In re the Matter of: Jodi Kris Engen, on behalf of themselves and their grandchildren, J. R. B., J. A. B., and J. E. P. v. Ashlee Jo Belisle ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0866
In re the Matter of:
Jodi Kris Engen, et al., on behalf of themselves
and their grandchildren, J. R. B., J. A. B., and J. E. P., petitioners,
Respondents,
vs.
Ashlee Jo Belisle,
Appellant.
Filed January 25, 2016
Affirmed
Halbrooks, Judge
Anoka County District Court
File No. 02-FA-13-2261
Jodi Kris Engen, Anoka, Minnesota (pro se respondent)
James and Audrey Lewis, Coon Rapids, Minnesota (pro se respondents)
Shellie Lundgren, Shellie Lundgren Law Office, Minneapolis, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges the district court’s order restoring and modifying
respondents’ grandparent-visitation time, arguing that the district court’s findings are
insufficient and unsupported by the evidence. We affirm.
FACTS
Appellant Ashlee Jo Belisle is the mother of three children who are the subjects of
this visitation proceeding. J.E.P. was born November 4, 2012, J.A.B. was born April 27,
2010, and J.R.B. was born May 21, 2005. Respondents Jodi Engen (Belisle’s mother)
and Audrey and James Lewis (Belisle’s grandparents) have been estranged from Belisle
for several years.
Respondents petitioned for visitation with Belisle’s three children on November
14, 2013, and the district court granted their petition. The district court found that
respondents had previously had extensive contact with the children before Belisle
unilaterally terminated the relationship. Further, it determined that it would be in the best
interests of the children for them to have regular visits with respondents and that the
visitation would not interfere with Belisle’s parent-child relationship. The district court
ordered that respondents have visitation time with the children every other Sunday, with
extended hours on Sundays following a holiday. It also awarded respondents visitation
for a three-day vacation in the summer. Finally, it ordered that respondents have
reasonable phone communication with the children, be able to attend lunches with them
at school, and be able to contact the school regarding the children.
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During one of the Sunday visits, respondents hosted a birthday party for two-year-
old J.E.P. J.E.P.’s father, T.J.P., who was the subject of a then-current domestic-abuse
no-contact order (DANCO) that prohibited any contact with Belisle, attended the party.
T.J.P. was not legally prohibited from contact with his child, J.E.P., or Belisle’s other two
children at the time of the birthday party.1 T.J.P. had court-ordered supervised visitation
with J.E.P. that was restricted to Saturdays from 10:00 a.m. to 12:00 p.m. at a
FamilyWise supervision center. After learning that T.J.P. attended the party, Belisle
moved ex parte for emergency relief to suspend respondents’ visitation rights on the
ground that respondents had endangered the children by inviting T.J.P. to the birthday
party.
The district court granted Belisle’s motion pending a hearing. At the hearing, the
parties stipulated on the record to the appointment of a guardian ad litem (GAL). The
district court directed the GAL to address long-range issues, including respondents’
access to the children. In an order dated December 31, 2014, the district court suspended
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An order for protection (OFP) had also been issued on September 12, 2013 to protect
Belisle and the children. The OFP was subsequently dismissed on December 13, 2013,
after Belisle submitted an affidavit to the district court recanting her earlier sworn
statements. The recanting affidavit included the following statement from Belisle:
[T.J.P.] did not inflict any physical harm or direct the
same towards me or the children. At no time did he ever
threaten any of us with violence or other threats of any kind.
Most of all, I was never in fear of anything he said or did . . .
I was mad at [T.J.P.], and I felt that the best way to get back
at him was to get an Order for Protection to keep him from
seeing his daughter . . . [T.J.P.] is not a danger to me or any
of the children.
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respondents’ visitation rights and continued the case pending the GAL’s
recommendations.
In his report dated February 12, 2015, the GAL addressed T.J.P.’s attendance at
the birthday party. The GAL stated that there were also “several other responsible adults
present,” noting also that there were no allegations in the district court files related to the
OFP or the DANCO that T.J.P. had “harmed or attempted to harm [J.E.P.] or the other
children.” The GAL concluded that T.J.P.’s presence at the party “did not patently
endanger” the children and recommended that respondents’ visitation schedule be
restored.
Following a hearing, the district court determined that the best interests of the
children are served by their continued contact with respondents. The district court
restored respondents’ visitation with the children but modified the frequency from every
other Sunday to every third Sunday from 11:00 a.m. to 4:00 p.m. This appeal follows.
DECISION
We review visitation orders for an abuse of discretion. SooHoo v. Johnson, 731
N.W.2d 815, 825 (Minn. 2007). When reviewing visitation orders, “we must determine
whether the court made findings unsupported by the evidence or improperly applied the
law.” Id. We will not set aside the district court’s findings unless they are clearly
erroneous. Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). “A
finding is clearly erroneous if we are left with the definite and firm conviction that the
court made a mistake.” SooHoo, 731 N.W.2d at 825. We do not disturb findings that are
supported by reasonable evidence. Fletcher, 589 N.W.2d at 101.
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Minn. Stat. § 257C.08, subd. 2(a) (2014) addresses grandparent visitation:
In all proceedings for dissolution, custody, legal
separation, annulment, or parentage, after the commencement
of the proceeding, or at any time after completion of the
proceedings, and continuing during the minority of the child,
the court may, upon the request of the parent or grandparent
of a party, grant reasonable visitation rights to the unmarried
minor child, after dissolution of marriage, legal separation,
annulment, or determination of parentage during minority if it
finds that: (1) visitation rights would be in the best interests
of the child; and (2) such visitation would not interfere with
the parent-child relationship. The court shall consider the
amount of personal contact between the parents or
grandparents of the party and the child prior to the
application.
