In the Matter of the Welfare of the Child of S. B. and D. W., Parents.

In the Matter of the Welfare of the Child of S. B. and D. W., Parents. A05-2386, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and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

A05-2386

 

In the Matter of the Welfare of the Child

of S. B. and D. W., Parents.

 

Filed July 18, 2006

Reversed and remanded; motions granted in part

Shumaker, Judge

 

Hennepin County District Court

File No. J4-04-067902

 

 

Bruce Jones, Allan A. Thoen, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901; and

 

Karim El-Ghazzawy, El-Ghazzawy Law Offices, LLC, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415-1810 (for appellant guardian ad litem)

 

Amy Klobuchar, Hennepin County Attorney, Mary Lynch, Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County)

 

Leonardo Castro, Chief Public Defender Fourth District, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent B.S.)

 

Raymond A. Wood, 301 Fourth Avenue South, No. 378E, Minneapolis, MN 55415 (for respondent D.W.)

 

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant guardian ad litem challenges the district court's order transferring custody of a minor child to his grandmother.  Because the evidence does not clearly and convincingly show that the transfer is in the child's best interests, we reverse and remand.

FACTS

            Hennepin County filed a petition to terminate the parental rights of S.B., the mother, and D.W., the father, of C.B., a six-year-old boy, or, in the alternative, to transfer C.B.'s permanent custody to a suitable third person.

            By the time the matter was called for trial, S.B. and D.W. had reached a settlement by which they agreed that it would be in C.B.'s best interests if his custody were transferred and that a suitable custodian would be V.W., C.B.'s paternal grandmother.  The guardian ad litem objected to the transfer and assumed the burden of proving the petition for termination.

            The district court received extensive exhibits and heard testimony on August 22 and 23 and September 30, 2005.  By order dated November 3, 2005, the court transferred C.B.'s permanent legal and physical custody to V.W., concluding that the transfer would serve C.B.'s best interests because S.B. and D.W. requested the transfer; C.B. "has previously had and is again developing a close, intimate relationship" with V.W.; C.B. has "moved several times" and the transfer "offers a stable, permanent home"; and C.B. "has a significant attachment to his family and this would allow the child to maintain a relationship with his family."

            As to C.B.'s best interests and the suitability of V.W. to be his custodian, the court made sparse, and mostly general, factual findings and drew some general conclusions.  The court found that, even though V.W. has a "tarnished personal history," she "has made numerous strides in overcoming her obstacles," and that V.W. is forceful, strong-willed, and resilient.  The court stated that V.W.'s personal history "weighs little on the . . . best interests of the child," who the court acknowledged has "special needs."  Furthermore, the court found that V.W. had cooperated with Hennepin County, had attended all court hearings, and, even though she lives in Wisconsin, had visited C.B. on several occasions.  The court noted that only the guardian ad litem opposed the transfer and that an "Assistant County Attorney, two Public Defenders, and a multitude of Social Workers and Counselors each testified or argued for the appropriateness of placing" C.B. with V.W.  Finally, the court concluded that V.W.

appears to be mentally and physically able to provide for the needs of the child . . . [and] has the capacity and disposition to give the child the love, affection and guidance the child require(s) and to continue his education and raise the child in his culture, religion or creed.

 

            The record shows that C.B. was born with cocaine in his system and suffers from attention deficit hyperactivity disorder, adjustment disorder with mixed disturbance of emotions and conduct and functional enuresis, depression, anxiety disorder, and reactive attachment disorder of early childhood.   These maladies have manifested at various times as aggression, temper tantrums, lying and stealing, sleep difficulties and nightmares, and fear and anxiety about being near D.W., who in the past had inflicted excessive physical punishment on C.B.  Additionally, C.B. has been exposed to drug use by both S.B. and D.W., inappropriate sexual conduct, physical abandonment by S.B., frequent moves, and several foster-home placements.

