In the Matter of the Welfare of the Child of: A.M.S. and E.R.K., Parents.

In the Matter of the Welfare of the Child of: A.M.S. and E.R.K., Parents. A04-2020, Court of Appeals Unpublished, May 10, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2020

 

In the Matter of the Welfare
of the Child of: A.M.S. and E.R.K., Parents.

 

Filed May 10, 2005

Affirmed

Stoneburner, Judge

 

Anoka County District Court

File Nos. J20450570 & J70352482

 

Sherri D. Hawley, Walling, Berg & Debele, P.A., Suite 1100, 121 South Eight Street, Minneapolis, MN 55402 (for appellant)

 

Robert M.A. Johnson, Anoka County Attorney, Kristin Larson, Assistant County Attorney, Seventh Floor, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant A.M.S. challenges termination of her parental rights to four-year-old T.R.K., arguing that the district court erred in selecting termination of parental rights over transfer of legal custody as the disposition.  Because the district court's finding that termination of parental rights is in T.R.K.'s best interests is not clearly erroneous, we affirm.

D E C I S I O N

 

            On appeal from a termination of parental rights (TPR), this court gives deference to the district court's findings, but exercises great caution in termination proceedings.  In re Welfare of A.J.C., 556 N.W.2d 615, 622 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).  This court reviews the findings of fact made by the district court to ascertain that the findings address the statutory requirements, are supported by substantial evidence, and are not clearly erroneous.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  Termination of parental rights will be affirmed if there is clear and convincing evidence supporting at least one statutory ground for termination and that termination is in the child's best interests.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).

            Appellant does not dispute the district court's findings that statutory grounds exist to support termination of her parental rights to T.R.K.[1]  Appellant asserts that, nonetheless, termination of parental rights is not in T.R.K's best interests because termination of parental rights is not preferred over transfer of legal custody, termination of parental rights will sever T.R.K.'s bond with a half-sister, and the bond between T.R.K. and appellant was strong before the county denied appellant's visitation with T.R.K.

            The district court must consider a child's best interests in making its termination decision, make findings specifically addressing the child's best interests, and must "explain its rationale in its findings and conclusions."  In re Tanghe, 672 N.W.2d 623, 626-27 (Minn. App. 2003).  A child's best interests may preclude termination of parental rights even when a statutory basis for termination is proved.  Id. at 625-26.  The district court, when considering the best interests of the child in a TPR case, must balance three factors:  "(1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child."  In re Welfare of Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004).

            In this case, Anoka County (the county) sought termination of appellant's parental rights in anticipation that T.R.K. will be adopted by her paternal aunt, V.K., with whom T.R.K. has been living since May 2004.  Appellant, who initially recommended placement of T.R.K. with V.K., counter-petitioned for a transfer of T.R.K.'s custody to V.K. in lieu of termination of appellant's parental rights and adoption by V.K.  Appellant asserts that the district court failed to consider whether permanency in the form of a transfer of legal custody would be more in T.R.K.'s best interests than termination of appellant's parental rights and suggests that the county had the burden of proving that TPR was preferable to a transfer of legal custody.  We disagree. 

            Minn. Stat. § 260C.201, subd. 11(c) (2004), provides:

At the conclusion of the [permanency] hearing, the court shall order the child returned to the care of the parent or guardian from whom the child was removed or order a permanent placement in the child's best interests.  The "best interests of the child" means all relevant factors to be considered and evaluated.  Transfer of permanent legal and physical custody, termination of parental rights, or guardianship and legal custody to the commissioner through a consent to adopt are preferred permanency options for a child who cannot return home.

 

The permanency statute does not prioritize the preferred permanency options, but does provide that a placement in long-term foster care is disfavored.  See Id., subd. 11(d)(3)(i).  Appellant cites no authority to support her assertion that the county was required to demonstrate that a transfer of legal custody was not preferable before the district court could conclude that the child's best interests would be served by TPR.  Case law indicates that, as the proponent of a disposition other than TPR, it was appellant's burden to demonstrate that her proposed disposition is in T.R.K.'s best interests.  In A.J.C., a mother whose rights had been terminated argued that the district court failed to adequately consider the best-interests factors because the children wished to be in their mother's care and because the county, as petitioner seeking TPR, did not demonstrate that the children had an insignificant relationship with a sibling.  556 N.W.2d at 621.  In that case, we squarely placed the burden on the mother to demonstrate that an alternative disposition was preferable to TPR.  Id. at 622 (stating that mother "failed to establish that long-term foster care is an alternative to termination that serves the children's best interests.").  We also ruled that "the [petitioner] does not have the burden to negate [best-interests] considerations that have not been established by the evidence in the case."  Id. at 621.  Here, the district court specifically found that appellant "failed to offer a shred of evidence that a transfer of legal and physical custody to [V.K.] would serve the best interests of T.R.K.," and the record supports that finding. 

