author: CRIPPEN, Judge.

text:
    In re the MARRIAGE OF Deborah A. GOLDMAN, f/k/a Deborah A. Greenwood, petitioner, Appellant, v. Mark E. Greenwood, Respondent.
    No. A06-1110.
    Court of Appeals of Minnesota.
    Jan. 2, 2007.

      Richard D. Goff, Minneapolis, MN, and Felipe Orner, Flushing, NY, for appellant.
    Suzanne M. Edmiston, Edina, MN, for respondent.
    Considered and decided by SHUMAKER, Presiding Judge; HUDSON, Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

This appeal is from a district court order denying the sole physical custodian’s motion for removal of the parties’ child to New York City, the city where the custodian’s spouse lives and works and where the child, soon to be age 11, may enjoy greater social and educational opportunities, coinciding with his Orthodox Jewish faith and practice. Appellant challenges, as a matter of law, the district court’s application of Minn.Stat. § 518.18 (2004) to her removal motion and disputes the district court’s analysis of evidence she submitted to establish a prima facie case for removal. Because the arguments advanced by appellant have merit, we reverse and remand for an evidentiary hearing under Minn. Stat. Ann. § 518.175, subd. 3 (West, Westlaw through 2006 Regular Session).

FACTS

Appellant Deborah Goldman and respondent Mark Greenwood were married in 1993 and divorced by a June 2002 judgment. The parties are parents of I.G., a son born on January 30,1996.

While divorce proceedings were pending in 2001, the district court determined disputed custody and parenting time issues in a memorandum decision awarding appellant sole physical custody of the child, who was then age 5. The court rejected appellant’s proposal to move with the child to Boston, Massachusetts, to permit appellant to seek better employment and be closer to her family. The memorandum decision also stated what it labeled a “LaChapelle locale restriction,” limiting appellant’s freedom to remove the child from Minnesota. See LaChapelle v. Mitten, 607 N.W.2d 151, 162—63 (Minn.App.2000) (permitting custody award conditioned on parent’s continuing residence in state), review denied (Minn. May 16, 2000).

Following child custody litigation, after the parties failed to conclude the matter by a stipulation or formation of a parenting plan, the district court formulated a 2002 judgment “award[ing] sole physical custody [of I.G.] ... subject to reasonable parenting time by [respondent.” Both the judgment’s findings of fact and conclusions of law “incorporated by reference” the court’s 2001 memorandum decision on child custody issues, including the root of this appeal, its 2001-02 court-created removal restriction.

Appellant contends that the 2001 removal restriction is not adequately certain, but by reading the 2001 memorandum decision with the 2002 judgment, we are reasonably certain that the following statement accurately represents the district court’s custody award:

[Appellant] is hereby awarded sole physical custody of the minor child, namely: [I.G., six at the time of the 2002 judgment; eleven on January 30, 2007] subject to reasonable parenting time by Respondent. ... [without] a major change in [I.G.’s] daily routine ... as long as [a.] [appellant] remains available to parent him in Minnesota, [b.] a specific schedule ensures ample parenting time for [respondent], [c.] both parents engage in counseling, and [d.] a parenting consultant or parenting time expeditor is appointed to help reduce disputes over daily care and access issues.

In addition to awarding appellant sole physical custody, the 2001 memorandum reserved the question of I.G.’s legal custody but observed appellant’s “greater disposition to continue [I.G.] religious training,” demanded a sharing of information, and appointed a “parenting consultant.”

In 2006, appellant moved the district court for permission to relocate with I.G. to New York City, where appellant’s fiancé (now spouse) lives. Because this request was at odds with the judgment’s custody provision requiring that appellant remain available to her son in Minnesota, appellant both moved the district court to alter this provision of the judgment’s custody provision and sought the court’s permission for the proposed move.

Appellant submitted 15 affidavits in support of her motions. The child’s teachers, baseball coach, and appellant’s neighbors were among those who submitted affidavits. In her own affidavit, appellant pointed to I.G.’s improved opportunity to live as an Orthodox Jew and further his religious education in New York City, as well as his psychological adjustment and his changing relationships with respondent’s other children. Appellant also highlighted I.G.’s limited opportunity to live his religious life and further his religious education in Minneapolis. Appellant cited her own engagement and the fact that her (then) fiancé lived and worked in New York City in support of her motion and asserted that the proposed move was in I.G.’s best interests. Respondent opposed appellant’s motion, arguing that appellant failed to make a “prima facie showing” for relief conflicting with the removal provision in the 2002 judgment.

After a hearing, the district court denied appellant’s plea to alter the removal restriction and, without a further evaluation or evidentiary hearing, denied her permission to remove I.G. to New York. Relying partly on an unpublished appellate decision, the district court treated appellant’s motion as a motion to modify the custody provision of the judgment and imposed upon appellant the custody modification burdens provided in Minn.Stat. § 518.18 (2004) (amended 2006) rather than the requirements for residential removal addressed by Minn.Stat. § 518.175, subd. 3 (2004) (amended 2006). Assessing appellant’s supporting affidavits, the court concluded that appellant failed to present a prima facie case of changed circumstances sufficient to require an evidentiary hearing on the question of whether she could modify the judgment’s removal provision that she remain in Minnesota.

Although the court observed that an endangerment analysis might be unnecessary, the court determined that appellant failed to present a prima facie case of endangerment under Minn.Stat. § 518.18(d)(iv). Using still another standard of section 518.18(d)(iv), the court also concluded that appellant failed to “pres-ente ] a prima facie case that the advantages associated with the proposed removal ... outweigh the harm to be caused by the change.” Notwithstanding these holdings, the court confirmed that appellant remains the parent with the “greater capacity and disposition to continue educating and raising [I.G.] in his religion” and has “attended to [I.GJ’s religious training, along with his structured social/extracurricular activities.”

To challenge the district court’s ultimate decision to deny removal without holding an evidentiary hearing, appellant primarily disputes the court’s application of the custody-modification provisions of Minn.Stat. § 518.18 and its analysis of her asserted prima facie case for removal.

ISSUES

1. Does Minn.Stat. § 518.18 (2006) govern appellant’s motion for removal?

2. Did the district court err in its determination that appellant failed to show a prima facie case for removing the child?

3. Can this court act on appellant’s claim of district court bias?

ANALYSIS

The question of whether the district court correctly applied the law is reviewed by this court de novo. In re A.R.M., 611 N.W.2d 43, 47 (Minn.App.2000).

1.

Appellant initially contends that the district court erred in reasoning that removal to New York City, because it conflicts with the court’s 2001 removal restrictions, is governed by Minn.Stat. § 518.18 regarding custody modification rather than Minn.Stat. § 518.175 regarding removal of a child’s residence from Minnesota. As previously stated, portions of the statutes at issue in this case were recently amended, effective on August 1, 2006. See supra note 1.

Generally, appellate courts apply the law “as it exists at the time they rule on a case.... ” Interstate Power Co. v. Nobles Co. Bd., 617 N.W.2d 566, 575-76 (Minn.2000) (noting that exceptions to this general rule exist when “rights affected by the amended law were vested before the change in the law” or application of changed law would produce manifest injustice or conflict with statutory direction or legislative history). Respondent does not contend that the 2002 judgment establishes vested rights that are altered by the recent amendments. And because other Interstate exceptions also have not been asserted, we apply the relevant statutes as amended.

Minn.Stat. § 518.175 (2006) governs proceedings involving parenting time for the noncustodial parent. Subdivision 3(a) prescribes the manner in which the custodian must seek to remove the child:

The parent with whom the child resides shall not move the residence of the child to another state except upon order of the court or with the consent of the other parent, if the other parent has been given parenting time by the decree. If the purpose of the move is to interfere with parenting time given to the other parent by the decree, the court shall not permit the child’s residence to be moved to another state.

MinmStat. § 518.175, subd. 3(a).

The central part of Minn.Stat. § 518.18 (2006) addresses modification of orders determining child custody and provides that the district court

shall not modify a prior custody order ... which specifies the child’s primary residence unless it finds, upon the basis of facts ... that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child.

Minn.Stat. § 518.18(d).

The Minnesota Supreme Court put Minn.Stat. § 518.175, subd. 3 (1982) at the threshold of its analysis of the statutory scheme affecting requests for removing the residence of a child. Auge v. Auge, 334 N.W.2d 393, 397 (Minn.1983) (observing that the statute permits denial of removal only when the custodian’s purpose is to interfere with visitation rights and denial is not proper “simply because the move may require an adjustment in the existing pattern of visitation”). Auge further limited restrictive implications of Minn.Stat. § 518.175 by providing that the proponent of change is entitled to a presumption favoring removal and held that the opponent of the move has the burden of proof under Minn.Stat. § 518.18(d) (1982). Auge, 334 N.W.2d at 399.

