James Vernon Larsen, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0067

James Vernon Larsen, et al.,
Appellants,

vs.

Heather Cross, et al.,
Respondents.

Filed October 28, 2019
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-FA-18-4034

Justin P. Weinberg, Scott M. Flaherty, Briggs and Morgan, P.A., Minneapolis, Minnesota;
and

Mary Pat Byrn, Viitala Law Office PC, Minneapolis, Minnesota (for appellants)

Zachary P. Marsh, Marsh PLLC, Minneapolis, Minnesota (for respondents)

Considered and decided by Roden berg, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In their appeal from the district court’s order dismissing their petition for third-party
custody and their alternative re quest for grandparent visitatio n, appellants argue that the
district court erred in dismissi ng their petition for third-par ty custody because of the res

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judicata effect of an earlier dismissal of a similar petition. They also argue that the district
court abused its discretion in f inding they lacked standing und er the third-party custody
statute and misapplied the grandparent-visitation statute. We affirm.
FACTS
J.K.C. is the minor son of respondent-mother, Heather Cross, a nd respondent-father,
Darcy Cross. Appellant-grandfather, James Larsen, is the fathe r of respondent-mother.
Appellant-step-grandmother, Ther ese Ross-Larsen, is the step-mo ther of respondent-
mother. Respondents were marri ed in March 2007 and respondent- father adopted J.K.C.
in August 2009. Respondents have physical and legal custody of J.K.C. as his parents.
In October 2017, respondents took J.K.C. to The Bridge for You th (The Bridge), a
residential shelter, while waiting for space to open for J.K.C. at an inpatient substance-
abuse treatment facility.
On November 8, 2017, appellants filed a petition for third-par ty custody of J.K.C.
under Minn. Stat. § 257C.03 (2018). Appellants asserted standi ng as interested third
parties, based primarily on J.K.C. having been placed at The Br idge. Appellants also
alleged that respondent-father had previously abused J.K.C. Th e district court dismissed
the petition without prejudice, determining that appellants did not have standing as
interested third parties.
On June 13, 2018, appellants filed a second petition seeking t hird-party custody and,
in the alternative, requesting gr andparent visitation under Min n. Stat. § 257C.08, subd. 2
(2018). Appellants asserted standing as interested third parti es entitled to third-party
custody for substantially the sam e reasons recounted in their f irst petition, and they

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included the additional allegation that they did not know where J.K.C. was living, whether
he was receiving treatment, or whether he was institutionalized . Appellants’ alternative
request for grandparent visitation alleged that visitation was in J.K.C.’s best interest for the
same reasons. Concerning third-party custody, the district cou rt found that the second
petition’s allegations were identical to those of the first pet ition, and the second petition
was therefore barred by res judicata. The district court also reasoned that, even if not barred
by res judicata, appellants’ second petition was unsupported by allegations of
abandonment, neglect, or disregard of J.K.C’s well-being as required to establish appellants
as interested third parties under Minn. Stat. § 257C.03, subd. 7. Concerning grandparent
visitation, the district court found that appellants lacked standing. It dismissed the petition.
This appeal followed.
D E C I S I O N
The district court erred in giving res judicata effect to the e arlier dismissal of
appellants’ first petition.

Appellants argue that the district court erred in giving res ju d i c a t a e f f e c t t o t h e
dismissal of their first petition for third-party custody, because that petition was dismissed
without prejudice and there was no final judgment on the merits.
The question of whether the ele ments of res judicata are met is a question of law
that is reviewed de novo. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004).
If the elements of res judicata are met, we review the district court’s decision to apply the
doctrine for abuse of discretion. Dixon v. Depositors Ins. Co., 619 N.W.2d 752, 755 (Minn.
App. 2000). Despite the strong policies supporting res judicat a, courts will not apply the

