This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Custody of: C.L.M.C.
Victoria Dukes, petitioner,
Julie A. Corbin,
Hennepin County District Court
File No. MF260200
Wright S. Walling, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for respondent)
Deborah A. Randolph, P.O. Box 19590, Minneapolis, MN 55419 (guardian ad litem)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this third-party child custody dispute, the biological mother argues that the district court erred in denying her requests for continuances, misapplied the legal standard for third-party custody determinations, and improperly weighed testimony. She also argues that the district court abused its discretion in its award of supervised parenting time. Because the district court properly applied the law and exercised its discretion, we affirm.
Respondent’s motion to supplement the record is granted.
When Corbin was pregnant with C.L.M.C., she moved in with her mother and stepfather, Martha and Richard Williams. There, she met respondent Victoria Dukes, who was employed in Martha Williams’s home-based business.
Dukes and Corbin became good friends. When C.L.M.C. was born in January 1998, Dukes helped care for C.L.M.C. Although Corbin functioned well before and immediately after C.L.M.C.’s birth, her condition began to deteriorate four weeks later when she stopped taking her psychotropic medications. Corbin was hospitalized, and C.L.M.C. was placed at St. Joseph’s Home for Children. Shortly thereafter, C.L.M.C. was retrieved from St. Joseph’s and placed in Dukes’s care. When Corbin was released from the hospital and returned to her mother’s home, Dukes continued to provide care for C.L.M.C.
Corbin was hospitalized for mental health reasons twice in 1999 and twice in 2000. During these hospitalizations, C.L.M.C. stayed with Dukes. One hospitalization occurred in June 2000, after Corbin and C.L.M.C. traveled to Florida to visit Corbin’s second child. When they returned to Minnesota, Corbin was out of control and talking non-stop to non-existent people. She was hospitalized the next day, and Dukes cared for C.L.M.C. Dr. Dennis Philander, Chief of Psychiatry for North Memorial Medical Center, recommended that Corbin obtain residential treatment, which she declined. C.L.M.C. stayed with Dukes for approximately five more weeks until Corbin retrieved C.L.M.C. from Dukes’s home. At this time, Dukes, Corbin, and Williams began discussing C.L.M.C.’s future care. They agreed to appoint a guardian ad litem, Deborah Randolph, but were unable to agree on a visitation plan.
Dukes petitioned for custody on August 21, 2000. For a period, Corbin allowed Dukes frequent visitation, but in March 2001, she discontinued Dukes’s access to the child. The parties attempted mediation and eventually stipulated that Dukes could resume visitation and that C.L.M.C. could undergo early-childhood-development testing. On June 8, however, Corbin and C.L.M.C. traveled to Florida again, and Corbin reneged on the stipulated matters.
While Corbin was in Florida, Martha Williams heard from C.L.M.C.’s paternal grandmother that C.L.M.C. was in distress and at risk because Corbin was “beginning to be out of control.” The paternal grandmother “had grave concerns for her granddaughter’s physical and emotional safety.” Williams told Randolph, who asked the court to issue an order (1) requiring Corbin to return to Minnesota and to undergo psychiatric testing; (2) requiring C.L.M.C. to undergo early-childhood-development testing; (3) resuming contact between Dukes and the child; and (4) requiring an emergency investigation of the Florida situation. The court issued a June 19 order placing the child in Dukes’s temporary custody. On June 21, 2001, however, Dukes moved for temporary physical custody of C.L.M.C. because Corbin had refused to obey the June 19 order by taking C.L.M.C. to a church and leaving her there. Despite the June 19 order, the police had placed C.L.M.C. at St. Joseph’s. The court’s June 21 order released C.L.M.C. into Dukes’s custody and provided for two supervised visits by Corbin each week, followed by unsupervised and additional visits to be determined in the child’s best interests. After the first of these visits, Randolph reported that Corbin’s erratic driving, apparently while speaking in tongues to a friend, left the child agitated, confused, and scared.
Corbin’s supervised visits with C.L.M.C. ended on January 30, 2002. Dr. Shea, C.L.M.C.’s therapist, had seen C.L.M.C. on January 31, 2002, and he was “most alarmed by the extreme degree of continuing upset and distress which [he] observed” in the child. He noted that the child “ha[d] shown serious upset and various negative aftereffects following a number of previous meetings with [her mother] but none ha[d] resulted in this degree of distraught and disturbed emotionality” in the child. His decision to discontinue visits was also based on Randolph’s reports that the child had “shown continuing frequent and severe symptoms and signs of being distressed, frightened, confused, and post-traumatic.” The pattern of the child’s trauma led Shea to conclude that it resulted from Corbin’s visits. On March 22, 2002, Corbin, pro se, moved for immediate reinstatement of visitation.
The trial was scheduled for April 2002, and Corbin’s requested continuances were denied. Corbin proceeded pro se in the trial, held April 18 and 29, 2002.
