This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In the Matter of the Children of: Kimberly Triemert, Steven Fox and John Olson.
Reversed and remanded
Chisago County District Court
File No. J50150783
Glen A. Boyce, Boyce Law Offices, 6349 Main Street, P.O. Box 277, North Branch, MN 55056 (for appellant Steven Fox)
Alfred S. Alliegro, Chisago County Attorney, 313 North Main Street, Room 373, Center City, MN 55012 (for respondent Chisago County Human Services)
Janet Snider, P.O. Box 831, South St. Paul, MN 55077 (Guardian ad Litem)
Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.
In the context of transferring permanent custody of appellant’s minor child from the child’s mother to appellant’s parents (the child’s paternal grandparents), the district court required that appellant move out of his parents’ home and limited appellant’s visitation with his child to supervised visitation. Because the record does not support the requirement of supervised visitation, and because in the context of the proceeding appellant did not have adequate notice that the nature of his visitation was at issue, we reverse and remand.
Appellant Steven Fox is the father of J.M.T. Kimberly Triemert is J.M.T.’s mother. J.M.T. was living with Kimberly Triemert when the police discovered drugs and a loaded handgun in the home she shared with her then boyfriend. Chisago County filed a CHIPS petition, and J.M.T. was placed in the home of appellant’s parents, Gary and Colleen Fox. Because the child’s mother did not comply with her case plan for reunification, the county petitioned for transfer of permanent legal and physical custody of J.M.T. to his paternal grandparents—appellant’s parents. At the time of the hearing, appellant was living with his parents and had unsupervised visitation privileges with respect to J.M.T. The court granted the petition to transfer custody of J.M.T. to appellant’s parents, determined that appellant had engaged in abusive behavior, required him to move out of his parents’ home, and restricted him to supervised visitation.
The hearing did not focus on appellant’s conduct as a parent. He supported transferring custody from Triemert to his parents. However, there were occasional references to appellant. Triemert answered, “Yes,” when asked if she had been in an abusive relationship with appellant, but no other details appear in the record. The child protection caseworker testified that she had restricted appellant’s visitation to supervised visitation after hearing that appellant told J.M.T., “Hurry up or I’m going to kick you in the ass.” The caseworker later changed appellant’s visitation back to unsupervised visitation. J.M.T.’s maternal grandfather testified regarding appellant that “the way he just talks to [J.M.T.] is not correct. It seems so harsh.” The psychological evaluation of J.M.T. states:
[J.M.T.] also demonstrates loyalty to his biological father, and seems to be responding positively to [appellant’s] return to the home. Despite this, he has some disturbing memories of his father’s behavior with his mother.
Following the caseworker’s initial imposition of supervised visits, appellant completed a treatment program for his chemical dependency and depression, and he continued with psychiatric aftercare. The caseworker noted an overall general improvement in attitude and cooperation so that by the time of the hearing, all restrictions on appellant’s visitation had been removed.
There was no other testimony at the custody hearing regarding appellant’s behavior toward either J.M.T. or J.M.T.’s mother. Appellant did not testify at the hearing; in an affidavit filed with the court on September 3, 2002, appellant stated:
We felt that the information provided by the guardian ad litem and the caseworker * * * was more than adequate to show that I am not a threat to the well being or safety of my son[.]
The district court found that it “heard testimony regarding [appellant’s] abusive behaviors toward both Ms. Triemert and [J.M.T.].” The court also found that appellant “did not take the stand to refute allegations of his abusive nature nor did he present any evidence which would do so.” The court went on to comment that it had “concerns that unsupervised visitation between [appellant] and J.M.T. may not be in the best interest of the minor child.” The court concluded that appellant’s visitation should be restricted to supervised visitation two times per week for two hours.
Appellant argues that the district court abused its discretion by restricting his visitation and ordering him to move out of his parents’ home. Appellant also raises a claim of ineffective assistance of counsel.
We first consider whether the district court abused its discretion by ordering that appellant move out of his parents’ home and that he be limited to supervised visitation.
District courts are granted broad discretion to determine what is in the best interests of a child in visitation matters and will not be overturned on appeal absent an abuse of discretion. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). A district court’s findings of fact upon which a visitation decision is based will be upheld unless they are clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978); Crosby v. Crosby, 587 N.W.2d 292, 295 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). This court’s review of questions relating to visitation is limited to “determining whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.” Courey v. Courey, 524 N.W.2d 469, 472 (Minn. App. 1994) (citation omitted).
