This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Matter of:
Nancy SooHoo, petitioner,
Filed April 4, 2006
Hennepin County District Court
File No. MF 288082
Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, 10520 Wayzata Blvd., Minnetonka, MN 55305 (for respondent)
M. Sue Wilson, James T. Williamson, M. Sue
Wilson Law Offices, P.
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant, the adoptive mother of two minor children, contends that the district court abused its discretion and violated Minn. Stat. § 257C.08, subd. 4 (2004), in awarding visitation privileges to respondent, who is appellant’s former domestic partner; in failing to hold an evidentiary hearing before making the visitation award; and in ordering her and the children to attend therapy or counseling. Appellant also challenges the constitutionality of Minn. Stat. § 257C.08, subd. 4. Because the district court did not abuse its discretion in its rulings and because the statute in question is constitutional, we affirm.
Appellant Marilyn Johnson and respondent Nancy SooHoo cohabited
as partners in a romantic relationship for about 22 years, until they separated
in September 2003. During the
relationship, Johnson adopted two girls from
SooHoo, who is of Chinese heritage, co-parented the children in the same household with Johnson from the times of the respective adoptions until the parties’ separation. During that period, the parties held themselves and the children out as a family unit and the children viewed both parties as their parents, referring to each as “mom.”
In October 2003, SooHoo filed a petition for an award
of sole legal and physical custody of the children, claming that she was their
“de facto parent.” The district court
Thereafter, the court conducted an extensive evidentiary hearing in stages during which it addressed a multitude of issues, including those raised on appeal. The court heard the testimony of the parties; several of their acquaintances; a daycare provider; and an evaluator for Hennepin County Family Court Services (HCFCS), whose 17-page report reflected the evaluator’s personal observations of the parties and the children and the results of interviews with two psychologists and three therapists who had seen the parties professionally.
The court made various interim rulings and ultimately awarded to SooHoo visitation privileges and ordered that the parties and the children continue with counseling and therapy. Johnson appealed, challenging the visitation award and the order for therapy or counseling.
D E C I S I O N
Interference with the Parental Relationship
Johnson first contends that the district court abused its discretion by awarding to SooHoo visitation that interferes with Johnson’s parental relationship because the quantity of visitation allowed is commensurate with that awarded to a noncustodial parent, and because the visitation schedule has the purpose of preserving a parental role for SooHoo, in violation of Minn. Stat. § 257C.08 (2004).
In determining visitation issues, the district court
enjoys broad discretion. Manthei v. Manthei, 268 N.W.2d 45, 45 (
If an unmarried minor has resided for two years or
more in a household with a person who is not a foster parent, that person may
petition the district court for an award of reasonable visitation rights. Minn. Stat. § 257C.08, subd. 4. The court “shall grant the petition” if three
requirements are satisfied: (1) visitation
rights would be in the child’s best interests; (2) the petitioner and the child
had established emotional ties that created a parent-child relationship; and (3)
visitation rights would not interfere with the relationship between the
custodial parent and the child.
The evidence shows that SooHoo resided in the same
household as the children for at least two years, and several witnesses
testified to their personal observations that there existed between SooHoo and
the children emotional ties indicative of the creation of a parent-child
relationship. The district court found
these witnesses to be credible.
Credibility determinations are within the province of the district court. Sefkow
v. Sefkow, 427 N.W.2d 203, 210 (
On the third statutory factor, Johnson argues that the court awarded visitation of approximately 37% of the available time to SooHoo and also allowed a significant holiday visitation schedule. This, she contends, interferes with her right as a parent to have custody, care, and control of the children and fosters in a nonparent the role of a parent to the children. She urges that the “visitation schedule interferes with [her] relationship with her children because it places her children with someone else for one-third of their lives and on significant holidays.” Johnson also argues that Minn. Stat. § 257C.08 does not contemplate a visitation award that has the effect of creating and maintaining a parent-child relationship in a nonparent.
The district court found, in its order of February 1, 2005, that Johnson chose to share her home with her adopted daughters and SooHoo and “reposed in [SooHoo] enough trust and parenting responsibilities that [SooHoo] and the children were able to develop” a parent-child relationship. Johnson permitted SooHoo to perform a nurturing role with the children and to share parental duties to such an extent that HCFCS psychologist Susan DeVries concluded that the children would suffer emotional harm if they were not provided with frequent and regular contact with SooHoo. But Devries also concluded that the children continued to have a “primary attachment” to Johnson and perceived Johnson as their “primary parent.”
