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

GILDEA, Chief Justice

(concurring in part, dissenting in part).

The plurality today rewrites the facts in the record in order to support its ill-considered and unnecessary remand of Berg-strom’s claim with respect to his children. The plurality’s analysis of this claim is not consistent with either the record or our precedent. I therefore respectfully dissent from that portion of the opinion.1

Bergstrom argues that the 50-year extension of the order for protection (OFP) in this case is unconstitutional both with respect to Vanessa Rew, his ex-wife, and with respect to his and Row’s minor children. I concur with the conclusion that the statute authorizing the extension of an OFP for 50 years, Minn.Stat. § 518B.01, subd. 6a(b) (2012), is constitutional on its face and as applied with respect to Rew. With respect to the children, the court rightly concludes that the OFP does not limit Bergstrom’s contact with his children for 50 years. Rather, the OFP prohibits Bergstrom from having contact with his children only until they reach 18. The plurality nevertheless holds that Berg-strom’s as-applied challenge to the OFP with respect to the children must be remanded for further fact-finding by the district court. I disagree for two reasons.

First, the remand is ill-considered. Specifically, consistent with our precedent, we should not even address Bergstrom’s as-applied challenge to the 50-year duration of the restrictions on his contact with the children. There is no reason to address Bergstrom’s claim because the court has interpreted the extended OFP as limiting Bergstrom’s contact with the children “for only a few years.” Bergstrom makes no argument that a restriction on contact with his children “for only a few years” is unconstitutional, and he has not provided an adequate record for appellate review of that unasserted claim.

Second, if the court were to reach the claim that Bergstrom does not make, a remand is still not necessary. A remand is unnecessary because Bergstrom consented to the restrictions in the 2008 OFP, and the district court specifically found that the safety of Rew and the children requires the parenting-time restrictions. The plurality ignores both facts in unnec*798essarily remanding this matter to the district court for additional findings regarding whether these restrictions on contact with the children burden no more speech than necessary to protect Rew or the children from domestic abuse.2 The court compounds its error when it concludes that the findings the district court made are sufficient to support the constitutionality of the 50-year OFP as to Rew but that these same findings are inadequate to support the much shorter OFP as to the children.

For these reasons, I respectfully dissent from that portion of the opinion addressing the constitutionality of Minn.Stat. § 518B.01, subd. 6a(b), as applied to the restrictions on Bergstrom’s contact with the children.

I.

I turn first to a discussion of the facts in the record before us. The plurality grounds its decision to remand on its assertion that Rew’s allegations of domestic abuse did not include allegations that Bergstrom abused the children. The plurality is wrong.

The record shows that Rew alleged that Bergstrom has waged an extended campaign to terrorize his children along with his ex-wife, both by violating orders for protection in the children’s names and by threatening the children’s safety and emotional well-being. In Rew’s 2008 OFP affidavit and petition, she alleges that when she was 8 months pregnant with her first son, Bergstrom pushed her down the stairs during an argument. Minnesota law makes clear that an assault against a pregnant woman can also qualify as an assault against her unborn child. See Minn.Stat. §§ 609.267-.2672 (2012). In addition, Rew alleged that Bergstrom had “threatened in the past to not return the children” after visitation. Threatening to kidnap the children constitutes “domestic abuse” against the children under the Domestic Abuse Act.3 See Minn.Stat. § 518B.01, subd. 2(a)(2)-(3) (2012). Rew’s request for pro*799tection of the children was further supported by her allegation that she was “afraid” for the safety of the children and that she “fear[ed]” for the safety of the children. According to the August 2008 report of the guardian ad litem, each child “expressed anxiety about what their Father would ‘do next’ if he resumed contact with them.”4 And the children’s therapist believed that the older child is “very afraid of his Dad.”5 The court construes Berg-strom’s implicit admission of abuse (and the resulting 2008 OFP) narrowly based on its determination that Rew’s 2008 petition “does not definitively allege that Berg-strom committed domestic abuse against the two minor children.” This determination, however, rests on Rew’s failure to check a box on a form. Rew’s petition for an OFP states:

[Bergstrom] has inflicted or threatened domestic abuse |x| upon me and/or □ upon the minor children) named here:
[T.C.B.J 8/29/97
[D.S.B.] 7/11/99.