The 2006 amendment of section 518.175 eliminates the so-called Auge presumption, establishing that the proponent now must show cause for a removal but that the best interests of the child are to govern the court’s decision. Minn.Stat. § 518.175, subd. 3 (2006). But the language of Minn. Stat. § 518.18(d) (2006) on the proposition of changing custody to the other parent, which no longer prompts a presumption for removal, also fails to diminish the reality that Minn.Stat. § 518.175 (2006) governs the standards and burden of proof for the proponent of removal.

The district court examined the state of the law before the 2006 amendment of Minn.Stat. § 518.175 and concluded that this case did not warrant application of the Auge removal presumption in favor of appellant because the judgment stated that removal of the child from Minnesota would not be in the child’s best interests. On appeal, the court’s non-application of the Auge removal presumption does not require attention because of the amendment of Minn.Stat. 518.175, establishing that appellant has the burden to show that removal is in the child’s best interest. But the district court also found that the family-unit preservation rationale underlying the Auge decision should extend to a noncustodial parent whose contact with the child had been considered important enough to prompt the judgment’s earlier use of a removal restriction, and this determination does require our attention.

The district court determined that the proposed removal following the 2001 location restriction, which the court saw as an “integral part of the prior ‘custody order,’ ” constituted a change (or modification) of the judgment’s custody provision that should be governed by Minn.Stat. § 518.18 (2004). The court reasoned that application of section 518.18 served the ends of Auge by “avoiding de novo considerations” of a custody determination; by preserving the child’s family-unit stability; and by “minimizing judicial interference” with family decisions. The court noted that Auge was premised on consistency, and reasoned that “parents seeking to remove locale restrictions should be required to meet a greater burden of proof than a simple, de novo best interests burden.” The court also noted that “the Court already determined that [respondent is best-suited to have physical custody of [I.G.] if [appellant] leaves the state.” The several parts of this analysis require our review.

The Statutes

The district court determined that Minn. Stat. § 518.18 should be read broadly, to include any changes in the custody-order language, because it deals with modifying a “custody order” or a “custody arrangement.” Minn.Stat. § 518.18(d). But this section, historically and currently, addresses a change in placement, a change in physical custody from one household to another. And the statute instructs the district court to “retain the custody arrangement or the parenting plan provision specifying the child’s primary residence that was established by the prior order unless” the situation presents one of four circumstances. Id.

Those four circumstances include the case of the child who is “integrated into the family of the petitioner with the consent of the other party” and the case presenting changes in the “child’s environment.” Minn.Stat. § 518.18(d)(iii), (iv). We conclude that these provisions confirm the understanding that the statute’s scope is confined to the change of provisions “specifying the child’s primaiy residence.”

We have had prior occasion to determine that MinmStat. § 518.18 addresses “substantial” changes in visitation, for example, where a parent “proposed to alter an arrangement from equal care to one where she has custody during the entire school year.” Lutzi v. Lutzi, 485 N.W.2d 311, 315-16 (Minn.App.1992). In contrast, we have determined that visitation alterations accompanying change of the sole custodial parent’s residence do not constitute the “restriction” of visitation that is limited by statute in the same fashion as changes governed by section 518.18. Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn.App.1986).

Coinciding with our review of Minn.Stat. § 518.18, the language of Minn.Stat. § 518.175 (2006) provides governing provisions for enumerated changes without reference to whether there are related conditions to the award of sole custody stated in a judgment. Section 518.175 governs these changes notwithstanding removal language in the judgment because the section represents the legislature’s specific determination on the subjects the statute addresses.. Subdivision 3, as already observed, declares the standard on removal of the child from the state. Similarly, demonstrating the same effect as subdivision 3, subdivision 5 addresses and governs modifications of clauses in an order or judgment that provide for parenting time or a parenting plan. Minn.Stat. § 518.175, subd. 5.

We find no basis for departing from the foregoing statutory scheme to permit court-imposed limits on removal that put that relief beyond the reach of sole physical custodians in circumstances such as appellant’s.

Judgment Said to Address Future Change of Custody

In the course of its reasoning, the district court reflected on its statement in the judgment’s custody provision that it would award “sole physical custody” to respondent if its location restriction was “found wanting.” The court viewed this prior declaration as a continuing basis for respondent to assume full custody if the child were removed. But the found-wanting statement in the 2001 memorandum deals facially with the prospect of immediate nullification of the removal restriction; the statement did not suggest, nor could it, that custody of the child would automatically change if appellant had future cause to move with the child. See Angelos v. Angelos, 367 N.W.2d 518, 519 (Minn.1985) (“[Because] domestic relationships, by their nature, continue under the jurisdiction of the court virtually throughout the lives of the parties .... the legislature specifically authorized modification [in child welfare matters].”).

Presumption against Custodian

Finally, the district court determined that the application of Minn.Stat. § 518.18 (2004) to this situation complies with the Auge rationale of protecting the family unit. But we are concerned by the court’s analysis because Minn.Stat. § 518.18 imposes a higher threshold on the moving party than Minn.Stat. § 518.175, meaning that, despite the district court’s extensive discussion of Auge and its 518.18-based considerations, the court’s analysis functionally turns Auge on its head and uses the holding as authority for a presumption favoring the opponent of change and opposing the sole custodian. Contrary to the district court’s rationale, Auge does not prescribe non-interference in that form. Rather, Auge established a preference because of the importance of a child’s relationship with his primary custodial parent under the scheme of Minnesota’s child custody statutes, a circumstance enlarged here by over five years of primary caretak-ing since sole custody was placed by the district court in 2001. Auge, 334 N.W.2d at 399.

Appellant’s circumstances here are no different from those of appellant in Auge; both removal proponents are sole custodians. And the legislature, although it has modified the laws to remove a presumption in favor of the custodian’s proposed removal, it has not altered the statutory scheme that prompted the Auge court to protect the child’s relationship with the sole custodian. The protection Auge afforded to a custodial parent is not enjoyed by more limited parental caretakers, even when this caretaker is designated a joint physical custodian. See Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn.1993). Auge cannot feasibly be employed to permit for the noncustodial parent what statutes grant for the custodial parent.

The sole physical custodian must proceed according to Minn.Stat. § 518.175 (2006) and is not required to satisfy a greater burden under the change-of-custody statute or Auge. Our conclusion is not affected by the fact that the proponent’s sole custody was initially conditioned on a removal restriction. We reverse and remand on this determination of law.

2.

Our recognition of Minn.Stat. § 518.175 (2006) as the governing statute in this case diminishes the need to examine appellant’s contention that the district court erred in analyzing whether there had been a substantial change in circumstances. But a response to appellant’s contentions is required insofar as it bears on the best interests analysis to be applied on remand. Reasons for Moving

Appellant contends that the district court, when it denied removal, wrongfully omitted findings on the reasons for her planned move to New York City. In particular, appellant disputes the court’s determination that this evidence does not bear on the best interests of the child.

The district court recognized as changed circumstances the evidence that appellant was engaged to marry and had plans to move to New York, and that the child knew and enjoyed the company of appellant’s fiancé and his family. But the court observed that these facts “represent a change in [appellant’s] circumstances, but not [I.G.J’s.”

And the court declined to address whether appellant’s move without the child would be detrimental to the child’s best interests, noting that appellant failed to assert that she would move if her son did not. The court evidently assumed that appellant would not move under such circumstances. The court observed only that the child continues to prosper under the circumstances he has experienced since the court’s prior order. Thus, the court observed that “[appellant] will have to choose” whether to leave the child in Minnesota or sacrifice instead what she believes is a worthy plan to move to New York, where her husband lives and works. This, the court acknowledged, was “a very unfortunate situation” and one “that impacts or will impact [appellant]” but does not “impact[ ] [I.G.].”

We conclude that the foregoing district court analysis is contrary to the essential character of Minnesota’s statutes and case law, which protects the child’s best interests by guarding his established relationship with a custodial parent, a matter addressed in the first issue and note 5 of this opinion. For over one hundred years, it has been the “cardinal principle” of Minnesota custody law that the child’s best interest is the paramount consideration. State ex rel. Flint v. Flint, 63 Minn. 187, 189 n. 2, 65 N.W. 272, 273 (1895) (first observing that the child’s best interests rise above the interests of the parent, even where the parent’s interest is recognized by statute); see In re Custody of N.A.K, 649 N.W.2d 166, 176 (Minn.2002); Dailey v. Chermak, 709 N.W.2d 626, 630 (Minn.App.2006), review denied (Minn. May 16, 2006).

