In re the Matter of: Nicole Lee Nelson, Respondent, vs. Shane Victor Edstrom, Respondent (C4-00-1284), Appellant (C0-00-1377), Nancy J. Edstrom, Appellant (C4-00-1284), Respondent (C0-00-1377).
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Matter of:
Nicole Lee Nelson,
Shane Victor Edstrom,
Nancy J. Edstrom,
Filed March 6, 2001
Ramsey County District Court
File No. F89451008
Michael R. Paul, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, Roseville, MN 55113 (for respondent Nicole Nelson)
Shane Victor Edstrom, #193623 MCF Faribault, 1101 Linden Lane, Faribault, MN 55021 (pro se appellant/respondent)
Nancy J. Edstrom, 4061 88th Lane, Circle Pines, MN 55014 (pro se appellant/respondent)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
In this grandparent-visitation dispute, the child's father, Shane Victor Edstrom, and the child's paternal grandmother, Nancy J. Edstrom, are appellants. They allege the district court (a) denied their constitutional rights to due process, to confront witnesses, and to "child rearing" by holding a hearing on grandmother's visitation without father; (b) should have awarded grandmother visitation; and (c) should have appointed a guardian ad litem for the child. We affirm.FACTS
Grandmother sought visitation with her grandchild. Respondent mother Nicole Lee Nelson opposed the motion. After a hearing, conducted without the presence of the incarcerated father, the district court denied grandmother's motion. In separate appeals, father and grandmother challenged aspects of the order denying grandmother's motion. This court consolidated the appeals.D E C I S I O N
1. Because this is not a criminal proceeding, we reject grandmother and father's argument that holding the hearing without father being present denied grandmother her Sixth Amendment right to "confront" father, which, in turn, deprived her of a full hearing under the due-process-of-law protections of the Fifth and Fourteenth Amendments. See Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn. 1977) (stating "confrontation clause of the Sixth Amendment relates solely to criminal trials"). Also, grandmother's statements at the hearing suggest she waived any objections to proceeding without father.
2. Because father supported grandmother's request for visitation, father and grandmother allege that, under Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972), denying grandmother visitation denied father his due-process rights to rear the child without "State Interference." Stanley is distinguishable because it forbade using a dependency proceeding to remove children from an unwed father without holding a hearing to assess his fitness to care for the children. 405 U.S. at 649, 92 S. Ct. at 1211. Also, because there is no allegation that mother, the custodial parent, cannot adequately care for the child, her opposition to grandmother's request for visitation should be given significant weight.
3. Father and grandmother allege that under Armstrong v. Monzo, 380 U.S. 545, 85 S. Ct. 1187 (1965), father was deprived of his due-process right to be heard. But, the crux of Armstrong was lack of notice and here, father had notice of grandmother's request for visitation; he supported it. Also, father's views on grandmother's visitation could have been presented by means other than his in-person testimony. Father was not denied the "opportunity to be heard" in Armstrong. 380 U.S. at 552, 85 S. Ct. at 1191.
4. After a parentage proceeding, a grandparent may be awarded visitation if the district court finds visitation is in the child's best interests and will not interfere with the parent-child relationship. Minn. Stat. § 257.022, subd. 2(a) (2000). When addressing grandparent visitation, the district court "shall" consider the amount of contact between the grandparent and the child before the request for visitation. Id. Absent an abuse of its "broad discretion," a district court's grandparent-visitation decision will not be altered on appeal. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Here, the district court found grandmother has "had little or no contact with the child since his birth in 1993," has "never had a meaningful relationship" with the child, and has "made no attempt to contact the child in at least three years." The district court also found that allowing grandmother to have visitation would interfere with the mother-child relationship because of grandmother's history of harassing and verbally abusing mother and her family. The record supports the findings on these points.
Father and grandmother allege that, under this court's decision in In re Petition of Santoro, 578 N.W.2d 369 (Minn. App. 1998), the district court should not have based its decision on grandmother's lack of contact with the child because mother precluded grandmother from having access to the child. But, the supreme court reversed this court's decision in Santoro, holding that a four-year lapse in the grandparent-child relationship was "significant" in light of the statutory language requiring the district court to consider the amount of contact between the grandparents and children before the visitation was sought. 594 N.W.2d 174, 178 (Minn. 1999). On the facts of this case, we cannot say that Santoro requires that grandmother be awarded visitation.
Father and grandmother also allege that the district court violated Minn. R. Evid. 404(b) by relying on mother's allegations that grandmother harassed mother and her family. But, because there was no objection to mother's statements in district court, the question is not properly before us and we do not address it. See Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. App. 1989) (stating admissibility of evidence cannot be questioned for first time on appeal), review denied (Minn. July 12, 1989).
5. Father and grandmother allege mother requested appointment of a guardian ad litem and that the district court failed to rule on that request. Assuming father and grandmother have standing to challenge the district court's alleged failure to grant mother's motion, we reject the challenge. Review of the record shows the request for a guardian ad litem was conditional and that the conditions of mother's request did not occur here.
6. Father and grandmother also allege that a sua sponte appointment of a guardian ad litem is supported or required by Minn. R. Gen. Pract. 904.01, and 904.02. Rules 904.01 and 904.02 address how a guardian ad litem is to be selected after the district court has determined that appointing one is appropriate. See Minn. R. Gen. Pract. 904.01 (stating that "[e]xcept as provided in subsection .02 of this rule, when the court determines that the appointment of a guardian ad litem is appropriate in a particular case, the court shall request that the program coordinator recommend a guardian ad litem for appointment") (emphasis added); Minn. R. Gen. Pract. 904.02 (describing process for appointing guardian ad litem in "emergenc[ies]").
7. Noting that these proceedings lacked testimony on the wishes of father, the child, and the child's paternal grandfather, father and grandmother argue that the district court should have appointed a guardian ad litem to investigate their positions. Because we affirm the finding that granting grandmother visitation would interfere with the mother-child relationship, the prerequisites for grandparent visitation under Minn. Stat. § 257.022, subd. 2 are lacking. Therefore, we need not address whether a guardian ad litem was required to investigate the preferences of the child and his father and grandfather.