This opinion will be unpublished and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

C3-01-2100

 

In re:  Rebecca Marie Welker, petitioner,

Respondent,

 

vs.

 

John Charles Welker,

Appellant.

 

Filed September 3, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Wright County District Court

File No. F4991969

 

 

Sarah J. Shella-Stevens, Erin E. O'Toole-Tomczik, Central Minnesota Legal Services, 830 West St. Germain Street, Suite 309, P.O. Box 1598, St. Cloud, MN 56302 (for respondent)

 

John L. Tambornino, 10285 Yellow Circle Drive, Minnetonka, MN 55343 (for appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge,* and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

            Father appeals the district court’s denial of his visitation rights with his four-year-old daughter H.M.W.  He argues that the district court erroneously admitted in evidence a videotaped interview of H.M.W. with a social worker.  He further argues that the district court’s findings of sexual abuse and child endangerment are unsupported by the evidence.  We affirm.

FACTS

            H.M.W. first talked about being sexually abused by father-appellant John Charles Welker while she and mother-respondent Rebecca Marie Welker stayed at a women’s shelter following a domestic-abuse incident in August of 1999.  At trial, mother testified that H.M.W. told her that father did “some bad things to her,” “things that dads shouldn’t do to daughters,” and that he

stuck his finger up her butt, the front and the back, and that she told him to stop.  And he just said he could do whatever he wanted.

 

Upon hearing this, mother immediately took H.M.W. downstairs to meet with a night-security advocate so that H.M.W. could repeat her statements to a third party.

            The night-security advocate and H.M.W. went to a separate room and talked there for about 20 minutes.  At trial, the advocate testified that H.M.W. said that father “puts his dirty, oily hands on [her] legs” and that she “[didn’t] like that.”  Following this conversation, the advocate, mother, and H.M.W. went back to the room to talk. At that time, H.M.W. whispered something to mother, and mother said out loud that it would be all right to tell the advocate.  Then H.M.W. said that father had “stuck his finger up her butt,” that “it hurt,” and that she told father “not to do that.”  The advocate prepared a report and forwarded it to child protection at the Wright County Sheriff’s Office.

            About a week after leaving the shelter, H.M.W. revealed something to mother again.  Mother testified that she observed H.M.W. “laying on the bed” and “thrusting up and down, like making a * * * sexual type movement.”  When she asked H.M.W. what she was doing, H.M.W. responded that is what father did to her.  Mother immediately called the women’s shelter and asked another women’s advocate to talk to H.M.W.

            At trial, the women’s advocate testified that she talked to H.M.W. over the phone for about ten minutes.  At first, H.M.W. talked about puppies and kittens and said that she wanted to have a puppy.  When the advocate asked her if there was anything else she wanted to tell her, H.M.W. told her that father “puts his oily hands on her butt,” that he “pumps on her,” and that “she’s very scared of him.”  The advocate also testified that mother explained to her that when H.M.W. talked about “pumps,” she made a motion of “her dad being on his stomach and thrusting like up and down like he’s having sex.”

            On August 23, 1999, a senior social worker with Wright County Child Protection conducted a video interview with H.M.W.  The interview took place in a specially set up room at Wright County Human Services.  There was a detective in the adjoining room, and the conversation was videotape-recorded while the detective watched it on a monitor.  Mother was not present at the interview but could observe H.M.W. through a two-way mirror.  The tape was received into evidence and played before the district court.

            During the video interview, the social worker first had H.M.W. identify people in her family.  H.M.W. said that there were four people in her family: mother, father, her baby brother S.D.C.W., and herself.  H.M.W. stated that father no longer lived with them because he and mother fought.  The social worker showed H.M.W. pictures of a male and a female body and asked H.M.W. to identify various body parts.  It was established that H.M.W. used the word “butt” to describe vagina, penis, and buttocks.  The social worker asked H.M.W. where it was not okay to touch her.  H.M.W. indicated that it was not okay to touch her anywhere but her feet.  The social worker asked repeatedly whether anybody did to her anything that was not okay.  H.M.W. repeatedly said that no one did.  The social worker asked H.M.W. whether anybody, including father, mother, or her baby brother, touched her on her “butt.”  H.M.W. consistently denied that anyone did.[1]  Finally, the social worker asked whether H.M.W. told mother about things that happened.  At that point, H.M.W. said that she did so at the shelter.  H.M.W. started whispering something to the social worker.  Even though repeatedly asked by the social worker to speak up, H.M.W. refused to say out loud what had happened, but she consistently showed on the pictures and anatomically correct dolls how father used his finger to touch her “butts.”  At some point, H.M.W. grabbed the social worker’s finger and pointed to the “butts” on the pictures to demonstrate where father put his finger on her.  H.M.W. continued whispering, but audibly said that when father did this to her, it made her feel mad and that she pulled father’s shirt.  During this time, H.M.W. started hitting the “butt” areas on the drawing with her hand.

