This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-778

 

In re the Matter of:

Nathan T. Bork, petitioner,

Respondent,

 

vs.

 

Autumn M. Anderson,

Appellant.

 

 

Filed December 13, 2005

Affirmed

Willis, Judge

 

Benton County District Court

File No. F8-01-50021

 

Michelle L. A. Kelsey, Tessneer & Kelsey, 440 Emerson Street North, Suite 1, Cambridge, MN  55008 (for respondent)

 

David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, MN  56303 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Randall, Judge; and Huspeni, Judge.*

 

 

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

WILLIS, Judge

In this appeal from a custody-modification order, appellant argues that the district court abused its discretion by modifying custody because (1) several of the district court’s findings are not supported by the record, including its finding that the child’s present environment endangered the child’s physical or emotional health, and (2) the district court failed to make other necessary findings.  We affirm.

FACTS

Appellant Autumn Anderson and respondent Nathan Bork are the parents of a child born in 1998.  Anderson and Bork lived together with the child for the first year of their child’s life.  In fall of 1999, without informing Bork, Anderson moved out of their apartment, taking the child with her.  In 2001, the district court adjudicated Bork as the father of the child and awarded Anderson “sole decision-making responsibilities” and “sole residential time,” subject to parenting time for Bork. 

In October 2003, Bork moved for modification of custody.  In his supporting affidavit, Bork alleged that the child’s physical and psychological well-being were endangered while living with Anderson.  Specifically, Bork states that, at the end of September 2003, he found Anderson and the child living in a mobile home without electricity or heat behind Anderson’s mother’s house.  Anderson told Bork that she was fighting with her mother and her mother’s fiancé, and she agreed that the child could stay with Bork until she could resolve those problems.  The morning after this incident, Anderson’s boyfriend brought her to a hospital because of her depression and suicidal thoughts, and because she had superficially cut her left wrist.  Anderson was admitted to the adult-mental-health unit for treatment from October 1, 2003, to October 7, 2003.  Anderson then participated in a partial-hospitalization program from October 8, 2003, until October 21, 2003.

When Bork moved for custody modification, the district court issued an ex parte order granting Bork temporary custody and subsequently appointed a guardian ad litem (GAL) for the child.  In November 2003, the district court issued a temporary order concluding that Bork had established a prima facie case of endangerment that warranted an evidentiary hearing and granted Bork temporary physical custody, subject to Anderson’s right to supervised parenting time.

In September 2004, the district court held a hearing on Bork’s motion.  Both Anderson and her mother testified that Anderson and her child never lived in a mobile home without water or electricity and, in fact, that they never lived in a mobile home at all.  But the parties stipulated to the admission of Anderson’s medical records, and the records from her October 2003 hospitalization state, in pertinent part:

In August, [Anderson] moved to Hinckley living in a mobile home in her mother’s back yard.  The relationship with the mother has been rather bizarre.  Currently, she’s been having frequent arguments with her mother and her mother’s boyfriend. Her mom recently wrote her a letter calling her worthless.  She turned off the water and electricity to her trailer and only turned it on when the patient threatened to call the police.

 

Anderson’s medical records from that hospitalization also show that (1) Anderson had been having suicidal thoughts for years; (2) Anderson had been depressed with similar symptoms in 1999, just seven months after the birth of the parties’ child; (3) Anderson had attempted to commit suicide by overdosing on trazodone in June 2003; and (4) Anderson stated with regard to her October 2003 suicide attempt, that she had stopped cutting her wrist because of the pain, but if she had possessed a gun “it would have been painless.”  Also, Anderson’s discharge report states that Anderson “reported longstanding symptoms of depression as well as chronic suicidal ideation for over a decade” but that at discharge, Anderson denied any further suicidal thinking and her insight and judgment seemed intact.  Anderson testified at the September 2004 hearing that she had followed all of the doctors’ recommendations after her hospitalization, she met with a doctor every three to four months, and she no longer had issues with depression.

At the hearing, the GAL recommended that Anderson retain physical custody of the parties’ child.  The GAL based her recommendation on her review of some, but not all, of Anderson’s medical records; the GAL’s interactions with the parties; and the GAL’s determination that Anderson was able to parent the child safely and that the child would not be endangered in Anderson’s care.  The GAL testified that she did not consider the best-interests factors when making her recommendation for custody because “that was something [she] wasn’t asked to do.”

In November 2004, the district court issued findings of fact, conclusions of law, and an order that modified custody by awarding Bork and Anderson joint legal custody of the parties’ child and awarding Bork sole physical custody, subject to unsupervised parenting time by Anderson.  Anderson moved the district court to amend its findings of fact or, in the alternative, to grant a new trial.  In February 2005, the district court amended its findings of fact and conclusions of law, but it did not change its custody-modification determination.  This appeal follows.

