(concurring specially).*
I respectfully concur. Although I share the dissent’s concern about appellate recasting, I find it necessary and unavoidable under the facts and issues presented on appeal and addressed in our opinion.
The referee’s finding number 9 is concluso-ry at best because the referee did not conduct an independent examination of the evidence supporting the sexual abuse allegation. This portion of the order merely “rubber stamps” the report of the child protection social worker. The nature of the hearing, at which no testimony was taken and for which no record exists, leads to the conclusion that the referee’s order was intended to be an interim one, pending a hearing. This conclusion is supported by Minn.Stat. § 518.175, subd. 5 (1992), which states in relevant part: “[T]he court shall hold a hearing at the earliest possible time to determine the need to modify the order granting visitation rights.”
The burden is on the court — not appellant — to schedule the hearing, the purpose of which is to ensure the best interests and welfare of the children. It is the court’s failure to provide this forum that compels reversal. The events that have occurred, such as the issuance and subsequent dismissal of a criminal complaint against the father, and the fact visitation is now modified from the restrictions imposed by the referee’s order, do not obviate the need for the hearing because the father has not been restored to the visitation rights afforded him in the decree.
This is not to say that dismissal of the criminal complaint should operate to reinstate automatically the father’s visitation rights. The degree of proof required in criminal cases is significantly different from that required in civil and/or child custody and visitation cases. While continued court intervention may be necessary, it should be the result of an evidentiary hearing that complies with statutory mandate and a factually supported order of the court.
The concern here is for the rights of the children, parents and grandparents, and the fact that, nine months after the petitions for visitation were first filed, we still cannot say a hearing has been held as required.
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn.Const. art. VI, § 10.