Soohoo v. Johnson, A05-537.

• Citation: 731 N.W.2d 815
• Decision Date: 10 May 2007
• Docket Number: No. A05-537.,A05-537.
• Parties: In re the Matter of Nancy SOOHOO, petitioner, Respondent, v. Marilyn JOHNSON, Appellant.
• Court: Supreme Court of Minnesota (US)

731 N.W.2d 815

In re the Matter of Nancy SOOHOO, petitioner, Respondent, v. Marilyn JOHNSON, Appellant.

No. A05-537.

Supreme Court of Minnesota.

May 10, 2007.

M. Sue Wilson, James T. Williamson, M. Sue Wilson Law Offices, P.A., Minneapolis, MN, for Appellant.

Michael L. Perlman, Perlman Law Office, Minnetonka, MN, for Respondent.

Heard, considered, and decided by the court en banc.

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 Minn.Stat. § 257C.08, subd. 4 (2006), which allows the court to grant reasonable visitation to a person with whom the child has resided for at least two years. Johnson challenges the constitutionality of section 257C.08, subdivision 4, as well as the visitation schedule ordered by the court. In addition, Johnson challenges the court's order requiring Johnson to attend 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." We conclude that the statute is constitutional both on its face and as applied, and that the court did not abuse its discretion in the amount of visitation it ordered or in awarding visitation without first holding an evidentiary hearing. We also conclude, however, that the court abused its discretion in ordering Johnson to attend therapy. Accordingly, we affirm in part and reverse in part.

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 doctors appointments (including authorizing the children's immunizations), coordinating extracurricular activities and play dates, providing the sole care while Johnson was away on business, and taking the children to California to visit SooHoo's extended family, all without apparent objection by Johnson. The record further reflects that the children referred to SooHoo as "mommy," and referred to SooHoo's parents as their grandparents. In the information provided to the children's schools, Johnson listed SooHoo as mother number two and listed the last name of one of the children as Johnson-SooHoo. SooHoo attended the children's parent-teacher conferences with Johnson, during which both women signed off on the teacher's goal setting report as "Parent/Guardian."

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 Minn. Stat. § 257C.08, subd. 4, withstood constitutional muster. The court of appeals affirmed. SooHoo v. Johnson, A05-537, 2006 WL 851808 (Minn.App. Apr. 4, 2006), rev. granted (Minn. June 20, 2006).

I.

Johnson first challenges the constitutionality of Minn.Stat. § 257C.08, subd. 4, arguing that it violates her right to due process. Section 257C.08, subdivision 4, provides that a third party (excluding foster parents), who resided in a household with a child for two or more years but no longer resides with the child, may petition the court for an order granting reasonable visitation with the child. Before a court may grant visitation, the statute requires it to determine: (1) that visitation with the third party would be in the child's best interest; (2) that the third party and the child have established "emotional ties creating a parent and child relationship"; and (3) that granting the third-party visitation would not interfere with the relationship between the custodial parent and the child. Minn.Stat. § 257C.08, subd. 4(1)-(3).

The U.S. Supreme Court has explained that the substantive due process rights provided by the Fourteenth Amendment afford "heightened protection against government interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). A parent's right to make decisions concerning the care, custody, and control of his or her children is a protected fundamental right. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). Johnson contends that section 257C.08, subdivision 4, is unconstitutional on its face and as applied in this case because it violates her rights as a fit parent to decide the care, custody, and control of her children.

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, 120 S.Ct. 2054 (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, 120 S.Ct. 2054. 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, 120 S.Ct. 2054. 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 non-parental 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, 120 S.Ct. 2054 (Kennedy, J., dissenting)). In addition, the Court set out three guiding principles necessary for a third-party visitation statute to survive a constitutional challenge (1) the statute must give some special...