Rew ex rel. T.C.B. v. Bergstrom

ANDERSON, Justice

(concurring).

I join the majority opinion, except with respect to certain factual issues pertaining to ReVs safety and the best interests of her children justifying the restrictions on Bergstrom’s parenting time. I agree with the majority that a remand is required, but I would conclude that the remand is only necessary to clarify for the benefit of the parties whether an order for protection (OFP) was issued against Bergstrom protecting the children based on past domestic abuse or a threat to the safety of the children, or whether the restrictions involving the children were only intended as a temporary parenting-time decision based on the abuse against Rew and the best interests of the children. Because the current restrictions placed on Bergstrom’s contact with the children are no more burdensome than necessary to protect the State’s interest in Revo’s safety and the emotional well-being and mental health of the children, I would conclude that the restrictions are not unconstitutional and that further fact-finding is not required on this issue.

The majority properly outlines that restraints on speech must be balanced against a significant state interest and analyzed with an eye towards restricting as little speech as possible while still protecting that state interest. As the majority discusses, protecting the children from domestic abuse is clearly a significant state interest. A valid OFP issued on behalf of the minor children requires either that domestic abuse was committed directly against the children, Minn.Stat. § 518B.01, subd. 4 (2012), or that the district court found that the order was necessary to protect the children as Row’s family or household members, see Minn.Stat. § 518B.01, subd. 6(a)(13) (2012); Schmidt ex rel. P.M.S. v. Coons, 818 N.W.2d 523, 529 n. 6 (Minn.2012). There is no dispute here that an OFP was issued involving the children, but neither the detailed July 30, 2010, affidavit submitted by Rew outlining the criminal, abusive, and stalking behavior of Bergstrom, nor any of the three orders issued by the district court imposing or continuing the OFP contain any specific allegations of domestic abuse against the children or explain why the OFP is necessary for the children’s protection. Thus, I agree with the majority that if the safety of the children, including protecting them from domestic abuse by Bergstrom, is to be the state interest that justifies restricting Bergstrom’s speech, further findings of fact would be required.

I begin with the observation, not clearly laid out in either the majority opinion or by the Chief Justice in her concurrence and dissent, that the consequences of an extended OFP are of different orders of magnitude as between Bergstrom’s former spouse and his children. As a consequence of the dissolution of a marriage, even under less threatening circumstances than we have here, there is only a limited legal (or practical) relationship between the former spouses, usually centered on raising children, and even that relationship likely fades away with time. It is a different, and much more complicated, story when dealing with parent-child relationships, usually life-long in character.

And while I agree with the majority that the reference to “minor children” is sufficient to confine the OFP in this case to the period of time the children are under the age of 18, that is not what appellant believes is at issue.¹ Respondent agrees— the opening sentence to the Respondent’s statement of the case tells us “Respondent filed a motion to extend an OFP ... on behalf of herself and her minor children,” and she was seeking “a 50-year extension.”

And if that is what the parties sought and resisted here, and what the district court ordered, the Chief Justice’s argument that an OFP was issued protecting not only Rew but also the children would be very problematic. Would a 50-year restraining order, without district court findings of abuse of the children, be enforceable if the references to “minor” children did not appear?

Fortunately, in the end, although not free from doubt, I think there is an alternative explanation for what the district court was attempting to accomplish when faced with these difficult circumstances. That explanation is that the orders restricting Bergstrom’s contact with his children were instead intended as a temporary decision on parenting time. Parenting-time decisions are made based on different considerations than the issuance of an OFP, but these considerations can also represent significant state interests that may justify a burden on speech. The OFP statute specifically permits the district court to temporarily limit or deny parenting time based on the safety of the victim (here, Rew), the safety of the children, and the best interests of the children. Minn. Stat. § 518B.01, subd. 6(a)(4). Thus, Bergstrom’s parenting time can be temporarily denied, which in effect means no contact with his children, if this restriction was necessary to protect the State’s interests in Rew’s safety and the safety and best interests of the children.

