Douglas Allen Crosby, petitioner, Appellant, vs. Dawn Rachelle Crosby, n/k/a Dawn Rachelle Lawson, Respondent.

Douglas Allen Crosby, petitioner, Appellant, vs. Dawn Rachelle Crosby, n/k/a Dawn Rachelle Lawson, Respondent. A06-629, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-629

 

Douglas Allen Crosby,

petitioner,

Appellant,

 

vs.

 

Dawn Rachelle Crosby,

n/k/a Dawn Rachelle Lawson,

Respondent.

 

Filed December 19, 2006

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Beltrami County District Court

File No. F2-96-1386

 

Wright S. Walling, Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN  55402 (for appellant)

 

Ronald S. Cayko, Fuller, Wallner, Cayko & Pederson, Ltd., 514 America Avenue, Post Office Box 880, Bemidji, MN  56619 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this custody dispute, appellant Douglas Allen Crosby claims that the district court abused its discretion by declining to modify the custody arrangement for his two children, J.T.C., born August 22, 1993, and L.C.C., born May 18, 1995.  The original custody arrangement placed sole legal custody of the children with respondent Dawn Rachelle Crosby, but the parties shared physical custody of the children, with respondent caring for the children during the week and appellant caring for the children on weekends.  Appellant moved to modify custody after the children were removed from respondent's home as the result of a CHIPS petition.  The home was found to be in a disheveled state and without proper heating; soon afterwards, respondent was discovered to be using methamphetamine.  Appellant also claims that the district court improperly denied him the right to impeach a witness by refusing to admit evidence of a recorded phone conversation.  Because the district court did not abuse its discretion in refusing to admit the impeachment evidence, we affirm in part.  Because the findings are insufficient to allow us to conduct a meaningful review on the custody issue, we reverse and remand on that issue.              

D E C I S I O N

            1.         Admissibility of Evidence

            Appellant required his children to digitally record their interviews with the court-appointed guardian ad litem.  He challenges the district court's refusal to admit one of these recordings during the evidentiary hearing on his custody modification motion.  Appellant claims that the recording was made by L.C.C. and that it recorded the guardian ad litem's interview with J.T.C.  Appellant intended to use the recording to impeach the testimony of the guardian ad litem. 

            "A ruling on admissibility of evidence will be reversed only if it is determined that the trial court abused its discretion and that the abuse of discretion resulted in prejudice to the objecting party."  May v. Strecker, 453 N.W.2d 549, 554 (Minn. App. 1990), review denied (Minn. June 15, 1990).  For several reasons, we conclude that the district court's ruling was a proper exercise of its discretion. 

            First, appellant admitted that he did not have the tape recording in his possession and that he failed to disclose the existence of the recording to respondent.  Second, appellant was unable to lay a proper foundation for admission of the recording because he was not present when it was made and neither of the children were present at the evidentiary hearing.  Third, the district court's ruling preserves the impartial role of the guardian ad litem by encouraging children to speak freely without fear of reprisal or undue influence by parents.  See Minn. Stat. § 518.165, subd. 1 (2004) (giving court authority to appoint guardian ad litem "to represent the interests of the child" and to "advise the court with respect to custody").  Finally, the children knew the interview was being recorded, a fact that further undermined the reliability of this evidence.  We therefore conclude that the district court did not abuse its discretion in declining to admit this evidence.

            2.         Modification of Custody

             "Appellate review of custody determinations is limited to whether the trial 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).  All custody determinations must consider and meet the best interests of the child.  In re Custody of N.M.O., 399 N.W.2d 700, 703 (Minn. App. 1987).

            Minn. Stat. § 518.18(d) (2004) states that a district court "shall not modify a prior custody order" unless "a change has occurred in the circumstances of the child or the parties and that modification is necessary to serve the best interests of the child."  In applying this standard, the district court "shall retain" the original custody arrangement unless, among other circumstances, "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)(iv).  Endangerment implies a "significant degree of danger" or likely harm to the child's physical or emotional well-being.  Sharp v. Bilbro, 614 N.W.2d 260, 263 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000).    

            Appellant argues that the district court incorrectly concluded that if respondent complied with the CHIPS reunification plan, she would be entitled to retain custody of the children.  The district court's order fails to demonstrate whether the court properly applied Minn. Stat. § 518.18(d), including analysis of the children's best interests.  "Application of the standards outlined in Minn. Stat. § 518.18 is not optional."  Reyes v. Schmidt, 403 N.W.2d 291, 293 (Minn. App. 1987).  A district court's custody modification decision must be adequately supported by particularized findings, as required by the statute.  Id.  Here, the court's findings primarily focus on the parents, rather than the children.  More particularized findings are needed to evaluate the impact of the parents' conduct on the children and whether the children's present environment constitutes endangerment within the meaning of the statute.  Evaluation of "present environment," among other things, includes identifying the judicially approved environment and consideration of "the circumstances in which the child is currently found[,]" and is not limited solely to "the history of care."  Hassing v. Lancaster, 570 N.W.2d 701, 703 (Minn. App. 1997).  Upon remand, the district court may reopen the record to consider the children's "present environment" for custody modification purposes.  

            Affirmed in part, reversed in part, and remanded.