In the Matter of the Welfare of the Child of: L. D.-P., Parent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0754

In the Matter of the Welfare of the Child of:
L. D.-P., Parent.

Filed October 29, 2018
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-JV-16-3728

Jolene D. Baker Vicchiollo, Heather A. Chakirov, Bake r Vicchiollo Law , LLC, Edina,
Minnesota; and

Lucas J.M. Dawson, Groshek Law, Minneapolis, Minnesota (for appellant L.D.-P.)

Basil El -Ghazzawy, El -Ghazzawy Law Office s, LLC, Minneapolis, Minnesota (for
respondent father)

Michael O. Freeman, Hennepin Coun ty Attorney, Melissa J. Jacobsen, Assistant County
Attorney, Minneapolis, Minnesota (for respondent Human Services and Public Health
Department)

Polly Ann Krause, Hennepin County Public Defender Office, Minneapolis, Minnesota (for
minor child)

Michael Tepoorten, Minneapolis, Minnesota (guardian ad litem)

Considered and decided by Bratvold, Presiding Judge; Worke, Judge; and Jesson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant-mother argues that the juvenile court lacked jurisdiction to modify
visitation and abused its d iscretion by imposing restrictions on visitation that were not
recommended by the guardian ad litem (GAL), delegating authority to the child to
determine a visitation schedule, and finding that it was not in the child’s best interests to
increase visitation without certain parameters. We affirm.
FACTS
Appellant-mother L.D.-P. and respondent-father B.P. are the parents of a daughter,
born in October 2005. In January 2016, respondent Hennepin County Human Services and
Public Health Department ( the department) filed a petition alleging that daughter was in
need of protection or services. The department subsequently petitioned to transfer
permanent legal and physical custody of daughter from mother to father , and the juvenile
court granted the department’s petition. The order granting the petition stated that mother
“shall have the right to reasonable visitation/parenting time with the child.” The order also
stated that “[a]n application seeking modification of th is custody order must be made to
the Juvenile Court pursuant to Minn. Stat. § 260C.521, subd. 2, and the standards of Minn.
Stat. § 518.18 and § 518.185.”
In December 2017, mother moved to transfer custody and visitation issues to the
jurisdiction of fami ly court, or in the alternative, for a visitation modification consistent
with the best interests of the child. Father opposed the motions and requested the
appointment of a GAL to represent daughter’s best interests. The juvenile court assigned

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a GAL and ordered him to investigate and compile a report concerning daughter’s position.
The GAL reported daughter’s impression that the most recent visit with mother “did not
go well” and that daughter was “very uncomfortable” during the visit. Daughter told t he
GAL that she was “open to the idea that the visits could be conducted in a therapeutic
setting” but did not want a “forced, ‘set’ visitation schedule.” The GAL recommended that
mother and daughter participate in a “restorative parenting process” and follow a provider’s
recommendations so that visitation can be safe and productive. Both parents supported the
GAL’s recommendations.
In its order, the juveni le court stated that it did “ not specifically retain jurisdiction
for this matter” in its order transferring legal and physical custody to father. However,
citing a 2014 district-wide standing order, the juvenile court determined that it had
jurisdiction over the case and denied the request to transfer the matter to family court. The
juvenile court also concluded that , although it was in daughter’s best interests to have a
relationship with mother, certain parameters were necessary to ensure daughter’s overall
safety. To that end, the district court gave daughter authority over certain elements of
visitation, including the duration and location of visits, whether to add visits, whether to
engage in reunification therapy, and which therapy provider to use. These parameters were
not addressed in the GAL’s report. This appeal followed.

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D E C I S I O N
Jurisdiction
Mother argues that the juvenile court erred by declining to transfer the case to family
court. This court reviews questions as to the district court’s jurisdiction de novo. Nelson
v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015).
“The juven ile court has original and exclusive jurisdiction in proceedings
concerning any child who is alleged to be in need of protection or services . . . .” Minn.
Stat. § 260C.101, subd. 1 (2016). The juvenile court also has “original and exclusive
jurisdiction in proceedings concerning . . . permanency matters under sections 260C.503
to 260C.521.” Id., subd. 2(2) (2016). Those sections lay out possible permanency
dispositions, including that “[t]he court may order permanent legal and physical custody to
a fit and willing relative in the best interests of the child.” Minn. Stat. § 260C.515, subd.
4 (2016). If the juvenile court transfers permanent legal and physical custody to a relative,
it must follow the relevant statutory standards as well as “the procedures in the Minnesota
Rules of Juvenile Protection Procedure.” Id., subd. 4(2).
Under rule 42.07, subdivision 1, of the Minnesota Rules of Juvenile Protection
Procedure, “[t]he court may order transfer of permanent legal and physical custody to a fit
and willing relative pursuant to [Minn. Stat.] § 260C.515, subd. 4.” But “[i]f the court
transfers permanent legal and physical custody to a relative, juvenile court jurisdiction is
terminated unless specifically retained by the court.” Minn. R. Juv. Prot. P. 42.07, subd. 2.
“If the court retains jurisdiction, [it] may order further in -court hearings at such intervals
as it determines to be in the best interests of the child . . . .” Id., subd. 3.