Leslie Faricy, the parties’ stipulated psychologist, provided a court-ordered psychological evaluation of Corbin to assess her ability to parent C.L.M.C. She reviewed more than one hundred documents relating to Corbin’s mental health and history. Faricy noted Corbin’s relationship with her other children, her need for supportive people in her life, and her estrangement from many of the family members who had provided support in the past. In the evaluation, Corbin minimalized past events, was reluctant to cooperate, and was defensive. Faricy observed that Corbin’s boundaries are “fluid” and not always appropriate. Faricy concluded that Corbin’s psychosis is currently managed by her medication, but that she still has primitive ideation, which can intrude even with proper medication.
Addressing parenting specifically, Faricy noted that the younger the child, the more vulnerable that child is to a parent’s unusual and erratic behavior. If immediate support for the child is available, it can mitigate the potential damage from a parent’s psychotic episode. Faricy questioned Corbin’s ability to put parenting principles into practice, particularly when they interfere with her own wants and needs. Faricy concluded that she could not recommend that Corbin have custody.
Michael Shea, licensed psychologist and C.L.M.C.’s therapist, had worked with C.L.M.C. every week since July 2001. He concluded that Corbin and the child should have only supervised contact. He noted that Corbin “has stated that she has fantasies of killing herself and [the child] because she believes this could be the best thing for [C.L.M.C.] and herself.” With regard to supervised visitation, Shea stated that “the limits, supports and boundaries on [the mother and child] interaction are a source of comfort and security to the child.” When the rules and boundaries are breached, the child suffers. Shea opined that Corbin’s parenting problems cannot be remedied with parenting classes. In contrast, he described the healthy, harmonious relationships C.L.M.C. has with Dukes and her maternal grandmother, as well as the invitations they extend to Corbin to join family gatherings.
Corbin’s psychologist, Francis Pasnecker, had seen Corbin for one hour every two weeks since her July 2000 hospitalization. He assessed her as “exhibiting anxiety disorder with schizoaffective symptomatology.” On May 9, 2001, he opined that Corbin’s “mental illness does not present a real impairment in her parenting abilities.” He had observed C.L.M.C. at some sessions and he thought Corbin’s “attachment to her daughter to be strong, appropriate, and easily reciprocated.” He noted that he, Corbin’s social workers, and her AIDS case manager provide an excellent support system. He concluded that removing the child from Corbin’s care would constitute “an extreme, egregious action” and a change of custody “based on concerns about Ms. Corbin’s ability to handle her mental illness is not warranted at this time.”
Corbin’s witness, Seymour Gross, reviewed records of Corbin’s hospitalization in June 2000, met with Corbin for two 90-minute sessions, and reviewed two psychological tests. He did not observe the child at all and had no contact with anyone else involved in the custody matter. He last saw Corbin on July 12, 2001. He opined that “as long as Ms. Corbin continues to take her medication and follows with the psychotherapy and other support services, that she would then be able to provide parenting for her child.”
Corbin’s witnesses also included Claudia Mendez, a clinical psychologist who visited Corbin to offer independent-living assistance. By the time of the trial, she had been to Corbin’s residence approximately 40 times, but she had not seen C.L.M.C. since July 2001. She did not observe anything that she would have considered dangerous. Caroline Gunderson, a nurse, testified that she had visited Corbin weekly since July 2000 to monitor medication compliance and was able to reduce visits when Corbin was in compliance. She had no opinion about the child’s condition. C.L.M.C.’s Head Start teacher also observed that in the two or three days per week that the child came to school, she came clean, appropriately clothed, and with her book bag packed appropriately.
C.L.M.C.’s guardian ad litem observed that Corbin has not had custody, care, or control of the child since her birth “at any sustained period of time without extensive community services to help her.” She agreed with Dr. Shea and Dr. Faricy’s conclusions that Corbin should not have custody. She witnessed a number of visits between Corbin and the child and, since the visits ceased, has seen “the anxiety [she] witnessed on [C.L.M.C.’s] face when she was in her mother’s care” disappear. She concluded that Dukes should have custody, but that therapeutic visitation should commence immediately.
Corbin, pro se, filed her notice of appeal on July 22, 2002. Subsequently, she was granted in forma pauperis status and now is represented by counsel. On October 28, 2002, Dukes moved to supplement the record with the district court’s October 2 two-page memorandum.
Corbin argues that the district court awarded custody to a third party without establishing the requisite “extraordinary circumstances.”
In custody disputes, the presumption favoring the biological parent “can be overcome only by evidence evincing the existence of extraordinary circumstances of a grave and weighty nature showing that the best interests of the child require” that the biological parent be denied custody. In re Custody of N.A.K., 649 N.W.2d 166, 175 (Minn. 2002). The N.A.K. court reviewed the same precedent that the district court reviewed in this case, Durkin v. Hinich, 442 N.W.2d at 153; Wallin v. Wallin, 290 Minn. 261, 264-65, 187 N.W.2d 627, 629-30 (1971); and In re Hohmann, 255 Minn. 165, 95 N.W.2d 643 (1959), and concluded that it has made “clear that ultimately the welfare of the child is the umbrella under which every aspect of custody decisions—including the parental presumption—falls.” N.A.K., 649 N.W.2d at 175. “While the law does not require that the district court use the words extraordinary circumstances or ‘grave and weighty reasons,’”
the court’s findings of fact and conclusions of law must clearly take into account that the right of a parent to custody is ‘paramount and superior to a third person,’ but ‘must always yield to the best interest of the child’ when such extraordinary circumstances exist.”
