Itasca County Health and Human Services, Respondent, Lorie Eileen Olson, f/k/a Lorie Eileen Brohman, Appellant, vs. Calvin Eugene Brigan, Respondent.

Itasca County Health and Human Services, Respondent, Lorie Eileen Olson, f/k/a Lorie Eileen Brohman, Appellant, vs. Calvin Eugene Brigan, Respondent. A05-153, Court of Appeals Unpublished, November 15, 2005.

This opinion will be unpublished and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

A05-153

 

Itasca County Health and

Human Services,

Respondent,

 

Lorie Eileen Olson,

f/k/a Lorie Eileen Brohman,

Appellant,

 

vs.

 

Calvin Eugene Brigan,

Respondent.

 

Filed November 15, 2005

Affirmed
Crippen, Judge*

 

Itasca County District Court

File No. F5-02-50789

 

Heidi Chandler, Assistant Itasca County Attorney, 123 N.E. 4th Street, Grand Rapids, MN 55744 (for respondent Itasca County Health and Human Services)

 

Ellen Elizabeth Tholen, 525 East Itasca Street, Grand Rapids, MN 55744 (for appellant)

 

Calvin Eugene Brigan, 1564 Whispering Pines Drive, Cloquet, MN 55720 (pro se respondent)

 

            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Lorie Olson challenges the court's ultimate finding that respondent Calvin Brigan's unrestricted parenting contacts serve the best interests of the parties' child, a daughter born on May 19, 2001.  We affirm.

FACTS

            In September 2003 the district court determined that (1) appellant is the legal and physical custodian of the child, (2) respondent is the child's natural father, and (3) respondent should have supervised parenting contact every other weekend.  An April 2004 amendment to the judgment, based on a stipulation of the parents, established that supervised contact would continue pending a later decision on respondent's requests for a permanent parenting-time provision.

            Between June 2003 and August 2004 respondent had a total of 24 contacts with the child.  The last three contacts, in August 2004, were unsupervised.  All of the contacts appeared to be going well until October 2004, when the child protested seeing respondent.  The following contacts that were scheduled to take place prior to a November 2004 evidentiary hearing were cancelled because of the child's resistance.

            In January 2005, based on evidence received at the November evidentiary hearing, the court found that the child had a good time during unsupervised 2004 contacts, that she was a "happy, loving girl who is a bit slow to warm to people," and that appellant supported contacts of the child with her father.  The court also found that respondent is able to provide appropriate care and supervision of the child and that there is no reason to believe the child's resistance to see him is prompted by anything he had done.  Based on these findings, the court concluded that "normalizing" respondent's relationship with the child serves her best interest and that the parents "are in the best position to determine how to best help [the child] adjust to [respondent's] parenting time."  The court ended restrictions on respondent's parenting time contacts and ordered contact opportunities every other weekend.

D E C I S I O N

            Appellant contends that the district court abused its discretion in its determination to end restrictions on respondent's parenting contactsa decision premised on the court's ultimate finding that normalizing the father-child relationship was in the child's best interest.  Appellant contends that the child's best interests dictate a more gradual introduction of contacts, and that a supervisory agency should facilitate occasions.  Appellant argues that the court's order conflicts with evidence of the child's resistance to contacts and with evidence that appellant is the only parent who knows the child well enough to determine which contacts should occur.  She also argues that a more gradual approach would be consistent with the aims of the parties in their temporary stipulation early in 2004.

            The district court has extensive discretion in deciding parenting-time questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  "It is well established that the ultimate question in all disputes over visitation 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).  Minn. Stat. § 518.17, subd. 1(a) outlines 13 factors the district court should consider in making parenting-time decisions.

A review of the record does not establish that the district court abused its broad discretion when it determined the child's best interests.  In weighing its difficult options, the court looked at the supporting evidence that respondent and the child had many successful contacts before October 2004, that both parents support respondent's contacts with the child, and that the child has a good disposition.  In addition, the court could rightfully rely on appellant's plan to seek therapy services for the child.  Finally, the court's approach is supported by its cautionary instructions to the parents:  

If [the child] continues to display a reluctance to go with Father, the parties are strongly encouraged to work together to help [the child] adjust to spending more time with Father.  Among the options the parties might consider include: both parents, and perhaps other family members as well, meeting and spending time in one or the other's home, or a public place, like a restaurant, so that [the child] can see the parents interacting normally; perhaps having Mother transport [the child] to Father's home for parenting time and then staying and visiting a while to help [the child] adjust and to allow [the child] to see her parents interacting normally; Father may also want to consider exercising his parenting time, or a portion of his parenting time, in [daughter's home town] to help [the child] adjust by keeping her in a familiar environment.

 

            Appellant contends that unrestricted contacts, if they are to occur, should be delayed until the child undergoes therapy, but the weighing of options in this regard is well within the discretion of the district court.  Cf. Clark v. Clark, 543 N.W.2d 685, 688 (Minn. App. 1996) (noting district court's discretion to condition stay of parenting-time modification on continued therapy for mother and child).  Appellant also observes that the court's instructions to the parents, stated above, are not obligatory, but there is no error in the court's choice to act partly on its confidence in the cooperative efforts of parents who have shown good will in seeking an end that is best for the child.

            Much of appellant's argument dwells on the assertion that the district court put upon appellant a burden to show that unrestricted contacts of respondent would endanger the welfare of the child.  The court found that "[t]here is no reason to believe that [the child] is in any danger when in [respondent's] care."  Also, in a supporting memorandum, the court explained that restrictions are not dictated by any evidence of danger in respondent's contacts with the child.  But there is no evidence that the court imposed a burden upon appellant to prove endangerment, and the court's primary findings are repeatedly premised on the child's best interests, not on the absence of danger.  These findings, as observed in this opinion, are not reversible.  Moreover, contrary to appellant's argument, use of the danger standard would not be inappropriate in light of the statute governing an initial determination of parenting contact, which mandates restrictions on contact only when the court determines that the time will "endanger the child's physical or emotional health or impair the child's emotional development."  Minn. Stat. § 518.175, subd. 1(a) (2004).

            Finally and somewhat incidentally, appellant claims that her legal rights were contradicted by the district court's finding of fact that respondent "wants to begin introducing [the child] to her Native American heritage by taking her to pow wows and other cultural events."  Appellant argues that pow wows have religious significance that contradict her wishes as a legal custodian for "raising [the child] as a Christian."  But the court's language appears only in a finding of fact, regarding cause for the court's parenting-time order, and it does not represent a legal determination as to the respective rights of the parents regarding religious training of the child, which is a function of legal custody.  See Minn. Stat. § 518.003, subd. 3(a) (2004) (stating legal custody includes right to determine child's religious training).

            Affirmed.

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