In re the Matter of SooHoo, No. A05-537 (MN 4/4/2006)
| Decision Date | 04 April 2006 |
| Docket Number | No. A05-537.,A05-537. |
| Parties | In re the Matter of: Nancy SooHoo, petitioner, Respondent, v. Marilyn Johnson, Appellant. |
| Court | Minnesota Supreme Court |
Appeal from the District Court, Hennepin County, File No. MF 288082.
Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, (for respondent).
M. Sue Wilson, James T. Williamson, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, (for appellant).
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
UNPUBLISHED OPINION
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.
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...
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