This opinion will be unpublished and

may not be cited except as provided by

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








In the Matter of the Welfare of:  T.M.G., T.L.G.


Filed August 20, 2002


Robert H. Schumacher, Judge


Ramsey County District Court

File No.  J9-99-551620; J1-00-551716    



Dale C. Nathan, Nathan & Associates, 1230 Eagan Industrial Road, Suite 150, St. Paul, MN 55121-1286 (for appellant mother)


Susan Gaertner, Ramsey County Attorney, Kathryn M. Eilers, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102 (for respondent Ramsey County)


Paul W. Bergstrom, Juvenile and Family Services Center, 25 West Seventh Street, St. Paul, MN 55102 (for guardian ad litem)


            Considered and decided by Toussaint, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Mother appealed from district court's denial of her motion to modify custody of T.M.G.  Mother's initial appeal (C8-02-157) was from district court's initial order, and Mother subsequently appealed (C2-02-445) from district court's order denying motion to vacate initial order.  These two appeals were consolidated by order of this court.  We affirm.


            Appellant ("Mother") is the mother of T.M.G. and three other children.  In late 1999, Mother's former partner allegedly sexually assaulted T.M.G. and some of the other children.  In October 2000, the district court ordered T.M.G. placed in long-term foster care.  T.M.G. was originally placed in a metro-area foster home, but in January 2001, she was moved to a group home facility approximately 200 miles from Mother's current residence in St. Paul. 

            In November 2000, the county psychologist evaluated T.M.G.  Although the psychologist determined that T.M.G. most likely needs counseling, T.M.G. has remained unreceptive.  In an effort to regain custody of her children, Mother has received counseling since September 2000.  There is some evidence that she may be making some progress.  On December 3, 2001, Mother brought a motion before the district court for a guardian ad litem to be appointed for T.M.G., to order the county to formulate a plan for reuniting Mother with T.M.G, and for other relief.  Mother did not request an evidentiary hearing on the issue of returning T.M.G. to her custody, but did ask for an evidentiary hearing on another issue – whether T.M.G. should be temporarily placed in a certain local shelter home pending placement in an area foster home.  The county responded that Mother had to show changed circumstances under the appropriate statute for a change of custody to occur.   The motion was heard on December 19, 2001.

Before the district court ruled on the December 3rd motion, Mother filed a Notice of Emergency Motion, on January 4, 2002, requesting an order "granting [Mother] the right pursuant to Minn. Stat. § 260.201, subd. 6 to (1) show a substantial change of circumstances that justifies a review of the order filed October 26, 2000 that placed [T.M.G.] in permanent foster care placement * * * ."  Mother did not ask for an evidentiary hearing on this issue.

In an order filed on January 17, 2002, the court noted that Mother had filed a second motion.  The order granted some of the relief Mother requested, including appointing the guardian ad litem and ordering the county to provide a copy of the psychological assessment of T.M.G.  The court denied Mother's other requests including her request for an evidentiary hearing on the temporary placement.  The court concluded that it would not be in T.M.G.'s best interests to change the present custody arrangement and that Mother had not adequately demonstrated a substantial change in circumstances warranting a change in custody.  The court's order also indicated that the "emergency motion" was addressed in this order, covered the same matters as the prior motion, and no hearing would be held on this emergency motion. 

On January 24, 2002, Mother filed another motion, asking the district court to vacate its January 17th order and to grant an evidentiary hearing on the change in circumstances and modification of custody issue.  On January 30, 2002, Mother filed a Notice of Appeal with this court, appealing the district court's January 17, 2002 Order. 

On February 28, 2002, the district court held a hearing on Mother's January 24, 2002 motion to vacate.  On March 5, 2002, the district court issued an order denying Mother's motion.  Mother appealed that decision.  By order of this court, the two appeals have been consolidated.  


1.  This court has applied an abuse-of-discretion standard to a district court’s decision to dismiss a modification petition without holding an evidentiary hearing.  Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).  The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based.  Minn. Stat. § 518.185 (2000).  In deciding whether to hold an evidentiary hearing on a motion to modify custody, the district court must accept the facts in the moving party’s affidavit as true.  Geibe, 571 N.W.2d at 777.  The district court may also consider the affidavits of other parties to the proceedings and evidence from sources other than the moving party, however.  Id.  If the moving party’s affidavit does not allege facts establishing a change of circumstances that, if true, would provide sufficient grounds for a modification, the court need not grant an evidentiary hearing.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).

To obtain an evidentiary hearing on a motion for modification of custody, the moving party must establish four elements of a prima facie case:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers her physical or emotional health or emotional development; and (4) the harm to the child likely to be caused by the change of environment is outweighed by the advantage of a change. 


Geibe, 571 N.W.2d at 778 (citation omitted).  The district court concluded that mother had not met her burden of establishing a prima facie case.

            Mother points to a number of items placed before the district court with her moving papers as indicating the prima facie case calling for an evidentiary hearing.  Mother submitted an affidavit with her moving papers.  This affidavit is of virtually no probative value on the issue of a change in circumstances.  The affidavit mostly involves Mother's dissatisfaction with the county and the guardian ad litem and Mother's accusations regarding the individuals working for the county.  Many of these accusations involve conduct relating to Mother's son, and are not relevant to the motion regarding T.M.G.   The only probative information in Mother's affidavit involves averment #22: that she is working full time, taking parenting classes "in which [she is] doing well," and that she continues to receive therapy from her psychologist.  Mother also submitted unsworn letters from therapists at the Christian Recovery Center discussing her therapy sessions and her psychological situation.

            The district court did not abuse its discretion by concluding that Mother had not made a prima facie case for custody modification under the statute.  The evidence Mother provided – even with the letters from the therapists – focuses on the progress she has made in dealing with her many, and significant, problems.  Mother's progress does not necessarily lead, however, to the conclusion that Mother is ready to parent T.M.G. or, more critically, that such a modification of T.M.G.'s custody would be in the child's best interests.  The district court could certainly conclude, based on all the evidence before it, that Mother was not in a position to meet the statutory requirements for a modification even with an evidentiary hearing.   See Geibe, 571 N.W.2d at 777 (court must accept moving party's evidence as true, but may also consider evidence from other sources).  The district court determined that Mother had not made the prima facie showing for a modification under the statute such that an evidentiary hearing was appropriate.  This was not an abuse of discretion.

            2.  Mother also argues that the district court was required to receive and consider the guardian ad litem's report before ruling on her motions.  Mother cites no authority for this claim, but argues that it is a necessary deduction from the statute requiring the district court to appoint a guardian for the child in these matters.  Minn. Stat. § 260C.163, subd. 5(a) (2000) states that the district court is to appoint a guardian ad litem to protect the interests of the minor in every proceeding alleging a child's need for protection.  The statute does not provide, however, that the court must receive a report from the guardian prior to making a particular ruling or decision.  Respondent asserts that no such requirement exists, Mother did not make this specific request in the district court, and in any event, the district court specifically noted on the record that it had received and reviewed the guardian's report as of the time of the "emergency motion" hearing on February 28, 2002. 

No authority exists for Mother's claim that the district court is required to receive and consider the guardian's report.  In any event, we note that the record clearly indicates the district court reviewed that report prior to issuing its March 5, 2002 Order on appeal here.  The issue is moot.  See Weigel v. Miller, 574 N.W.2d 759, 760 (Minn. App. 1998), (an issue is moot when intervening events make a decision unnecessary or effective relief impossible).  In this case, even if Mother's argument is accepted, this court would only be remanding with instructions for the district court to receive and review the guardian's report – events which have already transpired.