State of Minnesota, Appellant, vs. Jose Luis Casillas, Respondent.

may not be cited except as provided by

Minn. Stat.§ 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-98-1204

In the Matter of the Welfare of:

A.T.B., T.T.M.B., A.T.C.B.

Filed December 1, 1998

Affirmed

Harten, Judge

Ramsey County District Court

File No. J0-97-555504

Heather Erskine McCleery, Attorney at Law, 1100 W. Seventh Street, St. Paul, MN 55102 (for appellant Timothy Bryant)

Susan Gaertner, Ramsey County Attorney, Eleni P. Skevas, Kathryn M. Eilers, Assistant Attorneys, 50 W. Kellogg Blvd., Suite 560, St. Paul, MN 55102 (for respondent County)

Karen J. Garvin, Attorney at Law, 101 East Fifth Street, Suite 1808, St. Paul, MN 55101 (for guardian ad litem)

Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

Upon petition from respondent Ramsey County Community Human Services Department (RCCHSD), the district court terminated the parental rights of appellant Terrell Timothy Bryant to his adjudicated child, T.T.M.B., and to his alleged children, A.T.B. and A.T.C.B., pursuant to Minn. Stat. § 260.221, subd. 1(b)(2), (4), (5), (8) (1996). Appellant seeks vacation of the order and remand to determine his paternity of A.T.B. and A.T.C.B. Because the district court's findings were not clearly erroneous, we affirm.

FACTS

Appellant is the adjudicated father of T.T.M.B., now four years old, and claims to be the father of A.T.B., now ten, and A.T.C.B., now three. RCCHSD first came in contact with appellant's family in 1995 when a physician suspected that appellant had sexually abused A.T.B. The suspected abuse was later proved; appellant was convicted of criminal sexual conduct in the first degree and sentenced to Stillwater Prison for eighty-eight months.

At Stillwater, appellant was on a waiting list for sex offender and substance abuse programs. But because he was found to possess a knife, he was sent to Oak Park Heights, where the only program available is anger management.

In 1998, the children's mother voluntarily terminated her parental rights. After RCCHSD located appellant, a child protection worker met with him twice but was unable to provide him with any type of reunification program due to the lack of available counseling at Oak Park Heights. RCCHSD then filed a petition to terminate appellant's parental rights.

D E C I S I O N

Termination of Parental Rights.

Parental rights are terminated only for grave and weighty reasons. The standard of review is, therefore, well defined. The appellate court must determine whether the trial court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous. The child's best interests, however, remain the paramount consideration in every termination case.

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citations omitted).

In an action to terminate parental rights, the county must prove by clear and convincing evidence that one or more grounds exist for termination. In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988). Here, the district court terminated appellant's parental rights under Minn. Stat. § 260.221, subd. 1(b)(2), (4), (5), (8) (1996)--respectively, failure to perform parental duties, palpable unfitness of parent, failure of county's reasonable efforts to rehabilitate parent or reunify family, and child neglected and in foster care.

Before terminating parental rights on any ground, the district court must also make a finding of whether the county has used reasonable efforts to provide rehabilitation or reunification services. Minn. Stat. §§ 260.011-012 (1996); see In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996) (determining that sections 260.011-.012 require a finding of reasonable efforts under all proceedings pursuant to section 260.211). In addition, "the best interests of a child are not served by delay that precludes the establishment of parental bonds * * *." Id. at 893.

Appellant argues that the district court abused its discretion because it terminated his parental rights despite RCCHSD having not provided rehabilitation or reunification services.[1] Appellant argues that the district court incorrectly relied on the best interests of the child test only, that it incorrectly relied on a totality of the circumstances test, that it must make an explicit finding of abandonment or egregious harm, and that it failed to find that a case plan to provide rehabilitation services would be "futile."

Although a child's best interests are paramount in a decision to terminate parental rights, M.D.O., 426 N.W.2d at 847, a court may not base termination of parental rights solely on the best interests of a child. In re Welfare of J.K., 374 N.W.2d 463, 467 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985). But contrary to appellant's claim, the district court did not rely solely on the best interests of the child test. The district court found that appellant was palpably unfit to be a parent due to his criminal convictions and lack of contact with the children. The court further found that RCCHSD made reasonable efforts to reunite appellant and his children and that a delay would only preclude the children from forming parental bonds with others. The district court did not base the termination solely on the best interests of the child. Its findings were not clearly erroneous.