Even if Rew should have checked both boxes to allege abuse against the children (which is not clear from the form), her intent was clear from the fact that she listed the children and their birth dates in the spaces provided. Moreover, our precedent requires us to liberally construe pro se filings. See State ex rel. Farrington v. Rigg, 259 Minn. 488, 484, 107 N.W.2d 841, 841-42 (1961). Our precedent therefore does not permit the rejection of Rew’s allegation of abuse against her children on a technicality.

*800Turning to Rew’s 2010 motion to extend the OFP, Rew repeated, in the affidavit submitted in support of her motion, the allegation that Bergstrom would “physically abuse” her while she was pregnant, which included pulling her hair, punching her, and choking her. She also alleged that Bergstrom had “initiated acts of harassment and stalking” against her and the children and that the children were “scared” when they saw Bergstrom after he was released from jail. See Minn.Stat. § 609.02, subd. 16 (2012) (defining “qualified domestic violence-related offense” for the purpose of determining when those who violate OFPs will be subject to enhanced penalties to include violations of a domestic abuse no-contact order issued under Minn.Stat. § 629.75, subd. 1(3) (2012)). Rew also said in her 2010 motion that on August 26, 2007, Bergstrom was found “prowling the area” around her friend’s house “to try to find me and my children.” (Emphasis added.) And Rew alleged that on July 11, 2010, Bergstrom was driving on the street in front of her parent’s house “looking for me and the kids.” (Emphasis added.) Finally, according to Rew’s affidavit, the children “are still in counseling to address the effects of their father’s abusive behavior. They do not wish to have any contact with their father and continue to have safety concerns. Their counselor does not recommend any contact by the children with their father.”

To summarize, the allegations Rew made in support of her petition for an OFP in 2008 and in her 2010 motion for an extension of the OFP make clear that Bergstrom’s domestic abuse was targeted not only at Rew but also at the well-being of the children. The district court acknowledged these allegations when it held that the OFPs were necessary for the safety of the children. We are bound by this record and are not entitled to create our own facts.6

II.

When all of Rew’s allegations in the record are considered, it is clear that it is a mistake to remand Bergstrom’s claim challenging a 50-year restriction on his contact with the children.

A.

As a threshold matter, an analysis of the constitutionality of the restrictions on Bergstrom’s contact with the minor children for 50 years is not necessary. The analysis is not necessary because the suspension of Bergstrom’s parenting time in the extended OFP was only “temporar[yj” and the court interprets the restrictions on his contact with the children as applying— at the longest — only until each child reaches the age of 18.7 Here, the oldest child will turn 18 in 2015, and the youngest child will turn 18 in 2017. Under well-settled *801rules, we do not decide constitutional questions “unless it is necessary to do so in order to dispose of the case.” State v. N. Star Research & Dev. Inst, 294 Minn. 56, 81, 200 N.W.2d 410, 425 (1972).

In this case, Bergstrom indicates that he is challenging the “50-year OFP ‘remedy’ subsection” of the OFP statute, Minn.Stat. § 518B.01, subd. 6a(b), which permits a court to grant relief “for a period of up to 50 years.” Bergstrom’s First Amendment challenge centers on “the very long length of time of the restraining order” — the extension of the OFP for a period of 50 years. Bergstrom argues that it is unconstitutional to restrain his speech for 50 years, which “would not allow him to see his children, ever again.” In a memorandum to the district court, Bergstrom acknowledged that “[a]n OFP extended for 1-2 years is hugely different from one extended for 50 years.” Therefore, the conclusion that the extended OFP restricts Bergstrom’s contact with the children “for only a few years” renders unnecessary the consideration of Bergstrom’s challenge to “a 50-year prior restraint on speech.” See State v. One Oldsmobile Two-Door Sedan, 227 Minn. 280, 288, 35 N.W.2d 525, 530 (1948) (adopting alternative ground of decision rather than deciding constitutionality of statute).