Arguing that the district court’s analysis improperly disregards vital elements of the child’s best interests, appellant first addresses her interpretation of Minn.Stat. § 518.18(d) (2004), utilized by the district court, which provides that a court “shall not modify a prior custody order” without a finding that a change has occurred in the circumstances of the child “or the parties.” MinmStat. § 518.18(d) (2004).

Appellant correctly observes that the change-of-custody statute requires the district court to address facts constituting a change in the circumstances of the parties when such change is relevant to the need for a change in custody to serve the child’s best interests. But on remand, appellant’s reasons for the proposed move will be advanced under the statutory mandate to determine the child’s best interests by considering, among other things, Minn. Stat. § 518.175, subds. 3(b)(6), (7) (2006), which direct the district court to consider the reasons each parent “seek[s] or opposes] the relocation” and whether relocation “will enhance the general quality of the life” for the child and his mother. Id.

Under Auge, the district court’s study of the custodian’s reasons for relocation was replaced by a presumption that removal should occur. Because this presumption was eliminated by statute, the need for attention to the custodian’s reasons for relocation is resurrected, a conclusion put beyond question by the legislature’s express inclusion of this topic among those the court must address.

And standards contained in the revised Minn.Stat. § 518.175 coincide with the supreme court’s reference to authorities in Auge.

The custodial parent, who bears the essential burden and responsibility for the child[], is clearly entitled to the same option to seek a better life for herself and the child[], particularly where the exercise of that option appears to be truly advantageous to their interests and provided that the parental interest can continue to be accommodated, even if by a different visitation arrangement than theretofore.

Auge, 384 N.W.2d at 398 (quoting D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27, 30 (1976)). Consistently, the Auge court instructs that “the motion requesting an order granting permission to remove the child to another state must include a statement of the reasons for the request and a designation of the geographic location of the proposed residence.” Id. at 397.

Under the relevant statutes, appellant correctly asserts her right to have the district court determine the worthiness of her proposed move. In the eyes of the legislature, appellant’s reasons for moving impact the best interests of the child. See MinmStat. §§ 518.175, 518.18(d) (2006). Separation

In addition, when denying a proposed move changes the child’s sole custodian, MinmStat. § 518.18(d), which does not have the effect of limiting the sole custodian’s request to remove the child, may limit this custody change. Auge, 334 N.W.2d at 396-97, 399. Characterizing MinmStat. § 518.18(d), materially unchanged between its decision and this case, the Auge court noted:

The statute is undoubtedly based in part upon the principle that interruption of the parent-child relationship may be seriously detrimental to the child’s psychological development — a principle which should apply with equal or greater force when the child has already been separated from one parent at the time of a dissolution.

Auge, 334 N.W.2d at 396 n. 3.

The custodial parent’s need to move prompts the requirement that the district court address added factors if it decides to deny removal of a child. Primary among these requirements is the supreme court’s determination that “[i]f denial of the motion will likely result in a modification of custody, the [district] court must consider the negative effects of separating the child and the [primary caretaker].” Id. at 399. Because the district court accepted the possibility that appellant, in the face of an order denying her motion to remove the child’s residence from Minnesota, may move without the child, it is prudent for the court to consider, in the interests of the child, the impact on the child of what would functionally be a modification of custody. For the reasons discussed below, we direct the court to do so on remand.

Auge is frequently invoked for its “removal presumption,” a topic now shaped by Minn.Stat. § 518.175, subd. 3(c), which identifies the burden of proof for removal motions. But when the district court denies a proposal to remove that prompts a change in the physical custody of the child, portions of the Auge holding remain intact. In addition to requiring consideration of the consequences of separating the child from his custodial parent, the Auge holding precludes excessive deference to the child’s parenting time away from the custodial parent: “Removal may not be denied under this statute simply because the move may require an adjustment in the existing pattern of visitation.... Though removal should not be allowed for frivolous or spiteful reasons, neither should it be disallowed solely to maintain the existing visitation patterns.” Auge, 334 N.W.2d at 397-98. The Auge court then supported this observation with the much-cited New Jersey removal standards stated in D’Ono-frio:

The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable lifestyle for the mother and children be forfeited solely to maintain weekly visitation by the father where reasonable alternative visitation is available and where the advantages of the move are substantial.

Auge, 334 N.W.2d at 398 (quoting D’Onofrio, 365 A.2d at 30).

In these respects, the Auge rationale and its statutory roots remain undisturbed. The supreme court in Auge declared that denial is improper without an evidentiary hearing that fully addresses the child’s best interests. Id. at 399; cf. Silbaugh v. Silbaugh, 543 N.W.2d 639, 642 (Minn.1996) (permitting disposition without evidentiary hearing in event proponent fails to make a prima facie showing for relocation).

Before remand, without an evidentiary hearing record, we have no occasion to specify more particularly how Minn.Stat. § 518.18(d) is implicated by the prospect of a change in the child’s primary caretaking arrangement. This court will not exercise the supreme court’s prerogative to prescribe a standard to guide the district court on this question before the district court has considered the issue. See State v. Gilmartin, 535 N.W.2d 650, 653 (Minn.App.1995) (“As an intermediate appellate court, we decline to exercise supervisory powers reserved to this state’s supreme court.”), review denied (Minn. Sept. 20, 1995).

In Auge, the supreme court found that “denial of appellant’s request for removal was in fact a modification of custody....” 334 N.W.2d at 396. This analysis took place within the context of the custodian’s proposed removal of the child to Hawaii, because the custodian’s husband planned to be away during much of the year “to oversee ... business interests....” Id. at 395. These circumstances were more telling because the Auge appellant and her husband had two children from their marriage, in addition to the Auge child. Id. The supreme court reversed a district court order that found that there was no “deep business necessity” for the yearly travel and that removal was not in the child’s best interests because it would disrupt his school year. Id. As previously stated, the Auge court relied on authority finding the removal option of the physical custodian particularly apt “where the exercise of that option appears to be truly advantageous to the[] interests” of this parent and the child. Id. at 398 (quoting D’Onofrio, 365 A.2d at 30).

Finally, respondent asserts that the district court’s 2001 memorandum decision already contained a footnoted finding that it would be in I.G.’s best interests to be with his father if his mother moves. In its 2006 order, the district court reflected on its prior statement that “a major change in [the child’s] daily routine would not be consistent with his best interests as long as mother remains available to parent him in Minnesota....” But the district court’s 2001 statement was premised on the circumstances existing at the time of the decision; it did not, nor could it, anticipate future changes in the circumstances of the parties and the child, and the court also could not foresee the impact of any such changes on the child’s best interests.

The 2001 court statement was also con-clusory, made without a finding that it would be best for the child to be separated from his mother. Moreover, the 2001 footnote merely observed that it “would award sole physical custody to [respondent]” if its locale restriction were “found wanting” and affirmed the court’s resolve to protect the child’s Minnesota relationships and environment. On remand, the district court is instructed to consider the standards of Minn.Stat. § 518.175, subd. 3, and to determine, in light of the evidence at a hearing, the effects of current circumstances as they bear on the denial standards stated in this opinion.

Conclusion: Interplay of Reasons for Removal and Change-of-Custody Evidence

In sum, there is merit in appellant’s plea that the district court erroneously declined to address the worthiness of her plan for removal of the child to New York City. An adequate reason for the proponent’s plan substantially alters the case from the perspective of the child’s best interests, limiting the circumstances in which removal can be denied. We are directed to no precedent, in Minnesota or elsewhere, for denial of removal without findings either denying the need for the move or determining instead that the physical custodian can move without the child without detriment to the child’s best interests.

Appellant also argues that an order without these findings implicates her constitutional rights. But these rights must give way to a compelling state interest in the form of the best interests of the child, judicially determined, but are not set aside in favor of a reconciliation of parental interests without a full determination of the child’s interests. See LaChapelle, 607 N.W.2d at 164 (“Minnesota’s interest in protecting [the child’s] best interests is compelling and justifies intrusion into [appellant’s] privacy in her familial relationship with [the child.]”). Recognizing the difference between this case and LaChapelle (below), and because the rationale stated in this opinion makes it unnecessary, we decline to decide the merits of appellant’s constitutional argument.

We are mindful that LaChapelle affirmed a judgment condition against removal, id. at 168, but we observe the absence of evidence or argument in that case suggesting that the moving proponent had compelling reasons for a move. Rather, the facts in LaChapelle indicated no more than the mother’s “employment reasons” for her desired move and her “desire to live in rural Michigan.” Id. at 157,165. A change of custody was not implicated in the removal denial reviewed in LaCha-pelle, which must be examined on its facts. See Dailey v. Chermak, 709 N.W.2d 626, 630 (Minn.App.2006) (treating LaChapelle on its “unique facts”), review denied (Minn. May 6, 2006).

