In Re the Custody of: J. B. D., Jason A. Duenes, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0331

In Re the Custody of: J. B. D., Jason A. Duenes, petitioner,
Appellant,

vs.

Jennifer A. Hage,
Respondent.

Filed December 13, 2021
Reversed and remanded
Connolly, Judge

Steele County District Court
File No. 74-FA-15-2217

Shirlene R. Perrin, Perrin Law Office, St. Paul, Minnesota (for appellant)

Jennifer Hage, Waseca, Minnesota (pro se respondent)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and
Klaphake, Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant-father challenges the district court’s denial of his motion to modify
custody of his child without an evidentiary hearing, arguing that he made a prima facie
case for modifying custody in his affidavit and was therefore entitled to an evidentiary

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
hearing. Because the district court did not treat appellant’s allegations as true when it
concluded that he had not made a prima facie case for modifying custody, we reverse and
remand for an evidentiary hearing.1
FACTS

Appellant Jason Duenes and respondent Jennifer Hage are the parents of a seven -
year-old son, J.B.D.2 The parties separated when he was a year old, and appellant’s petition
for sole legal custody and sole physical custody of him was granted. Following a Child in
Need of Protection or Services (CHIPS) petition, J.B.D. was placed in relative custody with
respondent in February 2018; he remains in her custody. J.B.D. was adjudicated CHIPS
in April 2018, and appellant was ordered to comply with a case plan. A petition for
termination of the parental rights (TPR) of appellant was filed, and in August 2019,
appellant voluntarily transferred sole legal custody and sole physical custody of J.B.D. to
respondent.

1 Appellant also moved to hold respondent in contempt and challenges the denial of that
motion. In light of our decision to remand this matter for an evidentiary hearing at which
time that motion can be addressed, we do not review that denial. Appellant did not file a
parenting-time motion, but he requested expanding parenting time and altering its
restrictions as an alternative to modifying cu stody. Parenting time was discussed by the
attorneys and the district court at the hearing, but other than noting that “[appellant] admits
that he is currently exercising parenting time regularly,” did not mention parenting time in
its order, so there is no parenting-time decision for us to review. Like contempt, parenting
time can be addressed on remand at the evidentiary hearing, provided that appellant files a
separate parenting-time motion.
2 Respondent has taken no part in this appeal, which proceeded by order of this court under
Minn. R. Civ. App. P. 142.03 (directing that, when a respondent fails to file a brief or seek
an extension, the matter is to be decided on the merits).
In December 2020, respondent filed a petition for a harassment restraining order
(HRO) against appellant. A temporary ex parte HRO was granted for tw o weeks in late
December 2020 and early January 2021; during this period, appellant did not have
parenting time. The HRO petition was dismissed in January 2021 because respondent’s
allegations had not been proven.
Appellant then moved for modification of “legal and physical custody as the child
is being physically and emotionally harmed.” The parties’ attorneys attended a hearing on
the motion. Appellant’s attorney concluded her argument: “So we ask the court to grant
an evidentiary hearing. Clearly . . . there is [a] dispute as to [the] facts in this issue. But if
everything that [appellant] says is true, he has shown that there is endangerment and
emotional harm and physical harm to the child. ” The district court implicitly denied
appellant’s request for an evidentiary hearing, saying, “I’m going to take the matter under
advisement. Parties will be notified in writing once a decision is reached.” A written denial
of appellant’s motion was filed two days later.
Appellant challenges the denial, arguing that the district court erred by denying his
motion to modify custody on grounds of endangerment without an evidentiary hearing.
DECISION

In reviewing a decision made without an evidentiary hearing on a motion to modify
custody on grounds of endangerment, this court: (A) reviews de novo whether the district
court treated the moving party’s allegations as true, disregarded the opponent’s contrary
allegations, and considered only the explanatory allegations in the opponent’s affidavits;
(B) reviews for an abuse of discretion the district court’s determination as to whether the
moving party made a prima case for modifying custody; and (C) reviews de novo whether
the district court properly determined the need for an evidentiary hearing. Amarreh v.
Amarreh, 918 N.W.2d 228, 230-31 (Minn. App. 2018).
Amarreh concluded that
[t]he district court abused its discretion by concluding that
father [the party seeking modification] failed to allege facts
which, if true, would make a prima facie case for modification
because he sufficiently alleged emotional endangerment by
providing examples of mother’s substantial interference with
his relationship with his children. We conclude that father’s
affidavit contains allegations that, if true, amount to child
endangerment and that the district court erred by determining
that no need existed for an evidentiary hearing on father’s
endangerment-based custody-modification motion.

Id. at 232; see also Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn. App. 1991) , cited in
Amarreh, 918 N.W.2d at 232, for the proposition that, when there is a dispute as to whether
a child’s present en vironment endangers emotional development “an evidentiary hearing
would be helpful and is justified.”
The district court’s order reflects bot h its view that appellant’s credibility was
questionable (“[appellant’s] repeated unfounded complaints to law enforcement and child
protection call into question his credibility”) and its reliance on respondent’s opposing
allegations, e.g., that she had not deprived appellant of parenting time, that her unsuccessful
attempt to obtain an HRO against appellant was made in good faith, and that the child’s
therapy was being continued.3

3 The district court did accept as true appellant’s allegations that re spondent had denied
him access to the child’s records and ordered that, “[t]o the extent that [respondent] may
have directed school personnel and care providers not to share information with [appellant],
In Amarreh,
the district court concluded that father did not allege facts
which, if taken as true, would show that the emotional health
or development of the children w as presently endangered and
that father had not established the four elements required to
establish a prima facie case. But the court found that father’s
affidavit alleged that mother had interfered with his
relationship with the minor children. At the prima -facie-case
stage of the proceeding, father need not establish anything.
Father need only make allegations which, if true, would allow
the district court to grant the relief he seeks.

Amarreh, 918 N.W.2d at 231 (quotations omitted). The section of a ppellant’s affidavit
labeled “Endangerment” makes six allegations to support the statement that there has been
a change in circumstances; five to support the statement that modification of custody would
be in J.B.D.’s best interest; seven to support the statement that J.B.D.’s present
environment endangers his physical health, emotional health, or emotional development;
and five to support the sta tement that the [benefits] of the change outweigh its detriments
for J.B.D.; it provides 15 further allegations as appellant’s reasons for concluding that he
should be given custody of J.B.D. If true, these allegations, like the allegations in Amarreh,
would provide a prima facie case for modifying custody and would therefore entitle
appellant to an evidentiary hearing.
We reverse and remand for further proceedings in accord with this opinion ; the
district court has discretion as to reopening the record.
Reversed and remanded.

she shall cease doing so. [He] has the right of dir ect access to the child’s medical, dental,
and school records.” But with this one exception, the district court did not appear to accept
any of appellant’s allegations as true.