A06-866

David Michael Durbin, petitioner,

Respondent,

vs.

Janeen Renee Saylor,

f/k/a Janeen Renee Durbin,

Appellant.

Filed May 15, 2007

Reversed and remanded

Hudson, Judge

St. Louis County District Court

File No. 69-F1-03-100488

David Michael Durbin, 1444 East Camp Street, Ely, Minnesota 55731 (pro se respondent)

Ellen E. Tholen, 702 Second Avenue, P.O. Box 210, Bovey, Minnesota 55709 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

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

HUDSON, Judge

Appellant Janeen R. Durbin challenges the district court’s order which (1) summarily denied her petition for parenting-time restrictions, (2) appointed a parenting-time expediter; (3) awarded compensatory parenting time; and (4) threatened the posting of a bond to secure her future compliance with the parenting-time schedule. Because we conclude that appellant made sufficiently specific allegations of child abuse warranting an evidentiary hearing, we reverse and remand.

FACTS

Appellant and respondent David M. Durbin have a young daughter. The October 2003 judgment and decree dissolving the parties’ marriage granted the parties joint legal custody but awarded appellant sole physical custody. In addition, the judgment and decree imposed a parenting-time schedule, which gradually increased respondent’s unsupervised parenting time.

On May 26, 2004, the district court issued a domestic-abuse order for protection against respondent. Although the record is unclear, it appears the parties agreed to entry of the order. According to appellant, she complied with the judgment and decree’s parenting-time schedule until approximately June 2005, when the child returned from a visit with respondent and indicated that respondent had hurt her. As a result, in about June 2005, appellant filed another petition for an order for protection, alleging sexual abuse of the child by respondent. After a hearing, the district court denied the order for protection, stating that: “[W]hile ‘suggestive’ of possible sexual abuse [appellant’s allegations] are not conclusive and do not meet or even approach a preponderance of the evidence allowing the Court much less compelling the Court to issue a Domestic Abuse Order on behalf of the child.” On August 31, 2005, appellant again petitioned for an emergency order for protection, again alleging sexual abuse of the child by respondent. But appellant subsequently voluntarily dismissed the petition.

On December 6, 2005, appellant moved the district court to suspend respondent’s parenting time and to evaluate respondent. Appellant alleged that the child claimed respondent hurt her “bottom” and “wee-wee,” and is “naughty.” Appellant presented letters and affidavits from the child’s maternal grandparents and psychologist in support of her allegations. But the record shows that during a psychologist-commissioned medical examination, the child made inconsistent statements; the examination failed to produce any corroborating physical evidence.

In March 2006, the district court issued two orders, finding that (1) appellant failed to establish a prima facie case warranting the imposition of restrictions on respondent’s parenting time, (2) appellant failed to prove by a preponderance of the evidence that “child was harmed by her father,” and (3) “visitation is not likely to endanger the child’s physical or emotional health.” The district court concluded that “there is not credible evidence warranting a restriction on visits,” and that the visitation schedule is in the child’s best interests. Furthermore, the district court appointed a parenting-time expediter; found appellant in contempt of court for “failure to comply with the visitation schedule”; awarded respondent compensatory parenting time; and warned appellant that future non-compliance would require the posting of a bond. This appeal follows.

D E C I S I O N

Appellant argues that the district court abused its discretion by denying, without first holding an evidentiary hearing, her motion to modify or restrict respondent’s parenting time. “It is well established that the ultimate question in all disputes over [parenting time] is what is in the best interest of the child.” Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984). The district court has broad discretion in deciding parenting-time issues and what is in the child’s best interests. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). We will reverse its decision only for an abuse of discretion. Id.

Under Minnesota statutory law, the district court shall “grant such parenting time . . . as will enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child.” Minn. Stat. § 518.175, subd. 1(a) (2006). But when it is in the best interests of the child, “the court shall modify the decision-making provisions of a parenting plan or an order granting or denying parenting time.” Id., subd. 5. The district court may restrict parenting time if it finds that “parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.” Id. The party alleging harm has the burden of making a prima facie case for modification or restriction. Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001). But an evidentiary hearing “shall” be held if a “parent makes specific allegations that visitation places custodial parent or child in danger of harm.” Id. (citing Minn. Stat. § 518.175, subd. 5).

Here the parties’ dissolution decree established a parenting-time schedule. Appellant stopped abiding by this schedule after the child alleged that respondent sexually abused her. Affidavits from appellant, the child’s maternal grandparents, and the child’s psychologist support appellant’s claim. We note in particular an October 13, 2005 report from licensed psychologist Barbara Olmsted Thorne of the Range Mental Health Center. Ms. Thorne stated that the child’s comments about “daddy naughty,” “daddy put finger in my butt” are consistent and that it did not appear that the child had been coached by appellant. Ms. Thorne concluded by stating that to completely ignore the child’s statements and have unsupervised visitation between the child and respondent would be insensitive and irresponsible. Nevertheless, the district court concluded that “there is not credible evidence warranting a restriction on visits.” The district court apparently relied, in part, on a concluding statement in a November 29, 2005 report from Dr. Carolyn Levitt of the Midwest Children’s Resource Center, wherein she stated that “[the child] was unable to provide any details to support what she said and to help determine what she meant by what she said.” But Dr. Levitt also confirmed that the child made statements regarding respondent “tying her up, putting tape on her mouth and touching her on her pee part with a rope.” She concluded by stating that it may be to the child’s benefit to have supervised visits with respondent until the meaning of the child’s statements can be better understood. The district court stated that it reviewed the various reports, but ultimately observed that there were “gaps in contact and parental conflict . . . resulting in some level of trepidation on the part of the child, which is addressed by the gradual restoration of parental contact ordered herein.” The district court modified the parenting-time schedule by imposing upon respondent a new period of gradually reduced supervised visitation.

The district court made its decision not to restrict respondent’s parenting time without first holding an evidentiary hearing. But the law requires that if a parent makes specific allegations of endangerment, the court shall hold an evidentiary hearing. Minn. Stat. § 518.175, subd. 5. Although the child’s statements may have been unclear at times, based on the record before us, we believe that appellant’s allegations have the requisite specificity warranting an evidentiary hearing, and that the district court abused its discretion by summarily denying appellant’s motion, appointing a parenting-time expediter, and awarding respondent compensatory parenting time.

Because we are remanding for an evidentiary hearing concerning repeated allegations of sexual abuse, in the interim we are suspending respondent’s unsupervised parenting time until the district court can make a decision on the merits. In making this ruling we are mindful that appellant did not specifically move this court for such relief. Nevertheless, we consider such relief implicit in her request for parenting-time restrictions. This court has the authority to take any action “as the interest of justice may require.” Minn. R. Civ. App. P. 103.04. Because the state has an interest in protecting the well-being of children, we conclude that justice requires us to temporarily restrict respondent’s parenting time until the district court addresses whether to allow parenting time pending the outcome of the evidentiary hearing held to test the veracity of appellant’s allegations. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (addressing an issue deemed waived on appeal because the state has an interest in protecting the well-being of children). We encourage the district court to expedite its resolution of this matter.

Reversed and remanded.