In the Matter of the Welfare of the Child of: D. E. B. and R. J. A., Parents.

In the Matter of the Welfare of the Child of: D. E. B. and R. J. A., Parents. A05-1848, Court of Appeals Unpublished, May 9, 2006.

This opinion will be unpublished and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

A05-1848

 

In the Matter of the Welfare of the Child of:

D. E. B. and R. J. A., Parents.

 

Filed May 9, 2006

Affirmed

Minge, Judge

 

Anoka County District Court

File No. J7-04-52590

 

 

Jay G. Swokowski, Swokowski Law Office LLC, 316 East Main Street, Suite 20, Anoka, MN 55303 (for appellant D.E.B.)

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent county)

 

Judi Albrecht, P.O. Box 832, South St. Paul, MN 55075 (guardian ad litem)

 

William Ward, Chief Public Defender, Betsy Schollmeier, Assistant Public Defender, 433 Jackson Street, Suite 120, Anoka, MN 55303 (for R.J.A.)

 

Michael C. Hager, 301 Fourth Avenue South, Suite 270N, Minneapolis, MN 55415 (for C.L.)

 

            Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges the district court's grant of her petition for termination of her parental rights while denying her request to transfer custody to a family member.  Because appellant's termination petition was supported by good cause, was entered with knowledge of the consequences and alternatives, and was not conditioned on transferring custody to the designated family member, and because the district court's decision not to place the child with the requested family member was supported by substantial evidence, we affirm. 

FACTS

            Appellant D.E.B. gave birth to D.J.B. on September 19, 2004.  D.E.B. was not married to the child's father, R.J.A.  Both D.E.B. and D.J.B. tested positive for cocaine at D.J.B.'s birth, and D.J.B. was placed on emergency hold on September 20, 2004.  Upon discharge from the hospital, D.J.B. was placed in foster care at the home where his seven-year-old half-sibling, S.B.C., also resides. 

            On April 8, 2005, respondent Anoka County filed a petition to involuntarily terminate the parental rights of D.E.B. and R.J.A.  R.J.A. is married.  C.L. is one of R.J.A.'s four adult children.  On May 17, 2005, R.J.A. and C.L. filed a "Petition Seeking Alternate Permanent Placement Relief Through Transfer of Legal and Physical Custody," alleging that it was in D.J.B.'s best interests for the district court to transfer custody of D.J.B. to C.L., his half-sister, "in the event reunification with the biological parents is not permitted."  On June 28, 2005, D.E.B. and R.J.A. separately filed petitions for voluntary termination of their parental rights, with a request that custody be transferred to C.L.  A hearing was held.  Based on the voluntary petitions, the district court dismissed the petition for involuntary termination.  The district court concluded that there was not clear and convincing evidence that a transfer of custody to C.L. was in D.J.B.'s best interests and dismissed the petition for that custody transfer.  The district court also concluded that termination of the parental rights of D.E.B. and R.J.A. was in D.J.B.'s best interests and granted the petitions to voluntarily terminate their parental rights.   D.E.B. appeals. 

D E C I S I O N

I.

            The first issue is whether the district court erred in granting D.E.B.'s petition to voluntarily terminate her parental rights.  "We review terminations of parental rights to determine whether the district court's findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001). 

            A district court can terminate parental rights "with the written consent of a parent who for good cause desires to terminate parental rights."  Minn. Stat. § 260C.301, subd. 1(a) (2004).  The termination must also be in the best interests of the child.  Id. at subd. 7 (2004); see also Minn. R. Juv. Prot. P. 43.04 (requiring a showing of good cause for the termination and that the termination is in the best interests of the child).  At the hearing, "the court shall advise the parent of the right to trial, the right to representation by counsel, and shall determine whether the parent fully understands the consequences of termination of parental rights and the alternatives to termination."  Minn. R. Juv. Prot. P. 43.04. 