Child’s Interest in Removal

Appellant also asserts that the district court, when assessing changes in I.G.’s circumstances, wrongfully minimized the prima facie evidence of the child’s preference to relocate to New York City and the advantages of the proposed move for I.G. The district court addressed both the child’s preference and the advantages appellant asserted for the child. The court noted assertions that “[I.G.] is committed to living as an Orthodox Jew,” “[I.G.] has frequently expressed a passion for New York City,” and I.G. “wants ... an environment that offers more opportunities for him to meet his academic potential.” Still, the court found that appellant’s evidence was wanting because it did not suggest I.G. wanted to move a thousand miles from his father, and because there was no showing that the child was presented with the alternatives of remaining in Minnesota or moving. Although the district court recognized that there are no opportunities for the child to attend Orthodox high school in Minnesota, it observed that the child would not reach high school for four years.

On the record, the district court noted there was no indication that I.G. made his preference known: “[Appellant is] the one who is telling me, I reread the affidavit, that this is the life that [I.G.] wants. He wants New York. He wants the school and all that. The only person I’ve got telling me that is [appellant] as far as the want goes.”

After it examined evidence that the child feels more out of place in Minneapolis than he would in New York City, the district court further explained that the boy’s religion was not a given circumstance, but a topic of appellant’s choice:

The fact that [I.G.] may feel different and stigmatized is not a product of the current custodial environment. Rather, if [I.G.] is truly stigmatized by his appearance, it necessarily reflects a judgment call by [appellant] that the benefits of meeting Orthodox appearance demands outweigh the attendant stigma. If there is any harm here, it is not causally related to the physical custody environment. Instead, it is the product of a decision that is more legal than physical in nature.

In support of her case for removal, appellant explained in her initial affidavit, among other things:

[I.G.] has been enveloped in the Orthodox way of life and that way of life is taught in his Orthodox Jewish school, Torah Academy, which he has attended since he was 4 years old.
Over the years, as [I.G.] has matured and has learned more about the Jewish laws, the Torah, and practices of his faith along the Orthodox tradition, it has become a way of life for him. He accepts Orthodoxy as his path and embraces it wholeheartedly.
[I.G.] has frequently expressed a passion for New York City, as it is the cultural center for Orthodox Judaism in the United States, if not the world.... As just one example of the differences between Minneapolis and New York, in New York City, [I.G.] will have the choice of fifteen different Orthodox schools to attend. In Minnesota, there is only Torah Academy, which only goes through the eighth grade. Upon graduation from eighth grade, most boys leave Minnesota to further their education in larger cities that offer advanced Jewish studies.... Many leave before they finish the eighth grade.... There are only [seven] boys remaining in [I.GJ’s class, and most of those that remain are not at [I.GJ’s academic level.

There is merit in appellant’s suggestion that her affidavits establish prima facie proof on questions of the child’s preference and interests in a move. The child was five and one-half years old when the district court examined his circumstances in 2001. He has spent the intervening time in the sole physical custody of appellant. Although the district court never established the legal custody of the child, it is undisputed that appellant, the physical custodian, was permitted by the court to shape the child’s religious life. The child’s religion is now a prominent consideration in shaping his best interests. See Minn. Stat. § 518.17, subd. l(a)(10) (2004) (providing that religious considerations are part of a best interests analysis); Johnson v. Johnson, 424 N.W.2d 85, 88-89 (Minn.App.1988) (finding that the district court erred by failing to consider the parties’ ability to raise the children in the Catholic faith).

Relating to the child’s desire to move from Minnesota, I.G. has likely reached an age at which he has the ability to appreciate the distance between Minnesota and New York City. Appellant’s affidavits state a prima facie case of his preference to move. She is entitled to a determination of the child’s best interests at a hearing in which the court must examine the needs and the preferences of the child as well as the impact of the proposed change, including enhancements to I.G.’s general quality of life. MinmStat. § 518.175, subd. 3.

Other Factors

Appellant addresses a number of additional factors to support her argument that the district court erred in denying an evi-dentiary hearing. Our review of these factors, as they relate to the district court’s application of Minn.Stat. § 518.18(d), is not necessary or valuable for purposes of remand proceedings, which are to be conducted according to the standards of MinmStat. § 518.175.

3.

Finally, appellant asserts that the district court demonstrated bias against her by selectively relying on facts favoring respondent while disfavoring her and by wrongfully minimizing her religious considerations. Appellant seeks removal of the district court judge and requests a remand “to Ramsey [County] or any other adjoining county.”

All motions for removal of a judge, referee, or judicial officer, on the basis of actual prejudice or bias shall be heard in the first instance by the judge sought to be removed. If that judge denies the motion, it may subsequently be heard and reconsidered by the Chief Judge of the district or another judge designated by the Chief Judge.

Minn. R. Gen. Pract. 106. Because appellant has not brought a motion for removal to the judge she seeks to remove, we decline to address the merits of this argument. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988).

DECISION

MinmStat. § 518.175, subd. 3 (2006), governs a custodial parent’s request to remove a child from the state, even if the case involves a removal restriction. Because the district court erred by applying MinmStat. § 518.18(d) (2004), we reverse and remand for the court’s consideration of the child’s best interests, consistent with the appropriate standards as addressed in this opinion.

Reversed and remanded.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Minn.Stat. § 518.175 (2004) and Minn.Stat. § 518.18 (2004) were both amended by 2006 legislation that became effective on August 1, 2006. 2006 Minn. Laws ch. 280 §§ 13 & 14 (amending statutes); 2006 Minn. Laws ch. 280 §§ 44, 45 (reciting effective dates for various portions of 2006 Minn. Laws ch. 280, but not mentioning an effective date for §§ 13, 14); Minn.Stat. § 645.02 (2004) (stating effective date for legislative acts is August 1 after enactment unless a different date is specified). Because the Minnesota Revisor of Statutes has not yet published the 2006 version of statutes, for ease of reference we cite the amended statutes as the 2006 Minnesota Session laws indicate they will be codified at Minn.Stat. § 518.175 (2006) and Minn.Stat. § 518.18 (2006).

      . Specifically, appellant claims that the restriction "does not properly identify findings of fact vis-á-vis conclusions of law supporting the basis for the order....” We note that appellant failed to make this validity argument to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (permitting appellate courts to decline considering issues that a party failed to raise with the district court). In any event, we find sufficient certainty in the court’s judgment and memorandum to establish a child-residence demand.

      . As relevant to this opinion, the legislature did not amend Minn.Stat. § 518.175 from the time Auge was decided until 2006. Therefore, courts continued to apply the Auge holdings. See, e.g., Rutz v. Rutz, 644 N.W.2d 489, 494 (Minn.App.2002), review denied (Minn. July 16, 2002).

      . The district court and the parties on appeal discussed an unpublished decision of this court determining that the time limits of Minn.Stat. § 518.18(a), (c) governed a motion to change restrictions on removal of a child from Minnesota. This court's unpublished decisions lack precedential value. Minn.Stat. § 480A.08, subd. 3 (2004). And the analysis in the immediate opinion is confined to employment of the standards of Minn.Stat. § 518.18(d) and is not intended to comment in respect to whether section 518.18(a), (c) affect a removal restriction.

