IN COURT OF APPEALS
Alissa Christine Beardsley,
Danté Antonio Garcia, Jr.,
Hennepin County District Court
File No. 27-FA-06-1415
Shanda K. Pearson, Rider Bennett, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402; and
Diane B. Bratvold, Briggs & Morgan, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402 (for appellant)
Danté Antonio Garcia, Jr., 421 Eighth Avenue North, #4, St. Cloud, MN 56303 (pro se respondent)
Elizabeth J. Richards, Minnesota Coalition for Battered Women, 590 Park Street, Suite 410, St. Paul, MN 55103 (Amicus Curiae Minnesota Coalition for Battered Women)
Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
S Y L L A B U S
A district court issuing a domestic-abuse order for protection under Minn. Stat. § 518B.01 (2006) has statutory authority to award, on a basis that gives primary consideration to the safety of the victim and the child, temporary parenting time to a father whose paternity has been acknowledged in a recognition of parentage under Minn. Stat. § 257.75 (2006).
This appeal arises from the district court’s decision to grant temporary parenting time in conjunction with a domestic-abuse order for protection under Minn. Stat. § 518B.01 (2006). Appellant-mother argues that the district court lacked subject-matter jurisdiction and statutory authority to award temporary parenting time to respondent whose paternity of the child has been acknowledged by the parties in a recognition of parentage under Minn. Stat. § 257.75 (2006). Appellant also argues that the district court’s actions denied her due process of law and are contrary to sound public policy. We affirm.
On March 2, 2006, appellant Alissa Beardsley petitioned for an order for protection against respondent Danté Garcia, Jr. The petition states that Beardsley has two children, but she and Garcia do not have any in common. Beardsley did not file the petition on behalf of the children, nor did she request that Garcia be prohibited from having any contact with the children. The district court issued an ex parte order for protection and set a hearing on the petition. Two weeks later, the parties appeared pro se for the hearing. Garcia did not contest the issuance of an order for protection but requested parenting time with his child. Garcia produced a recognition-of-parentage form, in which he and Beardsley acknowledged his paternity of Beardsley’s younger child, D.G. Although she had executed the recognition-of-parentage form, Beardsley insisted that Garcia is not D.G.’s biological father. And she expressed her concern that D.G. would not be safe with Garcia.
Without making any findings of domestic abuse, the district court issued an order for protection in effect for one year. The order prohibited Garcia from having any contact with Beardsley and granted Garcia supervised parenting time with D.G. once each weekend for two hours. This appeal followed, and we granted the Minnesota Coalition for Battered Women leave to file an amicus brief.
I. In an action seeking a domestic-abuse order for protection under Minn. Stat. § 518B.01 (2006), was the district court without subject-matter jurisdiction or statutory authority to award temporary parenting time to respondent, whose paternity of the child has been acknowledged by the parties in a recognition of parentage under Minn. Stat. § 257.75 (2006)?
II. Did the district court’s actions violate the right to procedural due process of law?
argues that the district court was without subject-matter jurisdiction to grant
Garcia’s request for parenting time.
Specifically, Beardsley contends that, although the district court ordinarily
has subject-matter jurisdiction to establish parenting time in a domestic-abuse
order-for-protection (OFP) proceeding under Minn. Stat. § 518B.01, subd.
6(a) (2006), the recognition-of-parentage (ROP) statute divests the district
court of jurisdiction to award parenting time to a father whose paternity has
been acknowledged by an ROP. See Minn. Stat. § 257.541, subd. 3
(2006) (providing that ROP father may bring independent action under Minn. Stat.
§ 518.156 (2006) seeking custody or parenting-time rights, but that those
proceedings may not be combined with any chapter 518B proceeding). We review questions of subject-matter
jurisdiction de novo. Burkstrand v. Burkstrand, 632 N.W.2d
206, 209 (
jurisdiction “involves a court’s authority to decide a particular class of
actions and its authority to decide the particular questions before it.” Herubin
v. Finn, 603 N.W.2d 133, 137 (
Under the OFP statute, a district court issuing an OFP may “establish temporary parenting time with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children.” Minn. Stat. § 518B.01, subd. 6(a)(4). The OFP statute does not distinguish between adoptive and biological parents, nor does it distinguish between “adjudicated” or “married” fathers. Indeed, Beardsley concedes that the district court has the authority to award temporary parenting time to an “adjudicated” or “married” father in an OFP proceeding. Thus, regardless of whether the ROP statute precludes the district court from granting parenting time to Garcia, the district court had subject-matter jurisdiction over the issue raised in the OFP proceeding—whether to grant temporary parenting time to Garcia, who asserted his status as D.G.’s father under an ROP executed by the parties.
Citing Minn. Stat. § 257.541, subd. 3, Beardsley argues that the district court in an OFP proceeding lacks statutory authority to award temporary parenting time to a respondent whose paternity has been acknowledged by an ROP. We review questions of statutory interpretation de novo. Burkstrand, 632 N.W.2d at 209.
the ROP statute, the mother and father of a child born to an unmarried mother
may attest in writing that they are the biological parents of the child and
wish to be recognized as such.
