J.W., a minor, by and through his mother, D.W., petitioner, Appellant, vs. C.M., a minor, and A.K.M., an infant child of C.M., Respondents, and Terry Braun, et al., Respondents.

STATE OF MINNESOTA 
 IN COURT OF APPEALS 
 C6-00-1500

J.W., a minor, by and through his mother, D.W.,
petitioner,
Appellant,

vs.

C.M., a minor, and A.K.M., an infant child of C.M.,
Respondents,

and

Terry Braun, et al.,
Respondents.

Becker County District Court
File No. F59950281

Anita A. Flatt, Zenas Baer & Associates, 331 Sixth Street, P.O. Box 249, Hawley, MN 56549-0249 (for appellant)

Stuart J. Kitzmann, Kitzmann Law Firm, 916 Washington Avenue, Detroit Lakes, MN 56501 (for respondent C.M.);

James Shoemaker, Shoemaker Law Office, 1009 Lake Avenue, Detroit Lakes, MN 56501 (for respondent A.K.M.);

DeAnn M. Pladson, Maring Williams Law Office, P.C., P.O. Box 2103, Fargo, ND 58107-2103 (for intervenors/respondents); and

Mary Sorum, Thorwaldsen, Beeson, Malstrom, Sorum & Donehower, PLLP, P.O. Box 1599, Detroit Lakes, MN 56502-1599 (for guardian ad litem)

Considered and decided by Harriet Lansing, Presiding Judge, Robert Schumacher, Judge, and G. Barry Anderson, Judge.

I. A district court, in its discretion and in accordance with Minn. R. Civ. P. 24.02, may permit foster parents to intervene in a custody proceeding.

II. A district court does not abuse its broad discretion by awarding custody of a child to a non-parent when the evidence clearly demonstrates that the best interests of the child are served by the award and that the natural parent is unfit to parent the child.

G. BARRY ANDERSON, Judge

Appellant challenges the district court's order granting custody of his biological daughter to the child's foster parents. Appellant argues that the district court erred or abused its discretion by (1) permitting the foster parents to intervene; (2) concluding that it is in the child's best interests that custody be awarded to the foster parents; (3) ordering temporary supervised visitation; (4) ordering appellant to undergo a parenting evaluation; and by (5) admitting the guardian ad litem's report into evidence. The temporary visitation order is unappealable and the parenting evaluation is not part of the record in this case; accordingly, we do not review those issues. Because the district court acted within its discretion in allowing intervention, granting custody, and admitting the guardian ad litem's report, we otherwise affirm.

On April 29, 1999, daughter A.K.M. was born to juvenile C.M. (now age 18). Appellant J.W. (now age 17) is the child's biological father. Soon after learning C.M. was pregnant, appellant informed her that he would not consent to an adoption, and expressed his desire to keep and raise the child. But before the child's birth, respondent C.M., with the help of a counseling service, decided to give the baby up for adoption and chose respondents Terry and Susan Braun, ages 37 and 36, respectively, to be the adoptive parents. The Brauns have a biological daughter, B.B., now age nine. Baby A.K.M. has been cared for by the Brauns since May 1, 1999.

On June 19, 1999, appellant petitioned for custody through his mother, D.W. At appellant's request, the district court appointed a guardian ad litem for the child, ordered genetic testing, and granted appellant supervised visitation. Appellant missed approximately one-third of the scheduled visitations. On January 6, 2000, the district court granted the Brauns' motion to intervene. In April 2000, the district court extended appellant's visitation schedule but denied his motion for summary judgment against the Brauns and ordered a custody trial.

Appellant has a seventh-grade education and, with his mother's permission, dropped out of high school at age 16. Appellant, burned in a 1985 house fire, receives annuity payments as part of the settlement of his personal-injury claim. Appellant suffers no permanent disability and works approximately full-time for his father, earning between five and six dollars per hour as a drywall hanger. Appellant paid the hospital expenses of A.K.M. and C.M., and testified that he had experience bathing and feeding small children. Appellant also explained that his mother intended to help him raise A.K.M. Appellant testified that his family supports his decision to raise A.K.M. in the home where he, his mother, a sister, a brother, his mother's boyfriend, and the boyfriend's daughter reside. The family prepared a room in their home for A.K.M., purchased a crib and toys, and made other home improvements in anticipation of having a child in the residence.

D.W. testified on appellant's behalf and explained that her own experience raising four children, together with her past experience as a day-care provider, would enable her to assist appellant in raising his daughter. D.W. assisted appellant in bringing this custody action; she completed the necessary forms for appellant's registration with the Adoptive Father's Registry, communicated with the adoption coordinator, sent out birth announcements, and arranged appellant's visitations with A.K.M.

The guardian ad litem visited the home and assessed the parenting abilities of appellant and his mother. The guardian ad litem identified problems that led her to conclude that placement with the Brauns was in A.K.M.'s best interests. Both appellant and D.W. were identified as having unresolved chemical-use problems. In addition, the guardian ad litem observed many unsafe conditions in the appellant's home, and her research uncovered difficulties between D.W. and local authorities.

In contrast, the guardian ad litem described the Braun home as loving, safe, and filled with age-appropriate toys. The Brauns operate a day-care and preschool facility in their home and the guardian ad litem regarded their care of children as "excellent." An expert testified on behalf of respondents and explained the attachment an infant develops with caregivers and explained attachment disorder and other risks a child in A.K.M.'s situation would face if her custody were to change. The district court applied the statutory "best interests of the child" factors and awarded the Brauns permanent legal and physical custody of A.K.M.

I. Did the district court abuse its discretion by permitting the foster parents to intervene in the custody action?

II. Did the district court abuse its discretion by awarding custody of A.K.M. to the foster parents?

III. Did the district court abuse its discretion by ordering supervised visitation between appellant and A.K.M.?

IV. Did the district court abuse its discretion by ordering appellant to undergo a parenting evaluation?

V. Did the district court abuse its discretion by admitting into evidence the guardian ad litem's report?

I.

Appellant first argues that the district court abused its discretion by permitting respondent foster parents, Terry and Susan Braun, to intervene in this custody action. Permissive intervention rulings are reviewed under an abuse-of-discretion standard. Norman v. Refsland, 383 N.W.2d 673, 676 (Minn. 1986).

Minn. R. Civ. P. 24.02 provides that district courts, in their discretion, may permit intervention where the applicant's claim or defense and the main action have a common question of law and fact if doing so would not unduly delay or prejudice the adjudication of the rights of the original parties. Id. In this case, the Brauns, as A.K.M.'s legal custodians, share with appellant a common claim to custody of the child. Although appellant argues that the foster-parent/child relationship is insufficient to support the permissive intervention granted by the district court here, the supreme court has recognized that, where intervention was sought as a matter of right, "[i]n certain circumstances, it may be appropriate for a [district] court to allow foster parents to intervene * * * ." Valentine v. Lutz, 512 N.W.2d 868, 871 (Minn. 1994) (addressing intervention as a matter of right).

Appellant argues that intervention was not appropriate in this case because he suffered undue delay and hardship. Appellant claims the custody matter would have been resolved "immediately" had the Brauns not intervened. We disagree. Minn. Stat. § 518.156, subd. 1(b) (2000), provides that a custody action may be commenced by a "person other than a parent, where a * * * dissolution or legal separation has been entered or where none is sought." Id.; see also In re E.A.Q.D., 405 N.W.2d 262, 264 (Minn. App. 1987) (nonparent