In re the Matter of: Nancy SooHoo, petitioner, Respondent, vs. Marilyn Johnson, Appellant.

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In re the Matter of: Nancy SooHoo, petitioner, Respondent, vs. Marilyn Johnson, Appellant. A05-537, Court of Appeals Unpublished, April 4, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).






In re the Matter of:


Nancy SooHoo, petitioner,





Marilyn Johnson,



Filed April 4, 2006


Shumaker, Judge


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.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)





            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 China.  The first was E.J., born May 8, 1996, and adopted in 1997.  J.J., the second, was born May 15, 2001, and was adopted in 2001.

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 ruled that Minnesota law does not recognize a status called "de facto parent" and thus SooHoo could not be awarded custody as such.  The court granted SooHoo leave to amend her petition to request visitation privileges as a person with whom the children have resided in a parent-child relationship.

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.


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 (Minn. 1978).  On review of visitation determinations, this court must decide whether the district court abused its discretion by making findings unsupported by the record or misapplying the law.  Courey v. Courey, 524 N.W.2d 469, 471-72 (Minn. App. 1994).  We will not reverse on the basis of findings unless they are clearly erroneous.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  Findings are clearly erroneous if the reviewing court is left with a "definite and firm conviction that a mistake has been made."  J.W. v. C.M., 627 N.W.2d 687, 693 (Minn. App. 2001) (citation omitted).  This court reviews findings in a light most favorable to the prevailing party.  Id.

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.  Id., subd. 4(1)-(3).

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 (Minn. 1988).  There is nothing in the record that shows that the court clearly erred in its credibility assessments.  And although Johnson cites an instance or two of the children's confusion over the visitation issue as suggesting that extensive visitation might not serve the children's best interests, the substantial focus of her challenge is on the third statutory factor, namely, that the visitation rights will not interfere with Johnson's parental relationship with the children.  See Minn. Stat. § 257C.08, subd. 4(3).

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 China."

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.

Constitutionality of Minn. Stat. § 257C.08, subd. 4.

            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.  "Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary."  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).  Constitutional challenges to statutes are questions of law because they involve statutory interpretations.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  And we are not bound by the district court's interpretations.  Id.

Fit parents are granted the presumption that they act in their children's best interests.  Troxel v. Granville, 530 U.S. 57, 68 120 S. Ct. 2054, 2061 (2000).  "Parents have a right to limit visitation of their children with third persons[.]"  Id. at 63, 120 S. Ct. at 2059 (citation omitted).  The Fourteenth Amendment's Due Process Clause contains a "substantive component that ‘provides heightened protection against governmental interference with certain fundamental rights and liberty interests,' including parents' fundamental rights to make decisions concerning the care, custody, and control of their children[.]" 57, 120 S. Ct. at 2056 (quotation omitted).  "[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better' decision could be made." 72-73, 120 S. Ct. at 2064.  When a court intervenes into the private realm of a family, it should give "at least some special weight" to a fit parent's determination of whether to allow a relationship to form between their child and a third party.  Id. at 70, 120 S. Ct. at 2062. 

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 particular Washington nonparental visitation statute in question was unconstitutional because it was overly broad.  Troxel, 530 U.S. at 63, 120 S. Ct. at 2059.  However, in the present case, the district court correctly stated "extensive reliance on Troxel [is] unwise because it [is] a plurality opinion that generated much disagreement among the Supreme Court justices."  Further, the analysis in Troxel is limited to a Washington visitation statute, as applied by the trial court.  That statute allowed "[a]ny person" to petition the court "at any time" with the only requirement being that visitation "serve the best interest of the child[.]" 67, 120 S. Ct. at 2061.  The breadth of the statute and the Washington trial court's application failed to accord any deference to the parent's decision that visitation is not in the best interest of the child, and was found as applied to exceed the bounds of the Due Process  Clause.  Id.  However, the Supreme Court did not find that any visitation order to which a parent objects violates the Due Process Clause.  Id. at 73, 120 S. Ct. at 2064 (stating, "[w]e do not, and need not, define today the precise scope of the parental due process right in the visitation context.").    

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 (Minn. Sept. 29, 2004).  Moreover, the Minnesota statute provides protection for the parent by allowing only a limited class of persons to seek visitation.  A person must first qualify for visitation under section 257C.08, subd 4.  Qualification requires a showing of residence with the children for at least two years and emotional bonding that produced a parent-child relationship.  It must also be shown that visitation is in the children's best interests and would not interfere with the relationship the parent has with the children.  Finally, the visitation must be reasonable.

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 Washington trial court's decision was based on a "mere disagreement" between the trial judge and the parent over who should be allowed to influence the child's development.  Troxel, 530 U.S. at 68, 120 S. Ct. at 2061.  The trial court's application of the Washington statute created a situation in which a parent is subject "to any individual judge's choice of a child's associates from out of the general population merely because the judge might think himself more enlightened than the child's parent." 79, 120 S. Ct. at 2067. 

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 U.S. 510, 535, S. Ct. 571, 573 (1925), established that a parent not only nurtures a child, but also has the right and duty to prepare the child for the future.  The visitation order here does not award to SooHoo any parental rights, or any right to direct the children's future.  The order simply grants her visitation and the opportunity to continue the previously well-established nurturing relationship to which Johnson acceded before the separation.  In support of its determination, the district court stated that Minn. Stat. § 257C. 08, subd. 4, "merely permits someone who has significantly nurtured and directed the destiny of a child to remain in that child's life via reasonable visitation."

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.

Evidentiary Hearing

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.[1]  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 (Minn. 1995) (stating, "it is . . . important to children to have closure on matters such as this.").  Additionally, as discussed above, the district found through extensive evidence that Johnson's complaints of interference, such as SooHoo insisting that the children call her "mommy" (which the children did without insistence before the parties separated) are conclusory allegations that the court did not have to address.  See Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (determining that trial court did not abuse its discretion when it refused to hold an evidentiary hearing based on affidavits lacking specific, credible evidence to support the allegations).  The record shows that ultimately the court received extensive evidence, both testimonial and documentary, and thus we cannot find any denial to Johnson of an opportunity to present whatever evidence she wished.

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.  Minn. Stat. § 518.17, subd (1)(a)(13).  That HCFCS relied on the section 518.17 factors in its evaluation is shown by the fact that the evaluation reviewed not only the 12 best-interest factors listed in Minn. Stat. § 257C.04, subd. 1, but also included the one additional factor that appears only in section 518.17.  Although there is only one distinguishing factor between the two statutes, Johnson contends that the evaluation did not provide the court with adequate information on which to base its determination.  Because both statutes require the court to address the best interests of the children, which is the primary consideration in the visitation award, and because HCFCS addressed all pertinent statutory factors, the district court did not abuse its discretion in relying on the HCFCS' evaluation.

Court-Ordered Counseling

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 . . . ."  Minn. Stat. § 257C.02 (2004).  In ordering therapy, the court relied in part on the following provisions from Chapter 518:

[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.


[1] Placing the burden of proof on Johnson could be problematic in light of Troxel, where the court took issue with the Washington visitation statute effectively putting the burden of proof on the parent who opposed court-ordered visitation.  Troxel, 530 U.S. at 58, 120 S. Ct. at 2057

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