The ROP father’s independent action under section 518.156 seeking custody or parenting-time rights “may not be combined with any proceeding under chapter 518B,” which governs domestic-abuse proceedings. Minn. Stat. § 257.541, subd. 3 (emphasis added). Beardsley argues that section 257.541, subdivision 3, expressly forbids the district court from granting Garcia’s request for parenting time in the domestic-abuse proceeding. Therefore, Beardsley argues, the district court acted without statutory authority when it granted Garcia’s parenting-time request.
the ROP statute prohibits an ROP father from combining his independent action
for custody or parenting-time rights under chapter 518 with a domestic-abuse
proceeding under chapter 518B. But
contrary to Beardsley’s argument, Garcia neither sought nor received a custody
or parenting-time order under chapter 518.
Rather, he sought and received a temporary order for parenting time exclusively
under section 518B.01. The district
court’s OFP granting Garcia supervised parenting time is not the equivalent of
a parenting-time order under chapter 518.
The two are different in significant respects. Section 518B.01 “neither establishes nor
terminates a legal relationship.” Baker v. Baker, 494 N.W.2d 282, 285 (
attempt to distinguish Garcia as an ROP father from an adjudicated father is
contrary to the ROP statute and controlling precedent. Without revocation of the ROP or the
existence of a competing presumption of paternity, the ROP has the force and
effect of an adjudication of the parent-child relationship. Minn. Stat. § 257.75,
subd. 3; In re Custody of Child of
Williams v. Carlson, 701 N.W.2d 274, 282 (
Neither section 257.541 nor section 518B.01 precludes the district court from granting Garcia, an ROP father, supervised parenting time for the duration of the OFP. Even if construed together, the statutes do not support the conclusion that Beardsley urges us to reach. Because the district court has statutory authority to establish temporary parenting time in an OFP with regard to a child of the parties, and an ROP is determinative as to the existence of the parent-child relationship, the district court had statutory authority to grant Garcia supervised parenting time with D.G.
light of the district court’s statutory authority, the decision whether to
grant relief under section 518B.01 is discretionary. Mechtel
v. Mechtel, 528 N.W.2d 916, 920 (
deciding whether to grant parenting time in an OFP proceeding, the district
court must give primary consideration to the safety of the victim and the
Stat. § 518B.01, subd. 6(a)(4);
see Baker, 494 N.W.2d at 290
(holding that district court need not make best interests findings when making
custody and parenting-time decisions in OFP proceedings and that oral findings
regarding safety under section 518B.01 are sufficient). Although the district court erred by failing
to make express findings regarding safety, the award of two hours of supervised
parenting time per week is very limited.
When viewed in conjunction with the order for no contact with Beardsley,
the grant of supervised parenting time implicitly credits Beardsley’s allegations
of abuse and her safety concerns for D.G. and is within the district court’s
discretion. See Vogt v. Vogt, 455
N.W.2d 471, 474 (
argues that, even if the district court has the authority to address Garcia’s
request for parenting time, the lack of notice that Garcia would request parenting
time at the hearing along with “the abbreviated hearing and lack of sworn
testimony” deprived her of the due-process right to a meaningful opportunity to
be heard on the parenting-time issue. Beardsley
acknowledges her failure to raise the due-process issue before the district
court, but she requests that we address the issue in the interests of justice
as authorized by Minn. R. Civ. App. P. 103.04.
See In re Welfare of D.D.G., 558 N.W.2d 481, 485 (
Baker, the supreme court observed that
due-process requirements “are flexible and call for such procedural protections
as the particular situation demands.”
494 N.W.2d at 287. When assessing
whether the procedural protections are constitutionally adequate, the relevant
factors for our consideration are the private interests affected, the risk of
erroneous deprivation of these interests, the probable value of additional
safeguards, and the government interests involved. Id. When addressing the father’s due-process
claim, the Baker court considered the
interests of both parents in the custody and enjoyment of their child,
“extensive” procedural protections in section 518B.01, which guard against the
erroneous deprivation of those interests, the risk that additional safeguards
may produce “unnecessary and possibly dangerous time delays,” and the public
interest in a violence-free society.
district court may grant relief in an OFP proceeding, including establishing
temporary parenting time, only “[u]pon notice and hearing.” Minn. Stat. § 518B.01, subd. 6(a); El Nashaar v. El Nashaar, 529 N.W.2d 13,
14 (Minn. App. 1995) (holding that right to hearing in OFP proceedings includes
right to present and cross-examine witnesses, produce documents, and have case
decided on merits). Because the OFP
statute expressly permits the district court to establish temporary parenting
time, Beardsley’s notice argument is unavailing. See
Sweep v. Sweep, 358 N.W.2d 451, 453 (
The record does not demonstrate, nor does Beardsley show, how the district court deprived her of the right to a hearing on the parenting-time issue. In her OFP petition, Beardsley was advised:
NOTICE TO PETITIONER:
Be prepared for a hearing on the scheduled date. You may be asked to testify at that time. . . . You should bring any available documentation such as police reports, hospital and doctor reports, pictures, witnesses, or other items.
