This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In Re the Matter of:
Shane Victor Edstrom, petitioner,


Nicole Lee Nelson,



Filed July 24, 2001


Peterson, Judge



Ramsey County District Court

File No.  F89451008



Shane V. Edstrom, #193623 MCF Stillwater, 970 Pickett Street North, Bayport, MN  55003 (pro se appellant)


Michael R. Paul, 2860 Snelling Avenue North, Roseville, MN  55113 (for respondent)



            Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


This pro se appeal is from an order denying appellant Shane Victor Edstrom’s motion to establish visitation with his son.  We affirm.


On February 8, 1995, Edstrom was adjudicated the father of a son and ordered to pay child support.  The court awarded sole physical and sole legal custody to respondent Nicole Lee Nelson, the child’s mother, and referred the issue of visitation to Ramsey County Court Services for six months. The court informed Edstrom that he would have 30 days to bring a motion regarding custody and visitation and that if he failed to bring a motion, the custody arrangement would become permanent.  Edstrom did not bring a motion.

            In June 1997, Edstrom was convicted of first- and third-degree assault and incarcerated for 86 months.  Edstrom is still incarcerated.  On March 3, 2000, Edstrom filed a motion seeking visitation with his son, and on March 21, 2000, Edstrom’s mother filed a petition to intervene seeking grandparent’s visitation rights.  Nelson filed several affidavits in response to both motions.  On June 13, 2000, the district court heard the motion for grandparent visitation without Edstrom present.  The court denied visitation to Edstrom’s mother and ordered a guardian ad litem appointed with respect to Edstrom’s visitation motion.  On October 12, 2000, a hearing on Edstrom’s motion was held, with Edstrom present, and visitation was denied.


1.         Edstrom argues that the district court violated his due-process and confrontation rights when it admitted Nelson’s affidavits into evidence and did not let him see the district court file.  Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997). 

            Nelson’s affidavits.  Edstrom claims he was prejudiced by the admission of Nelson’s affidavits because he was not at the June 13, 2000, hearing to respond to the affidavits.  But the June 13, 2000, hearing involved Edstrom’s mother’s visitation rights, not Edstrom’s motion for visitation.  Edstrom’s mother was at the hearing and could respond to the evidence.  Edstrom’s rights were not affected by the hearing.

            Edstrom also argues that he did not have a chance to respond to the affidavits before the guardian ad litem used them for her report.  But the affidavits were timely served on Edstrom on May 26, 2000, in accordance with Minn. R. Gen. Pract. 303.03 (a)(3)(ii), and he did not object to them.  Edstrom could have submitted responsive affidavits, or at the October 12, 2000, hearing he attended, he could have objected to the affidavits and any statements the guardian ad litem made in her report based on the affidavits.

            District Court File.  Edstrom argues that he was denied his right to confront evidence when the district court would not allow him to see the district court file at the October 12 hearing.  As a party to the proceeding, Edstrom had a right to review the court file to prepare for the hearing.  But he did not make a request to see the file before the hearing.  Instead, during the course of the hearing, he orally requested “full discovery of what everybody has.”  Edstrom does not cite any authority for making this discovery request during the hearing.  Absent a proper request, the district court did not deny Edstrom his rights when it failed to provide him with the court file. 

2.         Edstrom argues that his right to equal protection was violated because Nelson was granted all of her parental rights and he was not granted any of his parental rights. Edstrom misunderstands the district court’s order.  The district court did not terminate Edstrom’s parental rights.  It simply denied Edstrom visitation with the child at this time.  In its November 20, 2000, order, the court stated  “Upon his release from prison, Mr. Edstrom will have the ability to work with an appropriate Domestic Relations or Family Services agency to begin the reunification process * * * .”.

            Citing Hennepin County Welfare Bd. v. Staat (In re Welfare of Staat), 287 Minn. 501 178 N.W.2d 709 (1970), Edstrom also argues that his equal protection rights were violated because he was treated differently than other fathers in prison.  But Staat involved the termination of an inmate’s parental rights.  As we have already stated, this is not a termination proceeding. 

3.         Edstrom argues that the district court improperly placed on him the burden of proving that visitation would serve the best interests of the child.  In its conclusions of law, the court stated, “Pursuant to Minn. Stat. 518.175, [Edstrom] has failed to demonstrate that the best interests of the child would be served by ordering visitation at this time * * * .”  Minn. Stat. § 518.175, subd. 1(a) (1998), states:

            In all proceedings for dissolution or legal separation,[1] subsequent to the commencement of the proceeding and continuing thereafter during the minority of the child, the court shall, upon the request of either parent, grant such rights of visitation on behalf of the child and noncustodial parent as will enable the child and the noncustodial parent to maintain a child to parent relationship that will be in the best interests of the child.  If the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health or impair the child’s emotional development, the court shall restrict visitation by the noncustodial parent as to time, place, duration, or supervision and may deny visitation entirely, as the circumstances warrant.  The court shall consider the age of the child and the child’s relationship with the noncustodial parent prior to the commencement of the proceeding. 