            Because the focus of this appeal is the best interests of C.B. and the suitability of V.W. to serve C.B.'s best interests, it is not necessary to recite details from the record as to the inadequacies, which are substantial, of S.B. and D.W. as parents of this child.  The district court's conclusions that both parents "have miserably failed to provide the support and structure this child desperately needs" and "that neither parent has demonstrated any capacity for parenting" are amply supported in the record.

            The court made very few factual findings as to V.W.  But the record reveals that, at the time of the trial, she was 55 years old and lived in a two-bedroom apartment in Wisconsin.  Until a week before trial, D.W. lived with her. She once held a nursing license but it was suspended because she failed to pay the fees to keep it current.  She was working as a medical-van transport driver 40 to 50 hours a week for $7 an hour.  Her net monthly income was $1,300.  She acknowledged that she would have to reduce her work hours if she were C.B.'s guardian.

            V.W. suffers from hypertension, depression, rheumatoid arthritis, hyperlipidema, obesity, and fatigue.  She takes medication for her depression but has not had therapy for several years.  In 1999, she underwent treatment for addiction to crack cocaine.  In the six-year period prior to trial, V.W. had been convicted twice of felony check forgery and once of passing a worthless check, which she explained she did because she needed groceries and had no money.  At the time of trial, V.W. was on probation and was in compliance with all probationary conditions.

.           The guardian ad litem argues that the court's determination that V.W. would be a suitable custodian of C.B. and that C.B.'s best interests would be served if custody were transferred to her are not supported by clear and convincing evidence.

D E C I S I O N

The thrust of the guardian ad litem's appeal is that the district court erred by failing to terminate the parental rights of S.B. and D.W. and that the record supports such termination.  But the court did not make findings under the criteria for terminating parental rights, opting instead for the alternative of the transference of permanent physical and legal custody of C.B. under Minn. Stat. § 260C.201, subd. 11(d) (2004).  Our review is properly directed to what the court actually ordered.

Before a transfer of permanent custody may be made, the court is required to determine the suitability of the proposed custodian of the child.  Minn. Stat. § 260C.201, subd. 11(d)(1).  Because C.B.'s best interests are paramount, if his proposed custodian is not suitable, his best interests cannot be served by a transfer of custody to that custodian.  See Minn. Stat. § 260C.301, subd. 7 (2004) (stating the best interest of child is paramount in determining custody).  We review the district court's findings to determine whether they are supported by substantial evidence or are clearly erroneous.  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (citation omitted).  The standard of proof for a permanent placement is clear-and-convincing evidence.  Id. at 261.

Although there is a preference for placing a child with a biological relative when his parents are not suitable custodians, such a placement must be shown to be in the child's best interests.  In re Petition to Adopt S.T. & N.T., 512 N.W.2d 894, 898 (Minn. 1994).

The district court concluded that V.W.'s "personal history weighs little on the decision as to the best interests of the child."  We disagree. When considering the suitability of a proposed custodian of a minor child, both current circumstances and past relevant history require scrutiny.

The record supports the court's observation that V.W. "has made numerous strides in overcoming her obstacles."  She has suffered from drug addiction and has gotten inpatient treatment.  She has committed crimes and has complied with probation conditions and restitution requirements.  She is reported to be hardworking, kind, caring, loving, and patient with children.  It is reasonable to infer that V.W. loves her grandson and intends and desires the best for him.  It is possible that V.W. would be a suitable custodian of C.B.

But V.W.'s background and current circumstances raise serious questions about her suitabilitydespite her good intentionssuch that, in our view, the clear-and-convincing standard has not been satisfied.

The home study by Paula Trokan reveals that V.W. cared for C.B. for six months when he was four years old, and, since that time, V.W. has visited him "several times" in Minnesota.  Ms. Trokan noted that V.W. has an apartment in a small town with few resources, although there are larger towns nearby.  More particularly, Ms. Trokan pointed out that V.W. "is lacking some of the resources necessary to raise a child (day care, schooling doctor, etc.)" and that her past "behaviors . . . would question her ability to parent a child."  Because V.W. was cooperative with the home study, has a stable job and income, and presented positive references, Ms. Trokan concluded that V.W. would be a suitable custodian.