      . Historically, the focus of Minnesota’s custody law has been to protect the stability of the relationship between a child and that child’s primary parent. See, e.g., Larson v. Dunn, 460 N.W.2d 39, 49 (Minn.1990) (Popovich, J„ dissenting) (noting limitations on custody modification created by Minn.Stat. § 518.18 are a legislative acknowledgment "[of] the importance of maintaining a consistent and stable custody situation”); Sefkow v. Sefkow, 427 N.W.2d 203, 212 (Minn.1988) (recognizing that Pikula v. Pikula, 374 N.W.2d 705, 711 n. 1 (Minn.1985) both noted "four of the nine [best-interests] criteria [of Minn.Stat. § 518.17, subd. 1] rest on the centrality of continuity of care and environment” and "emphasized the importance of stability in custody determinations”); Auge, 334 N.W.2d at 399 (quotation omitted) (stating courts should restrict their interference in familial decisions because "continuity and stability in relationships are important for the child”); Geibe v. Geibe, 571 N.W.2d 774, 780 (Minn.App.1997) ("Minnesota law rests on a presumption that stability of custody is in a child’s best interests.”). Commentators refer to this relationship in terms of "[a]ttachment theory[,]” and continue to forcefully confirm the importance to the child of maintaining the stability of that relationship. See Carol S. Bruch, Sound Research or Wishful Thinking in Child Custody Cases? Lessons from Relocation Law, 40 Fam. L.Q. 281, 285 (2006).
      As the supreme court found when approaching the Auge case, attachment-theory literature and statutes support "maintaining the child’s household composition in relocation cases.” Id. at 286; see id. at 313 (concluding that a "child-centered inquiry” inescapably takes into account that "children's access to each parent will change over time” and that removal restrictions may fail to provide child-centered results). See also Auge, 334 N.W.2d at 396 n. 3 (explaining that the modification statute has evident roots in the attachment principle "that interruption of the parent-child relationship may be seriously detrimental to the child’s psychological development”; and citing then-current literature on research and thought advancing the attachment principle); Pikula, 374 N.W.2d at 711 (stating similar history of statutory best-interest factors; citing the same and additional publications).
      Professor Bruch's recent article reviews the empirical basis for giving the protection of a child’s relationship with the child’s primary parent significantly disproportionate importance when addressing custody questions; citing multiple authorities, she notes both that "attachment theory" is "broadly accepted in child development!,]" and that "there is a broad consensus that the central importance of the primary relationship has been convincingly demonstrated, while no similar support has been found for the visiting relationship." Bruch, supra at 285, 293. In arriving at this conclusion, she reviews a substantial body of statistical evidence indicating that the "more effectively custodial parents can function, the better will be their children's adjustment,” and that "the quality of the relationship between the nonresidential parent and child rather than sheer frequency of visitation ... is most important.” Id. at 290-91 (quotations omitted); see id. at 288-93. She then explains that conflicting views, some of which she acknowledges may be "deceptively appealing,” are premised on "wishful thinking” rather than empirical evidence. Id. at 285, 293, 297, 306. In systematically critiquing the arguments for not giving significantly disproportionate importance to maintaining a child's relationship with his or her custodial parent, Bruch notes that these arguments are based on "broad generalizations” and "distortion” of the relevant empirical data, the "spin” of "political agenda[s]” focused on something other than a child’s best interests, or are designed to be the stuff of "legal journals!,]" where the statistical and empirical data allegedly supporting the argument for diminishing the importance of the stability of child's relationship with his or her primary parent will not be reviewed as rigorously as would be the case if the same argument and data were presented in a "scientific [journal].” See id. at 295-312. Stating that some arguments for diminishing the significantly disproportionate weight to be given a child's relationship with his or her primary parent are simply "disingenuous” and endanger children, Bruch cites literature plainly stating that serving a child's best interests may not be "synonymous with fairness to both parents.” Id. at 285, 396 n. 62. She ultimately concludes: "Too often the basic, scientifically sound goal of maintaining stability and continuity for children in their primary relationship is forgotten, as attention turns to satisfying the desire of a noncustodial parent to restructure the parent-child relationship.” Id. at 311; cf. In re Welfare of J.J.B., 390 N.W.2d 274, 280 (Minn.1986) (stating, in context of a termination-of-parental-rights case, that in a conflict between the child's interests and the parent's interests, "parental rights must yield to the best interest of the child”).

      . We are reviewing a case in which the judgment establishes a sole custodial circumstance for appellant. Nothing determined in this case governs circumstances where a change interferes with a substantial pattern of caretaking by the other parent. See Lutzi, 485 N.W.2d at 315.

      . We observed earlier the continued impact of Auge in its finding that Minnesota’s statutory scheme protects the relationship of a child with his or her primary physical custodian. And see supra note 5 (reviewing continued prevalence of literature ratifying the Auge rationale). These considerations bear again on the portion of Auge valuing the moving plans of the custodial parent.

      . This again constitutes an aspect of Auge, together with the rationale underlying it that has continued vitality. See supra notes 5 and 7.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Treva Evon PERRY, Appellant.
    No. A05-2459.
    Court of Appeals of Minnesota.
    Jan. 9, 2007.

      Lori Swanson, Attorney General, St. Paul, MN; and Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, Rochester, MN, for respondent.
    John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge; HALBROOKS, Judge; and HARTEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

HALBROOKS, Judge.

Appellant challenges her conviction of misdemeanor child endangerment on the grounds that the language of Minn.Stat. § 609.378, subd. 1(b)(2) (2000), requires proof of actual danger to a child’s person or health and that the evidence presented at trial was insufficient to support her conviction. Because the state does not have to prove actual danger to a child’s person or health under Minn.Stat. § 609.378, subd. 1(b)(2), when a parent, legal guardian, or caretaker knows that a child is present where controlled substances are being sold, we conclude that the evidence was sufficient to support appellant’s conviction for child endangerment and affirm.

FACTS

On September 7, 2001, Robert Jarmon, a confidential police informant, went to the home of Gilbert Jordan and Foloshade Oloye to purchase cocaine. Jarmon was working with Rochester Police Officer Daryl Seidel to complete a controlled purchase. Before traveling to Jordan and Oloye’s home, Jarmon met with Officer Seidel. At that time, Officer Seidel searched Jarmon and his car, gave Jarmon money to make the drug purchase,, and attached a radio transmitting device to Jarmon to enable Officer Seidel to listen to the drug deal. After finding no one home at the Jordan/Oloye residence, Jarmon and Officer Seidel “regrouped” to decide what to do next. Jarmon had previously been told by Oloye that he should go to the home of appellant Treva Perry (Oloye’s mother) if he needed drugs and could not find her or Jordan. Officer Seidel instructed Jarmon to go to appellant’s home.

After arriving at appellant’s residence, Jarmon entered the home and saw two small children, one of whom was not yet able to walk. The children are appellant’s grandchildren, whom she was babysitting. Jarmon told appellant that he wanted to buy a quarter ounce of cocaine. Appellant then called Jordan on the phone and, after speaking with him, rode with Jarmon and her two grandchildren to Jordan and Oloye’s residence. Because no one was home when they arrived, appellant, the children, and Jarmon returned to appellant’s house.

On the way back to appellant’s home, appellant used Jarmon’s phone to call her other daughter, Lola Oloye. Lola later arrived at appellant’s home and was introduced by appellant to Jarmon. Lola sold Jarmon some crack cocaine in appellant’s kitchen while appellant was present. Jar-mon testified that appellant’s two grandchildren were present in the home when the drug transaction occurred. After the buy, Jarmon again met with Officer Seidel and gave him the drugs and remaining money. Officer Seidel debriefed Jarmon and searched Jarmon and his car for any other drugs or money.

Appellant was charged with second-degree controlled-substance crime, conspiracy to commit second-degree controlled-substance crime, fifth-degree possession of a controlled substance, and child endangerment. Appellant waived her right to a jury trial and did not testify or call any witnesses at her court trial. The district court convicted appellant of child endangerment, a gross-misdemeanor offense. The district court found that “[appellant] was present when the sale occurred, and she believed that the substance sold by Lola Oloye was cocaine.” The district court also found that “[c]hildren less than 18 years of age were present at the time that the sale of the cocaine occurred,” that appellant is the “grandmother of the children, and she was caring for them on September 7, 2001.” As a result, the district court concluded

[a]s to the fourth charge of child neglect or endangerment, there is simply no question but that [appellant] knew that a drug deal was happening in her home, that her grandchildren were present, and she did nothing about it. There is absolutely no defense advanced excusing that [appellant] allowed this to happen in the presence of her grandchildren. Her guilt in this regard is established to this Court’s satisfaction beyond a reasonable doubt.

The district court stayed imposition of sentence and placed appellant on probation. This appeal follows.

ISSUES

1. Does Minn.Stat. § 609.378, subd. 1(b)(2) (2000), require proof of actual danger to a child’s person or health to convict a person of gross-misdemeanor endangerment?
2. Was the evidence presented at trial insufficient to support appellant’s conviction of child endangerment?

ANALYSIS

I.

Appellant contends that the language of the child-endangerment statute must be interpreted to require some proof of actual danger to a child’s person or health, not just the general inherent dangerousness of drug dealing. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998); see also O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn.1996) (noting that application of a statute to the undisputed facts of a ease involves a question of law, and the district court’s decision is not binding on this court). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (quotation and citation omitted). “A statute should be interpreted, whenever possible, to give effect to all of its provisions; ‘no word, phrase, or sentence should be deemed superfluous, void, or insignificant.’ ” Id. (quoting Amaral v. St. Cloud Hosp., 598 N.W.2d 379, 384 (Minn.1999)). And “[w]e are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Id.

Appellant was convicted of child endangerment under Minn.Stat. § 609.378, subd. 1(b)(2) (2000). Minn.Stat. § 609.378, subd. 1(b) provides, in relevant part, that

[a] parent, legal guardian, or caretaker who endangers the child’s person or health by:
(1) intentionally or recklessly causing or permitting a child to be placed in a situation likely to substantially harm the child’s physical, mental, or emotional health or cause the child’s death; or
(2) knowingly causing or permitting the child to be present where any person is selling or possessing a controlled substance ... is guilty of child endangerment and may be sentenced to imprisonment for not more than one year or to payment of a fíne of not more than $3,000, or both.
If the endangerment results in substantial harm to the child’s physical, mental, or emotional health, the person may be sentenced to imprisonment for not more than five years or to payment of a fíne of not more than $10,000, or both.