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Here, in its order transferring permanent legal and physical custody to father, the
juvenile court stated that “[a]n application seeking modification of this custody order must
be made to the Juvenile Court pursuant to Minn. Stat. § 260C.521, subd. 2, and the
standards of Minn. Stat. § 518.18 and § 518.185.” We read this statement as a specific
retention of jurisdiction. Admittedly, in its order denying mother’s motion s, the juvenile
court concluded that it “did not specifically retain jurisdiction for this matter.” However,
we review questions of jurisdiction de novo and are not bound by this conclusion. Because
we conclude that the juvenile court specifically retained jurisdiction over this case within
the meaning of rule 42.07, we need not address the effect of the 2014 district-wide standing
order relied upon by the juvenile court.
GAL recommendations
Mother argues that the juvenile court erroneously declined to follow the GAL’s
recommendations and failed to make explicit findings explaining its reasoning. The district
court has broad discretion to determine the best interests of the child, and that determination
is reviewed for an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).
A district court is not bound by an independent evaluator’s recommendation. Rogge v.
Rogge, 509 N.W.2d 163, 166 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).
However, if the district court rejects an independent evaluator’s recommendation, it must
express its reasons for doing so, or provide detailed findings considering the same factors
as the evaluator. Id.
Here, in its findings-of-fact section, the juvenile court recited the findings from the
GAL’s report as well as the GAL’s recommendations. In its analysis section, the juvenile

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court stated that the GAL “has suggested that the family engage in some sort of therapeutic
program, such as restorative parenting, to help [mothe r] and [daughter] rebuild their
relationship.” While the juvenile court agreed that it was “in [daughter]’s best interests to
have a relationship with her mother[,]” it noted that it did “share some of [father]’s concerns
regarding [mother]’s stability. For those reasons, [it found] that it is in [daughter]’s best
interests to set up initial boundaries regarding visitation and contact.” The juvenile court
then explained that mother’s fractured relationship with daughter “is largely, if not entirely,
of [mother]’s making” and that mother’s “blunderbuss approach thus far is ill-considered.”
The bases for the juvenile court’s departure from the GAL’s recommendations were:
(1) it had some “concerns regarding [mother]’s stability,” and (2) mother’s approach to the
“issue of visitation has been demanding, bullying, litigious and further damaging to the
mother/daughter relationship.” Although the exact nature of the juvenile court’s concerns
about mother’s stability are not immediately clear, in its findings of fact, the juvenile court
discussed father’s concerns that mother had missed several opportunities to visit daughter,
had asked daughter to engage in “secret communications,” and had provided no
documentation of sobriety. In light of the juvenile court’s broad discretion to determine
the best interests of the child, we conclude that the juvenile court did not abuse its discretion
by declining to follow the GAL’s recommendations for implementation of a restorative -
parenting therapeutic program.
Input from daughter
Mother argues that the juvenile court improperly gave daughter, who was 12 years
old at the time of the order, “significant input and decision-making authority relative to the

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frequency and duration and other aspects of parenting time and the rest orative parenting
process.” In determining custody and visitation, 1 a child’s preference must be given
substantial weight if the child is old enough to express a preference. Barrett v. Barrett ,
394 N.W.2d 274, 279 (Minn. App. 1986). A child’s preference with respect to custody and
visitation matters is of “predominant importance.” Ross v. Ross , 477 N.W.2d 753, 756
(Minn. App. 1991); see also State ex rel. Feeley v. Williams , 222 N.W. 927, 928 ( Minn.
1929) (giving significant weigh t to the preference of a child who was 12 and a half years
old in determining custody).
Here, daughter reported to the GAL that her most recent visit with mother “did not
go well” and that daughter was “very uncomfortable” during the visit. The juvenile court
also found that it was “beyond dispute that [daughter] has suffered trauma from her
mother’s actions over the past several years.” Daughter told the GAL that she was “open
to the idea that the visits could be conducted in a therapeutic setting” but did not want a
“forced, ‘set’ visitation schedule.” For these reasons, the juvenile court gave daughter
input with respect to aspects of future visitation.

