This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-217

In Re the Marriage of: Timothy Wayne Aho,
Petitioner,

vs.

Kay Lynn Aho,
Appellant,

vs.

William and Joyce Aho, Intervenors,
Respondents.

Carlton County District Court
File No. F992559

Filed August 6 ,1996
Affirmed
Peterson, Judge

Arthur M. Albertson, Suite 320A, 394 Lake Avenue South, Duluth, MN 55802 (for Appellant)

Keith M. Carlson, 1219 - 14th Street, Cloquet, MN 55720-3139 (for Respondents)

Considered and decided by Amundson, Presiding Judge, Norton, Judge, and Peterson, Judge.

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

PETERSON, Judge

Appellant Kay Lynn Aho challenges a custody modification order granting respondents William and Joyce Aho sole legal and physical custody of appellant's minor children. We affirm.

F A C T S

Kay Aho and Tim Aho are the parents of two minor children: K.A., born April 27, 1988, and T.A., born September 15, 1990. William and Joyce Aho are Tim Aho's parents. When the marriage of Tim Aho and Kay Aho was dissolved in 1992, Kay Aho was granted physical custody of the children. Respondents intervened in the dissolution proceeding and, on March 24, 1993, moved for appointment of a guardian ad litem, legal and physical custody, and visitation rights.

Nancy Maslowski was appointed guardian ad litem in March 1993. In August 1993, respondents were granted supervised visitation with the children. In November 1993, respondents were granted unsupervised visitation, and an evidentiary hearing on respondents' custody motion was set for March 21, 1994. At the evidentiary hearing, the parties stipulated to joint legal and joint physical custody of the children.

On May 19, 1994, appellant accused William Aho of sexually abusing T.A. [1] Tim Blais, a Carlton County Human Services social worker, investigated this allegation. Blais conducted videotaped interviews of the children. In the interview, T.A. stated that nobody hurt or touched her privates and K.A stated that nobody touched her privates. As a result of his investigation, Blais concluded that maltreatment could not be determined.

When respondents arrived on May 27, 1994 to pick up the children for their scheduled visitation, appellant refused to turn over the children. Appellant called William Aho a child molester, and when Deputy Dennis Arnold responded to the incident, appellant also called him a child molester. The children witnessed the incident, which upset them and caused them to cry. Following this incident, visitation exchanges were ordered to take place at the Carlton County Youth Shelter. During one visitation exchange, appellant yelled obscenities at shelter staff members in the children's presence. As a result of this incident, the shelter staff prohibited appellant from coming to the shelter.

In June 1994, Valerie Mitchell, a nurse, conducted a videotaped interview of the children at appellant's residence. During the interview, the children spoke about acts of sexual abuse by William Aho. Blais, Cloquet Police Sergeant Terry Johnson, and Cloquet Detective Wade Lamirande viewed the videotape and testified that the interviewer failed to follow appropriate procedures for interviewing young children about abuse. They concluded that a number of factors, including breaks in the interviews, asking leading questions, questioning by a person directly behind the camera, and failing to communicate with the children through drawings, made the interview unreliable. Lamirande believed that the children had been coached into making the allegations.

On June 8, 1994, respondents again moved for sole legal and physical custody. In a September 14, 1994 order, the court granted respondents temporary physical custody, but stayed the change of custody if appellant complied with conditions set forth in the order. An evidentiary hearing on respondents' custody modification motion was held on January 17 and 18, April 18 and 19, and June 27, 1995.

Kelly Jean Ravenfeather, T.A.=s therapist, and Sandra Swenson, K.A.=s therapist, testified at the evidentiary hearing. Ravenfeather began counseling T.A. in August 1994. Ravenfeather stated that T.A. recounted acts of sexual abuse by William Aho. When asked by Ravenfeather whether her statements were for real or pretend, T.A. insisted that they were for real. On another occasion, Ravenfeather asked T.A. to point to the place where William Aho touched her. T.A. pointed to her genital area. When asked whether this was for real or for pretend, T.A. stated that it was for pretend. In Ravenfeather's opinion, T.A. had not been coached by her mother into making the abuse allegations.

Swenson testified that K.A. recounted episodes where her Grandpa Aho made her sit in the basement while he was alone with T.A. upstairs. K.A. told Swenson that she disliked visiting respondents' home. Swenson testified that she spoke with Maslowski, from whom she received conflicting information about K.A.'s behavior toward her grandparents. According to Maslowski, K.A. was always happy to visit her grandparents. Swenson admitted that, following her conversation with Maslowski, she was confused and did not know what was fact and what was not fact. Swenson testified that her main concerns for K.A. centered around K.A.'s confusion over who she belonged to. Swenson testified that she had no reason to claim that William Aho ever sexually abused K.A. She acknowledged that she could not determine whether K.A. had been coached, and that she was not testifying to make allegations or offer suggestions, but only to report what K.A. had related to her.

Maslowski testified that appellant refused to talk to her or to inform her when appellant moved. Maslowski stated that K.A. was afraid to talk to her because K.A. was told that Abad things@ would happen to Maslowski if K.A. spoke to her. Maslowski also spoke to the children=s teachers and school social worker. As a result of her observations of the children and the concerns of their teachers, social workers, and aides, Maslowski concluded that the children's best interests would be served if respondents retained custody.

The district court awarded respondents sole legal and physical custody of the children.