Appellant argues that the statutory language “endangers the child’s person or health” in the prefatory section of the statute requires proof of actual danger as an essential element of the offense of child endangerment. The term “endangers” is not defined in MinmStat. § 609.376 (2000), the definitional section for section 609.378, subdivision 1(b). In a case of first impression, we conclude that appellant’s interpretation of the statute is mistaken.

A statute defining a criminal offense must be strictly construed in favor of the defendant. See State v. Colvin, 645 N.W.2d 449, 452 (Minn.2002). But this court need not adopt the narrowest possible construction. State v. Zacher, 504 N.W.2d 468, 473 (Minn.1993). This court has rejected a narrow reading of subdivision 1(b)(1) that would require a showing of actual harm. State v. Hatfield, 627 N.W.2d 715, 720 (Minn.App.2001), aff'd on other grounds, 639 N.W.2d 372 (Minn.2002).

The plain language of the statute provides that a person “endangers” a child by either: (1) intentionally or recklessly causing a child to be placed in a situation likely to cause substantial physical, emotional, or mental harm (subdivision 1(b)(1)), or (2) knowingly causing or permitting the child to be present where controlled substances are being sold or possessed (subdivision 1(b)(2)). If the conditions in either of the subdivisions are met, a person “endangers the child’s person or health” and is, therefore, guilty of child endangerment. The two ways of endangering a child are independent. Therefore, the showing of potential harm required under subdivision 1(b)(1) does not apply to subdivision 1(b)(2).

Further, the phrase “likely to substantially harm” in Minn.Stat. § 609.378, subd. 1(b)(1), would be superfluous if appellant’s interpretation of the prefatory term “endangers” were adopted. Requiring proof of actual danger to a child’s person or health as an element of the crime under the terms of the prefatory statement, would necessarily entail proof that a situation is only “likely to substantially harm [a child]” under subdivision 1(b)(1). (Emphasis added.) See Hatfield, 627 N.W.2d at 719-20 (rejecting a claim that actual harm was required to support a gross-misdemeanor conviction under Minn.Stat. § 609.378, subd. 1(b)(1), and stating that “the mere potential for substantial harm to children is sufficient to constitute child endangerment”).

We conclude that, based on the plain language of Minn.Stat. § 609.378, subd. 1(b), the state does not have to prove actual danger to a child’s person or health as an element of the crime when a parent, legal guardian, or caretaker knows that a child is present where drugs are being sold.

II.

Appellant argues that because evidence of actual danger is required under the definition of “endangers” pursuant to Minn.Stat. § 609.378, subd. 1(b), and because the district court did not find that her grandchildren were in actual danger, the evidence that she was home and babysitting her grandchildren when Jarmon purchased drugs from her daughter was insufficient to support her conviction.

In considering a claim of insufficient evidence, this court’s review “is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction,” is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume that “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). This is especially true when resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn.1980). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn.2004).

As previously discussed, the language “endangers the child’s person or health” in Minn.Stat. § 609.378, subd. 1(b), does not require a showing of actual danger for a conviction under Minn.Stat. § 609.378, subd. 1(b)(2). Instead, the state must prove that (1) appellant knowingly permitted her grandchildren to be present at the time of an illegal sale or possession of a controlled substance, (2) appellant was a legal guardian or caretaker of the children at the time of the sale or possession, and (3) the grandchildren were younger than age 18. Viewing the evidence in the light most favorable to the conviction, there is ample evidence that appellant knowingly permitted her grandchildren, whom she was caring for at the time, and who were well under the age of 18, to remain in her home while her daughter sold drugs to Jarmon. Therefore, the evidence is sufficient to support appellant’s conviction for child endangerment.

Appellant also submitted a pro se supplemental brief, alleging that law-enforcement officials altered and tampered with the audio and video-surveillance tapes that were received in evidence at trial. We conclude that these allegations lack merit, as there is no support for them in the record. Moreover, while the evidence on the tapes may have been determinative with regard to the charges that appellant was acquitted of, the tapes were not dispositive of appellant’s conviction of child endangerment. Thus, even if the content of the tapes were, in fact, questionable, the significant tapes had no bearing on appellant’s conviction of child endangerment.

DECISION

The state does not need to prove actual endangerment of a child’s person or health as a separate element of the crime of child endangerment under Minn.Stat. § 609.378, subd. 1(b)(2) (2000), when a parent, legal guardian, or caretaker permits a child to be present when a controlled substance is sold. There was sufficient evidence to convict appellant of child endangerment when appellant knowingly permitted her minor grandchildren, whom she was babysitting, to be present during a drug sale.

Affirmed.

      . Minn.Stat. § 609.378, subd. 1(b)(2), was amended in 2002 adding language to prohibit knowingly permitting a child to be present where "manufacturing, possessing immediate precursors or chemical substances with intent to manufacture” occurs. 2002 Minn. Laws ch. 314, § 6, at 514.

      . The district court acquitted appellant of all other charges.


author: KLAPHAKE, Judge.

text:
    STATE of Minnesota, Appellant, v. Robert Joseph WERNER, Respondent.
    No. A06-1378.
    Court of Appeals of Minnesota.
    Jan. 9, 2007.

      Lori Swanson, Attorney General, St. Paul, MN and Patrick W. Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, Austin, MN, for appellant.
    Terence L. Maus, Tammy L. Shefelbine, O’Brien & Wolf, L.L.P., Rochester, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge, KALITOWSKI, Judge, and WRIGHT, Judge.
   OPINION

KLAPHAKE, Judge.

Respondent Robert Joseph Werner was lawfully stopped and arrested on an outstanding felony warrant on charges of tax evasion. As police spoke with Werner, they observed indicia of intoxication and, without first giving him a Miranda warning, asked if he had been drinking. Wer-ner’s affirmative response led to the administration of field sobriety, preliminary breath, and Intoxilyzer tests, all of which Werner failed. He was thereafter charged with misdemeanor fourth-degree driving while intoxicated under Minn.Stat. §§ 169A.20, 169A.27 (2004). Following an omnibus hearing, however, the district court granted Werner’s motion to suppress and dismissed the complaint.

Because Werner’s custody on an unrelated offense did not require a Miranda warning, and because the officer’s initial question did not rise to the level of interrogation requiring that Werner be given a Miranda warning, we reverse the district court’s suppression order and remand for further proceedings.

FACTS

On August 3, 2005, at approximately 12:30 a.m., Austin Police Officer Jeff McCormack was on patrol with Officer Jacob Stoekwell when he observed Wer-ner’s unoccupied Cadillac parked in a downtown parking lot. McCormack knew Werner and his vehicle by sight and knew that Werner had an outstanding felony arrest warrant for tax evasion.

The officers observed another vehicle, a newer Lincoln, pull up to the Cadillac and stop; a female passenger got out of the Lincoln, opened the door of the Cadillac, retrieved something, and got back into the Lincoln. The officers followed the Lincoln as it drove away. After a license plate check on the Lincoln confirmed that it was also registered to Werner, the officers initiated a traffic stop. McCormack agreed that Werner had exhibited no improper driving conduct and that the sole purpose of the stop was to arrest Werner on the outstanding warrant.

Officer Stoekwell approached the driver’s side of the Lincoln and asked Werner to identify himself, which he did. Stock-well ordered Werner out of the vehicle and told him he was under arrest for the outstanding warrant. Stoekwell had Werner place his hands on the trunk of the vehicle, patted him down for weapons, and handcuffed Werner with his hands behind his back.

McCormack, who was training Stock-well, testified that he approached the passenger side of the vehicle at the time of the stop and visually verified that Werner was driving. As Stoekwell was patting Werner down, Werner stated that he did not know anything about the warrant. As McCormack began to explain the charges to Werner in greater detail, he “noticed [that Werner] had bloodshot, glassy eyes, very bloodshot eyes, glassy, and noticed an odor of alcohol on his breath.” At the time, Werner and the two officers were standing by the rear of the vehicle and Werner was handcuffed.

McCormack testified that based on his 10-year experience as a police officer, he “obviously ... suspected [that Werner] had been drinking and thought he might have been impaired at the time we pulled him over.” Because Stoekwell had never processed a DWI, McCormack took over and conducted the rest of the stop.

McCormack asked Werner if he had been drinking, and Werner admitted that he had. McCormack then asked Werner how much, and Werner responded that he had consumed six or seven drinks.