            The social worker prepared a report based on the protection assessment she conducted, including her interview with H.M.W., conversation with mother, and review of reports of abuse.  Mother filed and was granted an order for protection based on allegations of sexual abuse.  Wright County pressed criminal charges against father, but the jury acquitted him of all of the charges.  H.M.W. has attended therapy since January 2000, as a result of the alleged sexual abuse by father.

            The district court, in the dissolution matter, appointed a custody evaluator to conduct a custody investigation.  In her report, filed with the court, the custody evaluator recommended that father and H.M.W. should start doing therapeutic visitation.  At trial, the custody evaluator testified that she based her custody report on the child-protection report, character references, the police report, and interviews with both parents.  She also stated that she did not view the actual video of H.M.W.’s interview with the Wright County social worker until after she filed her report with the court.  However, at trial, the custody evaluator testified that, after viewing all of the evidence, she would hesitate to recommend therapeutic visitation and instead would recommend that there be no visitation because of her concern for H.M.W.’s safety.  She also stated that father could start supervised visitations with H.M.W. after going through a men’s domestic-abuse group or anger-management classes.  The custody evaluator further testified that, even though father was found not guilty at the criminal trial, there was still enough evidence for her to be concerned for H.M.W.’s safety and that it would be very traumatic for H.M.W. to see father at this time.

            The district court appointed a guardian ad litem for the children in the dissolution proceeding.  In her report, filed with the court, the guardian ad litem recommended supervised visitation with the child S.D.C.W., but recommended the court reserve the issue of H.M.W.’s visitation with her father at this time.  At trial, the guardian ad litem testified that she had concerns about the possibility that some sexual contact had occurred between father and H.M.W.

            At the conclusion of the trial, the district court found that H.M.W. exhibited behaviors consistent with having been sexually abused and that father exhibited behaviors that have been and would be injurious to children.  The court specifically found that, considering all of the evidence adduced at trial, father sexually abused H.M.W. in a way that she described on the videotape, to mother, and to witnesses from the women’s shelter.  Father brought this appeal on December 3, 2001.

D E C I S I O N

 

            Father challenges the district court’s findings that he sexually abused his daughter H.M.W. and further claims that the district court improperly denied his visitation with H.M.W. based on these findings.  Our review of the district court’s findings with respect to father’s visitation rights is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  See Courey v. Courey, 524 N.W.2d 469, 471-72 (Minn. App. 1994) (stating that, although visitation determinations are a question of law, other visitation questions, such as whether a child is likely to be endangered, are reviewed under an abuse-of-discretion standard).  A district court’s findings of fact with respect to visitation determinations will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01; Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).  Our review in this case, therefore, is focused on whether the district court’s findings that father sexually abused H.M.W. were clearly erroneous. 

I.

            As a preliminary matter, father argues that the district court improperly admitted in evidence the social worker’s videotaped interview of H.M.W.  Whether to admit evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  To preserve evidentiary issues for appellate review, parties must make timely objections during the course of the trial.  In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990).  When the district court inquired whether father had any objections to the video, he specifically responded, “No. As a matter of fact, no.”  By failing to object, father waived any error.  See Herbst v. Suilman, 259 Minn. 292, 293, 107 N.W.2d 45, 46 (1961) (stating this rule). 

            Furthermore, father not only failed to object, but also he actively used the videotape to attack H.M.W.’s credibility.  Father specifically challenged the statements regarding sexual abuse that H.M.W. made to mother and other witnesses, which have been admitted in evidence.  We find that the videotaped interview could have been offered and admitted as a prior inconsistent statement under Minn. R. Evid. 806.  The rule specifically provides:

            When a hearsay statement, *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness.  Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.

