In re the Matter of Nancy SOOHOO, petitioner, Respondent, v. Marilyn JOHNSON, Appellant.
No. A05-537.
Supreme Court of Minnesota.
May 10, 2007.
731 N.W.2d 815
PAGE, Justice.
Michael L. Perlman, Perlman Law Office, Minnetonka, MN, for Respondent.
OPINION
PAGE, Justice.
Appellant Marilyn Johnson appeals from the judgment of the district court granting respondent Nancy SooHoo‘s petition seeking visitation with Johnson‘s two minor children pursuant to
Johnson and SooHoo, who lived together and jointly owned a house in Minneapolis, ended a 22-year relationship in the fall of 2003. During the course of that relationship, Johnson adopted two children from China. When Johnson adopted the first child, both she and SooHoo traveled to China. When Johnson adopted the second child, SooHoo remained in Minneapolis and cared for the first child while Johnson went to China. SooHoo did not adopt either of the children, but the record indicates that Johnson and SooHoo co-parented the children, recognized themselves as a family unit with two mothers, and represented themselves to others as such. For example, SooHoo took maternity leave to care for both children upon their arrival in the United States. SooHoo also participated in the selection of child-care providers and schools for the children and shared in the daily parenting responsibilities, including dropping off and picking up the children from day care, helping with school projects and homework, preparing meals for the family, taking the children to doc
The relationship between Johnson and SooHoo dissolved after a domestic incident that resulted in reciprocal orders for protection. The district court order against SooHoo barred SooHoo from residing at or visiting the home she owned with Johnson. During the five or six months after the court issued the reciprocal orders for protection, SooHoo was allowed to see the children for a total of only 48 hours.
In late 2003, SooHoo filed a petition seeking sole physical and legal custody of the children. In the alternative, she sought visitation. Under chapter 257C, only de facto custodians and interested third parties (as defined in section 257C.01, subdivisions 2 and 3 (2006)) have standing to petition for custody. Accordingly, the district court first addressed SooHoo‘s petition for custody by conducting an evidentiary hearing to determine whether SooHoo had standing under chapter 257C to pursue custodial rights. The court found that SooHoo was an interested third party under the statute and ordered the Hennepin County Department of Court Services (court services) to perform a custody and parenting time evaluation. The court also ordered temporary visitation for SooHoo.
After further evidentiary hearings, during which the district court heard testimony from SooHoo and Johnson, several of their acquaintances, and the court services evaluator who conducted the custody and parenting time evaluation, the court denied SooHoo‘s custody petition. In its order denying the custody petition, the court ordered Johnson and SooHoo to submit proposed visitation schedules. Johnson submitted a memorandum along with her proposed visitation schedule in which she urged the court to halt temporary visitation and argued that court-ordered visitation would violate her due process rights as a fit parent. Ultimately, the court awarded SooHoo visitation, which, in addition to weekly visitation, included a holiday visitation schedule that divided the major holidays between SooHoo and Johnson and an extended period of visitation during the summer months. The court also ordered that SooHoo employ a therapist to address her differential attention to the children and that Johnson “employ a counselor (or continue with existing counseling) to address her tension and anxiety relative to the [children].” In awarding visitation, the court concluded that
I.
Johnson first challenges the constitutionality of
The U.S. Supreme Court has explained that the substantive due process rights provided by the
In Troxel, the Supreme Court struck down as unconstitutional a Washington statute that granted “[a]ny person” standing to petition for visitation at “any time” so long as visitation was in the best interests of the child. Troxel, 530 U.S. at 61, 73 (quoting Wash. Rev. Code. § 26.10.160(3) (1994)). The case came to the Court from the Washington Supreme Court, which held the statute unconstitutional and based its holding on its conclusion that the U.S. Constitution allows states to interfere with the due process rights of parents to raise their children only when it is necessary to prevent harm to the child. Id. at 63. Additionally, the Washington Supreme Court reasoned that the Washington statute swept too broadly because it allowed any person to petition for court-ordered visitation at any time with the only requirement being that visitation be in the best interests of the child. Id.
A four-Justice plurality affirmed the judgment but issued a substantially narrower holding than the Washington Supreme Court. The Supreme Court declared the Washington statute unconstitutional as applied but declined to address whether third-party visitation statutes are per se unconstitutional. Id. at 73. The Court explained:
Because we rest our decision on the sweeping breadth of [the Washington statute] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice KENNEDY that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.”
Id. (quoting id. at 101 (Kennedy, J., dissenting)). In addition, the Court set out three guiding principles necessary for a third-party visitation statute to survive a constitutional challenge:
The constitutionality of a statute is a question of law that we review de novo. Hamilton v. Com‘r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999). Our power to “declare a law unconstitutional is to be exercised only when absolutely necessary in the particular case and then with great caution.” Grobe v. Oak Ctr. Creamery Co., 262 Minn. 60, 61, 113 N.W.2d 458, 459 (1962) (internal quotation marks omitted). We presume that, in enacting section 257C.08, the legislature did not intend to violate either the U.S. Constitution or the Minnesota Constitution.
Johnson first contends that third-party visitation statutes like
We therefore turn to an analysis of the language of the statute. As a preliminary matter, we note that the Supreme Court in Troxel did not articulate the standard of review to be applied when reviewing third-party visitation statutes; we conclude that the appropriate standard in this case is strict scrutiny.1 Strict scrutiny is the appropriate standard of review when fundamental rights are at issue and, as we noted above, the Court has declared that a parent‘s right to make decisions concerning the care, custody, and control of his or her children is a protected fundamental right. Troxel, 530 U.S. at 65; see Wisconsin v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (applying strict scrutiny when parent‘s fundamental right to the care, custody, and control of their children was implicated).