Relying on Minn. Stat. § 518.165, subd. 2a (2014), a statute that addresses the use
of GALs in custody determinations, Belisle argues that the district court erred by not
ordering the GAL to interview J.R.B., who had been upset by T.J.P.’s presence at the
birthday party. But this matter did not involve any determination of custody. In
grandparent-visitation cases, the district court does not have to make the same detailed
analysis as is required in custody determinations. In re Santoro, 594 N.W.2d 174, 178
(Minn. 1999). And although the GAL could have interviewed one or more of the
children, he was not required by Minn. Stat. § 518.165, subd. 2a to do so.
Belisle’s next issue is that the district court made inadequate findings to support its
determination that the “best interests of the children are served by having continued
contact with their grandparents.” But the district court’s decision is well-supported by
the record. In response to the specific question that the GAL was asked to address, the
GAL concluded that the children were not endangered by T.J.P.’s attendance at the
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birthday party. The record contains multiple affidavits from Engen that also support the
district court’s decision. In an affidavit dated October 18, 2013 that was submitted in
support of T.J.P.’s petition for custody and parenting time, but contains sworn statements
that relate to the instant matter as well, Engen stated:
6. I have grave concerns about the well-being of
all my grandchildren at this time. My daughter is not in a
good place. She has a long history of “episodes” where she
runs and disconnects from her family and loved ones. She
uses time with the children as a weapon against those she
believes have wronged her in some way. I have reason to
believe she is using drugs, and I fear she may do something
drastic and try to flee the state and keep my grandchildren,
and [T.J.P.]’s child, away from the family.
....
8. I do not believe for a second that [T.J.P.] acted
upon or exhibited any violence towards [Belisle]. And I know
without a doubt in my mind he would never do such towards
the children. I do know my daughter though. And I can
easily see her setting up a situation and fabricating facts to get
her way, or even just to harm another. Again, I don’t know
what caused the rift between [Belisle] and [T.J.P.], but
knowing my daughter, it was some personal slight that she
decided [T.J.P.] needed to be punished for.
9. Throughout [T.J.P.] and [Belisle]’s relationship
we thought of [T.J.P.] as part of the family. He is wonderful
with children. [J.R.B.] and [J.A.B.], [Belisle]’s other
children, respected him and he really cared for them, even
though they were not his own; and he absolutely adored
[J.E.P.]. I know [J.E.P.] is still very young, but [T.J.P.] was
such a significant part of her life, I cannot imagine what this is
doing to her having her father kept away from her.
In an affidavit dated August 22, 2014, Engen made the following statements
relevant to our analysis:
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8. When [Belisle] gets mad at someone, her
control is using her kids as pawns and jerks them out of your
life. If [Belisle] doesn’t want a relationship with my parents
or me that is her choice, however, don’t take people away that
the kids love. All kids need stability. They shouldn’t have to
wonder who will be jerked out of their life because their
mother is mad at someone. I have seen her do this with each
of the kids’ three fathers, and now it’s happening to us.
9. Kids need security and stability. [J.R.B.] has
already been through 4 schools (one school was enrolled
twice). Once she gets close to other kids she is removed from
a school due to [Belisle]’s change of residence. Kids also
need family. They need to know their great-grandparents,
their grandparents, uncles and aunts. Kids need to know they
are loved. That is the main reason we have pursued the
grandparents visitation – it is to stay in their lives and love
them. Those kids have no voices at this point. NOT EVER
have we ever talked bad of [Belisle] to those kids. We would
never interfere in her parenting. Kids are like little sponges
and they learn what they live. We want them just to have a
good life and we want to be a part of their life. We went for
these grandparents times so [Belisle] wouldn’t be allowed to
jerk them out of our lives whenever she felt like it. We
wanted stability for these kids to let them know we love them
and we will always be here for them, no matter what happens
around them elsewhere.
The record supports the district court’s determination that it is in the children’s best
interests to have visitation with respondents restored.
Belisle also contends that the district court abused its discretion by failing to make
findings with regard to whether visitation with respondents would interfere with her
parent-child relationship. The district court addressed this statutory issue in its June 16,
2014 order that granted visitation to respondents. It did not do so in the order on appeal
presumably because Belisle framed her argument in her ex parte motion as one seeking
modification of respondents’ visitation rights based on respondents’ invitation to T.J.P. to
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attend J.E.P.’s birthday party. In her motion, Belisle asked the district court to make a
finding that respondents endangered her children. In her affidavit supporting the motion,
she requested that the district court find that (1) respondents endangered her children,
(2) respondents willfully and knowingly violated a court order, and (3) continued
visitation is no longer in the best interests of the children. Further, Belisle’s proposed
order to the district court included a finding by the district court that respondents
endangered her children and willfully and knowingly violated a court order. She did not
argue or propose that respondents’ actions at the birthday party somehow interfered with
her parent-child relationship. Because Belisle did not raise the issue, the district court did
not abuse its discretion by not specifically addressing in the context of the motion before
it whether a restoration of grandparent visitation would interfere with the parent-child
relationship. See, generally, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating
that a party cannot raise a new issue or a new theory on appeal).
We conclude that the district court properly acted within its discretion by restoring
respondents’ visitation rights.
Affirmed.
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