Benton County District Court

File No. F7-94-1064

Quentin R. Wittrock, Ann K. Bloodhart, Michael R. Schechter, Gray, Plant, Mooty, Mooty & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Robert A. Howard, Marna L. Anderson, Jensen, Hicken & Scott, P.A., 300 Anoka Office Center, 2150 Third Avenue North, Anoka, MN 55303 (for Respondent)

Considered and decided by Parker, Presiding Judge, Davies, Judge, and Foley, Judge.

Abe R. Abbott, the natural father of S.M.A., appeals from the district court's modification of custody that awarded custody of S.M.A. to Jutta Martinez, the child's maternal grandmother. Abbott also challenges the form of visitation established by the district court. We affirm.

Soon after moving to live with the Abbotts, S.M.A. began exhibiting abnormal behaviors: she had intense rages that lasted for hours; she pulled down her pants to wet the bed; she soiled her bed and smeared feces around the room; and she hid razor blades in her room. In February 1994, the Abbotts consulted with a clinical psychologist who diagnosed S.M.A. as having reactive attachment disorder (RAD). RAD is a mental illness affecting children who have been abused or neglected during their formative years and consequently have difficulty forming a bond with their primary caretaker. The Abbotts attended a support group for parents of children with RAD and worked with a social worker who had experience treating children with RAD.

To treat S.M.A., the Abbotts used a form of attachment therapy called "holding" therapy. During the period the Abbotts employed this therapy and other parenting techniques, S.M.A.'s behavior became more self-injurious. In August 1994, after her last holding therapy session, S.M.A. peeled the skin off her fingers and entered an uncontrollable rage during which she threatened to kill the Abbotts and herself. The next day, Fairview Riverside Medical Center admitted S.M.A. and she was hospitalized for five weeks. S.M.A.'s treating physician, the hospital's chief of psychiatry, ruled out RAD; diagnosed S.M.A. as having attention deficit hyperactivity disorder, oppositional defiant disorder, and posttraumatic stress disorder features; and recommended discontinuation of the holding therapy. The Abbotts resisted any diagnosis other than RAD and any treatment other than holding therapy. After her discharge from the hospital, S.M.A. lived for five weeks with family friends who did not use holding therapy and described her behavior as normal.

In October 1994, respondent Jutta A. Martinez, S.M.A.'s maternal grandmother who lived in Alabama, brought this third-party custody action. The district court ordered a full evidentiary hearing on custody and granted temporary custody of S.M.A. to Martinez. The district court heard conflicting testimony from health care professionals who evaluated and treated S.M.A. as to their diagnoses and recommendations for her treatment. The district court also heard testimony on the Abbotts' implementation and alleged misuse of holding therapy techniques. After making more than 50 pages of detailed findings, including express findings on the endangerment and best interest standards, the district court awarded custody to Martinez. Later, the district court established a visitation schedule, and this appeal followed.

1. Custody

Generally, there is a presumption in custody determinations that a natural parent is fit to raise his or her own child. Durkin v. Hinich, 442 N.W.2d 148, 152 (Minn. 1989). The Minnesota Supreme Court has identified two basic doctrines in third-party custody actions where the district court, like in the instant action, must determine custody between a natural parent and a third-party custody claimant. Wallin v. Wallin, 290 Minn. 261, 264, 187 N.W.2d 627, 629 (1971). First, the nonparent has the burden of presenting evidence to overcome the presumption of parental fitness and must show that the natural parent is unfit to have custody. Id. at 265-66, 187 N.W.2d at 630; see also Durkin, 442 N.W.2d at 152-53 (presumption favoring natural parent may be overturned only if "grave and weighty" reasons exist). This showing corresponds to the requirement in Minn. Stat. § 518.18(d)(iii) (1996) that the district court find the current custody arrangement endangers the child. Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990). Second, the best interests of the child is the "overriding consideration" in custody determinations. Wallin, 290 Minn. at 265, 187 N.W.2d at 630; see Minn. Stat. § 518.17, subd. 1 (1996) (listing best interest factors to be evaluated by district court).

Here, Abbott frames the question on appeal as the extent to which the judiciary can review a father's decisions concerning the medical treatment of his child. He asserts that a district court should defer to a parent's medical choices for his or her child absent clear and convincing evidence that the decisions are unreasonable. Abbott failed to present this theory to the district court, however, when the court made its determination on the issue of custody. Consequently, Abbott may not seek review of the issue (i.e., modification of custody), based on a theory asserted for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party cannot raise new theory on appeal to obtain review of same general issue litigated in district court).