While Werner was still in handcuffs, McCormack administered two verbal field sobriety tests, which consisted of Werner reciting the alphabet and counting backwards. McCormack thereafter removed the handcuffs and administered the physical tests, consisting of the one leg stand, which Werner failed by exhibiting “[p]oor balance,” putting his foot down on three separate counts, and raising his hands away from his sides. The fourth test was the heel-to-toe, in which Werner displayed “wobbly balance” by losing his balance and side stepping on count five and the second half of the test. McCormack told Werner that based upon his performance on the field sobriety tests, he believed that Wer-ner was impaired and that the “only way he would get out of me arresting him for suspicion of DUI” was to take and pass a preliminary breath test. Werner then took the PBT, which he also failed. After being transported to the law enforcement center, Werner was read the Implied Consent Advisory and agreed to perform the Intoxilyzer, which measured his alcohol concentration level at .09.

McCormack did not provide Werner with a Miranda warning at the scene of the stop. McCormack agreed that Werner was polite and cooperative. Werner agreed that McCormack was polite to him and that the two men at one point were “actually conversing.”

Following an omnibus hearing, the district court found that Werner was in custody and that the officers should have given him a Miranda warning before interrogating him. The court therefore suppressed Werner’s admission that he had been drinking and had consumed six to seven drinks. The court also suppressed the results of the field sobriety, preliminary breath, and Intoxilyzer tests, reasoning that this evidence was the “fruit of the poisonous tree.” The court found that McCormack gave a “tacit admission” that, but for Werner’s admission to consuming alcohol, McCormack would not have administered the additional tests.

ISSUE

Did the district court err in determining that Werner was entitled to a Miranda warning before the officer asked him if he had been drinking?

DECISION

On appeal from a pretrial suppression order based on undisputed facts, a reviewing court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992). The state may appeal from a pretrial suppression order, but it must “clearly and unequivocally” show that the order will have a “critical impact” on the state’s ability to successfully prosecute the defendant and that the order constituted error. State v. Scott, 584 N.W.2d 412, 416 (Minn.1998). Because the district court here dismissed all charges against Werner, the critical impact requirement is met. State v. Poupard, 471 N.W.2d 686, 689 (Minn.App.1991).

Statements made by a suspect during a “custodial interrogation” are inadmissible absent Miranda warnings, which are procedural safeguards designed to protect the suspect’s Fifth Amendment rights. State v. Heden, 719 N.W.2d 689, 694-95 (Minn.2006) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). The district court here determined that Werner was “in custody” for purposes of Miranda because he was handcuffed and not free to leave. But, as the district court also recognized, an individual who is incarcerated or arrested on an unrelated offense is not necessarily in custody for all Miranda purposes. State v. Tibiatowski, 590 N.W.2d 305, 309 (Minn.1999). “[W]here there is no evidence of restraint on the suspect’s freedom other than that to which the suspect was already subject by reason of his custody for an unrelated offense, the suspect is not in custody for purposes of Miranda.” Id. Thus, a defendant must be subject to some additional restraint before he or she is considered in “custody” for purposes of Miranda.

Here, Werner was placed in handcuffs and informed he was under arrest on the felony warrant. But he was not subject to any additional restraint when McCormack, who smelled alcohol emanating from Werner’s person and observed Werner’s eyes to be bloodshot and glassy, asked Werner if he had been drinking. ■While Werner was clearly not free to leave because he was already in custody on the warrant, the issue is whether the “circumstances of the custody [would] cause a reasonable person to feel compelled or coerced to confess to the offense for which the interrogation [was] being conducted.” Id.

Werner acknowledged that McCormack was polite and that they were “actually conversing.” Werner further acknowledged that he understood that while he was under arrest on the warrant, McCor-mack explained to him that the “only way he could avoid being arrested for the DWI was to take the [preliminary breath] test.” Werner makes no claim that he was subjected to any additional restraint or that McCormack’s conduct was overly coercive. We therefore conclude that the district court erred in determining that Werner was in “custody” for purposes of Miranda. See, e.g., id. at 307-09 (juvenile, who was incarcerated on unrelated charges and who made statements about his involvement in an armed robbery in response to case manager’s open-ended question about whether there was anything else he wanted to tell her, was not in custody for purposes of Miranda where there was no evidence of any additional coercion or restraint being imposed upon him); State v. Underdahl, 607 N.W.2d 786, 788 (Minn.App.2000) (Miranda warning not required when inmate was not coerced or subjected to additional restraint and when corrections officer asked inmate where he had been after inmate was late, intoxicated, and disheveled when returning to facility on pass), review denied (Minn. May 16, 2000).

The district court further determined that McCormack’s initial question to Werner regarding whether he had been drinking constituted an interrogation under Miranda. Again, the district court’s analysis on this issue is faulty: merely because Werner was under arrest on the unrelated warrant and was not free to leave does not decide the question of whether an interrogation occurred for Miranda purposes. See State v. Walsh, 495 N.W.2d 602, 604-05 (Minn.1993) (.Miranda warning not required for “[o]n-the-scene” questioning, despite fact that defendant was handcuffed); State v. Kline, 351 N.W.2d 388-90 (Minn.App.1984) (noting that Miranda does not prohibit all police questioning, such as “general on-site questions”). Because McCormack’s question was an appropriate on-site general question under the circumstances presented here, we conclude that the district court erred in determining that it constituted an interrogation and required a Miranda warning.

DECISION

The district court erred in determining that Werner was in custody and that he was interrogated for purposes of Miranda. We therefore reverse the district court’s decision to grant Werner’s suppression motion and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . On appeal, the state concedes that McCor-mack’s questioning of Werner regarding his alcohol consumption was a Miranda violation. While we generally accept a party's concessions, we need not do so when the party has made a concession on a threshold issue that presents a question of law, particularly when we find fault with the district court's analysis on the issue. See State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn.1999) (addressing issue of custody even though district court and court of appeals bypassed issue based on parties’ stipulation that suspect was in custody); State v. Mellett, 642 N.W.2d 779, 787-88 (Minn.App.2002) (stating that district court's determination regarding custody and necessity of Miranda warning are issues of law that appellate court reviews independently), review denied (Minn. July 16, 2002). Acceptance of the state's concession on this issue would lead us to render an even faultier decision on the remaining issues. We therefore decline to accept the state's concession and choose to address the dispositive issue of whether Wer-ner was in custody for purposes of Miranda.


author: WORKE, Judge.

text:
    Robert Alan BLACK, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    Nos. A06-166, A06-311.
    Court of Appeals of Minnesota.
    Jan. 9, 2007.

      John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, Minneapolis, MN, for appellant.
    Lori R. Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, MN; and Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, Park Rapids, MN, for respondent.
    Considered and decided by KLAPHAKE, Presiding Judge; WORKE, Judge; and ROSS, Judge.
   OPINION

WORKE, Judge.

On appeal from an order denying a post-conviction petition, appellant argues that (1) consecutive sentencing was a departure that was not properly supported by offense-related aggravating factors, and (2) his failure to cooperate with the PSI, to appear for sentencing, and to abide by his conditions of release were all offender-related factors that cannot be used to support the departure. We affirm.

FACTS

In May 2000, appellant Robert Alan Black was charged with first-degree controlled-substance crime, in violation of MinmStat. § 152.021, subd. 2a (1998). In September 2001, appellant was charged with two counts of terroristic threats, in violation of Minn.Stat. § 609.713, subd. 1 (2000), after threatening an individual he believed was going to testify against him in the pending drug case. The complaint was amended to first-degree tampering with a witness, in violation of Minn.Stat. § 609.498, subd. 1(a) (2000).

On October 31, 2001, appellant entered an Alford plea to both charges. Under the plea agreement, appellant was to be sentenced to 81 months in prison on the drug charge with concurrent time on the witness-tampering charge. The presumptive sentences were a commitment of 86 months (range of 81 to 91 months) in prison on the drug charge, and a concurrent, stayed sentence of 28 months on the witness-tampering charge. If the sentences were run consecutively (a departure), the sentence on the witness-tampering charge would be 18 months in prison. When appellant presented his plea, the district court explained that it did not accept the plea agreement relative to the contemplated sentence and would exercise discretion regarding the sentence. Because a presentence investigation had not been completed, sentencing was scheduled for a later date. The district court did not accept the sentencing terms but stated that it would consider following the negotiated plea at sentencing if no aggravating circumstance occurred between the date of the plea agreement and sentencing or that there were no aggravating circumstances that appellant had not yet disclosed. In receiving the plea, the district court further stated, “If you proceed with the plea and I do find aggravating circumstances, then I will not allow you to withdraw your plea at a later date.” Appellant failed to appear for the PSI and sentencing, and was arrested in Massachusetts and extradited to Minnesota.