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doctrine rigidly, but will declin e to apply the rule when its a pplication contravenes an
overriding public policy . See AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd. , 356
N.W.2d 295, 299 (Minn. 1984). “ [T]he availability and application of res judicata . . . in
family matters is limited” but its underlying principles still apply. Maschoff v. Leiding ,
696 N.W.2d 834, 838 (Minn. App. 2005).
A subsequent claim is barred by res judicata if: “(1) the earl ier claim involved the
same set of factual circumstan ces; (2) the earlier claim involv ed the same parties or their
privies; (3) there was a final judgment on the merits; and (4) the estopped party had a full
and fair opportunity to litigate the matter.” Brown-Wilbert, Inc. v. Copeland Buhl & Co.,
732 N.W.2d 209, 220 (Minn. 2007 ) (quotation omitted). Res judi cata is applied “in light
of the facts of each individual case.” G.A.W., III v. D.M.W., 596 N.W.2d 284, 288 (Minn.
App. 1999), review denied (Minn. Sept. 28, 1999). All four elements must be met.
Hauschildt, 686 N.W.2d at 840.
The district court erred in applying res judicata. The earlie r petition did not result
in a final judgment on the merits. The third element of res judicata was not present here.
Appellant’s second petition also r equested additional and diffe rent relief when
compared to their earlier petition. The second petition also sought grandparent visitation.
Moreover, the facts had changed since the first petition was filed. Notably, J.K.C. was no
longer at The Bridge; he was at an inpatient treatment facility. And the allegations of abuse
were even more remote at the tim e of the second filing than the y had been at the time of
the first petition.

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Because appellants’ second petiti on was not barred by res judic ata, we turn to the
district court’s alternative conclusion that appellants are not interested third parties under
section 257C.03, subd. 7.
The district court did not abuse its discretion in ruling that appellants failed to make
even a preliminary showing that they are interested parties und e r t h e t h i r d - p a r t y
custody statute.

Although the district court erred in its application of res jud icata, we see no
reversible error in the district court’s dismissal of the second petition. The record supports
the district court’s determination that appellants’ second peti tion fails to allege clear and
convincing evidence satisfying a ny one of the three requirement s to establish that
appellants are interested third parties under the third-party custody statute.
Appellate courts review a distri ct court’s third-party custody determination for
abuse of discretion. In re Custody of A.L.R., 830 N.W.2d 163, 166 (Minn. App. 2013). A
district court abuses its discretion “by making findings unsupported by the evidence or by
improperly applying the law.” Id. (quotation omitted). The findings of the district court
will not be set aside unless they are clearly erroneous. Id.
Appellants petitioned for third- party custody under Minn. Stat . § 257C.03. The
interested-third-party subdivisi on of the third-party-custody s tatute explains that a
petitioner for third-party custody must show by clear and convincing evidence that one of
the following factors exist:
(i) the parent has abandoned, neglected, or otherwise
exhibited disregard for the child’s well-being to the extent that
the child will be harmed by living with the parent;
(ii) placement of the child w i t h t h e i n d i v i d u a l t a k e s
priority over preserving the day-to-day parent-child

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relationship because of the pre sence of physical or emotional
danger to the child, or both; or
(iii) other extraordinary circumstances.

Minn. Stat. § 257C.03, subd. 7(a)(1)(i)-(iii). The district court determined that appellants’
petition failed to make even a preliminary showing of clear and convincing evidence that
any of the three requirements were present. 1 The record supports the district court’s
determination.
The district court has “discretion to dismiss a third-party cus tody petition without
an evidentiary hearing if the p etition and accompanying affidavits alleged facts which, if
taken as true, would not be suffi cient to satisfy the criteria” of the third-party custody
statute. Lewis-Miller v. Ross, 710 N.W.2d 565, 569 (Minn. 2006).
Appellants alleged that J.K.C. was “abandoned” when respondent s “dropped him at
The Bridge, an unlocked homeless shelter and left him there for several weeks.”
Appellants took issue with respo ndents’ decision to take J.K.C. to The Bridge while
looking for a placement for him at a chemical-dependency treatment facility. They alleged
that J.K.C. “has only seen one medical provider related to his alleged substance abuse,”
and believed that “[t]he doctor did not diagnose J.K.C. with ch emical dependency or
recommend treatment for chemical dependency.” The district cou rt reasoned that “it
appears Respondents were proactively attempting to obtain treatment for their child” when
they placed J.K.C. at The Bridge, and that “placement at an in- patient facility does not

1 The district court couched its determination in terms of a lack of “standing.” The statute
does not use that term. But as noted above, only an “intereste d third party” may petition
for third-party custody, and the interested-third-party statute requires clear and convincing
proof of one of the three enumerated factors.

