This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota ex rel
Kandiyohi County Family Services,
K.M.B., n/k/a K.M.M.,
as Mother and Natural
Guardian of K.B.,





Filed October 30, 2001


Toussaint, Chief Judge


Kandiyohi County District Court

File No. F39550070



John E. Mack, Mack & Daby, P.A., 26 Main Street, Box 302, New London, MN 56273 (for appellant)


Brian M. Olsen, Brian M. Olsen Law Office, Tower Center Mall, Box 988, Cokato, MN 55321 (for respondent)


Boyd A. Beccue, 316 Southwest Fourth Street, P.O. Box 1126, Willmar, MN 56201 (for plaintiff State of Minnesota)


            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Hanson, Judge.

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge


On appeal from the district court’s order modifying visitation, appellant contends the district court erred in excluding a psychologist’s report and by ignoring the guardian ad litem’s recommendation.  Because the district court did not abuse its discretion, we affirm. 



            This is a visitation dispute between appellant and respondent, parents of K.B.  In her motion to modify visitation, appellant alleges that K.B. was sexually abused by a third party during visitation with respondent.  At the time, the third party was subject to a no-contact order.  The district court ruled that appellant had made a prima facie showing that respondent’s visitation should be permanently modified, and then scheduled an evidentiary hearing to address the issue of K.B.’s alleged sexual abuse.  At the evidentiary hearing, appellant attempted to submit the reports of psychologist Vicki Nauschultz, which were attachments to the guardian ad litem’s recommendation, without calling Nauschultz to provide foundation testimony.  The district court excluded the expert’s reports as inadmissible hearsay.

            Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (quoting Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990)); see also Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990) (“[E]videntiary rulings, including a decision to exclude expert testimony, lie within the sound discretion of the trial court.” (citation omitted)); Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983) (recognizing that evidentiary rulings on foundation are within district court’s discretion). 

Appellant argues that Nauschultz’s reports are exempt from the hearsay rule as statements for the purpose of medical diagnosis.  See Minn. R. Evid. 803(4).  Appellant accurately points out that statements made pursuant to medical diagnosis or treatment bear a sufficient indicia of reliability, and therefore are commonly deemed trustworthy and admissible.  Cf. State v. Salazar, 504 N.W.2d 774, 777 (Minn. 1993) (“Statements made for the purpose of medical diagnosis or treatment where the declarant knows that a false statement may cause misdiagnosis or mistreatment contain special guarantees of credibility.” (quotations omitted)). 

Nauschultz’s reports, however, also contain examination findings and opinions for which appellant must establish foundation before they will be admissible.  Under the Rules of Evidence, authentication is a prerequisite to admission of documents.  See Minn. R. Evid. 901(a); id. (b)(1) (noting example of “testimony of witness with knowledge” to satisfy requirement for authentication).  Appellant bears the burden of establishing that modification of visitation is in K.B.’s best interests.  Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).  Therefore, she should have called Nauschultz to testify.  The record does not support appellant’s argument that the guardian ad litem adequately examined the expert.  Having failed to call Nauschultz as a witness, appellant denied respondent his opportunity to cross-examine.  Consequently, the district court properly excluded the two reports.  See Citizens For A Safe Grant v. Lone Oak Sportsmen’s Club, Inc. 624 N.W.2d 796, 808 (Minn. App. 2001) (holding court acted well within its discretion in refusing to admit reports on lead and noise testing as inadmissible hearsay where appellant attempted to admit reports through witnesses other than authors).

Appellant asserts that the district court could not refuse to accept the psychologist’s reports because, according to appellant, the district court requested the reports.  The record clearly indicates that the district court requested testimony, not just “two year old reports.”  Reports made for the purpose of a court-ordered evaluation are admissible as business records under Minn. R. Evid. 803(6).  In re Welfare of R.T., 364 N.W.2d 884, 886 (Minn. App. 1985).  Here, however, the district court clearly contemplated that they would be accompanied by testimony.  Because, Nauschultz was not called as a witness, cf. Timmons v. Timmons, 298 Minn. 523, 524, 213 N.W.2d 335, 336 (1973) (holding no abuse of discretion in admitting reports where investigator subject to cross-examination), the district court did not abuse its discretion by excluding the reports.

Even if the district court had excluded the evidence erroneously, appellant would have to demonstrate that the error was prejudicial.  See Kroning, 567 N.W.2d at 46 (“Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.” (quoting Uselman v. Uselman, 464, N.W.2d 130, 138 (Minn. 1990)).  “An evidentiary error is prejudicial if the error might reasonably have changed the result of the trial.”  Cloverdale Foods of Minn., Inc. v. Pioneer Snacks, 580 N.W.2d 46, 51 (Minn. App. 1998) (citations omitted).  Here, admission of the reports would not have changed the outcome.  The district court thoroughly reviewed the guardian ad litem’s recommendation, which summarized Nauschultz’s reports, as well as recommendations made by K.B.’s therapist, Janet Kennedy.  The guardian ad litem’s recommendation also contained detailed information taken from Nauschultz’s reports, including Nauschultz’s recent observations of K.B. Additionally, Nauschultz’s most recent report is inconclusive on whether respondent should continue to have only supervised visitation.  Any error in excluding the reports was harmless because the district court received the substance of these reports through the guardian ad litem’s recommendation, and the report, if admitted, likely would not have altered the result.  Cf. Whitmore v. Fischer, 397 N.W.2d 371, 378 (Minn. App. 1986) (affirming district court’s exclusion of cumulative evidence).

Appellant also argues that the district court erred by “ignoring” the guardian ad litem’s recommendation that respondent’s visitation be permanently modified to permit only supervised visits.  The court may consider a guardian ad litem’s recommendation.  See Foster v. Brooks, 546 N.W.2d 52, 54 (Minn. App. 1996) (trial court has extensive discretion in deciding visitation questions); cf. Minn. Stat. § 260C.193, subd. 2 (2000) (stating that in child protection matters court “may” consider any report or recommendation); Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (reversing visitation restriction where court’s findings were “based almost solely” on child protection’s recommendations).  Even though the district court was at liberty to disregard the guardian ad litem’s recommendations, the district court stated that it would review the guardian ad litem’s recommendation and, as evidenced by its findings, it did.  Moreover, although the district court chose not to follow all of the guardian ad litem’s recommendations, it continued the no-contact order as recommended by the guardian ad litem.  Therefore, the district court acted within its broad discretion.