            D.E.B. argues that her petition is not supported by good cause.  A variety of circumstances can constitute good cause under the statute, and the test is whether the parent "had sound reasons for consenting."  In re Welfare of D.D.G., 558 N.W.2d 481, 486 (Minn. 1997).  In D.D.G., the child had resided with its grandparents for 17 months and appellant was incarcerated, and the supreme court upheld a finding of good cause because continued placement of the child with his grandparents provided the child with a stable home.  Id.; see also In re Welfare of K.T., 327 N.W.2d 13, 17 (Minn. 1982) (affirming the district court's finding of good cause because of the child's residence in a foster home since birth, the parent's lack of contact with the child, and the parent's belief that she could not undertake to care for another child); In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978) (affirming finding of good cause where the parent believed it was in the best interests of her child to have two adoptive parents).

            D.E.B.'s petition states the reasons supporting the petition:

Petitioner, [D.E.B.], loves [D.J.B.] very much, but recognizes that she is currently addressing several personal issues, particularly past chemical use and maintaining her current sobriety.  Additionally, given the fact that she will be incarcerated until approximately December, 2005, [D.E.B.] acknowledges that she is not in a position to parent her son on a full time basis, now, or, applying the permanency timelines, in the foreseeable future. 

 

We conclude that D.E.B.'s belief that she could not properly parent D.J.B. because of her chemical use and her incarceration provides good cause for her petition. 

            D.E.B. claims that she was not aware of the consequences of her petition because she was not aware that if the district court denied the petition to transfer custody to C.L., it could also choose to grant the petition to voluntarily terminate her parental rights.  The petition, requesting a voluntary termination of parental rights, also states that D.E.B. supports C.L. and R.J.A.'s petition and that she would like C.L. to have permanent custody of D.J.B.  But the petition also acknowledges D.E.B.'s consent to the termination of her rights even if the alternate petition is denied: "I, [D.E.B.], . . . in the event that this Court denies the Petition for Alternative Relief herein, consent to the entry of an Order by this Court terminating my parental rights." 

            At the hearing on the petition, D.E.B. identified the petition as "a voluntary giving my rights up to [C.L.]."  But later, after D.E.B.'s attorney questioned her about the request to transfer custody to C.L., she affirmed her support of the petition and indicated that she was asking the district court to grant her petition whether or not it denied the alternate petition to transfer custody to C.L.:

Q:        But in the event that ultimately this Court denies that request, you would ask this court to allow you to voluntarily allow you to terminate your parental rights rather than have potentially an involuntary termination; is that correct?
A:         Yes. 

 

We conclude that there is ample evidence that D.E.B. consented to termination of her parental rights with the knowledge that the district court could grant her petition even if it denied her request to transfer custody of D.J.B. to C.L. 

            D.E.B. finally argues that she was unaware of the alternatives to voluntary termination.  Minnesota Practice discusses Minn. R. Juv. Prot. P. 43.04: "Alternatives to termination of parental rights are not included in the Rule but permanent placement with a relative is an alternative pursuant to Minnesota Statutes section 260C.201, subdivision 11(f)(1) (2004)."  13 Robert Scott & John O. Sonsteng, Minnesota Practice Rule 43.04 (Supp. 2004).  Further, "[n]o sanction is provided by Rule for not listing all possible alternatives to termination of parental rights."  Id.  D.E.B. was aware of the possibility of requesting permanent placement with a relative, as such a petition had already been filed in the case.  D.E.B. was also aware that the county had filed a petition for involuntary termination of her parental rights.  D.E.B. does not identify any other options of which she should have been informed.  We conclude that there is sufficient evidence that D.E.B. consented to termination of her parental rights knowing the alternatives available to her and that the district court did not err in granting her petition. 

II.

            The second issue is whether the district court erred in denying the request to permanently transfer custody to C.L.  On appeal from an order on permanent placement, this court determines whether the district court's findings address statutory criteria and are supported by substantial evidence, or whether such findings are clearly erroneous.  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996).   

            Placement decisions are to be made based on the child's best interests.  Minn. Stat. § 260C.212, subd. 2 (2004).  Factors included in the best interests of the child are

(1) the child's current functioning and behaviors;

(2) the medical, educational, and developmental needs of the child;

(3) the child's history and past experience;

(4) the child's religious and cultural needs;

(5) the child's connection with a community, school, and church;

(6) the child's interests and talents;

(7) the child's relationship to current caretakers, parents, siblings, and relatives; and

(8) the reasonable preference of the child, if the court, or the child-placing agency in the case of a voluntary placement, deems the child to be of sufficient age to express preferences.