There is significant evidence supporting the theory that the OFP incorrectly listed the children as direct petitioners and instead meant to include them only as to a temporary denial of parenting time. In Rew’s 2008 application for an OFP, she requested relief including “[N]o parenting time (visitation).” In the guardian ad li-tem report, Rew’s request on behalf of the children is characterized as a parenting-time decision, stating “[Rew’s] current request for protection seeks review of [Berg-strom’s] parenting time award under the Judgment and Decree based upon the most recent OFP violation and related allegations of conduct that, if proven, may be contrary to the welfare and best interests of the children.”² The report then recommends that “[Bergstrom’s] parenting time with the children should be temporarily suspended” until Bergstrom completed his probation and he and the children both completed 6 months of therapy. The 2008 OFP restrictions against contact with the children are detailed in the parenting-time section of the OFP, stating that “[pjarenting time (visitation) by [Bergstrom] is temporarily suspended” until certain conditions, which largely follow the recommendations in the guardian ad litem report, are met. The 2009 and 2010 OFPs likewise detail sensible restrictions on contact with the children in the parenting-time section, following the same format as the 2008 OFP. This supports the theory that the district court’s decision to restrict contact with the children was made as'a temporary denial of parenting time based on Bergstrom’s abuse of Rew, not as a grant of an OFP to the children based on past abuse or a threat to their safety. The language in all of the OFPs that the restrictions only apply to minor children also supports this reading, as parenting time is only relevant when the children are minors.

If the restrictions in the OFPs regarding the children were intended as temporary restrictions on parenting time, Minn. Stat. § 518B.01, subd. 6(a)(4), introduces two additional state interests beyond the safety of the children that potentially form a basis for restricting Bergstrom’s speech — Rew’s safety and the best interests of the children. There is significant evidence in the record that Bergstrom’s contact with the children endangers Rew and is not in the best interests of the children. In Rew’s affidavit, she describes numerous acts of domestic abuse that Bergstrom has committed against her, including pushing her down the stairs, punching her, choking her, causing her to black out by hitting her head against a faucet, and threatening to kill her. Some of these actions led to the arrest and conviction of Bergstrom for fifth-degree domestic assault. Bergstrom has also repeatedly stalked Rew and violated the OFPs issued to protect her from him. A psychological evaluation of Bergstrom reported that it was conceivable that Berg-strom would involve the children in the “determined, even obsessive” way in which he stalked Rew. The conclusion that Berg-strom may use the children to reach Rew is also supported by a claim by one of the children, reported to a therapist, that Bergstrom had hidden cellphones in various locations and pressured the child to use these phones to secretly call him. Thus, there is ample support in the record to conclude that allowing Bergstrom to contact the children would create a safety risk for Rew.

In addition to the potential threat to Rew’s safety, Bergstrom’s contact with the children also threatens another significant state interest — namely the emotional well-being and mental health of the children, often referred to as “the best interests” of the children. The United States Supreme Court has previously stated that the State “has a duty of the highest order to protect the interests of minor children.” Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); see also Morey v. Peppin, 375 N.W.2d 19, 25 (Minn.1985) (noting that the rights of a parent must be balanced against the rights of the child). Bergstrom’s history with Rew has understandably strained the children’s relationship with Bergstrom, and the guardian ad litem report notes that at least one child worries that Bergstrom will find the family and seeks to protect the family against Bergstrom by frequently checking to see that the doors and windows at home are locked.³ The child also explained that Bergstrom has previously sought contact through inappropriate methods, such as by hiding in the bushes during a backyard sleepover. The child’s therapist reports that, in her view, the child is “very afraid of his Dad,” and she notes that the child would like to see his father “at some point, but not right now.” The guardian ad litem report concludes that the children need “sufficient time to heal emotionally through their own therapeutic process,” and so contact with Bergstrom would not be in their best interests at this time. Thus, the record supports that Rew’s safety and the children’s best interests require that parenting time be denied until Berg-strom can show, through therapy or other changed circumstances, that his contact with the children no longer endangers the State’s significant interests in Rew’s safety and the children’s best interests.

