Wilson v. Ibarra

CROTHERS, Justice,

dissenting.

[¶ 18] I respectfully dissent. I believe the district court has made sufficient findings and conclusions to affirm this case under our standard of review and the applicable burden of proof. Instead, the majority requires “preparation of more detailed findings to establish that any form of visitation would result in physical or emotional harm to the child, or in the alternative, the court should order an attempt at supervised visitation before all visitation is terminated.” Majority at ¶ 15 (citation omitted). From this result, it appears this Court has improperly substituted its judgment for that of the district court by, in essence, directing supervised visitation and, in the process, has implicitly elevated the standard of proof for not allowing visitation.

[¶ 19] The majority acknowledges our standard of review that a “district court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous. A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made.” Majority at ¶ 9 (internal citations omitted). Yet, I cannot see where the majority actually implements this standard. The majority never specifies wheth*574er its result obtains because the district court misapprehended the law, the district court’s conclusions were not supported by-evidence, or whether this Court has been left with a definite and firm conviction the district court made a mistake. I am concerned that such analysis is missing because it cannot be accomplished on this record.

[¶ 20] The district court made findings, as reported by the majority. Majority at ¶ 7. The district court also issued a letter opinion stating:

I have had the opportunity to consider the evidence and case law in the above matter. I will deny Mr. Ibarra’s motion for visitation. I will make the specific finding that any ordered visitation, including supervised visitation, would be likely to endanger [the child’s] physical or emotional health. Paulson v. Paul-son, 694 N.W.2d 681, 690 (N.D.2005); N.D.C.C. § 14-05-22(2). I would ask that Ms. Lindberg draw the appropriate Findings and Order and submit them to Mr. Meyer for review prior to submitting them to me.
I came to the above conclusion based on Mr. Ibarra’s history of abandonment of [the child], his history of violence, and his history of alcohol abuse which appears unresolved. I recognize that Mr. Ibarra has taken steps to improve his life and that he has not had a criminal charge filed against him in about three years. The fact remains, however, is that he did engage in four incidents of violence over a five-year period from 1997 to 2002 in which he was charged criminally. The implication with such behavior is that there were many more incidents of violence that were not reported to law enforcement. This is confirmed by the many episodes of violence complained of by Ms. Wilson. Mr. Ibar-ra denied several of those incidents but there were several he admitted to.
Mr. Ibarra also has abandoned this child as that term is understood under North Dakota Law. “Desertion or a failure to support a child or pregnant wife for a period of three months is presumptive evidence of intention to wholly abandon.” N.D.C.C. § 14-07-17. Section 27-20-02 of the N.D.C.C. defines “abandon” as follows:
As to a parent of a child not in the custody of that parent, failure by the noncustodial parent significantly without justifiable cause:
(1) To communicate with the child; or
(2) To provide for the care and support of the child as required by law.
Mr. Ibarra abandoned [the child] by his lack of care and support for her from at least April 2002 until his recent return to North Dakota. He now wants to “unabandon” her.
I am of the opinion that to reintroduce Mr. Ibarra into [the child’s] life at this time would be a detriment to her emotionally. I will grant that Mr. Ibarra appears to have been making some positive strides in his life, but it is unfair to this child to have Mr. Ibarra come back into her life with the very real possibility that he will leave again. Mr. Ibarra made his choices regarding [the child] some years ago and now he has to live with them.

[¶ 21] Our case law provides that, while we are not ferrets, Anderson v. A.P.I. Co. of Minnesota, 1997 ND 6, ¶25, 559 N.W.2d 204, this Court can and does look at the findings of fact and related memorandum opinions to understand the district court’s decision. See In re Griffey, 2002 ND 160, ¶ 8, 652 N.W.2d 351. Our stated rule is “[findings of fact are adequate if they provide this Court with an understanding of the district court’s factual basis *575used in reaching its determination. Lack of specificity alone does not make findings of fact erroneous.” State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407 (citations omitted).

[¶ 22] Here, the district court explicitly concluded that either supervised or unsupervised visitation would likely endanger the child’s physical or emotional health. That is precisely what is required under our statute. N.D.C.C. § 14-05-22(2). The district court’s conclusion is supported by findings of the father’s history of violence and criminal charges, history of unresolved alcohol abuse, abandonment and non-support of the child, and lack of any meaningful effort to communicate with the child for nearly two years. No one disputes that these findings are supported by the evidence.

[¶23] Rather than accepting the district court’s conclusion and supportive findings, the majority moves the goalposts out of range by ignoring the applicable preponderance of evidence burden of proof, Healy v. Healy, 397 N.W.2d 71, 73 (N.D.1986), and by additionally suggesting (without actually holding or citing to authority) that there was need for “evaluations from independent professionals.” Majority at ¶ 14. In the end, the majority’s opinion appears aimed at achieving supervised visitation without holding the findings are clearly erroneous, without acknowledging that this Court is substituting its judgment for that of the district court, and without abiding by the applicable burden of proof. I do not agree with this approach or result, and therefore, I respectfully dissent.

[¶ 24] Carol Ronning Kapsner, J., concurs.