 1986)).

Analysis and Decision

[¶38.] The grandparents first claim that the circuit court erred when it 

terminated their guardianship over the girls. In South Dakota, a court may 

terminate a guardianship under SDCL 29A-5-506 after it “determines that the 

minor is no longer in need of the assistance of protection of a guardian. . . .”9 In this 

case, the court considered the father’s motion to terminate the guardianship in the 

 

9. There is reference in the briefs regarding whether the guardianship was 

temporary and terminated by operation of law. According to the father, if 

this were the case, then termination by the court was not necessary. Yet, 

because the matter was not argued below, we will not address it on appeal. 

See Watertown Coop. Elevator Ass’n v. S.D. Dept. of Rev., 2001 SD 56, ¶11 

n5, 627 NW2d 167, 171-72 n5.
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context of a divorce proceeding.10 The court treated this custody matter as a 

dispute between parents and non-parents and concluded that physical custody 

should be with the mother.11

[¶39.] When a non-parent seeks custody, the threshold question is whether 

the parent is fit to have custody of the child. Matter of Guardianship of Sedelmeier, 

491 NW2d 86, 87 (SD 1992). “The parents’ right to custody over their own children 

should never be disturbed except upon a clear showing against the parent of ‘gross 

misconduct or unfitness, or of other extraordinary circumstances affecting the 

welfare of the child.’” Matter of Guardianship of T.L.R., 2002 SD 54, ¶13, 645 

NW2d 246, 250 (quoting Sedelmeier, 491 NW2d at 88). In this case, the court 

awarded sole physical custody of the children to the mother. Therefore, the 

grandparents had the burden of proving that the mother was unfit, that she 

committed gross misconduct, or that other extraordinary circumstances affected the 

welfare of these children such that parental custody should be denied. See 

Sedelmeier, 491 NW2d at 87-88.

 

10. For the father’s motion, the circuit court required that he plead and prove 

that there had been a substantial or material change in circumstances 

affecting the welfare and best interests of the children. See Berens v. Berens, 

2004 SD 121, ¶12, 689 NW2d 207, 212; Price v. Price, 2000 SD 64, ¶52, 611 

NW2d 425, 436; SDCL 25-4-45. Accordingly, the court found that “any 

continued custody of the children by the grandparents would be detrimental 

to the children’s welfare.”

11. The grandparents had been joined as interested parties in the divorce action, 

which originated in Turner County. Venue for the divorce action was 

changed from Turner County to Lincoln County in January 2003 per Judge 

Gienapp’s order.
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[¶40.] With respect to fitness of the biological parents, the circuit court held 

that the mother and father

have stable home environments and have the capacity to provide 

the children with their basic need and have the ability to give 

their children love, affection, guidance, education, and have the 

willingness to maturely encourage and provide meaningful 

contact with the other parent and prepare the children for 

meaningful adulthood.

See Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶24, 591 NW2d 798, 807. The 

grandparents do not dispute the mother or father’s capacity to provide the children 

with their basic needs. Rather, the greater part of the grandparents’ allegations on 

appeal are against the father.12 They contend that extraordinary circumstances 

exist in this case because it is “never in the best interests of a child to be returned to 

an abusive situation.”

[¶41.] We recognize that the grandparents have articulated considerable 

fears about the father and his relationship with his twin daughters, their 

grandchildren. They have cared for and nurtured these children since the time they 

were born. Their concern for them is expressed throughout the voluminous record 

and in their brief to this Court, where they insist that the father sexually abused 

the children in 2001. However, the circuit judge who presided over the case for two 

years thoroughly examined the record and made a specific factual finding that it 

was more probable than not that the sexual abuse did not occur.

 

12. The grandparents also assert that the parents abandoned their children 

under SDCL 25-7-17. However, they did not argue this in circuit court, and 

“[w]e refrain from addressing matters brought for the first time on appeal.” 

See Watertown Coop. Elevator Ass’n, 2001 SD 56, ¶11 n5, 627 NW2d at 171-

72 n5.
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[¶42.] The grandparents ask us to engage in our own assessment of the facts. 

Yet our standard of review requires us to give deference to the circuit court. 

Meldrum, 2002 SD 15, ¶18, 640 NW2d at 463 (quoting Langerman, 336 NW2d at 

670). In order for the circuit court’s findings to be disturbed, we must have a 

definite and firm conviction that a mistake has been made. J.S.B., Jr., 2005 SD 3, 

¶12, 691 NW2d at 615 (citing T.H., 396 NW2d at 148). From our review of the 

record, not only the guardianship termination hearing in May 2004, but the entire 

settled record submitted for purposes of this appeal, we cannot say that we are left 

with such a conviction.

[¶43.] First, the court awarded the mother, not the father, sole physical 

custody of the children. This is important because the grandparents make no 

showing that the mother is unfit. Rather, the record supports the court’s finding of 

fitness. Before the guardianship was terminated, the children had lived with their 

mother for approximately two months as part of a temporary custody arrangement. 