Beardsley received ample notice that she should be prepared to testify and bring any relevant evidence to the hearing. Furthermore, Beardsley explained to the district court the basis for her fear that D.G. is not safe with Garcia. When the district court advised Beardsley that it would “probably provide for supervised parenting time at an appropriate facility,” the district court asked Beardsley if there was “[a]nything else” that Beardsley wanted to say. Beardsley responded:
Just that I’m concerned about my child’s safety. Mr. Garcia has anger problems and he might get angry at somebody. I don’t – the way he was threatening me in front of my children, he might threaten somebody else in front of my children. And that’s a scary thought to me and it might escalate and anything could happen.
And I want my son to be safe because if [Garcia] gets angry he might not take my son into consideration . . . and what my son has to see. My son has seen enough. . . . I’m just – we’re concerned about my son’s safety and my safety as well.
contends that “the expedited nature of the proceedings [does] not allow parties
to present evidence that would normally be considered when making initial
determinations of custody or parenting time under section 518.516.” But an OFP is a temporary order and is not
the same as an order for parenting time under chapter 518. See Section
I.B. supra. And nothing in the record
reflects that Beardsley was prevented from presenting any evidence to the
district court. To the contrary,
Beardsley had ample opportunity to address her safety and that of D.G., which
are the primary considerations of the district court when determining whether
to grant a parenting-time request in an OFP hearing.
a petitioner in an OFP proceeding is entitled to a hearing, the failure to
request a particular procedure, such as cross-examination, constitutes
waiver. See Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 716
Nonetheless, it is with these due-process considerations in mind that we turn to the public-policy concerns raised by Beardsley and the amicus curiae. These concerns include whether an abuser is making a parenting-time request solely to harass or control the victim, whether the award of parenting time will result in a father having more access to the victim, and whether the victim’s or the child’s safety is compromised by a parenting-time order. We also are mindful of the policy concern that a mother may choose to forego seeking an OFP out of fear that a father will be awarded parenting time.
The purpose of Minn. Stat. § 518B.01 is “to provide speedy, effective relief to victims of domestic abuse.” Burkstrand, 632 N.W.2d at 213; see Baker, 494 N.W.2d at 285 (stating that section 518B.01 was enacted to protect victims of domestic assault and is designed to curtail harm). In an OFP proceeding, a district court “should consider the uniqueness of the remedies available under the statute, as well as the potentially devastating consequences if such relief is not granted.” Mechtel, 528 N.W.2d at 920. Thus, while recognizing that the district court has the authority to award fathers, including those with an ROP, parenting time in an OFP proceeding and that “both parents have strong interests in the custody and enjoyment of their child, a parent’s love and affection must yield to considerations of the child’s welfare.” Baker, 494 N.W.2d at 287; see In re Halverson ex rel. Halverson v. Taflin, 617 N.W.2d 448, 451 (Minn. App. 2000) (stating that OFP addressing parenting time or custody, although temporary, may infringe on or deprive parent of fundamental interest in his or her child). To that end, a mother who fears for her child’s safety can petition for an OFP on behalf of the child, Minn. Stat. § 518B.01, subd. 4(a) (2006), and request that the OFP prohibit the father from having any contact with the child protected by the OFP.
is indeed true that, even when there has not been physical abuse of the child,
the child may suffer emotional distress in the presence of an abusive parent; and
a child exposed to violence may perpetuate that behavior. Baker,
494 N.W.2d at 287-88 n.8; see Hall v.
Hall, 408 N.W.2d 626, 629 (
On this record, however, there is no indication that Garcia made the parenting-time request solely to harass, control, or gain access to Beardsley. And while there is a troubling dearth of findings on the safety issue, we cannot conclude based on this record that an order awarding Garcia parenting time under the severely restricted conditions of two hours once per week with supervision is an abuse of discretion, particularly in light of the OFP provision forbidding any contact with Beardsley. If, for the public policy reasons advanced by Beardsley and the amicus curiae, the district court is to be divested of its authority in an OFP proceeding to award an ROP father temporary parenting time with his child on a basis that gives primary consideration to the safety of the victim and the child, it is the province of the legislature, not this court, to do so. See, e.g., Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The function of the court of appeals is limited to identifying errors and then correcting them.”); Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (“If there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks.”).
D E C I S I O N
The district court had both subject-matter jurisdiction and statutory authority to issue a domestic-abuse order for protection granting temporary supervised parenting time with the parties’ child to respondent whose paternity had been acknowledged by the parties in a recognition of parentage. And on the record before us, it was not an abuse of discretion to do so.