Appellant's argument that the district court incorrectly relied on the "totality of the circumstances" test is equally unpersuasive. The district court found that appellant could not get treatment in his current situation, that RCCHSD has explored all reasonable options, and that the children would be ill-served by a substantial delay. While the court did use the phrase "totality of the circumstances" its findings were not clearly erroneous.

Appellant argues that RCCHSD did not make reasonable efforts to provide a reunification plan. He urges that the only two exceptions to the requirement that the county make reasonable efforts--where the children are abandoned and where the children did not suffer egregious harm under Minn. Stat. § 260.015, subd. 29(1-8) (1996)--did not occur here. But the district court did find that RCCHSD made reasonable efforts and its finding was not clearly erroneous. Accordingly, it was unnecessary for the district court to make further findings regarding egregiousness or abandonment.

Finally, appellant claims that because the district court did not find that reasonable efforts to rehabilitate or reunify would be "futile," it was improper to terminate parental rights. Appellant cites no authority for this proposition.[2] It is obvious, however, from the totality of the district court's findings that RCCHSD's efforts to rehabilitate or reunify were futile despite the fact that the district court did not use that exact terminology.

We conclude that the district court's termination of appellant's parental rights was not clearly erroneous.

Notice Upon Termination of Parental Rights.

Although as to A.T.B. and A.T.C.B., appellant has made no formal claim of paternity, he argues that he was entitled to a notice and hearing on the

termination of his parental rights under Minn. Stat. § 259.49, subd. 1(2) (1996) (notice of hearing on adoption petition). Application of a statute is a purely legal question; we are not bound by and need not give deference to the district court. See Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Section 259.49, subd. 1(2), sets forth notice requirements for hearing of an adoption petition; it does not apply to termination of parental rights. Moreover, appellant and his attorney were present at the hearing and able to present evidence and cross-examine witnesses. We therefore conclude that appellant's argument regarding notice is without merit.

RCCHSD's Motion for a Directed Verdict.

Appellant argues that because the district court failed to address RCCHSD's motion for "summary judgment" based on Minn. Stat. § 260.221, subd. 1(b)(7) (1996), this court should remand.[3] RCCHSD asked the district court to terminate appellant's parental rights to A.T.B. and A.T.C.B. based on the fact that appellant had not been established as the father of either child under

section 260.221, subd. 1(b)(7). That subsection provides that the district court may terminate a man's parental rights to a child born of a mother who is not married to the man, and the man is not entitled to notice based on section 259.49. Appellant appears to argue that the district court should have considered RCCHSD's motion for a directed verdict, and because it did not, that we should remand to determine paternity and reconsider the termination of parental rights.

Appellant's argument is without merit. First, appellant may not appeal RCCHSD's directed verdict motion because he is not aggrieved by the district court's failure to grant an opposing party's motion. See Hammerlind v. Clear Lake Star Factory Skydiver's Club, 258 N.W.2d 590, 592 (Minn. 1977) (parties whose motion for a directed verdict was granted may not appeal because they were not aggrieved by the district court). Second, the district court terminated appellant's parental rights regardless of whether he was the children's father. We conclude that a remand is not required.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

[1] Appellant likely meant to argue that it was clearly erroneous for the court to find that RCCHSD had made reasonable efforts to provide rehabilitation or reunification services before it terminated his parental rights.

[2] The unpublished opinion appellant relies on has no precedential value. Minn. Stat. § 480 A. 08, subd. 3(c) (1996). Moreover, the opinion is distinguishable.

[3] Appellant is mistaken as to the procedural posture of RCCHSD's motion. RCCHSD moved for a directed verdict on termination of parental rights to A.T.B. and A.T.C.B. at the conclusion of its case-in-chief, based on § 260.221, subd. 1(b)(7). RCCHSD did not make a summary judgment motion.