Even if the constitutionality of the restrictions on Bergstrom’s contact with the minor children were properly before us, we should not reach the First Amendment issue because Bergstrom has not provided an adequate record for appellate review. See Truesdale v. Friedman, 267 Minn. 402, 404, 127 N.W.2d 277, 279 (1964) (explaining that the party seeking review must provide a record that is sufficient to show “all matters necessary for consideration of the questions presented”). Bergstrom argues that the restrictions on his contact with the children violate the First Amendment because there is no finding that he ever abused the children, notwithstanding his consent to the 2008 OFP with the “understanding] that the order will be enforced as if there was an admission or finding of domestic abuse.” The plurality evaluates Bergstrom’s as-applied challenge “in the context of the specific circumstances presented by this case,” including “the facts underlying the issuance of the 2008 OFP.” This analysis focuses on the “adequacy of the record” and the absence of any evidence that Bergstrom abused the children, and determines that the record is “insufficient” to conclude that the extended OFP satisfies the First Amendment with respect to the children. The plurality and concurrence can reach this conclusion, however, only by ignoring all of Rev/s allegations detailed above.

Moreover, even if the record could be viewed as insufficient, which in my view it cannot, such deficiency exists because Bergstrom consented to the 2008 OFP without findings, and he has not provided a copy of the transcript from the hearing at which the parties’ agreement was stated on the record. Accordingly, Bergstrom has not met his burden of providing an adequate record for review. See Kendaco, Inc. v. Rickard-Borske Co., 290 Minn. 346, 350-51, 187 N.W.2d 697, 700 (1971) (affirming the district court where the record presented to support the appellants’ claim was incomplete and ambiguous).

B.

In any event, the plurality misconstrues the record that is available in concluding that a remand is required because there are “no findings from the district court that Bergstrom has ever abused the minor *802children or that the restrictions on Berg-strom’s contact with the children are necessary to protect Rew or the minor children from domestic abuse.” The factual allegations detailed above make clear that the court is simply wrong in asserting that Rew never alleged that Bergstrom committed domestic abuse against the children. In addition, the plurality and concurrence turn our standard of review on its head by reviewing the record in the light least favorable to the district court’s finding that the restrictions on Bergstrom’s contact with the children are necessary for their safety. See In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn.2002) (stating that “an appellate court views the record in the light most favorable to the trial court’s findings”).

When the record as a whole is considered, it is clear that there was no need for the district court to make further findings of abuse in the 2008 OFP. The district court did not need to make further findings because, just as he did for Rew, Berg-strom did not object to the restrictions on his contact with the children and he conceded that he understood that the OFP would be enforced as if there was a finding of domestic abuse. In reaching the conclusion that the district court needed to make more findings, the plurality adds words to the OFP by interpreting the order as limited to a finding of domestic abuse against only Rew. The OFP, however, was explicitly issued on behalf of the children and grants protection to the children.

Moreover, although the plurality “remand[s] to the district court for further findings as to whether the provisions burdening Bergstrom’s speech to the children are necessary” to protect Rew or the children from domestic abuse, the district court already found that “[t]he safety of [Rew] and the children requires that parenting time (visitation) be limited.” It is not clear what further findings are needed.

Indeed, the court concludes that the district court’s findings with respect to Rew meet the constitutional standard even for a 50-year restriction. In reaching this conclusion, the court specifically states that “[t]he record, considered as a whole, establishes that Bergstrom has abused Rew and repeatedly disregarded prior no-contact orders, satisfying the requirements for an extended OFP under subdivision 6a(b).” The facts the court relies on to support this holding are:

(1) “In the 2008 OFP petition, Rew stated that she was ‘afraid for [her] safety’ and feare[ed] [imminent] harm” because, among other things, Berg-strom pushed her down a set of stairs when she was 8 months pregnant with their oldest child.
(2) Bergstrom consented to the 2008 OFP with the understanding that it would be enforced “as if there was an admission or finding of domestic abuse.” The district court did not make any specific factual findings apart from accepting Bergstrom’s admission.
(3) When the district court extended the OFP in 2010, the court did not receive testimony, relying instead on the fact that it had issued two prior OFPs against Bergstrom at Rew’s request, that Bergstrom had recently been released from incarceration, and that Bergstrom had been convicted of violation of an OFP on at least three prior occasions.

