William Glen Rhodes, Respondent, vs. Jamie L. Maier, Respondent, Carolyn Maier, et al., Appellants.

 STATE OF MINNESOTA
IN COURT OF APPEALS
C9-98-1067

William Glen Rhodes,
Respondent,

vs.

Jamie L. Maier,
Respondent,

Carolyn Maier, et al.,
Appellants.

Filed February 2, 1999
Affirmed in part and remanded
Toussaint, Chief Judge

Clay County District Court
File No. F8941937

Bonnie J. Askew, 118 Broadway, Suite 213, P.O. Box 227, Fargo, ND 58107-0227 (for respondent)

Terry Allen Graff, Suite 204, 920 28th Avenue South, Moorhead, MN 56560-4455 (for appellant)

Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N TOUSSAINT, Chief Judge

Appellants Carolyn and Robert Maier challenge the district court's denial of their motions for custody or, in the alternative, for visitation of their grandson, and the court's dismissal of the guardian ad litem. Because we conclude (1) the district court did not abuse its discretion in determining that appellants failed to establish a prima facie case for custody modification; and (2) on appeal appellants waived both essential elements of their claim for visitation, we affirm the denial of appellants' motions. Because the district court failed to make findings as to why the dismissal of the guardian ad litem was in the best interests of the child, we remand the issue of the guardian's removal for specific findings.

D E C I S I O N I.

District courts have discretion in deciding whether to modify child custody awards and whether to grant evidentiary hearings. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). These decisions will not be reversed absent an abuse of discretion. Id.

A court shall not modify a custody order unless it finds that a significant change has occurred in the circumstances of the child or the parties since the prior order and such change endangers the child, making a modification necessary to serve the best interests of the child. Minn. Stat. § 518.18(d) (1996). One such change may be an unwarranted denial of, or interference with, a duly established visitation schedule. Id.

On a motion to modify a custody order, a district court reviews the moving party's supporting affidavits to determine if the moving party has presented a prima facie case of endangerment. Smith v. Smith, 508 N.W.2d 222, 226 (Minn. App. 1993). If the moving party fails to establish a prima facie case, the district court may deny the motion without an evidentiary hearing. Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985). A prima facie case requires a showing that: (1) a significant change occurred in the child's circumstances or custodian; (2) modification of custody would be in the child's best interests; (3) the current custody arrangement endangers the child's physical or emotional health or emotional development; and (4) the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992).

When determining whether a prima facie case has been established, a district court is to take as true the facts set forth by the moving party. Smith, 508 N.W.2d at 226. Although directly contrary statements in opposing affidavits must be disregarded, statements in opposing affidavits that explain the circumstances surrounding the accusations may be considered. Geibe v. Geibe, 571 N.W.2d 774, 779 (Minn. App. 1997).

On July 15, 1994, William Rhodes and Jamie Maier, both of whom were unmarried minors, became parents of W.R., Jr. In July 1995 Rhodes and Maier were awarded joint legal custody of W.R., Jr., and Maier was awarded physical custody subject to visitation by Rhodes. On April 4, 1997, Rhodes and Maier stipulated that Rhodes should be awarded physical custody of W.R., Jr., subject to visitation by Maier. A guardian ad litem was appointed on October 20, 1997. On February 12, 1998, appellants, W.R., Jr.'s maternal grandparents, moved for custody or in the alternative, for visitation of their grandson.

In their motion to modify custody, appellants alleged that since the last custody order (1) Rhodes failed to properly clothe W.R., Jr. for winter conditions; (2) Rhodes ordered appellants not to provide medical attention for W.R., Jr.; (3) Rhodes canceled an appointment appellants made for a developmental evaluation of W.R., Jr.; (4) some of W.R., Jr.'s developmental delays are a result of having been removed from the Maier home and placed in the custody of Rhodes; (5) Rhodes changed his residence without notification; (6) Rhodes concealed medical information about W.R., Jr.'s ear infections; (7) the guardian ad litem observed W.R., Jr. strike several members of the Rhodes family without receiving reprimand or instruction not to do so; and (8) Rhodes interfered with appellants' visitation with W.R., Jr..