Id. at 177 (quotation omitted) .
The district court did not use the words “grave and weighty” in its July 12 order, but it opined in its post-N.A.K. order that its reasons were such. Because the post-N.A.K. order simply referred back to the court’s July 12 findings, it was superfluous but also non-prejudicial, so we grant respondent’s motion to supplement the record. See Evans v. Blesi, 345 N.W.2d 775, 780 (Minn. App. 1984) (appellate court may take cognizance of subsequently filed order for insight it may afford even though order is of no effect), review denied (Minn. June 12, 1984).
Clearly, grave and weighty circumstances are reflected throughout the court’s findings, including (1) C.L.M.C.’s nightmares and other serious symptoms of distress after contact with Corbin; (2) Shea’s deep concern and strong opposition to reunification of mother and child; (3) Corbin’s inability to provide any care to the child when she becomes episodic and the inferior care she has provided even when she is not episodic; and (4) the negative impact that Corbin’s behavior has on the child during supervised visitation. The findings contain additional specific facts supporting these general circumstances.
We conclude that the court, in its July 12 order and findings, followed the law and applied the proper standard for a third-party custody dispute as stated in N.A.K. The district court granted Dukes custody after specifically concluding that “the present case presents one of those extraordinary circumstances where the biological parent should not prevail,” and that Dukes could “by and far better advance the child’s best interests.” Because the court stated and applied the correct legal principles, it did not err.
There are grave and weighty circumstances in this case, similar to those in Durkin v. Hinich, 442 N.W.2d at 153, that justify overcoming the presumption in favor of the natural parent. Corbin initially approved of Dukes’s relationship with the child. At the time of trial, the experts with the most regular contact with C.L.M.C. agreed that she was suffering and would continue to suffer from contact with Corbin, and the witnesses closest to C.L.M.C. agreed that the child’s nourishment, social skills, and confidence were all significantly improved in the Dukes home. Therefore, the court’s findings were not clearly erroneous
Weighing of Testimony and Evidence
Corbin attacks the district court’s credibility determinations, arguing that if the court had properly weighed the evidence, it likely would have reached a different conclusion on custody.
The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000). The record reflects the court’s careful and express consideration of the factors affecting credibility. The court considered the limitations inherent in the opinions of those evaluators who had not had regular, frequent contact with the child over the relevant time period or who had more personal contact with Corbin than with the child. The memorandum, taken as a whole, reflects well-considered and weighed facts. The court did not abuse its discretion in making its findings on the credibility of the evidence.
Corbin argues that the restrictions on her visitation with the child are unreasonable and have the effect of terminating her parental rights.
The district court has broad discretion in deciding visitation questions and will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). The district court followed Shea’s recommendation that one visit per month be supervised by him or another trained therapist. Shea testified that the rules had not been followed at prior visitations, which resulted in a devastating effect on the child. While the expense and infrequency of that type of visitation will be very difficult for Corbin, Dukes’s attorney represented that Dr. Shea has shown a willingness to work with Corbin. Corbin can also have contact at family functions and telephone contact as directed by Shea. This is consistent with the best-interests finding that the child’s support system is the Dukes/Williams family. Additionally, to protect Corbin’s interests, the court specifically ordered that Shea “make every effort to facilitate the Court’s goal of increasing the frequency and duration of contact between [Corbin] and the minor child.” The court also stated in its order that the resumption of more contact between the mother and child will be a “fluid” one and that the court will continue to monitor the case and be “vigilant in its pursuit of reconciliation” between the mother and child. The court’s order was not an abuse of discretion and clearly left the door open for increased visitation and even a future petition for change of custody.
Corbin argues that the court failed to order a custody evaluation when one was clearly warranted.
Whether to order a custody evaluation is within the discretion of the district court, and, the court’s decision will not be reversed absent an abuse of discretion. J.W. v. C.M., 627 N.W.2d 687, 696 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001); Meyer v. Meyer, 375 N.W.2d 820, 827 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).
In contested custody proceedings, and in other custody proceedings if a parent or the child’s custodian requests, the court may order an investigation and report concerning custodial arrangements for the child.
Minn. Stat. § 518.167, subd. 1 (2000).
The record indicates that the parties, with their attorneys, agreed to proceed with neutral professional evaluations at Dukes’s cost rather than use the slower process of a court-ordered custody evaluation. In any case, given the quantity and quality of the evaluations presented, we cannot agree with Corbin’s assertion that they were inadequate or that a court-ordered study would have been more comprehensive. Therefore, the court did not abuse its discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.