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establish that Respondents have abandoned, neglected or exhibited disregard for the child’s
well-being.” The district cour t’s reasoning appears sound. Ap pellants disagree with the
placement, but beyond appellants’ disagreement with the respondents’ treatment decisions
for their son, appellants allege no facts to support that respo ndents having arranged
treatment for J.K.C. was inappropriate. Appellants allege that “only” one medical provider
saw J.K.C. for substance abuse, but the record contains nothing to indicate that “only” one
provider is insufficient or that this provider’s advice was mis taken or unsound. To the
contrary, the record amply confi rms that J.K.C. needs—and is re ceiving—treatment. No
expert opinion or other evidence is claimed to exist supporting appellants’ allegations that
J.K.C. would be harmed by the placement arranged by his parents . When the second
petition was filed, J.K.C. was residing at an inpatient treatme nt facility. He was not in
respondents’ home and was no longer at The Bridge. And we agree with the district court
that appellants’ petition does n ot sufficiently allege any aban donment, neglect, or
disregard.
Appellants also alleged that J .K.C. “will be harmed by living with [respondent-
father] due to past physical and emotional abuse of J.K.C.” Ap pellants alleged that this
abuse took place in 2015. The dis trict court considered the al legation of past abuse by
respondent-father to be insufficiently detailed and conclusory to give appellants the status
of interested third parties. Aga in, we agree. At the time of the second petition in June
2018, J.K.C. was not living at home and appellants did not even allege any current risk of
abuse by respondent-father while J.K.C. is in his current placement.

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Appellants also argued that thi s case “presents extraordinary circumstances as it is
unclear where J.K.C. is currently living, what type of treatment he is receiving, or if he is
currently institutionalized due only to the conflict” between J.K.C. and respondents. The
district court determined that appellants, as J.K.C.’s grandparents, have no legal right to be
informed of respondents’ parental decisions for the care of the ir son. This determination
is supported by both the record and the law. See Troxel v. Granville, 530 U.S. 57, 71, 120
S. Ct. 2054, 2063 (2000). No extraordinary circumstances appear here. It is respondents’
right, as J.K.C.’s parents, to d ecide what information is relea sed, to decide to whom
information is released, and to make decisions about J.K.C.’s c are. Id. While better
extended-family communication than is present here might be ideal, there is simply nothing
“extraordinary” about parents making placement decisions for a child without the consent
of extended family.
No contested hearing was required here because appellants’ ple adings do not allege
facts sufficient to make them interested third parties under the third-party custody statute.
We see no error in the district court’s dismissal of the third-party-custody request.
The district court did not misapply the grandparent-visitation statute, and the record
supports the district court’s denial of grandparent visitation.

Appellants argue that the district court did not apply the plai n language of the
grandparent-visitation statute and instead engaged in a policy analysis of an unambiguous

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statute.2 Conversely, respondents argue that the district court made findings on the merits
of appellants’ request for grandparent visitation.
A district court has broad discre tion to determine visitation i ssues. Rohmiller v.
Hart, 799 N.W.2d 612, 615 (Minn. App. 2011), aff’d, 811 N.W.2d 585 (Minn. 2012).
“When reviewing visitation determinations for an abuse of discretion, we must determine
whether the court made findings unsupported by the evidence or improperly applied the
law.” SooHoo v. Johnson , 731 N.W.2d 815, 825 (Minn. 2007). The district court’s
findings will not be overturned unless they are clearly erroneous. Id. “A finding is clearly
erroneous if we are left with the definite and firm conviction that the court made a mistake.”
Id.
The grandparent-visitation statute explains that the district c ourt may grant
visitation to a grandparent “if it finds that (1) visitation rights would be in the best interests
of the child; and (2) such visitation would not interfere with the parent-child relationship.”
Minn. Stat. § 257C.08, subd. 2.
In dismissing appellants’ second petition as it relates to gran dparent visitation, the
district court made findings based on the written record. The district court found that “even
if [appellants] did have standing to bring a claim for grandpar ent visitation,” the court
would have to determine whether visitation would be in the best interests of J.K.C. and
whether that visitation would interfere with the parent-child relationship.

2 There is no argument on appeal concerning whether a step-grand parent has standing to
seek grandparent visitation. We therefore address the grandpar ent-visitation issue
assuming that J.K.C.’s step-grandmother is entitled to be treat ed just as if she were the
child’s grandmother.

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Concerning interference with the parent-child relationship, the district court found
that appellants took “actions which do interfere with the paren t-child relationship.” The
record amply supports this finding. The district court explain ed that, by giving J.K.C.
money and a cellphone while he was at The Bridge, appellants acted “contrary to the wishes
of the child’s parents” and that the actions were “carried out with questionable judgment
considering the child was awaiti ng an opening in a substance ab use treatment facility.”
The district court also noted the “highly conflicted nature of the parties’ relationship.” The
record supports that there exists a substantial amount of conflict between the parties to this
appeal that would likely interfe re with J.K.C.’s relationship w ith respondents if
grandparent visitation were ordered. The record supports the d istrict court’s denial of
appellants’ grandparent-visitation request.
Affirmed.