In his opposing affidavits, Rhodes explained that (1) because the weather had been mild, he allowed W.R., Jr. outside without all of his usual winter gear; (2) W.R., Jr. often returned from visitation with Maier and appellants without any socks, mittens, or cap, causing Rhodes to have to buy new ones; (3) he requested that appellants not bring W.R., Jr. to the doctor unnecessarily because Social Services had been questioning Rhodes about the frequency of the medical visits and use of Medical Assistance; (4) he canceled the appointment appellants made for W.R., Jr. for a developmental evaluation because another provider had made the evaluation; (5) W.R., Jr.'s developmental delays occurred when W.R., Jr. resided with Maier and appellants; (6) he did not discipline W.R., Jr. for hitting in the presence of the guardian ad litem because Rhodes believed the guardian wanted to observe W.R., Jr.'s behavior without his interference; and (7) W.R., Jr. is in counseling for behavior problems associated with hitting and biting.

Furthermore, this record does not reflect that a duly established visitation schedule has ever been ordered in favor of appellants. Therefore, any interference with or denial of visitation by Rhodes does not, under the statute, constitute a change in circumstances sufficient to establish the first element of a prima facie case.

Because the record supports the district court's determination that appellants failed to show a significant change in the circumstances of the child or the child's custodian since the prior custody order, there was no abuse of discretion. Because appellants failed to meet the first element of their prima facie case, we affirm the district court's denial of appellants' motion to modify custody without an evidentiary hearing.

II.

A district court has broad discretion in deciding visitation issues and will not be reversed absent an abuse of discretion. Manthei v. Manthei, 268 N.W.2d 45, 46 (Minn. 1978).

Grandparents may petition for a visitation order if their grandchild resided with them for at least 12 months and the child's parents subsequently removed the child from the grandparents' home. Minn. Stat. § 257.022, subd. 2a (1996). The district court shall grant the petition if it finds that (1) the best interests of the child would be served by ordering visitation; and (2) visitation would not interfere with the parent and child relationship. Id.

The district court found that appellants' relationship with Rhodes is "extremely acrimonious" and concluded that awarding appellants visitation may interfere with the parent and child relationship. Appellants failed to raise this issue on appeal. Thus, they have waived an essential element of their claim. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (holding that issues not briefed on appeal are waived).

In addition, appellants allege that visitation would be in the best interests of W.R., Jr. by stating, "[t]hat it is in the best interest of the child [for visitation to be awarded] is fully supported by the credible evidence in the record." Appellants make no further argument and provide no authority to support their claim. See Minn. R. Civ. App. P. 128.02, subd. 1(d) (argument in appellant's brief "shall" include, among other things, citations to authority). Therefore, they have waived the second of two essential elements of their claim. See State, Pollution Control Agency v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).

Because appellants waived both essential elements of their claim on appeal, we affirm the district court's denial of appellants' motion for visitation.

III.

An appellate court will not reverse the removal of a guardian ad litem absent an abuse of discretion. In re Welfare of M.J.L., 582 N.W.2d 585, 589 (Minn. App. 1998).

Minnesota law does not provide a procedure to remove a guardian ad litem. In re Welfare of B.B.B., 393 N.W.2d 436, 437 (Minn. App. 1986). However, this court has borrowed the child's best interests standard used for removal of a guardian in probate proceedings and applied it to proceedings involving child neglect, id, and custody determinations, M.J.L., 582 N.W.2d at 588-89. District courts must make specific findings regarding the child's best interests before removing a guardian. B.B.B., 393 N.W.2d at 437. A district court may use the best interests factors set out in Minn. Stat. § 518.17 (1996 & Supp. 1997), but it is neither limited to those factors nor need it apply all of them. M.J.L., 582 N.W.2d at 589.

The district court made no mention of the removal of the guardian at the hearing in this matter and in its written order the court simply stated, "The guardian ad litem is hereby discharged." In light of the circumstances of this case, including W.R., Jr.'s developmental delays, the extreme animosity between W.R., Jr.'s father and maternal grandparents, and the mental challenges his mother faces, a best interests analysis is appropriate.

Because the district court made no findings as to why the removal of the guardian is in W.R., Jr.'s best interests, we remand the removal issue for specific findings. The guardian shall be reinstated pending the issuance of findings. We express no opinion on the removal issue. Also, whether to reopen the record on this issue shall be within the discretion of the district court.

  Affirmed in part and remanded.

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