In order to survive strict scrutiny, a law must advance a compelling state interest and must be narrowly tailored to further that interest. See Kahn v.
the state as parens patriae may restrict the parent‘s control by requiring school attendance, regulating or prohibiting the child‘s labor, and in many other ways. * * * [T]he state has a wide range of power for limiting parental freedom and authority in things affecting the child‘s welfare.
Id. at 166-67 (footnotes omitted). The Court has also explained that “the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.” Lehr v. Robertson, 463 U.S. 248, 258, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). It follows then, that a state, in its role as parens patriae, has a compelling interest in promoting relationships among those in recognized family units (for example, the relationship between a child and someone in loco parentis to that child) in order to protect the general welfare of children. See, e.g., London Guar. & Accident Co. v. Smith, 242 Minn. 211, 217, 64 N.W.2d 781, 785 (1954) (extending parental immunity to a stepfather who was in loco parentis and explaining that to do otherwise would be contrary to public policy in that it would “discourage a stepfather from voluntarily assuming the unselfish, in loco parentis position to a child in need of parental care“).
We turn next to whether the requirements of
The term “in loco parentis,” according to its generally accepted common-law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption and embodies the two ideas of assuming the parental status and discharging the parental duties.
London Guar. & Accident Co., 242 Minn. at 215 (internal quotation marks omitted). Therefore, unlike the statute at issue in Troxel, the requirements that the petitioner have resided with the child for two or more years and have a parent-child relationship with the child substantially limits the class of indi
But
Looking at the first Mathews factor, the Supreme Court has explained that the clear and convincing evidentiary standard is mandated when the individual interests in the proceeding are “‘particularly important‘” and “‘more substantial than mere loss of money.‘” Id. at 756 (quoting Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). The Court has specifically explained that a parent‘s right to the care, custody, and control of his or her child is “an interest far more precious than any property right.” Id. at 758-59. We have also observed that parents have a fundamental right to the care, custody, and control of their children that should not be interfered with except for “‘grave and weighty reasons.‘” In re Welfare of Children of Coats, 633 N.W.2d 505, 514 (Minn.2001) (quoting In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981)).
As for the second factor, the Supreme Court has explained that proceedings that “employ imprecise substantive standards that leave determinations unusually open to subjective values of the judge” magnify the risk for erroneous deprivation of private interests. Santosky, 455 U.S. at 762.
Finally, the government interest in this case under the third Mathews factor is the state‘s interest as parens patriae in the welfare of the child. As we have already explained, the state‘s interest as parens patriae in the welfare of the child and in promoting relationships among recognized family units is compelling.
Because
Turning then to the district court‘s application of
Here, the district court applied the legal framework set forth in
Because we conclude that the district court applied the correct legal framework, we next look at whether the facts of this case are such that
II.
We next address Johnson‘s argument that the district court abused its discretion in the amount of visitation it awarded SooHoo. Johnson‘s primary argument is that the amount of visitation is unreasonable because it is commensurate with that which a court would award a noncustodial parent. She also argues that the amount of visitation is not reasonable because it interferes with her parental relationship with her children.
The district court enjoys broad discretion in determining visitation. Olson v. Olson, 534 N.W.2d 547, 550 (Minn.1995). When reviewing visitation determinations for an abuse of discretion, we must determine whether the court made findings unsupported by the evidence or improperly applied the law. See id. Accordingly, we will not reverse the court‘s findings unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985). A finding is clearly erroneous if we are left with the definite and firm conviction that the court made a mistake. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn.1999). We review the court‘s findings in a light most favorable to those findings. See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999).
Although Johnson forcefully argues that the amount of visitation awarded is unreasonable because it is commensurate with that which would be awarded to a noncustodial parent, Johnson cites no authority,
III.
Johnson next asserts that the district court erred in ordering visitation without first holding an evidentiary hearing. Chapter 257C does not require a district court to conduct an evidentiary hearing dealing solely with the issue of visitation in order for the court to grant visitation. Here, the court considered the court services evaluation, testimony from several evidentiary hearings (including testimony from SooHoo, Johnson, and others), and additional evidence such as official school documents and affidavits submitted by the parties. We believe this evidence provided a sufficient basis for the court to make a determination regarding reasonable visitation. Accordingly, we conclude that the court did not err in declining to conduct an evidentiary hearing exclusively dedicated to the issue of visitation.
IV.
Johnson challenges the district court‘s order requiring her to “employ a counselor (or continue with existing counseling) to address her tension and anxiety relative to the girls” and the discretion awarded by the court to SooHoo‘s therapist to determine “whether either child or both needs to accompany [SooHoo] to therapy.”4 The court found that “the children‘s therapy needs represents an aspect of their health care that is unlikely to be met without court involvement” and we will not disturb the court‘s finding. But we conclude that the court abused its discretion in ordering Johnson to counseling in the absence of a factual finding that such counseling is in the best interests of the children as opposed to Johnson. We therefore reverse that portion of the district court‘s order.
Affirmed in part, reversed in part.
ANDERSON, G. BARRY, Justice (concurring).
I concur in the opinion of the court but write separately to note concerns with respect to whether the district court abused its discretion in the amount and character of visitation awarded to respondent.
Appellant correctly notes that third-party visitation rights are governed by
That said, here, I am persuaded by the unique facts before us, and the detailed and thorough findings and conclusions of the district court, that there was no abuse of discretion in the visitation award.