This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In the Matter of the Custody of
Le Sueur County District Court
File No. 40-F2-03-000966
Jela D. Jones, OID #207024, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)
Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.*
On appeal from an order denying his motion for parenting time without an evidentiary hearing, Jela Jones argues that he was denied due process and equal protection.† Because Jones did not present any changed circumstances to the district court to support the modification or suggest that the modification would be in his childís best interests, we affirm.
This appeal arises from a noncustodial fatherís belated objection to the custodial placement of his son, T.L.L., and his efforts to establish contact with the child.† Jela Jones was convicted of two counts of criminal sexual conduct in May 2001.† He was sentenced as a patterned sex offender and is scheduled to be conditionally released in September 2010, with the conditions in force for ten years.
In January 2002, the county filed a petition alleging that T.L.L. was a child in need of protection or services, and the court later determined him as such. †Jones was adjudicated the father of T.L.L. in February 2003.† While in prison, Jones had sporadic contact with T.L.L. by mail and by phone.† But in April 2003, a case worker for the department of corrections ordered Jones to cease all forms of communication with T.L.L.
In August 2003, the county filed a permanency petition, and in October, the district court transferred physical and legal custody of T.L.L. to the childís maternal grandmother.† Jones then moved to establish contact with his son.† In April 2004, the court denied Jonesís motion for parenting time, after considering a guardian ad litemís recommendation that contact with Jones was not in T.L.L.ís best interests.
Jones again moved to establish contact with his son in January 2006.† The court interpreted Jonesís motion as also challenging the earlier child-protection and custody proceedings.† The court found that Jones was estopped from challenging T.L.L.ís placement with his grandmother because Jones had actual knowledge of the child-protection and transfer-of-custody proceedings but failed to timely intervene or participate.† The court, however, took Jonesís motion for parenting time under advisement and accepted submissions from the county and T.L.L.ís grandmother.† Each recommended denying the motion.† In March 2006, the district court denied Jonesís motion without holding an evidentiary hearing.† It found that no change in circumstances had occurred since its 2003 and 2004 orders to warrant a modification of parenting time.† The court held that Jones did not meet his burden of establishing a prima-facie case to hold an evidentiary hearing on his motion.† Jones appeals, arguing that he has been denied due process and equal protection.
D E C I S I O N
We must first address the untimeliness of several of Jonesís challenges.† He attempts to appeal the procedure surrounding the district courtís April 2004 order, but the time for this appeal has expired.† See Minn. R. Civ. App. P. 103.03(h) (stating that order granting or denying modification of custody or visitation is immediately appealable), 104.01, subd. 1 (requiring appeal within 60 days after appealable order is filed).† Next, although Jones also challenges the district courtís findings that he had actual knowledge of the child-protection and transfer-of-custody proceedings, Jones did not appeal from the January 2006 order in which the court made these findings.† Jones is therefore left with the March 2006 order in which the district court denied, without an evidentiary hearing, his motion to reestablish contact with T.L.L.
A district court must modify an earlier parenting-time decision if the modification will serve the best interests of the child and would not change the childís primary residence.† Minn. Stat. ß 518.175, subd. 5 (2004).† A modification requires changed circumstances, and the district court has broad discretion to determine how parenting time by a parent serves a childís best interests.† Matson v. Matson, 638 N.W.2d 462, 468 (Minn. App. 2002) (stating that modification of parenting time requires changed circumstances); Anderson v. Archer, 510 N.W.2d 1, 5 (Minn. App. 1993) (stating that district court has broaddiscretion in area of visitation).† Although a substantial modification to parenting time requires an evidentiary hearing, a hearing is not necessary for an insubstantial change.† Matson, 638 N.W.2d at 468.† The district court did not abuse its discretion by denying Jonesís motion without an evidentiary hearing.† Jonesís motion did not allege any change of circumstances or offer any explanation of how a modification would serve T.L.L.ís best interests.†
Jonesís constitutional argument rests only on his biological link
to T.L.L., which he argues requires that he have parenting time or at least an
evidentiary hearing.† The Fourteenth Amendment
provides that no State shall deprive any person of life, liberty, or property
without due process of law. †Article I,
section 7, of the Minnesota Constitution provides the same protection. †To support his argument, Jones relies primarily
on the Supreme Courtís decision in Lehr
v. Robertson, 463
We recognize the general presumption favoring placement of a
child with a parent rather than a third-party.†
In re Custody of N.A.K., 649
N.W.2d 166, 174 (
Jones also relies on Lehr
for his equal protection challenge.† In Lehr, the Court concluded that
*††† Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.