These same three facts are true for the children; the court cannot contend otherwise unless it is going to ignore the evi*803dence set forth above. Yet, the plurality and concurrence still assert that the record is insufficient to support the much shorter OFP to protect the children.

What the plurality and concurrence are really doing is applying different standards in examining the constitutionality of the restrictions placed on Bergstrom’s contact with the children and the restrictions placed on contact with Rew.8 The analysis does not explain why different standards apply. Rather, the plurality simply suggests that even though “the restrictions in the extended OFP that relate to the minor children are much shorter in duration than those that relate to Rew,” the district court should have made specific findings that Bergstrom abused the children and that “the restrictions on Bergstrom’s contact with the minor children burden no more speech than necessary” to protect the children from domestic abuse. But the court did not require these specific findings in upholding the 50-year prohibition on Bergstrom’s contact with Rew. Rather, it simply determined that the district court “carefully crafted the specific terms and conditions of the extended OFP.” ■

We cannot have it both ways. If, as the court concludes, the district court made sufficient findings for the OFP extension to be constitutional as applied to Rew, then surely those same findings must be suffi-dent to sustain the much more limited order with respect to the children. This is so because the OFP to protect the children, which extends for only a few years, is much more narrowly tailored than the OFP to protect Rew, which extends for 50 years.9 See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 758, 765, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) (stating that a content-neutral injunction must “burden no more speech than necessary to serve a significant government interest”). Not only is the OFP with respect to the children in effect for only a few years, but the OFP provides a process by which Berg-strom can have contact with his children even earlier: He can apply to the court for a restoration of his parenting time if he completes at least 8 months of therapy and the children complete at least 6 months of therapy. No similar process exists for Rew; yet, the court concludes that the 50-year OFP for Rew is constitutional. Under the court’s own analysis, just as the OFP for Rew is constitutional, so must the OFP for the children be constitutional.

In conclusion, the court errs by addressing Bergstrom’s First Amendment challenge to the 50-year restriction on his contact with the children and remanding to the district court. I would resolve the appeal without addressing the as-applied challenge with respect to the children, and affirm.

. We are unanimous except for Bergstrom's claim involving contact with the children. I use the term "plurality” in my discussion of this claim because a majority of the court’s members do not agree on the analysis supporting the remand of the claim to the district court.

. The concurrence recommends that we remand to the district court to "provide clarity to the parties" about whether an OFP was issued against Bergstrom to protect the children from domestic abuse, 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. If, as the concurrence suggests, the restrictions placed on Bergstrom’s contact with the children are permissible under the First Amendment as a matter of law, no remand is necessary. No issue between the parties in this case would remain, and it is not a prudent use of judicial resources to clarify "for the benefit of the parties” when the restrictions are permissible. See State v. Stanke, 764 N.W.2d 824, 829 (Minn.2009) ("[T]o remand this case to the district court would not be a prudent use of the time and resources of the judicial system.”).

