Opinion
No. C3-03-383.
Filed October 21, 2003.
Appeal from the Anoka County District Court, File No. F1-94-50525.
William R. Lindman, (for appellant)
Terri A. Melcher, (for respondent)
Considered and decided by Wright, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges the denial of her motion to modify custody of the parties' child. Because we see no abuse of discretion by the district court, we affirm.
FACTS
Appellant Anna Rigstad and respondent Patrick Pellegrin are the parents of P.J.P., now age 10. Appellant has two other children; respondent has one other child. P.J.P. lived with appellant until he was six. After Hennepin County substantiated that P.J.P. had been abused by a friend of appellant, P.J.P. began living with respondent; appellant consented to this arrangement. But five months later, appellant moved for an order for protection because respondent had abused P.J.P. The parties disputed his custody; appellant was again awarded custody.
When P.J.P. was seven, appellant abused him, striking him and bruising his face, instructing him not to go to school, and leaving him home alone. P.J.P called respondent; the sheriff was notified and P.J.P. and appellant's other children were placed in foster care. P.J.P. lived for a couple of months with the paternal grandmother of one of appellant's other children. He was then returned to appellant, just after he turned eight. The next month, P.J.P. was hospitalized after having attempted suicide. He was diagnosed with anxiety disorder, abuse and neglect. Hospital personnel recommended that P.J.P. not be released to either parent, so he was returned to the paternal grandmother of his half-sibling.
An Anoka County family court evaluator, after investigating, recommended that respondent have custody of P.J.P. Appellant moved for custody modification and for an independent evaluation by a Hennepin County clinical psychologist to be done at appellant's expense. The court granted her motion and ordered the parties to cooperate with this evaluation. At the conclusion of his evaluation, the psychologist concurred with the Anoka County evaluator that respondent should have custody. On 12 April 2002, the district court adopted the recommendations of the evaluator and the clinical psychologist and awarded custody of P.J.P. to respondent.
The evidentiary hearing on appellant's motion to modify custody occurred on two days that were two months apart. During that two-month period, appellant petitioned for an order for protection in Anoka County. The district court found insufficient evidentiary support for granting the order, and the parties stipulated to dismissal of the petition. Appellant then petitioned for an order for protection in Hennepin County, based on the same facts that had been found inadequate in Anoka County. The district court granted an ex parte temporary order. Appellant then took P.J.P. out of school and enrolled him in another school. At the Hennepin County hearing on the OFP petition, the district court accused appellant of forum-shopping and said that further petitions for protection had to be made with the permission of the Anoka County judge who had handled the case.
Appellant then moved for a second order in Anoka County. On 30 October 2002, during a telephone conference, the judge denied the order, approved P.J.P.'s placement with respondent, and rebuked appellant's attorney for unprofessional conduct in petitioning for an OFP in one county immediately after having a petition denied in another county. Respondent took P.J.P. to live with appellant's grandmother until he could "figure out what was going on."
Two weeks later, on the second day of the hearing, 14 November 2002, appellant's counsel withdrew from representation. Appellant's grandmother, with whom P.J.P. was then living, testified. Following that hearing, the Anoka district court found that "the overzealous representation by [appellant's] former counsel has partly contributed to the minor child's instability" and that appellant had "failed to make the prima facie showing of endangerment necessary to a modification of custody"; the court awarded appellant extensive visitation while P.J.P. resided with appellant's grandmother. On 16 January 2003 the district court issued an order dismissing appellant's motion for change in custody, awarding respondent permanent physical custody, and stating that, at respondent's request, P.J.P. could reside with appellant's grandmother. Appellant, again represented by the attorney who withdrew, challenges this order, arguing that she did not have the burden of showing that P.J.P. was endangered, that the district court abused its discretion in setting appellant's visitation schedule and in permitting P.J.P to reside temporarily with appellant's grandmother, and that some of the district court's findings are clearly erroneous.
At oral argument, appellant waived two issues raised in her brief: whether the district court should have held an evidentiary hearing before awarding custody and whether a hearing should have preceded the dismissal of her petition for an order for protection.
DECISION 1. Endangerment
Absent the parties' agreement to modify custody or one party's consent to the integration of the child into the other party's family, Minn. Stat. § 518.18(d) (2002) requires a court to retain the custody arrangement established by a prior order unless it finds that the child is endangered by that custody arrangement. The custody arrangement established by a prior order for P.J.P. is the Hennepin County order of 12 April 2002 that he be reunified with respondent. Appellant has not shown, despite three separate attempts to obtain orders for protection, that this custody arrangement endangers P.J.P.