When the court held the final hearing, it was able to compare the children’s current 

behavior to their past behavior during the time they lived with the grandparents. 

Based on all the evidence, including expert testimony, the court specifically found 

that since the transfer of custody to the mother the children have been doing 

remarkably better. Their anxiety levels had decreased and they were doing well in 

school.

[¶44.] Second, even though the brunt of the grandparents’ argument is 

against the father and concerning the alleged abuse, at no time were criminal 

charges brought against him. He has consistently denied that it happened and has 
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relentlessly fought to maintain a parental relationship with his daughters. In 

response, the grandparents insist that it is necessary to take into account the fact

that the father failed his polygraph examinations. The grandparents place 

significant emphasis on this, yet we have repeatedly held that the results from a 

polygraph examination are not admissible in South Dakota civil or criminal 

proceedings. Sabag v. Continental South Dakota, 374 NW2d 349, 352 (SD 1985) 

(citing State v. Muetze, 368 NW2d 575, 588 (SD 1985); State v. Watson, 248 NW2d 

398, 399 (SD 1976); State v. O’Connor, 86 SD 294, 301, 194 NW2d 246, 250-51 

(1972)). This is because the examinations have “no ‘general scientific acceptance as 

a reliable and accurate means of ascertaining truth or deception.’” See id. at 353 

(citation omitted).

[¶45.] The circuit court acknowledged the inherent unreliability of polygraph 

examinations, but it nevertheless reviewed the examination conducted by the 

Minnesota authorities. The court identified several factors that discredited the 

results. First, the sole purpose of the examination was to extract a confession from 

the father. Second, the court found particularly significant that the father’s answer 

to the question on whether he intended to answer truthfully with respect to the 

questions regarding the alleged sexual abuse was found to be non-deceptive. Third, 

the court scrutinized the questions that resulted in deceptive responses from the 

father, discussing the fact that they were general and non-specific questions. 

Therefore, and in consideration of the lack of scientific reliability for the polygraph

examinations, the circuit court concluded that the results of the father’s polygraph 

examination were unpersuasive.
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[¶46.] Based on the court’s review of videotapes from the scheduled 

visitations and its consideration of the therapists’ observations, the court found 

compelling the fact that the relationship and interactions between the children and 

the father were appropriate. The girls were not acting as if they were fearful of 

him. Indeed, the court, through the same video review, found that the children 

were enjoying themselves when interacting with their father.

[¶47.] Third, these children are now eleven and have consistently been in 

counseling since the time of the alleged abuse. Their counselors have been 

reinforcing with them what is appropriate behavior and what is not. While the 

grandparents’ concerns about the alleged sexual abuse should not be taken lightly, 

these children have been informed and educated on how to protect themselves. It is 

also relevant to note that the court gave great weight to the effect of the 

grandparents’ actions on the children’s well being. Specifically, the court regarded 

the grandparents’ behavior to be the direct cause of the children’s emotional and 

behavioral problems. It concluded that continued custody with the grandparents 

would only be detrimental. Therefore, the court held that “[b]ased on the totality of 

the circumstances, the custodial and guardianship rights of the grandparents 

should be terminated and such termination would be in the best interests of the 

children.” We cannot say that the circuit court was clearly erroneous.

[¶48.] The grandparents next assert that the court erred when it set forth 

stringent requirements before they, the grandparents, could see their 

grandchildren. On the recommendation of the children’s therapist and their 

attorney, the court ordered that before the grandparents can visit the children: (1) 
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the mother must consent, (2) advance notice must be given to the father and his 

attorney, (3) Erin Olson, the current counselor, must recommend the visit, and (4) 

the visit must be specifically authorized by a written order of the court. The effect 

of these restrictions is to limit substantially the grandparents’ visitation. According 

to the grandparents, this is extreme considering that they have raised and cared for 

the girls since birth.

[¶49.] South Dakota recognizes the importance of relationships between 

grandparents and grandchildren. See SDCL 25-4-52. However, grandparent 

visitation can only occur when it is in the best interests of the grandchild, and when 

it will not significantly interfere with the parent-child relationship. See id. In this 

case, the court considered the influence and actions of the grandparents to be 

detrimental to the welfare of the children. This conclusion is supported in the 

record. The restrictions were clearly established to protect the emotional and 

mental well being of the children. Moreover, both the mother and father are not 

opposed to the children having a relationship with their grandparents. But before 

this can happen, both parents believe that the grandparents must adjust their own 

negative behaviors.

[¶50.] Both the father and the grandparents seek appellate attorney’s fees 

and have submitted verified, itemized statements of costs incurred and legal 

services rendered for purposes of this appeal. In the interests of justice, we award 

no fees to either side.

[¶51.] Affirmed.

[¶52.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur.