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Lewis v. Garrigan

Supreme Court of South Dakota

July 2, 2019

DANIEL LEWIS on behalf of minor child E.L., Petitioner,
v.
CHRISTOPHER GARRIGAN, Respondent and Appellant.

          CONSIDERED ON BRIEFS ON APRIL 29, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANE WIPF PFEIFLE JUDGE

          DANIEL LEWIS Rapid City, South Dakota Pro Se Petitioner.

          KIRSTEN K. AASEN Rapid City, South Dakota PATRICIA A. MEYERS Rapid City, South Dakota Attorneys for Respondent and Appellant.

          JENSEN, JUSTICE

         [¶1.] Daniel Lewis, on behalf of his minor daughter E.L., sought a protection order against Christopher Garrigan after learning that he was a registered sex offender. At the time the petition was filed, Garrigan was in a romantic relationship with Daniel's ex-wife, Theresa. Daniel also requested his sons B.L. and L.L. be included as additional protected persons in the protection order. The circuit court entered a protection order against Garrigan on August 23, 2018. The order prohibited Garrigan from coming within a distance of 100 yards of the children. Garrigan appeals the stalking order, which expired by its own terms after six months. We dismiss as moot.

         Facts and Procedural History

         [¶2.] Daniel and Theresa had three children during their marriage; E.L., B.L., and L.L. Theresa commenced a divorce against Daniel in March 2016. While the divorce was pending, custody of the children alternated weekly between Daniel and Theresa. In April 2018, Theresa and Garrigan began a relationship. Daniel learned of the relationship from his children. The children told Daniel that Garrigan would come to Theresa's house after she got home from work, would stay after they went to bed, and accompanied Theresa and the kids on road trips.

         [¶3.] The divorce was finalized in July 2018. The parties agreed to continue the shared custody arrangement. About the same time the divorce was concluded, Daniel learned that Garrigan was previously convicted of felony sexual contact with his own minor daughter. Daniel informed Theresa of his discovery by text message and asked that Theresa not allow Garrigan to be around their children. Theresa did not respond to the text message.

         [¶4.] The next day, Daniel filed a petition and affidavit for a protection order on behalf of his children against Garrigan. The petition claimed stalking against Garrigan because of his alleged contact with the children as a convicted child sex offender. The affidavit in support of the petition alleged that on one occasion when the children were dropped off following their time with Theresa, E.L. ran to Daniel crying and asked to never go back to Theresa's house, but she did not explain why she was upset. The affidavit also alleged the children's therapist, Tom Bosworth, was concerned because E.L.'s "emotional and mental states [put her in] high risk of being sexualy [sic] assaulted by a child predator." Daniel indicated in the petition that he had no knowledge of Garrigan harming the children but wanted the order to ensure his children were safe.

         [¶5.] A hearing on the petition was held on August 23, 2018. Daniel appeared pro se and testified along with Bosworth. Dr. Dewey Ertz, a therapist specializing in sex offender treatment, also testified. Garrigan did not testify. Daniel admitted that he had not personally seen Garrigan around the children and had no direct knowledge of Garrigan's contact with the children.[1] Bosworth expressed general concerns about the children being around a registered sex offender, but admitted his concerns were not based on any personal knowledge of Garrigan's case or situation. Bosworth testified that he had raised his concerns to Theresa and explained, "[d]uring that conversation [Theresa] related to me that [Garrigan], when he was intoxicated, sexually offended his daughter by lifting her shirt up and touching her breasts. And it was a one-time incident."

         [¶6.] Dr. Ertz testified that Garrigan was classified as a "low-level risk" re-offender since he had been compliant with his parole plan. Dr. Ertz also testified that he met with Garrigan and Theresa to counsel their relationship and discuss Garrigan's potential involvement with Theresa's children. At the conclusion of Dr. Ertz's testimony, the court briefly questioned him:

THE COURT: So, Dr. Ertz, was that your understanding of what Mr. Garrigan was convicted of? Of lifting up the blouse -- shirt of his ...

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