The restrictions imposed on Bergstrom’s speech as related to the children are narrowly tailored so as to not burden any more speech than necessary to protect these interests. A parenting-time decision authorized by the OFP statute based on the best interests of the child and the safety of the non-abusive parent can only create restrictions that last until the child is no longer a minor. Here, the district court only imposed restrictions on Berg-strom’s access to his children that would last a few years, and the restrictions can be removed by meeting conditions directly tailored to protect the children’s best interests. Specifically, the conditions involving therapy and input from the therapists about reunification are designed to allow Bergstrom to reunite with his children as soon as it can be shown that both the children and Bergstrom are equipped with the tools necessary to prevent the interaction from being harmful to the children. Accordingly, the restrictions are constitutional, as they burden no more speech than necessary to protect the State’s interest in Rew’s safety and the children’s best interests, and additional fact-finding by the district court is not necessary regarding the parenting-time restriction. This analysis has the additional benefit of avoiding the more difficult questions otherwise presented about enforcing an OFP on behalf of children where none of the orders issued by the district court specifically finds abuse of the children by the restrained party.⁴

Because I conclude that the parenting-time approach set forth above is the most likely, but not certain, explanation that reconciles the various district court orders issued here, I agree that remand is required, albeit on different grounds than suggested by the majority, to permit the district court to explain its analysis and provide clarity to the parties about whether the inclusion of the children on the OFP was an implicit finding that Bergstrom had committed domestic abuse against the children or was a threat to their safety. The record sufficiently supports the current restrictions placed on Bergstrom’s contact with the children as no more burdensome than necessary to protect the State’s interest in the best interests of the children and Few's safety and, therefore, I would conclude that the restrictions are constitutional under our First Amendment analysis.

1 . Because the interpretation adopted by the majority, and concurred in by the Chief Justice, makes the 50-year OFP irrelevant in this case, it is not necessary to reach the issues of what standard should be applied or what hearing rights a restrained party is entitled to if an extended-length OFP is sought restraining a parent from contact with a child. Here I note only that the interest of parents in the care and custody of their children “is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

2 . The majority and the Chief Justice disagree about the status of the guardian ad litem report. The majority suggests it was never admitted into evidence, while the Chief Justice notes that under Minn. R. Civ.App. P. 110.01, the record on appeal consists not only of documents formally submitted as exhibits during a hearing, but also all "papers filed in the trial court.” But even if the guardian ad litem report was not properly "filed” within the meaning of the rule and is thus not viewed as part of the record, the absence of this report from the record was a technical error or omission and should be corrected by our court pursuant to Minn. R. Civ.App. P. 110.05. The guardian ad litem was specifically ordered by the district court to prepare the report, it was submitted to the court, and both parties were copied on the transmittal letter. The fact that the restrictions involving the children set out in the OFP closely mirror the recommendations made in the guardian ad litem report suggests that the district court relied heavily on the information contained in the guardian ad litem report, and therefore, it should have been part of the record. Additionally, neither party has objected to the inclusion of this report as part of the record. For these reasons, I would conclude that the guardian ad litem report qualifies under Minn. R. Civ.App. P. 110.05 as “anything material to either party [that was] omitted from the record by error or accident," and so this court, "on its own initiative, may direct that the omission ... be corrected.” In addition, even if the guardian ad litem report is discounted, there is otherwise sufficient evidence given the prior OFPs to support the parenting-time determination reached by the district court.

3 . The guardian ad litem report indicates that both children expressed anxiety about Berg-strom and what he might do if contact was resumed with the family.

4 . As noted earlier, an OFP cannot be granted to a non-victim, Schmidt, 818 N.W.2d at 529, unless it is issued under Minn.Stat. § 518B.01, subd. 6(a)(13), which provides for orders that are "necessary for the protection of a family or household member” of someone who has received an OFP. If the district court holds that the OFP was intended to forbid, and did forbid, contact by Bergstrom with his children based on abuse or a threat to their safety, in that event, the district court must consider whether an additional hearing and the opportunity for Bergstrom to present evidence on this issue must be afforded.