            Even if the county had the burden to show that TPR was preferable to a transfer of legal custody, we believe it met that burden by presenting a great deal of evidence regarding the child's need for permanency and the potential that preserving appellant's presence in the child's life would undermine that stability.  T.R.K.'s therapist, who has worked with T.R.K. since December 2003, testified about the sense of grief caused to T.R.K. by raising her hopes of returning to appellant followed by taking that hope away and about T.R.K.'s progress after learning that she probably would not be returning to appellant due to appellant's noncompliance with her case plan.  The therapist testified that after learning that she would probably not be returned to appellant's care, T.R.K. seemed to be "more at peace with things," reported fewer nightmares, and it appeared that she had "grieved and moved on."  The therapist's testimony indicated that appellant's plan to transfer custody would stir up all of the psychological problems that T.R.K. has already worked through.

            T.R.K.'s guardian ad litem testified that T.R.K. most needs long-term predictable stability by a provider who can consistently meet all of her needs.  The guardian ad litem testified that TPR and adoption provide predictable stability on a long-term basis and that transfer of legal custody opens up the possibility that T.R.K. would be vulnerable to a disruption in placement.  The guardian also testified about a disruption that occurred when T.R.K. was placed with a different relative and appellant interfered with that placement.  Finally, appellant's social worker testified about her concern that appellant would disrupt the placement if her parental rights were not terminated.  The social worker also testified about T.R.K.'s great need for a bonded relationship to one primary caregiver and expressed her concern that, if custody were transferred, appellant could create uncertainty in T.R.K. about whether V.K. or appellant would be her permanent, primary caregiver. 

            Appellant also asserts that the county unfairly denied her visitation with T.R.K. to weaken the strong bond between appellant and T.R.K. and then relied on that weakened bond as a basis for TPR.  The bond between a parent and child is a factor to be considered when determining the child's best interests.  In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn. 1998).  But the evidence strongly indicated that appellant chose not to have visitation on some occasions and did not have visits largely because she chose to continue using drugs and not to comply with her court-ordered case plan.  And there is no evidence that the requirement that appellant be drug-free during visits with T.R.K. was an unfair or unreasonable requirement. 

            The fact that a parent only "sporadically" exercised visitation rights may suggest that the parent's interest in preserving parental rights does not weigh heavily in the best-interests balancing.  A.J.C., 556 N.W.2d at 620.  The district court, in this case, questioned appellant's claim that she wanted to preserve her relationship with T.R.K. because "she has done nearly nothing to ensure that this happens."  The district court also found that the child's interest in a permanent placement with a stable, sober caregiver in a safe and secure environment "greatly outweigh[s]" appellant's interest in maintaining a parent-child relationship.

            Appellant also argues that the district court failed to address the bond between T.R.K. and her half-sister, T.M.  In July 2002, T.M.'s physical custody was awarded to her father, who lives in Pennsylvania, but appellant obtained an ex parte order for her custody in June 2003, when T.M. was visiting her paternal grandparents in Minnesota.  When appellant was arrested on August 2, 2003, T.M.'s custody was returned to her father. 

            [A] parent may demonstrate children's bonds with either the parent or siblings that would suggest potential harm caused by a termination of parental rights.  A parent may show these bonds by producing evidence of the child's choice for future care, by showing the duration and intensity of the child's past relationships, or by providing the special value of care . . . that the child has enjoyed in the past.

 

A.J.C., 556 N.W.2d at 620.  The petitioning agency does not have to demonstrate that the sibling relationship was insignificant as a prerequisite to termination of parental rights.  Id. at 621.  In this case, there was very little evidence about T.R.K.'s relationship with T.M., who is six years older than T.R.K.  Appellant did not testify about the nature of their relationship, nor did she testify about how transfer of custody would preserve any relationship between T.R.K. and T.M.  We conclude that the district court did not err in failing to weigh the sibling bond heavily in its consideration of the child's best interests.

The district court's finding that TPR is in the child's best interests is supported by the record and reflects adequate consideration of the factors relating to best interests.  See also W.L.P., 678 N.W.2d at 711 (district court did not abuse its discretion in weighing best-interests considerations, when court considered testimony about parent's long-term drug use and relapse history and concluded that child's need for immediate permanency with stable, drug-free caretakers outweighed competing interests.)

            Affirmed.

[1] Appellant's statement of the case asserted generally that she proposed to challenge "the sufficiency of the evidence to terminate her parental rights," but she has not made any argument that the district court's findings on the statutory bases for termination failed to address the required factors or were unsupported by clear and convincing evidence.  Appellant has therefore waived any claim regarding the statutory bases for termination through failure to brief the issue.  See Westbrook State Bank v. Anderson Land & Cattle Co., 364 N.W.2d 416, 420 (Minn. App. 1985) (stating issues raised in statement of the case but not discussed in brief are waived).