Even if we were to consider Abbott's argument, he mischaracterizes the district court's findings. Abbott asserts the district court erred as a matter of law because it implicitly found that holding therapy was the "wrong treatment" for S.M.A., thereby substituting its own judgment regarding the proper course of treatment for that of the Abbotts and their health care professionals. We disagree. Presented with conflicting diagnoses for S.M.A.'s condition, the district court ultimately made its findings based on credibility determinations that we are reluctant to set aside. See Buzick v. City of Blaine, 491 N.W.2d 923, 925 (Minn. App. 1992), aff'd 505 N.W.2d 51 (Minn. 1993) (appellate courts defer to district court determinations regarding credibility of expert witnesses).

Additionally, the medical professionals agreed that if the RAD diagnosis were correct, S.M.A.'s abnormal behaviors would reoccur within six to twelve months. By the time the district court made findings and issued its custody order, S.M.A. had lived with Martinez for more than one year without such behaviors returning. Accordingly, the district court inferred that the RAD diagnosis seems less likely to be correct. Nonetheless, the district court did not rule out the possibility that abnormal behaviors, that would support a RAD diagnosis, might reappear in the future and that holding therapy, used properly, might be appropriate at that time. We conclude the district court did not err in making this inference.

Furthermore, the relevant inquiry is not whether the district court must defer to the Abbotts' use of holding therapy, but rather, assuming the appropriateness of holding therapy, whether the Abbotts exceeded the recognized bounds of this therapy and their actions towards S.M.A. became abusive as a consequence. The district court made extensive findings, including the following: (1) S.M.A. was not allowed to eat for three days until she accepted food from Carol Abbott; (2) the Abbotts used holds in a random and punitive manner to "take down" S.M.A. by lying on top of her for up to five hours, during which time she screamed, "get off me--you're hurting me"; (3) the Abbotts used various parenting techniques learned from the RAD support group in an excessive and punitive manner; and (4) a child psychotherapist and social worker with experience treating RAD children testified that the Abbotts went overboard in using holding therapy and became punitive. We conclude there is ample record support for the district court's findings and conclusion that although holding therapy may be accepted by some medical professionals, the Abbotts' implementation of holding therapy became abusive and endangered S.M.A.'s physical and emotional health and impaired her emotional development. Accordingly, we cannot say the district court abused its discretion in awarding custody to Martinez.

2. Visitation

The district court has broad discretion in deciding visitation issues and will not be reversed absent an abuse of that discretion. Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). Abbott argues the district court erred when it (1) ordered Martinez to record telephone conversations between the Abbotts and S.M.A., and (2) required the Abbotts' visitation with S.M.A. to be supervised. However, the Abbotts submitted an affidavit stating they would agree to a visitation structure recommended by Dr. James McGuire, a psychiatrist who continued to treat S.M.A. in Alabama. At the visitation review hearing, the Abbott's did not object to McGuire's recommendation that telephone calls be taped or that their visitations be supervised. Apparently, the parties agreed to record the telephone conversations because disputes arose between them concerning improper topics of conversation or comments to S.M.A. and recording facilitated later review by medical professionals or the district court. Therefore, the district court did not abuse its discretion in establishing the manner of visitation.

3. Evidentiary Rulings

Abbott contends the district court abused its discretion when it admitted hearsay statements by Carol Abbott. See Minn. R. Evid. 802 (generally, hearsay evidence inadmissible); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (admission of evidence rests within broad discretion of district court and will only be reversed if erroneous or an abuse of discretion). Specifically, Abbott argues he was prejudiced by admission of Laurie Vogel's testimony regarding Carol Abbott's statement "you have to outcrazy the crazy." See id. (complaining party must demonstrate improper evidentiary ruling was prejudicial error).

Martinez argues Abbott failed to preserve this issue on appeal by making a motion for a new trial. See Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) (evidentiary rulings subject to appellate review only if there has been motion for new trial). This court has previously determined that custody modification proceedings are "special proceedings," however, such that a motion for a new trial is unnecessary to preserve the issues for appeal. See Huso v. Huso, 465 N.W.2d 719, 720-21 (Minn. App. 1991) (motion for new trial in custody modification proceedings not authorized and order denying such a motion is not appealable). Therefore, the fact that Abbott did not move for a new trial is not fatal. Nonetheless, Abbott failed to object, on hearsay grounds or any other grounds, to the allegedly prejudicial testimony regarding Carol Abbott's statement "you have to outcrazy the crazy." Absent a timely objection, we cannot say the district court abused its discretion in admitting this testimony. See Sauter, 389 N.W.2d at 202 (timely objection is prerequisite to appellate review of evidentiary rulings). Furthermore, Abbott does not demonstrate how other unspecified statements to which he did object were prejudicial. Therefore, Abbott failed to show he is entitled to another custody hearing based on prejudicial error. See Minn. R. Civ. P. 61 (harmless error rule).

After oral argument, counsel for appellant drew the court's attention to Watson v. United Servs. Automobile Ass'n, ___ N.W.2d ___ (Minn. July 10, 1997). We have carefully reviewed that decision and conclude that Watson is distinguishable on its facts and does not control the decision here.

Affirmed.

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