Without denigrating V.W.'s personal accomplishments, her own health issues, economic circumstances, and negative background, viewed against the backdrop of the need to provide daily care for a badly neglected and special-needs six year old for whom post-traumatic stress disorder has not been ruled out, render her suitability less than clear and convincing.  Clear-and-convincing evidence is that which is virtually unequivocal and uncontradicted and which is intrinsically probable and credible.  Deli v. Univ. of Minn., 511 N.W.2d 46, 52 (Minn. App. 1994), review denied (Minn. Mar. 23, 1994).

V.W. has succumbed to drug abuse serious enough to require inpatient treatment and halfway-house residency.  Although there is no evidence of any current usage of illicit drugs, there is evidence that V.W. allowed D.W. to use controlled substances in her presence.  This raises some question about her judgment.

More significantly, V.W.'s repeated criminal offenses suggest relatively poor judgment when faced with difficult economic circumstances or presented with an opportunity to improve those circumstances.  She admitted that in 1999 she met a man who asked her if she wanted to make some money by cashing stolen checks.  She agreed and cashed about ten checks.  She also admitted writing a worthless check for groceries.  These incidents, although in the past, give some insight into V.W.'s thought process in certain circumstances and raise some concerns about the possibility of repeated similar behavior if such circumstances arise again.  Furthermore, V.W. is currently on probation and a future criminal offense might lead to her incarceration, surely to the detriment of C.B.

Ms. Trokan reported that one of V.W.'s personal references described her as "perceptive," and Ms. Trokan noted that V.W. views D.W. as "well adjusted, respectful, and honest."  But the record shows D.W. to be a drug abuser who lied to social workers about his cessation of usage, who neglected and abandoned C.B. for a substantial time, who stated that he did not want to get a job because he would then have to pay child support, and who administered inappropriate and excessive physical punishment to C.B.  V.W.'s lack of realistic perceptiveness as to D.W. is of particular concern because the district court's order allows both S.B. and D.W. to visit C.B. "with such supervision as approved by" V.W., conditioned only on the parents' sobriety.  Furthermore, as psychiatric social worker Carole White observed about the results of D.W.'s visits with C.B., "Since his visits with his father have begun, [C.B.] has been expressing negative feelings about those contacts.  Everything he says during therapy indicates that he continues to worry that his father will use physical means of discipline with him."  Ms. White also noted that C.B. was adamant about not visiting with this father and that his "doll play during play therapy time has been indicative of angry feelings towards adult male figures."  Because it is imperative that the custodian of a minor child always exercise judgment in favor of protecting the child and always select positive options, the record supports reasonable reservations as to V.W.'s capacity to satisfy those requirements.

Finally, although the record is laden with the opinions of various professionals in favor of the transfer of custody to V.W, we find little evidence of particular parenting skills and strategies that reasonably support those opinions.  There is much focus on V.W.'s laudable efforts to deal with her drug addiction, her compliance with criminal probation, and her earnestness in desiring to be C.B.'s beneficent caretaker.  But V.W.'s accomplishments bring her at best to the status of someone not per se disqualified to be a minor child's guardian.  It has not been demonstrated clearly and convincingly that she will be a suitable guardian of this particular child, with his sad history and future needs, or that she has the particular parenting skills and judgment so urgently needed to salvage C.B. from the abuses of the past.

Accordingly, we reverse the district court's order transferring custody of C.B. to V.W. and remand for further proceedings consistent with this opinion and as may be appropriate under the facts and the law.

Motion to Strike and Motion for Attorney Fees

Hennepin County has moved to strike the guardian ad litem's supplemental appendix.  Because the materials in the supplemental appendix are not part of the record on appeal, the motion is granted.  Fabio v. Bellamo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd 504 N.W.2d 758 (Minn. 1993).  However, we deny Hennepin County's motion for attorney fees.

Reversed and remanded; motions granted in part.