. The Domestic Abuse Act defines “domestic abuse” to include "the infliction of fear of imminent physical harm, bodily injury, or assault,” as well as "terroristic threats.” See Minn.Stat. § 518B.01, subd. 2(a)(2)-(3) (2012). The definition of "terroristic threats” includes "directly or indirectly” threatening to kidnap someone with the purpose to terrorize another. See Minn.Stat. § 609.713, subd. 1 (2012) (defining "crime of violence” for the purposes of the terroristic-threats statute to include all "violent crime” under Minn.Stat. § 609.1095, subd. 1(d) (2012), which includes kidnapping under Minn.Stat. § 609.25 (2012)); see also Minn.Stat. § 609.25 (defining kidnapping to include "confinfing] or removing] from one place to another” someone under 16 "without the consent of the person’s parents or other legal custodian” in order to "commit great bodily harm or to terrorize the victim or another”). It is a mistake to dismiss Bergstrom’s threat not to return the children on the theory that the "threat was directed at Rew, not the children.” Under Minn. Stat. § 609.713, subd. 1, ”indirect[]” threats of violence are "terroristic threats.” Accord*799ingly, even if Bergstrom's threat was delivered through Rew, the threat still constitutes a "terroristic threat” against the children and therefore is an act of domestic abuse.

. The plurality dismisses the report from the guardian because the plurality is uncertain as to whether the report is in the record. This uncertainty is unfounded. Under the Rules of Civil Appellate Procedure, "the record on appeal” includes "[t]he papers filed in the trial court.” Minn. R. Civ.App. P. 110.01 ("The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”). The 2008 guardian ad litem report was submitted to the trial court in connection with the August 20, 2008 hearing. The order appointing the guardian directed the guardian to submit a written report to the court and provide copies to the parties or their counsel, and the report itself indicates that a copy was provided to Bergstrom. We also know from the notes on the report that the district court reviewed the report, the guardian appeared at the August 2008 hearing, and the guardian spoke on the record. The reason we do not know more — what was said at the hearing — is that Bergstrom stipulated to the 2008 OFP and did not order a transcript of the hearing for purposes of this appeal.

. The court discounts Rew’s allegations that the children were afraid of Bergstrom because "a bare allegation of fear is insufficient to demonstrate” domestic abuse. But the court relies on Rew’s assertion that she was afraid of Bergstom in concluding that the record supports a 50-year extension of the OFP as to Rew. The children’s fear is entitled to no less weight in my view. The court also ignores the real costs domestic abuse inflicts upon all members of a family, not just the immediate target of the abuser. There is “broad agreement that children who witness violence are gravely harmed,” that ”[t]he scope of the damage that is done to children who witness violence is vast,” and that problems caused to children who witness domestic violence "are so serious that exposure to domestic violence has been called a severe form of child abuse." Leigh Goodmark, From Property to Personhood: What the Legal System Should Do For Children in Family Violence Cases, 102 W. Va. L.Rev. 237, 245-46 (1999) (citation omitted) (internal quotation marks omitted); see also In re Heather A., 52 Cal.App.4th 183, 60 Cal.Rptr.2d 315, 321-23 (1996) (removing two minor children from their father’s custody because of evidence they suffered "secondary abuse” in the form of exposure to violent confrontations between their parents, which endangered their physical and emotional safety).

. The concurrence suggests that neither Rew’s 2010 affidavit nor the three OFPs issued by the district court contained any "specific allegations of domestic abuse against the children.” As set forth above, the concurrence’s assertion cannot be squared with the evidence in the record.

. In her affidavit supporting her request for an extended OFP, Rew asked the district court to consider the safety of the children and to suspend Bergstrom’s parenting time "until this matter can be addressed permanently in Family Court.” Following a hearing, the district court "temporarily suspended” Bergstrom’s parenting time. According to the terms of the extended OFP, ”[t]he question of parenting time (visitation) will be decided by the Court in the divorce matter.” Therefore, Bergstrom may request that the family court restore his parenting time with the children.

. The concurrence similarly suggests 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.” But the concurrence does not require any such “findings of fact” with regards to Rew. If allegations of abuse— in the absence of any findings of abuse — are sufficient to uphold the constitutionality of a 50-year OFP on Rew's behalf, allegations of abuse should similarly be sufficient to support the much shorter OFP on behalf of the minor children.

. The concurrence asks whether I would believe a 50-year restraining order, without district court findings of abuse of the children, would be enforceable if the references to the "minor” children did not appear. That question is not before us. If it were, as the court does here, I would consider whether the restrictions were sufficiently narrowly tailored to not burden any more speech than necessary to protect the interests at stake.