The court noted that Johnson “self-reported that, despite months of visitation, the girls were ‘happy and secure’” in their home with Johnson. Thus, the record shows that SooHoo was awarded a visitation schedule that the district court believed would permit the continuous nurturing by SooHoo that Johnson had permitted and encouraged; that any significant decrease in SooHoo’s visitation frequency would be deleterious to the children; and, even with SooHoo’s frequent visitation, the children have not lost sight of who their primary parent is and where the security of their home lies. As the district court points out, the evidence does not show so much an interference with Johnson’s relationship with the children as an interference with the “relationship” between the parties. The court illustrates the point with an example pertaining to the children’s Chinese heritage:
[Johnson’s] adopted children are Chinese, as is [SooHoo]. If it is true that visitation with [SooHoo] would advance the girls’ best interests in part because [SooHoo] and her extended Chinese family are better able to advance the girls’ Chinese cultural understanding and appreciation, a fact that has been conceded by [Johnson] . . . , it would make little sense to halt SooHoo’s visitation simply because she “interfered” with [Johnson’s] wishes if suddenly [Johnson] no longer wanted the girls exposed to Chinese culture. The Court does not mean to suggest that [Johnson] actually objects to the girls receiving Chinese cultural education. Rather, the illustration was adduced to show that any disagreement regarding the girls’ cultural education is not the same as interference with [Johnson’s] relationship with the girls. Her relationship could remain strong, and even flourish, despite a disagreement regarding the girls’ cultural education.
The court concludes that Johnson confuses her displeasure and unhappiness at having to deal with SooHoo with the notion that the acrimony of the connection with SooHoo is tantamount to an interference with Johnson’s parental relationship with the children. The evidence supports the court’s conclusion. Other than the bare assertion that too much visitation time detracts from her ability to parent the children, Johnson has not shown how that is so. The court compared the impact of SooHoo’s involvement with the children before the separation and her impact afterward and stated: “More important, however, is the absence of any credible evidence indicating that [Johnson’s] relationship with the children was compromised under the old dynamics, let alone will be compromised under the new dynamics.” The court’s observation is supported by the record.
Johnson focuses much of her argument on the quantity
of the visitation time awarded to SooHoo.
The court took that argument into consideration, saying that “the Court
understands that the amount of visitation, as distinct from the mere award of
some visitation, could have an impact on [Johnson’s] relationship with the
children.” The court relied heavily on
the recommendation of HCFCS and psychologist DeVries that SooHoo’s “contact
with the girls not be reduced . . . .” The court then stated: “What appears to be
important to these adopted girls is continued contact with someone who they
believed was ‘mother #2,’ especially in light of their fears of abandonment as
a result of what transpired in
On this record, which includes the district court’s extensive and thoughtful findings and conclusions, we are unable to find any instance of a clear abuse of discretion in the visitation award.
Johnson contends that
section 257C.08, subd. 4, is unconstitutional on its face and as applied to the
circumstances of this litigation, and the attorney general has declined to
participate in these proceedings. The
district court held otherwise. “
Fit parents are granted the presumption that they act
in their children’s best interests. Troxel
v. Granville, 530
a. Unconstitutional as written
In support of her argument that Minn. Stat. § 257C.08, subd 4, is
unconstitutional as written, Johnson cites Troxel. In that case the Supreme Court found that the
In the case at hand, we agree with the district court
that Minn. Stat. § 257C.08, subd.
4, is the “antithesis” of the statute in Troxel. Among other things, the enactment of Chapter
257C after the release of the Troxel decision was not a
coincidence. In re Kayachith, 683
N.W.2d 325, 328 n.1 (Minn. App. 2004), review denied (
The requirements of section 257C.08, subd. 4, give deference to a parent by safeguarding the parental relationship against interference and by narrowly tailoring the qualifications of a nonparent to only those who by residence and emotional bonding reasonably should be accorded visitation. The statute is not facially unconstitutional.
b. Unconstitutional as applied
Although the district court
concluded that Minn. Stat. § 257C.08, subd. 4, is not “breathtakingly
broad,” it acknowledged that it may still be applied in a manner that violates Johnson’s
substantive due-process rights. In Troxel,
the Supreme Court noted that the
By requiring that the petitioner have resided with the child for two years and have established a parent/child like relationship, Minn. Stat. § 257C.08, subd. 4, restricts a court’s discretion as to which nonparent may have visitation. A court cannot then merely choose anyone from the general population and give visitation rights to that person. And the district court here has narrowly applied the statute in a manner that only a demonstrably qualified nonparent was awarded visitation. Furthermore, at least initially, Johnson did not object to SooHoo’s visitation. During HCFCS’ evaluation, Johnson “was given ample opportunity to express her wishes . . . and she advised the evaluators that visitation, even including overnights, was consistent with the [children’s] best interests.”