In September 2002, the district court found aggravating circumstances: appellant failed to cooperate with the PSI, failed to appear for sentencing, and failed to abide by the conditions of release. Appellant was sentenced to 91 months on the drug conviction and 18 months, consecutive, on the witness-tampering conviction. No direct appeal was filed.

In February 2005, appellant filed a pro se petition for postconviction relief seeking to withdraw his plea. In April 2005, the state public defender’s office also filed a petition on appellant’s behalf arguing that appellant’s sentences should run concurrently because the reasons for the departure related to a dispositional departure not a durational departure. Following a hearing, the district court denied both petitions and determined that an additional aggravating factor supported the consecutive sentencing departure. This appeal follows.

ISSUES

I. Did the district court abuse its discretion in not allowing appellant to withdraw his guilty plea?
II. Did the district court abuse its discretion in ordering appellant’s sentence on the drug conviction to run consecutively to the witness-tampering conviction?

ANALYSIS

A criminal defendant may seek postconviction relief under Minn.Stat. § 590.01, subd. 1 (2004). The petitioner bears the burden of establishing facts alleged in the petition by a fair preponderance of the evidence. Minn.Stat. § 590.04, subd. 3 (2004). To meet this burden, the petitioner must support his allegations with “more than mere argumentative assertions that lack factual support.” Henderson v. State, 675 N.W.2d 318, 322 (Minn.2004). “The decisions of a postcon-viction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). This court reviews “a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and will not reverse a district court’s findings of fact unless they are clearly erroneous. Id. This court reviews conclusions of law de novo. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003).

I.

Appellant argues that the district court abused its discretion in not allowing him to withdraw his guilty plea when he was not sentenced pursuant to the plea agreement. We will “reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.” Bolinger v. State, 647 N.W.2d 16, 20-21 (Minn.App.2002). A criminal defendant does not have an absolute right to withdraw a guilty plea once entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). But a criminal defendant may withdraw a guilty plea, even after sentencing, if the defendant shows that “withdrawal of the plea is necessary to correct a manifest injustice.” State v. Ecker, 524 N.W.2d 712, 715-16 (Minn.1994) (quoting Minn. R.Crim. P. 15.05, subd. 1). “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.” Alanis, 583 N.W.2d at 577.

Here, the district court ruled that appellant’s request was untimely and he failed to show that the withdrawal was necessary to correct a manifest injustice. While there is no established time limit barring motions for withdrawal of a guilty plea, such motions should be “made with due diligence, considering the nature of the allegations therein.” Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968). The factors to be considered when determining whether a motion for plea withdrawal is timely are: (1) the district court’s interest in preserving the finality of convictions, see State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999); (2) the defendant’s diligence in seeking withdrawal, see Doughman v. State, 351 N.W.2d 671, 675 (Minn.App.1984), review denied (Minn. Oct. 16, 1984); and (3) whether the delay causes undue prejudice to the state’s prosecution of the case, State v. Byron, 683 N.W.2d 317, 321 (Minn.App.2004), review denied (Minn. Sept. 29, 2004). Appellant moved to withdraw his guilty plea more than two years after he was sentenced. Because the drug evidence has been destroyed, and witnesses’ memories of the events have likely faded, the delay causes undue prejudice to the prosecution of the ease. Therefore, the district court did not abuse its discretion in finding that appellant’s request to withdraw his plea was untimely.

Appellant also argues that the district court abused its discretion in denying his request because he had an absolute right to withdraw his guilty plea when the plea agreement was not followed. The district court is vested with broad discretion in determining whether a defendant is allowed to withdraw his guilty plea. State v. Kunshier, 410 N.W.2d 377, 379 (Minn.App. 1987), review denied (Minn. Oct. 21, 1987). However, a defendant should be allowed to withdraw his guilty plea if an unqualified promise is made on the sentence to be imposed and that promise is not fulfilled. Id. In Kunshier, the defendant moved to withdraw his guilty plea when the prosecutor recommended consecutive sentencing rather than concurrent as discussed in plea negotiations. Kunshier, 410 N.W.2d at 378-79. The district court denied the motion based on a finding that no definite promises had been made on sentencing. Id. On appeal, this court concluded that the district court erred in denying appellant’s motion because the record showed that appellant’s guilty plea was induced by a promise as to sentencing which was not fulfilled. Id. at 379-80. This case can be distinguished from Kunshier because appellant did not receive an unqualified promise regarding the sentence to be imposed. The district court informed appellant numerous times prior to offering his plea that it did not accept the offered plea agreement relative to the negotiated sentence and because it did not agree, it would not allow him to withdraw his plea at. sentencing if the plea agreement was not followed. Appellant acknowledged that he understood that the court did not agree to follow the plea agreement and would not allow him to withdraw his plea if the plea agreement was not followed. Therefore, appellant entered his guilty plea voluntarily and intelligently despite the district court’s warnings.

II.

Appellant argues that the district court abused its discretion in using aggravating factors unrelated to the crimes to justify consecutive sentencing. A district court has broad discretion to depart from the presumptive sentence under the sentencing guidelines. State v. Gassier, 505 N.W.2d 62, 69 (Minn.1993). “We review a [district] court’s departure from the sentencing guidelines for abuse of discretion.” State v. Geller, 665 N.W.2d 514, 516 (Minn.2003). If a district court departs from the presumptive sentence, it must, at the time of sentencing, provide written reasons which specify the substantial and compelling nature of the circumstances. Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996). While the district court did not provide a departure report, a departure from the guidelines will not be precluded for lack of a departure report. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985).

“If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.” Id. “[I]f the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify [the] departure, the departure will be affirmed.” Id. But, “[i]f the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.” Id. The question presented to the district court when considering a departure “is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” State v. Cox, 343 N.W.2d 641, 643 (Minn.1984).

The reasons articulated by the court at sentencing to justify the departure were appellant’s failure to (1) cooperate with the PSI, (2) appear for sentencing, and (3) abide by the conditions of his release. These factors do not relate to appellant’s offenses, but rather, to his behavior following sentencing. An upward durational departure must focus only on offense-related factors and may not consider offender-related factors. See State v. Chaklos, 528 N.W.2d 225, 228 (Minn.1995). However, in denying appellant’s postcon-viction petition the district court stated that while the witness-tampering charge is not listed among the aggravating factors in the sentencing guidelines, appellant committed the witness-tampering crime with the intention of altering the outcome of the case, which was an aggravating factor that affected sentencing.

Appellant was originally charged with terroristic threats because he threatened to kill the individual he believed was going to testify against him in the pending first-degree drug case. Pursuant to the plea agreement, appellant pleaded guilty to the amended charge of tampering with a witness. Under Minn.Stat. § 609.498, subd. 1(a) (2000), whoever “intentionally prevents or dissuades or intentionally attempts to prevent or dissuade by means of force or threats of injury to any person or property, a person who is or may become a witness from attending or testifying at any trial, proceeding, or inquiry authorized by law” is guilty of first-degree tampering with a witness. A death threat, that is specific and likely to be carried out, is not an element of the crime of first-degree tampering with a witness. The threat of great bodily harm or death is an element of the crime of aggravated first-degree tampering with a witness under Minn.Stat. § 609.498, subd. lb(a) (2000) (“if the person causes or, by means of an implicit or explicit credible threat, threatens to cause great bodily harm or death to another ... preventing or dissuading or attempting to prevent or dissuade ... a witness from attending or testifying at any criminal trial or proceeding”), and terroristic threats, under Minn.Stat. § 609.713, subd. 1 (2000) (“[wjhoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or ... in a reckless disregard of the risk of causing such terror.”). Appellant did more than intentionally prevent or dissuade or attempt to prevent or dissuade an individual from testifying against him by means of force or threats of injury. Appellant made an implicit credible threat to cause great bodily harm or death to the individual he believed was going to testify against him in the pending drug case. Because the threat of death is not an element of the crime of first-degree tampering with a witness, the district court did not abuse its discretion in using it as an aggravating factor in sentencing appellant. Therefore, the district court’s imposition of consecutive sentencing is affirmed.

DECISION

The district court’s finding that appellant’s request to withdraw his plea is untimely was not an abuse of discretion, and appellant knowingly and intelligently entered his guilty plea despite the district court’s warning that it did not accept the offered plea agreement relative to the negotiated sentence and that it would not allow him to withdraw his plea at a later date if the plea agreement was not followed. Further, because appellant threatened to cause great bodily harm or death, which are not elements of the crime of first-degree tampering with a witness, the district court did not abuse its discretion in using the death threats as an aggravating factor in sentencing appellant to an upward durational departure.

Affirmed.