1 Both parties use the terms “visitation” and “parenting time” inter changeably in their
briefs. In a recent case, this court noted that the juvenile court repeatedly used the terms
“visitation” and “parenting time” interchangeably, and that to do so was error. In re
Welfare of Child of A.H., 879 N.W.2d 1, 6 (Minn. App. 2016). This court also noted that
the juvenile-protection statutes repeatedly discuss visitation, and that these statutes define
“bests interests” without reference to the parenting-time statute, Minn. Stat. § 518.175. Id.
This court stated that “juvenile -protection statutes neither require nor allo w the juvenile
court to use the family court marital-dissolution statutes to establish or evaluate visitation,
which the juvenile court has the authority to award.” Id. The juvenile court, in reliance on
A.H., determined that it should treat mother’s mot ion as a motion to modify visitation,
rather than parenting time. We conclude that the juvenile court did not err in reaching this
conclusion.

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We are concerned that the juvenile court’s order may require daughter to play a n
uncomfortable role in controlling future visitation. See Barrett, 394 N.W.2d at 279 (stating
that a district court may not delegate its role of determining an appropriate visitation
schedule to a child). “It is not in . . . children’s best interests to become bargaining agents
between their parents in working out arrangements for each visitation.” Id. Nonetheless,
in light of daughter’s statements concerning recent visitation and the history of trauma as
a result of mother’s actions, we conclude that the district court did not abuse its discretion
by permitting daughter to control certain aspects of future visitation.
Best interests of the child
Mother argues that the juvenile court erred by issuing a decision contrary to the best
interests of the child and the weig ht of the evidence. In particular, mother argues that the
juvenile court erred by deciding that it was not in daughter’s best interests to increase
mother’s visitation.
The district court has broad discretion to determine visitation issues and will not be
reversed absent an abuse of discretion. Olson, 534 N.W.2d at 550. The district court
abuses its discretion if it misapplies the law or if its findings are unsupported by the record.
Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). The district c ourt’s findings of fact
will be upheld unless they are clearly erroneous. Dahl v. Dahl , 765 N.W.2d 118, 123
(Minn. App. 2009). In making a visitation determination, the district court must assess
whether visitation is in the best interests of the child. A.H., 879 N.W.2d at 6. Juvenile -
protection statutes define “best interests” as including “all relevant factors to be considered
and evaluated.” Minn. Stat. § 260C.511(a) (2016).

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Here, mother requested amendments to the visitation schedule, including: (1) a “set
parenting time schedule whereby [mother] ha[s] certain set days and times of in -person
parenting time with [daughter], to be initially supervised by a third party”; (2) “remote
contact, such as telephone contact and Facetime contact, which will g ive [mother] the
opportunity to grow [her] relationship with [daughter] and keep [mother] better apprised
of [daughter’s] everyday life”; and (3) a “set parenting time schedule in a greater quantity
than [father] has been allowing.” The juvenile court gra nted mother’s request for a
modification, but determined that “ [t]o facilitate the relationshi p” between mother and
daughter, “certain parameters are necessary to ensure [daughter]’s physical, mental, and
emotional safety.” The juvenile court based this conclusion on its finding that it “share[d]
some of [father]’s concerns regarding [mother]’s stability.” The juvenile court also found
that mother’s “approach to the issue of visitation has been demanding, bullying, litigious
and further damaging to the mother/daughter relationship.”
The GAL stated that daughter was “very uncomfortable” during a recent visit with
mother and felt “fear, nervousness, and anxiety” during the visit. Daughter “made it clear
to the GAL that she ‘does not feel comfortable with how the visits have gone’ and is open
to the idea that the visit s could be conducted in a therapeutic setting.” Daughter also told
the GAL that she did not want “a forced, ‘set’ visitation schedule at this time.” The GAL
stated that although mother claime d to have been sober for several months and attended
alcohol-addiction programming, mother could not provide any documentation
demonstrating sobriety. We conclude that the record contains evidence supporting the
juvenile court’s “concern” as to mother’s s tability as well as the juvenile court’s finding

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that mother’s approach to visitation has further damaged her relationship with daughter.
The juvenile court did not abuse its discretion by making findings as to daughter’s best
interests.
Affirmed.