D E C I S I O N

Appellate review of custody decisions is limited to determining whether the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The district court's findings of fact must be upheld unless clearly erroneous. Id.

Under Minn. Stat. ' 518.18(d) (Supp. 1995), a district court may modify a prior custody order if it finds

upon the basis of facts, including unwarranted denial of, or interference with, a duly established visitation schedule, that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.

In applying this standard, the district court shall retain the prior custody arrangement unless

the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minn. Stat. ' 518.18(d)(iii). Appellant contends that the evidence is insufficient to support the trial court's findings. We disagree.

Change of Circumstances.

Following the parties' stipulation, appellant repeatedly alleged that her daughters had been sexually abused by William Aho. Appellant also interferred with respondents' visitation rights. Following the May 27, 1994, incident when appellant denied respondents access to the children, appellant did not always show up with the children to make visitation exchanges at the Carlton County Youth Shelter. She was also late bringing the children to the Shelter on several other occasions.

The allegations of sexual abuse, coupled with appellant's interference with respondents= visitation rights, demonstrate a change of circumstances since the prior custody order. See Myhervold v. Myhervold, 271 N.W.2d 837, 838 (Minn. 1978) (numerous visitation problems cited as support for a change in circumstances).

Best Interest Factors.

The district court made extensive findings on the children's best interests. The court found that the environment the children have lived in since the prior custody order has been unstable, unsatisfactory, and undesirable. It specifically found that the allegations of sexual abuse were not true, and that appellant improperly manipulated the children by accusing William Aho of sexual abuse in front of them. As a result, the children did not have a sense of where they belonged and were becoming mistrusting, suspicious and fearful of everything and everyone concerning this matter. The record supports the district court's findings.

In addition, Tim Blais testified that, based on his interviews with the children and his observation of the June 1994 videotaped interview, he believed that the children had been coached into making allegations of sexual abuse against their grandfather. Also, the guardian ad litem believed that the accusations of sexual abuse were false, and medical examinations of the children revealed nothing to substantiate appellant's allegations of sexual abuse.

Although both of the children's therapists testified that the children revealed episodes of abuse to them, the district court found specifically that the therapists' opinions were based only on the limited information that was provided to them during therapy sessions. The court specifically found that the testimony of Blais, Cloquet police officers, and the guardian ad litem was more credible than the testimony of the therapists. The district court was free to find the therapists' opinion testimony less credible because the testimony was based on limited information. See Whitmore v. Fischer, 397 N.W.2d 371, 378 (Minn. App. 1986) (this court shall not disturb district court's assessment of witness credibility absent firm conviction that mistake has been made).

Endangerment Factors.

The district court found that appellant's actions opposing other individuals involved in this case, as well as continually exposing the children to the notion that they have been sexually abused, have endangered the children's emotional health and development. This finding is supported by the record.

Appellant manipulated the children by instructing them not to cooperate with their guardian ad litem. The children have been told that, if they speak to Maslowski, "bad things" will happen to her. Furthermore, the children are depressed and anxious and have a confused sense of where they belong. Both K.A.'s teacher and her social worker expressed concern for her emotional welfare. The guardian ad litem's January 27, 1995, report stated:

The emotional stability of K.A. and T.A. has effectively been undermined by their mother and maternal grandmother during these proceedings and it appears that they are escalating their attempts at intimidating the girls and instilling mistrust and contempt for the girls' paternal grandparents, confusing them further.

The district court's findings are supported by the evidence, and are not clearly erroneous. See Theisen v. Theisen, 405 N.W.2d 470, 474 (Minn. App. 1987) (mother's creation of atmosphere of unwarranted accusation and suspicion regarding conduct of father toward children alienated children from father thereby causing psychological damage to children); Meier v. Connelly, 378 N.W.2d 812, 816 (Minn. App. 1985) (social worker's testimony that persistent denial of access to child's mother would be emotionally detrimental to child supported endangerment finding).

Harm versus Benefits.

The district court found that the harm caused by modification of custody was outweighed by the benefit to the children and that modification was in their best interest. This finding is not clearly erroneous.

By modifying custody, the children will no longer be subjected to frequent moves, thus reducing their confusion over where they belong. Also, they will not be subjected to repeated allegations that they were sexually abused. Thus, the modification of the custody order is in the children's best interests.

Appellant finally argues that the district court improperly restricted visitation. We disagree. The district court subjected appellant's visitation to the following conditions:

a. That [appellant] fully cooperates with all of the requests of the Guardian ad Litem to include notification of any change of address.

b. That [appellant] or her agents do not interfere with, harass, injure, maltreat, vilify [respondents] or Petitioner in person, by telephone, through letters, or any other means, except that the parties are allowed to contact each other to exercise reasonable visitation rights.

c. That [appellant] not discuss (nor allow others to discuss) allegations of sexual abuse with, or in front of, the children. Instead she shall report the specifics of any such concerns with Mr. Tim Blais of the Carlton County Social Services Department.

These conditions do not restrict appellant's visitation rights; they simply alter them. See Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986) (alteration in visitation due to change of custodial parent's residence not necessarily restriction of visitation). "[L]ess substantial alterations of visitation rights are governed by the best interests standard." Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992). The trial court did not abuse its discretion by imposing the modifications, which are in the children's best interests.

Affirmed.


Footnotes

[1]Appellant began accusing William Aho of sexual abuse in November 1993. The district court based its decision on events that occurred after the parties entered into their stipulation on March 21, 1994.