In defining a parent/child relationship, the court in Pierce
v. Soc’y of Sisters, 268
Because Minn. Stat. § 257C.08, subd 4, is not overly broad, because the district court narrowly applied the statute to a demonstrably qualified nonparent, and because the court gave full effect to the children’s best interests in awarding visitation, we hold that the statute is not unconstitutional as written or as it was applied in this case.
Johnson’s third argument on appeal is that the district court abused its discretion by awarding visitation without first holding an evidentiary hearing on the issues of visitation and interference with appellant’s relationship with the children.
Minn. Stat. § 257C.08, subd. 7, states that “[t]he court may not deny visitation rights under this section based on allegations that the visitation rights would interfere with the relationship between the custodial parent and the child unless after a hearing the court determines by a preponderance of the evidence that interference would occur.”
Although subdivision 7 requires Johnson to prove the
alleged interference by a preponderance of the evidence, the district court
determined that, regardless of who bears the burden of proof, an award of
visitation would not interfere with Johnson’s relationship with the children. One basis for the district court’s
determination was that closure of this matter was in the best interest of the
children. Olson v. Olson, 534 N.W.2d 547, 550 (
Johnson also argues that the district court erred by relying “extensively” on HCFCS’ evaluation. According to Johnson, the evaluation provided insufficient evidence because it was based on the premise that Johnson and SooHoo were equal parents and relied on Minn. Stat. § 518.17 (2004) rather than Minn. Stat. § 257C.04 (2004) in evaluating the best interests of the children. Minn. Stat. § 257C.04, subd. 1, lists 12 factors that are considered in determining the best interest of the child when two or more parties seek custody. The factors are: (1) the wishes of the parties involved, (2) the preference of the child, (3) the primary caretaker of the child, (4) the intimacy of the relationship between the parties and the child, (5) the interaction and interrelationship between the child and the parties involved, (6) the ease with which the child adjusts to the home, school, and community, (7) the amount of time the child has lived in a “stable, satisfactory environment” and the benefits of maintaining that environment, (8) the permanence of the family unit in the existing or proposed home, (9) the mental and physical health of the involved individuals, (10) the likelihood of the child receiving “love, affection, and guidance” and continued education about the child’s culture, religion or creed, if any, (11) the cultural background of the child, and (12) the effects on the child of abuse the child has sustained, if any. Minn. Stat. § 257C.04, subd 1.
Minn. Stat. § 518.17 lists all the same
best-interest factors as Minn. Stat. § 257C.04, but also directs the court
to consider the disposition of each parent to encourage and permit frequent and
continuing contact by the other “parent” with the child.
Johnson’s final argument on appeal is that chapter 257C does not confer on the district court jurisdiction to order her and the children to attend therapy or counseling. She contends that, because these statutes do not confer such jurisdiction, the district court violated her right to due process by relying on them.
Despite Johnson’s allegations, Minn. Stat. § 257C.02 clearly
“appl[ies] to third-party and de facto custody proceedings unless otherwise
specified . . . .”
[T]he parent with whom the child resides may determine the child’s upbringing, including . . . health care . . . unless the court after hearing, finds, upon motion by the other parent, that in the absence of a specific limitation of the authority of the parent with whom the child resides, the child’s . . . emotional health is likely to be endangered or the child’s emotional development impaired.”
Minn. Stat. § 518.176, subd. 1 (2004). Johnson contends that the district court lacked authority to order therapy under Minn. Stat. § 518.176 (2004), because SooHoo did not move for an order requiring therapy, and could not have done so because she is not a parent. However, the district court found that although the parties had a non-traditional family, they both “functioned as parents.” Further, when SooHoo petitioned for custody, she asked that “the Court grant such other and further relief as the Court determines is fair, just, reasonable, and necessary, as the Court, in its discretion, shall deem proper.” Therefore, SooHoo did make a motion broad enough to include a therapy order.
The other provision the court relied on when ordering therapy states that “[i]n a proceeding brought for custody . . . the court may grant a temporary order . . . for . . . one or both of the parties to perform or not to perform such additional acts as will . . . protect the parties or their children from . . . emotional harm.” Minn. Stat. § 518.131, subd. 1(j) (2004). Johnson contends that Minn. Stat. § 518.131, subd 1, limited the court to ordering therapy only on a temporary basis and not as part of a final order. However, we agree with the district court that because the primary concern is the best interests of the children, “[i]t is highly unlikely that the legislature would authorize the trial court to order therapy on a temporary basis in an order to protect the children from harm, but deny the trial court the authority to include the same protection in a final order.” The court did not abuse its discretion in its order for therapy.
 Placing the burden of proof on Johnson could
be problematic in light of Troxel,
where the court took issue with the