D E C I S I O N

Anderson appeals from the district court’s amended order modifying custody of the parties’ child, granting the parties joint legal custody and granting Bork sole physical custody, subject to Anderson’s right to parenting time.  Appellate review of custody determinations is limited to determining whether the district court “abused its discretion by making findings unsupported by the evidence or by improperly applying the law.”  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996) (quotation omitted).  Appellate courts will not reverse a finding of fact underlying a custody determination unless the finding is clearly erroneous.  Minn. R. Civ. P. 52.01; Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A finding is clearly erroneous if the reviewing court is left with “the definite and firm conviction” that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  In applying this clear-error standard, we view the record in the light most favorable to the district court’s determination, giving appropriate deference to the district court’s credibility determinations.  Id. at 472.

I.

 

            Anderson argues that the district court abused its discretion by modifying custody because the district court’s finding that the child’s present environment endangered her physical or emotional health is not supported by the record.  To grant a motion to modify custody based on endangerment, a district court must make specific findings that (1) a change in circumstances has occurred; (2) a modification is necessary to serve the child’s best interests; (3) the child’s present environment endangers the child’s health or impairs the child’s emotional development; and (4) the harm likely to be caused by a change of environment is outweighed by the advantages of the change to the child.  See Minn. Stat. § 518.18(d) (2004); Bettin v. Bettin, 404 N.W.2d 807, 808 (Minn. App. 1987) (citing State ex rel. Gunderson v. Preuss, 336 N.W.2d 546, 548 (Minn. 1983)).  Here, the district court made thorough and detailed findings on all of the factors it was required to consider.  Because Anderson does not dispute on appeal that a change in circumstances occurred, that a modification is necessary to serve the child’s best interests, or that the harm likely caused by the modification is outweighed by the advantages of the modification, we review only the district court’s findings regarding whether the child’s present environment endangers the child’s health or impairs the child’s emotional development.

Whether a child’s present environment endangers the child must be determined on the particular facts of each case.  Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990).  A finding of endangerment requires a showing of “a significant degree of danger.”  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).  “Present environment” refers to the last “judicially approved environment.”  Bjerke v. Wilcox, 401 N.W.2d 97, 100 (Minn. App. 1987) (quotation omitted).  The “mandate to examine the ‘child’s present environment’ requires on its face that there be a determination of the child’s environment at the time of the modification and not only the circumstances in previous years.”  Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997).  But the history of a child’s care may demonstrate what care may be expected from the parent both at present and in the future.  See id.  A district court may find endangerment if it determines that a parent’s “history poses a continuing danger to the child.”  Id. at 704.  We have affirmed findings of endangerment in the absence of demonstrated adverse effects, based solely on a risk of future harm.  See, e.g., Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985) (upholding an endangerment finding based on a social worker’s testimony that a parent’s interference with visitation significantly increased the possibility that the child would have later problems). 

Because the last judicially approved environment is the home of the parent who was last awarded permanent custody, here, Anderson’s home was the child’s “present environment” for custody-modification purposes despite the fact that the child was placed with Bork under a temporary-custody order.  See Minn. Stat. § 518.131, subd. 9 (2004) (providing that temporary orders “[s]hall not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding”).  The district court found that the child was endangered in Anderson’s home because (1) Anderson attempted suicide twice, once while the child was in her care; (2) Anderson failed to seek immediate professional help for her depression, which, according to Anderson’s medical records, she had suffered from for a decade; and (3) Anderson lived with the child in a mobile home without running water or electricity in late September 2003.  In support of its finding of endangerment, the district court states in its amended order that:

[the] Court took into consideration the fact that [Anderson] made progress in treatment and is currently following the recommendations of her psychiatrist, but determined that [Anderson’s] history of depression, suicidal ideation, and prior suicide attempts, as well as her past failure to promptly seek help for her mental health issues following her June 2003 suicide attempt appear to indicate that she has a history of denying her mental health issues, and therefore that these issues pose a continuing, significant danger to the child.

 

The district court considered the environment of Anderson’s home at the time of the hearing and Anderson’s progress in addressing her mental-health issues but found that the child could suffer serious harm if placed in Anderson’s custody.  The record supports this finding, and it is, therefore, not clearly erroneous. 

            Anderson argues that (1) the district court based its modification decision on Anderson’s mental-health history alone; (2) the district court failed to consider adequately the environment of Anderson’s home at the time of the hearing and Anderson’s progress in addressing her mental-health issues; (3) there is no evidence that her mental-health diagnosis affected or continues to affect her ability to parent; and (4) there is no evidence that the child’s needs were not met while the child was in Anderson’s custody.  We disagree.