 

Id. at subd. 2(b) (2004).

            Following a hearing in June 2005, the district court found that transferring custody of D.J.B. to C.L. was not in D.J.B.'s best interests, citing "numerous and grave concerns."  Expressing its belief that C.L. could not adequately care for D.J.B.'s emotional health, the district court found that C.L. had no insight into the adverse psychological consequences of removing D.J.B. from the only home he has ever known and that C.L. had not attempted to establish a bond with D.J.B. through visitation.  The district court also noted its concern that C.L. had not discussed D.J.B.'s physical health or the effects of D.J.B.'s prenatal exposure to cocaine with the social worker.  C.L. testified that she wanted to be a "big sister" to D.J.B., and the district court found that D.J.B. should instead be placed with someone ready to accept a parental role in D.J.B.'s life. 

            The district court also stated its concerns about D.J.B. having contact with his father and his father's wife (C.L.'s parents), and found that C.L.'s relationship with her parents would hamper her ability to be a good parent to D.J.B.  The district court did not find it credible that C.L. would avoid contact with her parents.  Assuming such contact was unavoidable, the district court further noted "grave concerns" about how R.J.A.'s wife would treat the child.  Finally, the district court found that C.L. had no insight into how her parents' use of cocaine could present a danger to D.J.B. and that C.L. would not prevent D.J.B. from being in his father's presence when his father is using drugs.[1] 

            D.E.B. challenges the district court's decision on the basis that the investigation of placement with C.L. was insufficient.  The controlling statute sets out a preference for considering placement with family and friends in the following order: "(1) with an individual who is related to the child by blood, marriage, or adoption; or (2) with an individual who is an important friend with whom the child has resided or had significant contact."[2] Minn. Stat. § 260C.212, subd. 2(a).  To further this objective, the social services agency is directed to conduct a "relative search," which is to be "reasonable and comprehensive in scope."  Id. at subd. 5(a) (2004).  Siblings should be placed together as soon as possible.  Id. at subd. 2(d) (2004). 

            Here, D.J.B. was placed in foster care with a young half-sibling in October 2004.  C.L. contacted D.J.B.'s social worker in February 2005 to discuss the possibility of C.L. obtaining custody of D.J.B.  The social worker did not investigate C.L. as a potential placement for D.J.B. and informed C.L. that if R.J.A. wanted a different placement for D.J.B., he would have to bring a petition to the district court. 

            Minn. Stat. § 260C.212 expresses a preference for placement with relatives and obligates the agency placing the child to promptly and comprehensively search for suitable relatives with whom to place the child.  Thus, if a parent in a termination proceeding explicitly requests that custody be transferred to a specific relative, Minn. Stat. § 260C.212 obligates the placement agency to investigate that relative's suitability as a potential custodian of the child.  This investigation would provide valuable, objective data to be used in evaluating whether the child should be placed with that relative.  But here, because we conclude that there was substantial evidence from testimony at the hearing to support the district court's conclusion that placement with C.L. was not in the
best interests of D.J.B, further investigation was not required.

            Affirmed.

[1] D.E.B. argues that the district court should have placed more emphasis on Minn. Stat. § 260C.212, subd. 2(b)(4), which indicates that "the child's religious and cultural needs" should be considered.  D.E.B. argues that placement with C.L. would be better than D.J.B.'s current foster home, because C.L. is bi-racial, like D.J.B.  But as the district court noted, D.J.B.'s half-sister S.B.C. is also bi-racial.  Further, no authority suggests that this factor should be given more weight than other factors, and there are numerous other reasons that placement with C.L. is not in D.J.B.'s best interests. 

[2] D.E.B. also argues that the district court failed to follow the preference in Minn. Stat. § 260C.212, subd. 2(a) for placement with relatives.  But the statute only directs consideration of placement with relatives before other placements and does not provide a basis for placement with a relative when such a placement is not otherwise in the best interests of the child.  See id.