(Emphasis added.)

Edstrom is correct that under Minn. Stat. § 518.175, subd. 1(a), a noncustodial parent is entitled to visitation unless it is shown that visitation “is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.”  The statute does not assign a burden of proof to the noncustodial parent.

But it is apparent that when the district court referred to Minn. Stat. § 518.175, it referred to the wrong statute.  The court intended to apply Minn. Stat. § 518.179, subd. 1 (1998), which states:

Notwithstanding any contrary provision in section 518.17 or 518.175, if a person seeking child custody or visitation has been convicted of a crime described in subdivision 2, the person seeking custody or visitation has the burden to prove that custody or visitation by that person is in the best interests of the child if:

(1) the conviction occurred within the preceding five


(2) the person is currently incarcerated, on probation, or under supervised release for the offense; or

(3) the victim of the crime was a family or household member as defined in section 518B.01, subdivision 2.


If this section applies, the court may not grant custody or visitation to the person unless it finds that the custody or visitation is in the best interests of the child.  If the victim of the crime was a family or household member, the standard of proof is clear and convincing evidence.


            This statute applies to Edstrom because he is currently incarcerated, he was convicted of first-and third-degree assault[2] within the past five years, and the victim of the assault was a woman who was pregnant with Edstrom’s child.[3]  Under Minn. Stat. § 518.179, subd. 1, Edstrom has the burden of proving that visitation is in the child’s best interests.

Although the district court referred to the wrong statute, Edstrom has failed to demonstrate that the court’s error was prejudicial.  See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993) (“In addition to their burden to show error, appellants have the burden on appeal to demonstrate that the trial court error caused them prejudice.”); see also State v. Shoen, 598 N.W.2d 370, 377 & n.2 (Minn. 1999) (discussing application of harmless-error analysis in criminal cases).  Also, an appellate court will not reverse a correct decision simply because it is based on incorrect reasons.  Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987).  

            The district court stated in its findings of fact:

6)        [Edstrom] failed to cooperate or comply with the plan for visitation as supervised by Domestic Relations;


7)        On August 15, 1997, [Edstrom] was remanded to the custody of the Commissioner of Corrections and remains incarcerated to this date;


8)        [Edstrom] failed to comply with any visitation prior to his incarceration, having little or no contact with his son between 1995 and his incarceration * * *.  Since his incarceration, [Edstrom] has not had any contact with his son * * *;


* * * *


10)      [The son] continues to reside with his mother.  He is aware that he has a father and what his father’s name is;


11)      It is not in [the son’s] best interests to develop a relationship with his father at this time;


* * * *


13)      There is nothing to gain for [the son] by beginning a relationship with his father, who is currently incarcerated at this time;


14)      Upon his release from prison, [Edstrom] will have the ability to work with an appropriate Domestic Relations or Family Services agency to begin the reunification process; to do so now, while incarcerated, would not be in [the son’s] best interests;


15)      [The son’s] emotional health and development are at risk by forcing visitation at this time with a father he does not know in a correctional facility setting * * * .


These findings support the district court’s conclusion that Edstrom “has failed to demonstrate that the best interests of the child would be served by ordering visitation at this time.”

4.         Edstrom claims that he was not allowed visitation because Ramsey County Court Services lost the district court file, and therefore, never made a determination as to visitation and no order was issued by the district court regarding visitation.  But there is no evidence in the record to support Edstrom’s claim that court services lost his file.  Edstrom refers to the transcript of the February 1995 hearing, but nothing in that transcript indicates that the file was lost. 

Edstrom raises several new issues in his reply brief.  Issues not raised or argued in an appellant’s principal brief cannot be raised in a reply brief.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).



*          Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Because he was adjudicated the father, Edstrom’s parental rights are the same as those applicable to divorced parents.  Fontaine v. Hoffman, 359 N.W.2d 692, 694 (Minn. App. 1984); see also Minn. Stat. § 257.541, subd. 2 (1998) (father’s right to visitation with children born outside of marriage).


[2]First- and third-degree assault are described in Minn. Stat. § 518.179, subd. 2(3) (1998).


[3] The definition of “[f]amily or household members” in Minn. Stat. § 518B.01, subd. 2(b)(6) (1998), includes, “a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time.”