            First, the district court did not base its custody-modification decision solely on its consideration of Anderson’s mental-health history.  The district court considered all of the relevant best-interests factors, as well as whether the child was endangered while in Anderson’s custody and whether the child would be endangered if placed in Anderson’s custody.  The district court then based its custody-modification decision on its consideration of these factors, in addition to Anderson’s mental-health history.  Second, the district court did consider the environment of Anderson’s home at the time of the hearing and the progress she had made in her mental-health treatment.  But the district court did not clearly abuse its discretion by considering these findings in conjunction with its findings on the other best-interests factors and on endangerment in making its custody-modification decision.  Third, there is evidence that Anderson’s mental-health issues affected her ability to parent.  She voluntarily allowed the child to stay with Bork when her circumstances became too stressful, and she was unable to parent the child when she was hospitalized after her October 2003 suicide attempt.  The district court did not abuse its discretion when it found that, despite her current progress, Anderson’s history of mental-health issues and poor decision-making poses a continuing threat to the child.  Fourth, the district court did not abuse its discretion when it found that the child’s needs were not met when the child lived with Anderson in a mobile home that was without heat or water.

            Anderson also argues that this case is analogous to Meyer v. Meyer, 375 N.W.2d 820 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).  In Meyer, we concluded that the district court did not abuse its discretion by granting custody to a mother who had a long history of  and continued to have mental-health problems.  375 N.W.2d at 825-26.  But in Meyer, we stated that we might have decided the issue differently if we had been the district court but that we could not conclude that the district court abused its discretion by awarding custody to the mother there when the evidence supported a finding that the mother was capable of caring for the child and that the child’s best interests were served by remaining with the mother.  Id. at 826.  This case is distinguishable from Meyer.  Because here the evidence supports a finding that the child was endangered in Anderson’s custody and that the child’s best interests are served by modifying custody, we conclude that the district court did not abuse its discretion by modifying custody.

II.

 

Anderson argues that several of the district court’s findings are not supported by the evidence and that the district court failed to make other necessary findings.  Anderson disputes the district court’s finding that Anderson and her mother were not credible when they testified that Anderson and her child had never lived in a mobile home without water or electricity and in fact had never lived in a mobile home at all.  When this court reviews a district court’s findings that are dependent on oral testimony, we must defer to the district court’s “assessment of the credibility of the witnesses and the weight to be given their testimony.”  Fontaine v. Hoffman, 359 N.W.2d 692, 694 (Minn. App. 1984).  Here, the district court found that the testimony of Anderson and her mother was not credible because Anderson’s medical records show that Anderson told mental-health professionals that she and the child did live in a mobile home and that Anderson’s mother did turn off the electricity and water to the mobile home.  Because we must defer to the district court’s assessment of the credibility of Anderson and her mother and the weight to be given their testimony and because the record supports the district court’s findings, we conclude that the district court’s findings are not clearly erroneous.

Anderson disputes a finding of the district court relating to a hearing in this matter that occurred on November 14, 2003.  Because this court was not provided with a transcript of that hearing, we are precluded from reviewing the finding.  See Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).

            Anderson also argues that the district court should have made an additional finding that the GAL considered Anderson’s medical records and the GAL’s discussions with personnel from the office of Dr. Dean Watkins, one of Anderson’s treating psychiatrists during her October 2003 hospitalization, when the GAL made her recommendation regarding custody at the September 2004 hearing.  The fact that the record might support an additional finding does not show that the findings that the district court did make are defective.  Vangsness, 607 N.W.2d at 474.  We conclude that the district court did not clearly err by not making the finding requested by Anderson.

            Anderson disputes the district court’s finding that the GAL “testified that she had not considered the best interest factors when making a physical custody recommendation” because “it was her belief that the Court wanted her only to determine if the child was safe” with Anderson.  Because the transcript of the September 2004 hearing substantially supports the district court’s finding regarding the GAL’s testimony, we conclude that the district court’s finding is not clearly erroneous.

Anderson also argues that the district court should have made an additional finding that the GAL had “considered the endangerment standard” in making her custody recommendation.  The fact that the record might support findings other than those made by the district court is relevant only if the findings that the district court did make are “clearly erroneous.”  Id.  Although the GAL testified that she did not consider the child to be endangered in Anderson’s care, because there is sufficient evidence to support the district court’s finding that the child would be endangered if placed with Anderson, we conclude that the district court did not clearly err by not making the finding requested by Anderson.

Anderson argues finally that “[t]he findings made by the Court lead the Court to disregard the recommendations of the Guardian to return custody to [Anderson].”  While a district court must consider an expert’s custody recommendation, it has discretion to reject such a recommendation without explanation if it makes detailed findings that reflect a complete analysis of the same factors discussed by the expert.  See Rogge v. Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  Here, the GAL testified that she did not believe that the child would be endangered in Anderson’s custody, and she recommended that Anderson retain physical custody of the child.  But because the district court made its own detailed findings on the best-interests factors and the endangerment ground for custody modification, we conclude that the district court did not abuse its discretion by rejecting the GAL’s custody recommendation.

            Affirmed.



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