This opinion will be unpublished and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

A03-771

 

 

In re Gary Pawlowski,

petitioner,

Respondent,

 

vs.

 

Patricia M. Culbertson,

f/k/a Patricia M. Pawlowski,

Appellant,

 

and

 

Sharon L. Freiling,

Guardian ad Litem.

 

 

Filed March 16, 2004

Affirmed
Klaphake, Judge

 

Dakota County District Court

File No. F8-93-13944

 

 

Dennis J. Felix, Felix Law Office, P.A., 12400 Portland Avenue South, Suite 120, Burnsville, MN  55337 (for respondent)

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN  56273 (for appellant)

 

Sharon L. Freiling, 222 Grand Avenue West, #100, South St. Paul, MN  55075 (Guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this appeal from an order modifying custody, appellant Patricia Culbertson argues that the district court abused its discretion by granting custody of the parties’ two minor children to respondent Gary Pawlowski.  Appellant asserts:  (1) the district court’s findings are inadequate and fail to provide a basis for meaningful review; (2) the evidence fails to support a finding of endangerment so as to warrant a modification of custody; and (3) the evidence fails to establish that the advantages of a modification outweigh the likely harm of making such a change.

            Because the district court’s findings are adequate and the record as a whole supports the custody modification, we affirm.

D E C I S I O N

            In order to modify a custody order specifying a child’s primary residence, the district court must find that (1) a change in circumstances has occurred since the date of the prior order; (2) the modification is in the child’s best interests; (3) the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development; and (4) the advantages of the modification outweigh the likely harm of making the modification.  Minn. Stat. § 518.18(d)(iv) (2002); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

I.  Findings

            The district court is required to make particularized findings on factors related to the best interests of the child when modifying custody.  Minn. Stat. § 518.17, subd. 1; .18(d) (2002); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994); Abbott, 481 N.W.2d at 867-68.  Appellant argues that the district court abused its discretion when it failed to make detailed findings on all 13 of the statutory best interest factors.

            While the district court is required to make specific findings, it need not make findings on all 13 statutory factors; rather, the court should address the factors pertinent to the dispute between the parties.  See Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).  The district court here made findings, or included an assessment in its memorandum, on the following disputed factors:

            (2) The child’s preference:  While the court did not specifically discuss this factor in its findings, testimony established that both children preferred to reside with appellant.  While relevant, in this case we give less weight to the preference of the older child because he was removed from appellant’s custody and placed with respondent pursuant to a CHIPS proceeding.  The younger child was only 11 years old at the time of the hearing; the court did not include a finding as to whether this child was mature enough to express a custodial preference.  See Minn. Stat. § 518.17, subd. 1(a)(2); Maxfield v. Maxfield, 452 N.W.2d 219, 223 (Minn. 1990) (states pre-teen (10) was mature enough to express custodial preference).   

            (4)  The intimacy of the relationship between parent and child:  The district court found that respondent is an “involved father” and is capable of providing the children with a stable, loving home.  Although the district court does not specifically discuss the relationship of the children with appellant, the guardian ad litem’s report described that relationship as loving also.

            (5)  Interaction of child with parents and siblings:  The district court found that appellant had inappropriately left the younger child unsupervised.  The court further cited the problems that led to the CHIPS petition, appellant’s interference with respondent’s visitation, and the separation of the siblings under the current arrangement.

            (6)  The child’s adjustment to home, school, and community:  The district court found that the older child had adjusted to school and to respondent’s home.  The court further found that the younger child was well adjusted to school and to appellant’s home, but that he also appeared withdrawn and depressed at times.

            (7)  Stable, satisfactory environment:  The district court found that in the CHIPS proceeding, the older child was removed from appellant’s care for truancy, delinquency, running away, and chemical abuse.  The court also found that appellant failed to consistently supervise the younger child, who had been left home alone overnight on one or two occasions.  The court further found that appellant withdrew the parties’ oldest child, who was emancipated prior to the district court’s decision, from a chemical dependency treatment program, permitted her to consume alcohol, and aided her in running away from respondent.  Finally, the district court found that appellant has failed to cooperate with parenting time and has involved the children in disputes with respondent over parenting time.

            The district court found that respondent has been very involved and has provided structure for the older child, enabling that child to improve his grades and school attendance. The district court found that respondent would be able to provide similar structure for the younger child.

            (10)  Capacity to provide love affection and guidance:  The same findings as (7) support the district court’s determination on this factor.

            (13)  Disposition to encourage contact with other parent:  The district court found that appellant had interfered with or denied respondent’s parenting time.

            In conclusion, the district court’s findings are adequate to support the court’s determination that modification of custody is in the children’s best interests.

II.  Endangerment

            Appellant argues that there is insufficient proof of endangerment to provide a basis for modification.  “Endangerment” is a somewhat imprecise concept that nevertheless demands “a showing of a significant degree of danger.”  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000).  Endangerment may refer to a child’s emotional health or development as well as to physical safety.  See Minn. Stat. § 518.18(d)(iv).  Endangerment can be prospective; the court may find endangerment if a parent’s actions are likely to cause harm to a child’s further development.  See Sharp, 614 N.W.2d at 263 (citing testimony that parent’s actions will cause emotional damage to child, because parent did not understand scope of problem).  Denial of parenting time can also be the basis for endangerment of a child’s emotional health.  Geibe v. Geibe, 571 N.W.2d 774, 779-80 (Minn. App. 1997).

            The district court here concluded that the older child had suffered emotional harm because of his removal from appellant’s care through the CHIPS proceeding.  As to the younger child, the court found that although he was doing well in school and seemed well adjusted, he “appears withdrawn and depressed at times” and concluded that his future emotional development and health were at risk.  This is supported by the court’s findings that appellant left this child home alone without supervision and at times overnight.  The allegations of the CHIPS petition, while not concerned with the younger child, suggest that appellant does not provide consistent supervision and has encouraged risky behavior in the older two children. 

            These facts and other evidence in the record establish that the children’s emotional health or development will be endangered if they remain in appellant’s custody.

III.  Balance of Harm

            Minnesota law prefers stability in custody arrangements, which creates an underlying presumption that continuation of a current custodial arrangement is preferable.  In re Weber, 653 N.W.2d 804, 811-12 (Minn. App. 2002).  For several rasons, however, that presumption has less force in this case.  First, the CHIPS proceeding has already changed the older child’s custodial situation.  Second, respondent and his home provide a greater degree of stability than appellant can offer or has offered in the past.  Third, the custodial situation of the younger child was de facto altered when his siblings were removed from appellant’s home.

            The district court’s findings and record support the conclusion that any harm caused by modification of custody is outweighed by its advantages.  We therefore conclude that the district court did not abuse its discretion by modifying custody.

            Affirmed.

 



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