The best interests of the child is the guiding principle in all child custody cases, including visitation modification. Minn. Stat. § 518.175, subd. 5 (2002) (addressing visitation modification); Pikula v. Pikula, 374 N.W.2d 705, 711 (Minn. 1985) (applying best interests of the child factors in modifying custody). The law reflects the principle that it is generally in a child’s best interests to maintain and strengthen bonds with the child’s natural parents. See Minn. Stat. § 260.012(a) (2002) (requiring that “[o]nce a child alleged to be in need of protection or services is under the court’s jurisdiction, the court shall ensure * * * efforts * * * to reunite the child with the child’s family at the earliest possible time, consistent with the best interests, safety, and protection of the child”).
Appellant argues that the district court did not make adequate findings as required by Minn. Stat. § 518.175 (2002). Specifically, appellant argues that the district court restricted his visitation and was therefore required to make a finding that the child’s physical or emotional health or development was threatened by existing circumstances or a finding that appellant parent had “chronically and unreasonably” failed to comply with a court-ordered visitation schedule. Minn. Stat. § 518.175, subd. 5. But, as evidenced by the district court’s findings, this proceeding was pursuant to Minn. Stat. § 260C.201 (2002). As such, visitation is governed by Minn. Stat. § 260C.201, subd. 5.
Subdivision 5 provides that if a child is placed outside of the child’s home or present residence, the court must set “reasonable rules for supervised or unsupervised parental visitation that contribute to the objectives of the court order and the maintenance of the familial relationship.” Minn. Stat. § 260C.201, subd. 5. The court may not deny a parent visitation unless it finds that the visitation would “prevent the achievement of the order’s objectives or that it would endanger the child’s physical or emotional well-being.” Id.
Here the evidence of appellant’s problems as a father was dated and vague. The record indicates that none of the child protection team suggested that appellant move out of his parents’ home or that appellant’s visitation be restricted to supervised visitation. J.M.T. appeared to be getting along with appellant, and appellant was following through with the terms of his case plan. In addition, appellant was not put on notice that his living arrangement or his unsupervised visitation was at risk. On this sparse record, we cannot determine that the rules set by the district court were reasonable, as required by Minn. Stat. § 260C.201, subd. 5. Moreover, the district court’s findings on the issue do not indicate whether the district court even applied the visitation standard set forth in Minn. Stat. § 260C.201, subd. 5. Accordingly, the district court abused its discretion by restricting appellant’s visitation to supervised visitation and in requiring appellant to move out of his parents’ home.
On remand, the district court should consider whether the restriction of appellant’s parenting time is justified on the basis of the current circumstances. We fully appreciate that, for several reasons, the district court may determine that the restriction of appellant’s parenting time is reasonable. But one or more of those providing social services, the county attorney, the guardian ad litem, or J.M.T.’s grandparents should be providing record support that supervised visitation is necessary and in J.M.T.’s best interest. Such evidence is lacking on the current record.
Next we address whether appellant’s counsel at the hearing was ineffective because counsel did not have appellant take the stand and testify to refute the allegations of abuse.
Minnesota law provides that “[t]he child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.” Minn. Stat. § 260C.163, subd. 3(a) (2002); see also Minn. R. Juv. P. 61.01. To succeed on a claim of ineffective assistance of counsel, a party must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In re Welfare of L.B., 404 N.W.2d 341, 345 (Minn. App. 1987) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).
Appellant argues that to refute the evidence of abuse, it was critical for him to testify and that his attorney’s failure to have him testify constitutes ineffective assistance of counsel. But the child protection caseworker testified to much of what appellant claims he would have testified to. Appellant noted the caseworker’s testimony when he said in his affidavit that he didn’t take the stand because he and his attorney thought that the caseworker’s testimony was “more than adequate to show that” appellant was not a threat to his son. Appellant cannot now argue ineffective assistance of counsel because the district court did not find that the caseworker’s testimony actually refuted the allegations of abuse. Had appellant testified to the same information as the caseworker, it seems likely the district court would have found that testimony unpersuasive in refuting the allegations of abuse. Appellant cannot show that but for his counsel’s errors, the result of the proceeding would have been different. Accordingly, we reject appellant’s claim of ineffective assistance of counsel.
Reversed and remanded.