In a comprehensive and careful order determining visitation for five-year-old BH, the district court found that, in light of likely emotional harm to the child if she is unable to see her deceased mother's family, reasonable contact should be provided between BH and her grandfather, Clayton Rohmiller and also between BH and her maternal aunt, Kelli Rohmiller, who is the deceased mother's twin sister. The district court recognized that this young child has experienced significant loss in her short life. She was ten months old at the time of an incident that resulted in her father pleading guilty to malicious punishment. Following her father's guilty plea, she had no contact with him for more than eighteen months. She was only two years old when her mother died in a car accident. For the next three years she lived with her mother's maternal aunt whom she no longer sees. The district court found that BH has had a primary relationship with her mother's twin sister Kelli Rohmiller throughout BH's young life and the absence of this relationship with her maternal aunt would cause emotional damage.
I concur in the majority's determination that the district court acted within its discretion by granting Clayton Rohmiller visitation with his granddaughter BH and that the time and amount of visitation is reasonable. I also agree that Minn. Stat. § 257C.08 (2010) does not specifically confer on the court the power to grant visitation to a maternal aunt on the death of a child's mother. I write separately, however, because I believe that, if section 257C.08 is read to eliminate any residual authority for the district court to provide visitation under these circumstances, it may be appropriate for the legislature to reconsider the provisions of Minn. Stat. *Page 619 § 257C.08 and allow limited discretion for the district court to extend visitation in unusual circumstances such as those in this case.
The United States Supreme Court has recognized that "the interest of parents in the care, custody, and control of their children" is a "fundamental liberty interest[]." Troxel v.Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060,147 L.Ed.2d 49 (2000). Minnesota has applied this holding by similarly stating that "a parent's right to make decisions [on] the care, custody, and control of [the parent's] children is a protected fundamental right" under the Due Process Clause of the Fourteenth Amendment. SooHoo v. Johnson,731 N.W.2d 815, 820 (Minn. 2007). But Minnesota has also recognized that this right is not absolute and that "states may intrude on parental rights in order to protect the general interest in the youth's well being." Id. at 822 (quotation omitted).
The district court made specific findings on BH's best interests, on the emotional ties between BH and her aunt, and that the visitation rights would not interfere with the relationship between BH's father, her custodial parent, and BH. To reduce the time away from BH's home, the district court provided that the visitation would be jointly exercised with BH's grandfather and maternal aunt, but that it would not be necessary that both be present for the visitation to take place. This provision took into account that BH's grandfather, who is a farmer in Iowa, may not be able to visit BH as regularly as her aunt who resides in Minnesota. On these facts, the district court's order provides a compelling basis for a re-examination of Minn. Stat. § 257C.08.