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In re Custody of R.H.P.

Court of Appeals of Minnesota

August 19, 2013

In re the Custody of R. H. P., d.o.b. 11/20/2002: Monty Marcel Prow, petitioner, Appellant,
v.
Trisha Harris Ball, Respondent, County of Dakota, intervenor, Respondent.

UNPUBLISHED OPINION

Dakota County District Court File No. 19-F0-03-012712

Andrew M. Silverstein, Andrew M. Silverstein Law Office, L.L.C., Minneapolis, Minnesota (for appellant)

Jenny L. Ryan, Legal Assistance of Dakota County, Ltd., Apple Valley, Minnesota (for respondent Ball)

James C. Backstrom, Dakota County Attorney, James W. Donehower, Assistant County Attorney, West St. Paul, Minnesota (for respondent County of Dakota)

Considered and decided by Rodenberg, Presiding Judge; Johnson, Chief Judge; and Connolly, Judge.

JOHNSON, Chief Judge

Monty Marcel Prow and Trisha Harris Ball are the parents of R.H.P., a 10-year-old boy. Under a February 2009 order, Ball has permanent sole legal and physical custody, and Prow has no parenting time. In January 2011, Prow sought to modify the prior order to obtain a right to parenting time. The district court denied Prow's request and established certain conditions for any future motion to modify. We affirm.

FACTS

Prow and Ball have one child together, R.H.P., who was born in November 2002. In 2003, pursuant to a stipulation, the district court ordered the parties to share joint legal and physical custody of R.H.P.

In November 2007, Ball moved to modify custody. She requested that the district court grant her sole legal and physical custody of R.H.P. and deny Prow parenting time. In support of the motion, Ball alleged that Prow had been charged on multiple felony counts of possession of illegal drugs, that Prow kept illegal drugs in his home where they were accessible to a child, and that Prow had sexually abused R.H.P. The district court determined that Ball had established a prima facie case that R.H.P. was endangered while in Prow's care.

In February 2009, the district court granted Ball's motion to modify, awarding her permanent sole legal and physical custody of R.H.P. and denying Prow parenting time. At that time, the district court also imposed three conditions with which Prow must comply before the court would award him parenting time: (1) that he submit to a psychosexual evaluation, (2) that he submit to a chemical-dependency evaluation, and (3) that he complete a reunification assessment. Prow appealed from that order, and this court affirmed. In re Custody of R.H.P., No. A09-1251, 2010 WL 1850526, at *13 (Minn.App. May 11, 2010), review denied (Minn. July 20, 2010).

In January 2011, the guardian ad litem, Dorothy Gause, filed a written report with the district court, stating that Prow had failed to comply with the conditions in the February 2009 order and recommending that Prow's parenting time remain suspended until Prow complies with the conditions. Gause also requested to be dismissed from the case. The district court issued an order dismissing Gause and stating that it would re-appoint a guardian ad litem if Prow moved for a modification of custody or parenting time. Prow contacted the district court by telephone to schedule a hearing on a motion concerning parenting time. Shortly thereafter, the district court appointed Beth Johnson to be the new guardian ad litem.

In February 2011, the district court advised the parties by letter that it would set a hearing on a motion for parenting time after the new guardian ad litem had the opportunity to assess Prow's compliance with the requirements in the February 2009 order. The district court specifically outlined the procedure that would apply: (1) Prow should make a motion for parenting time in writing without a hearing; (2) Prow should provide a progress report to the guardian ad litem regarding his compliance with the conditions in the February 2009 order; (3) the guardian ad litem should issue an updated report; (4) if the guardian ad litem found that Prow had made progress, the parties should agree to parenting time for Prow; and (5) if the parties could not agree, the district court would schedule an evidentiary hearing.

Prow did not serve or file a written motion to modify parenting time. Nonetheless, in August 2011, Beth Johnson submitted a written report in which she recommended that Prow and R.H.P. begin a reunification process with the help of a reunification therapist, Molly Cronin. In September 2011, Ball wrote to the district court to object to Beth Johnson's recommendations. The district court scheduled an evidentiary hearing, the scope of which was "limited to the recommendations issued by the Guardian ad Litem." Before the hearing, Ball filed a motion in limine, requesting that the district court determine that Prow has the burden of establishing that modification of parenting time is in R.H.P.'s best interests. The district court granted Ball's motion.

The district court held an evidentiary hearing over three days: January 5, 2012; March 13, 2012; and May 16, 2012. Prow testified on his own behalf and called Beth Johnson as a witness. Ball testified on her own behalf and called four witnesses: Dr. Melissa Parkhurst, R.H.P.'s former therapist; Gause, the former guardian ad ...


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