This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-2239

 

Cyril Ibhagbosoria Aburime, petitioner,

Appellant,

 

vs.

 

Becky May Aburime,

Respondent.

 

Filed August 13, 2002

Reversed and Remanded

Randall, Judge

 

Hennepin County District Court

File No.: 197732

 

 

Cyril Ibhagbosoria Aburime, 9142 Tyne Lane, Inver Grove Heights, MN 55077 (pro se appellant)

 

Becky May Aburime, 4034 28th Avenue South, Minneapolis, MN 55406 (pro se respondent)

 

 

Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Foley, Judge.*


U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

Appellant challenges a district court order denying appellant's motion for a change in custody, alleging that the district court erred in not allowing him to cross-examine the author of a custody-evaluation report and that the district court failed to make the required statutory findings. We agree, and reverse and remand for rehearing.

FACTS

In September 1994, the district court issued findings of fact, conclusions of law, and order for judgment, which awarded joint legal and physical custody of the minor children to the parties. In September 2000, appellant filed a motion for temporary physical custody of the children alleging child endangerment. Following a September 7, 2000, hearing the district court issued an order finding that the children were in immediate danger and awarded appellant temporary sole physical custody. A court-ordered post-judgment custody-evaluation report was completed in April 2001 by social worker Nancy Darcy. The district court issued an order dated July 13, 2001, dissolving the temporary custody order and reinstating the custody arrangements under the dissolution judgment. In making this determination, the district court relied on the custody report.

On July 18, 2001, appellant motioned the court for a change in custody of the parties' three minor children, requesting that he be granted sole legal and physical custody of the children. Appellant alleged that joint physical and legal custody arrangement was not in the best interests of the children because of respondent's inadequate supervision of the children. At a custody hearing held on August 28, 2001, appellant requested that he be allowed to cross-examine the social worker who prepared a custody evaluation report and the district court denied appellant the opportunity to cross-examine her. As part of the hearing, the court asked the social worker, who was present in the courtroom, if she had anything further to add to her report, to which she replied that she did not.

The district court then denied appellant's motion for a change of custody, first citing to the previous July 13, 2002, order and then finding that appellant had not proved a significant change in circumstances. This appeal follows.

D E C I S I O N

Appellant Cyril Ibhagbosoria Aburime argues that the district court erred in not allowing him to cross-examine the author of custody evaluation report at a hearing held on August 28, 2001, regarding his motion for a change of custody. The preparer of the report had been properly subpoenaed and was present in court.

Minn. Stat. 518.167 (2000) governs reports regarding custody arrangements for children. Subdivision 4 provides that an investigator's report may be received into evidence. Subdivision 3 states in part:

A party to the proceeding may call the investigator and any person whom the investigator has consulted for cross-examination at the hearing. A party may not waive the right of cross-examination before the hearing.

 

Minn. Stat. 518.167, subd. 3.

The Minnesota Supreme Court decision VanZee v. VanZee is instructive. VanZee v. VanZee, 302 Minn. 371, 226 N.W.2d 865 (1974). The court concluded that when a report is used as a basis for a custody determination it must be available to counsel and that the "report may be used as a basis for cross-examination of those who have written the report." Id. at 375, 226 N.W.2d at 867 (citations omitted). The court in Scheibe v. Scheibe again addressed the issue of the right to cross examine the author of a custody-evaluation report and stated that a district court can not base its "custody decision in part upon such a report without first giving the parties an opportunity to cross-examine the author of the report or to otherwise meet or answer adverse facts therein." Scheibe v. Scheibe, 308 Minn. 449, 450, 241 N.W.2d 100, 100 (1976) (emphasis added) (citations omitted).

VanZee and Scheibe state clearly that the parties to a custody proceeding must have the opportunity to cross-examine the author of the report if the district court relied on it when making a custody determination. In this case, appellant subpoenaed the social worker who wrote the report. She complied with the subpoena. She was present at the custody hearing held on August 28, 2001. The district court asked her questions. At that hearing, appellant requested that he be allowed to cross-examine the social worker. In response to the district court's question about why he wanted to cross-examine the social worker, appellant replied that he wanted to question her on some of the errors contained in the custody report. The district court refused, stating that it was "not going to take further evidence until I decide that an evidentiary hearing is appropriate and I haven't decided that." Toward the end of the hearing, the court addressed the evaluator and asked if she had anything to add to the report, to which she responded no.

The record shows that the district court relied on the evaluator's report when it made the decision to return custody of the children to respondent. On this record, appellant had an unqualified right to call and cross-examine the evaluator regarding her report. Appellant makes several claims of inaccuracy in the evaluator's report, including an alleged error about his having a prior conviction, and an unsubstantiated claim that he had sexual contact with a minor. The merits, or the non-merits, of appellant's claim that the evaluator's report was inaccurate are not the issue. The issue is his unambiguous statutory and caselaw right to subpoena and cross-examine the preparer of a report, which report is to be received into evidence and used by a district court judge in a setting where consequences to one of two parties will be adverse.

Because appellant was not allowed to question the evaluator about information adverse to him contained in her report, we reverse the district court's custody order and remand for a rehearing. On remand, the court shall allow appellant to call and cross-examine the evaluator who prepared the custody report.

Because we find the issue of the district court's denial of appellant's right to cross-examine the author of a custody report dispositive, we do not address appellant's argument that the district court failed to make detailed findings on each of the factors to be considered in determining child custody.

Reversed and remanded.



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