Appellant's argument on this issue challenges not the denial of her motion to modify P.J.P.'s present custody with respondent but whether respondent proved endangerment prior to the order of 12 April 2002 that gave him custody. This argument fails for two reasons. First, it is untimely: the order on appeal is that of 16 January 2003, not 12 April 2002. Second, while P.J.P. was in appellant's custody, he and her other children were removed from her care after she struck and bruised him and left him home alone; appellant pleaded guilty to gross misdemeanor neglect of a child. Even if her challenge to the order of 12 April 2002 were timely, it would fail. There was ample evidence of endangerment for the court to award respondent custody of P.J.P.
2. Visitation
In its 16 January 2003 order that is the subject of this appeal, the district court said that "[t]he current arrangements for [appellant's] parenting time shall remain in effect." The "current arrangements" to which the court referred were those established at the 14 November 2002 hearing: visitation would be determined by the parties and by appellant's grandmother, with whom P.J.P. was then living; if they could not agree, visitation would be Saturday morning; visitation could include an overnight if appellant had a place to stay with P.J.P.; and visitation could be three weekends per month. The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Appellant alleges no abuse of discretion in these visitation arrangements, and we see none.
3. Temporary Residence
At the time of the 14 November hearing, P.J.P. had been living for two weeks with appellant's grandmother, (P.J.P.'s great-grandmother). Respondent had taken P.J.P. to her home, a stable environment, after he had been removed from respondent and spent a few days in foster care as a result of appellant's allegations of abuse and petitions for orders for protection.
At the hearing, respondent said that he thought P.J.P. should continue to live with appellant's grandmother "where he's stable. He likes living there. He's doing great in school. . . . If he lives with me [respondent], the police department will be there all the time." Appellant said that she would have P.J.P. live with her, not with her grandmother. The grandmother was called as a witness. When asked how long she wanted P.J.P. to live with her, she replied, "I'll take him for as long as I can have him." The district court observed:
I really am impressed by who you are and the way you testify. Your honesty comes though in a way that this court feels is apparent and powerful, and I'm grateful for that.
. . . .
I'm sure glad [P.J.P.] has got you in his life.
. . . .
I think that . . . as long as [you] can involve [yourself] in his life [it] is going to be a positive thing.
Appellant does not dispute that P.J.P. is doing well at her grandmother's, or that he now has the stability that he has been lacking, but she argues that she has been deprived of her constitutional right to parent her child. The child was removed from her as a result of her abuse. And after being returned to her, he was hospitalized for suicidal ideation. Appellant's efforts to obtain custody by alleging abuse and obtaining orders for protection resulting in destabilizing P.J.P.'s situation and his being placed in foster care. The district court did not terminate appellant's parental rights; in fact, it provided for her to have significant parenting time with P.J.P. Nor did the district court give custody of P.J.P. to appellant's grandmother; his custody remains with one parent — respondent. A district court has broad discretion to provide for the custody of the parties' children . Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989). The district court did not abuse its discretion in awarding custody to the parent who found it desirable to have P.J.P. reside in a stable, happy environment until that parent can provide such an environment for him.
4. Findings
Appellant contends that two of the district court's findings are clearly erroneous. "Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made," and only if the findings are not reasonably supported by the evidence. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).
a. Finding No. 10
The district court found that "a family and child therapist . . . who has been licensed as a psychologist for 10 years . . . testified that she had no major concerns about [appellant's] parenting ability. This court does not find [her] conclusions to be persuasive, because she ignored important facts in basing her conclusions."
Again, testimony supports this finding. The therapist was assigned to the case by Hennepin County after the children were removed from the home because appellant had struck and bruised P.J.P. and left him home alone. She testified that she did a parenting assessment and had no major concerns about appellant's parenting and that "When I first met [appellant] and got the situation I didn't believe it and I actually got the police reports and talked with a few other people and [appellant] was telling me the truth . . . and I am shocked at the fact that the children were not returned to the home." She also testified that she was unaware that P.J.P. had been making suicidal statements to his teacher in the second grade, that she had not talked to anyone at his school, that she had not seen the reports of his evaluations, that she considered his behavior normal, that her communication with the hospital where he was diagnosed and treated was not good, and that, although she was a family therapist, she had never met respondent or seen him with P.J.P. The district court's finding that the therapist ignored important facts when she concluded that appellant should have custody of P.J.P. is not clearly erroneous.
b. Finding No. 11
Appellant also challenges the finding that:
Ann Warner, Hennepin County GAL [guardian ad litem] assigned to [P.J.P.] . . . testified that she believed [his] best interests would be to have some needed stability in his life and that the Court should not make any changes with regard to custody. She believed that the situation with [appellant] was emotionally dangerous and was not in the best interests of [P.J.P.].
The GAL's testimony amply supports this finding. When asked what was in P.J.P.'s best interest with regard to custody, she testified, "To not make any changes at this point. I feel that the custody arrangement is fine and every change is difficult for a child. [Unless] there's a real reason to change I think it definitely should not be done." This finding is not clearly erroneous.
We see no abuse of discretion and no error of law in the district court's decision.