 

Minn. R. Evid. 806 (emphasis added).  Had H.M.W. testified during the trial, the videotape would have been admissible to challenge her credibility.  See State v. Carroll, 639 N.W.2d 623, 626 (Minn. App. 2002) (stating district court properly admitted inconsistent tapes in evidence for impeachment purposes), review denied (Minn. May 15, 2002).  Here, although H.M.W. did not testify, the videotape was admissible under Minn. R. Evid. 806 to challenge H.M.W.’s hearsay statements to other witnesses, which were admitted in evidence.  Father had been consistently using the videotape for impeachment purposes.  He may not use the evidence, to which he did not object during the course of the trial, and then turn around and claim on appeal that it was improperly admitted.

II.

Next, father argues that there was insufficient evidence to support the district court’s finding that he sexually abused H.M.W.  The district court determined that father sexually abused H.M.W., relying on H.M.W.’s descriptions on the videotape, to mother, and to witnesses from the women’s shelter.  Father principally challenges the credibility of the witnesses. We defer to the district court's determinations regarding credibility of witnessesand to findings that are supported by the record.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

H.M.W. described the alleged sexual abuse to mother, to a night-security advocate at the women’s shelter, to another advocate at the shelter, and to a social worker, all of whom testified without objection at the trial.  The district court’s findings that father sexually abused H.M.W. were not clearly erroneous because they were supported by sufficient evidence.  See In re Welfare of the C. Children, 348 N.W.2d 94, 97 (Minn. App. 1984) (holding that even though trial court’s findings were not particularly specific, they were sufficient when supplemented by the record).

III.

The district court must restrict or deny parenting time entirely if it finds that “parenting time with a parent is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.”  Minn. Stat. § 518.175, subd. 1 (2000 & Supp. 2001).  The trial court has broad discretion in the area of visitation, and its determination will not be overturned absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The district court specifically found that father sexually abused H.M.W. and that contact with father would endanger H.M.W.  The fact that father was acquitted of criminal charges did not automatically reinstate his visitation rights.  The standard of proof in criminal cases is higher than the standard that must be met to restrict visitation rights.  See Courey, 524 N.W.2d at 474 (Mansur, J., concurring).  The court also found that father’s behavior exhibited “irresponsibility, immaturity, anger issues, hysteria, and fixation with re-establishing his reputation.”  Because the evidence in this case supports a finding of abuse, the court properly found the requisite endangerment and did not abuse its discretion in denying father’s visitation.  Moreover, the district court’s order is not a permanent denial of father’s visitation rights.  The court retains jurisdiction to modify the order under Minn. Stat. § 518.18 (2000 & Supp. 2001); Griffin, 267 N.W.2d at 735.  Thus, father may seek a modification in the future if he can show a genuine basis for such.

IV.

            Finally, father claims that the district court erred by not assisting him in presenting his case.  Father relies on Kasson State Bank v. Haugen, in which we stated that a

[district] court has a duty to ensure fairness to a pro se litigant by allowing reasonable accommodation so long as there is no prejudice to the adverse party.

 

410 N.W.2d 392, 395 (Minn. App. 1987).  Father’s main complaint is that the district court did not tell him how to get a transcript admitted in evidence and that when a guardian ad litem stated that she did not have a résumé, the court did not direct her to recite her credentials, instead, telling father to move on.  This alone is not sufficient to substantiate father’s claim of unfairness.

            The district court in this case made numerous accommodations for father during the trial.  The court explained to father what the court’s function was in the trial, outlined what needed to be done before the trial concluded, recited the factors that it used to determine custody, and explained to father that he needed testimony on those factors.  When father asked for leeway, the court acceded.  The court clarified for father the types of objections and how objections are made and ruled on.  On occasion, the court recessed the trial to allow father to contact a lawyer and get advice.  The district court in this case allowed father great latitude and reasonable accommodations in trying his case.

            Considering the evidence in the record, we hold that the district court did not abuse its discretion in denying father’s visitation with H.M.W. based on the finding of sexual abuse.

Affirmed.

 



* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley’s untimely death before the filing of the opinion, Chief Judge Toussaint has been assigned as a substitute and now joins the panel in issuing this decision.

[1] With respect to this question, H.M.W. did say that mother once touched her “butt” with a wooden spoon to spank her.