In the Matter of the Welfare of the Child of: Carolyn Lamont and Sean Nielsen.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-459

 

In the Matter of the Welfare of the Child of:

Carolyn Lamont and Sean Nielsen.

 

Filed November 25, 2003

Affirmed

Kalitowski, Judge

 

Blue Earth County District Court

File No. J6-02-50417

 

Kenneth R. White, Law Office of Kenneth R. White, 325 South Broad Street, Suite 203, Mankato, MN 56001 (for appellant Sean Nielsen)

 

Isabelle M. Lewis, Assistant Blue Earth County Attorney, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Blue Earth County)

 

Carrie G. Marsh, Public Defender's Office, P.O. Box 1059, Mankato, MN 56002-1059 (for respondent Carolyn Lamont)

 

            Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant challenges the district court's termination of his parental rights.  Because the evidence in the record and the district court's findings support both a determination that appellant abandoned his child, and that termination is in the child's best interests, we affirm.

D E C I S I O N

I.

            Minn. Stat. § 260C.301, subd. 1(b) (2002), lists nine separate bases on which a district court may terminate a parent's rights to his or her child.  To involuntarily terminate parental rights, the district court must find the existence of one or more of these statutory bases.  Id.  On appeal from a district court's decision to terminate parental rights, this court reviews whether the court addressed the statutory criteria and whether it made findings supported by "substantial evidence."  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). 

            Appellant first argues that the district court did not make sufficient findings to even allow this court to properly review the decision to terminate his rights.  We disagree.  The district court's order states, "[i]t was proven by clear and convincing evidence that grounds for termination of [appellant's] parental rights exist."  The termination petition alleges that appellant abandoned the child, A.R.H.  The district court made specific factual findings regarding:  (1) appellant's lack of contact both with A.R.H. and with the appropriate social service agencies during his incarceration; and (2) appellant's lack of effort to participate in the mother's case plan before his incarceration.  These findings are consistent with the allegations in the petition and support an implicit finding of abandonment.  Thus, we conclude that the court's findings and conclusion provide sufficient evidence of the district court's consideration for this court to review. 

II.

            Appellant argues that there is not substantial evidence in the record to support a finding that appellant abandoned A.R.H.  To find the existence of a statutory basis for terminating parental rights, the evidence must be "clear and convincing."  Minn. Stat. § 260C.317, subd. 1 (2002).  Under Minn. Stat. § 260C.301, subd. 1(b)(1), a district court may terminate parental rights if it finds that the parent has abandoned the child.  We conclude that there is clear and convincing evidence supporting the district court's findings and that these findings support a determination that appellant abandoned A.R.H.

Appellant argues that his incarceration cannot, per se, constitute abandonment of A.R.H.  We agree.  But the district court may consider the fact of incarceration in conjunction with other evidence that supports a finding of abandonment.  See In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  And we reject appellant's contention that this case is controlled by our recent decision in In re Children of Wildey, 669 N.W.2d 408 (Minn. App. 2003), where this court found that abandonment by an incarcerated father had not been proved.  Unlike the facts here, the father in Wildey exchanged drawings and pictures with his young children and wrote letters to social services workers inquiring as to the children's welfare and status.  Id. at 414.

In addition, the district court here did not base a finding of abandonment on the fact of appellant's incarceration.  Rather, the district court specifically found that:  (1) although appellant initially showed interest in participating in the mother's case plan, he did not complete the classes with her; (2) appellant did not significantly participate in the classes when he did attend, even sleeping through two anger management sessions; (3) although A.R.H. was born in June 2002, appellant made no effort to adjudicate his paternity of the child until September 2002, when he submitted to a paternity test paid for by Blue Earth County; (4) appellant made no attempt to contact either the social workers involved in A.R.H.'s case, the guardian ad litem, or A.R.H.'s foster mother, even after the social worker and guardian ad litem visited him in jail on February 20, 2003, and left him their business cards; and (5) during the caseworkers' February 2003 visit, appellant stated that he had proposed to a woman in Wisconsin and that he planned to buy a car and move there without making any mention of how A.R.H. fit into that plan.

We conclude that these findings, in combination with the fact that appellant was incarcerated when A.R.H. was born and had never seen her in person, support a determination that appellant abandoned A.R.H. by failing to take necessary and appropriate actions to show his continuing interest in parenting her.  Only one of the statutory bases need be proved to support termination of parental rights.  Minn. Stat. § 260C.301, subd. 1(b).  Because we affirm the conclusion that the evidence supports a finding that appellant abandoned A.R.H., we need not reach appellant's argument that the district court improperly "amended" the termination petition and found that appellant was palpably unfit to parent A.R.H. 

III.

After determining that a statutory basis for termination exists, the district court must then analyze whether termination would serve the child's best interests.  In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998).  The child's best interests are paramount, and where the interests of the child and the parent conflict, the child's interests control.  Minn. Stat. § 260C.301, subd. 7.  Appellant here argues that the evidence does not support the finding that termination of his parental rights is in A.R.H.'s best interests.  We disagree.

As appellant notes, the termination petition did not specifically allege palpable unfitness to parent as a separate ground for terminating appellant's parental rights.  Nevertheless, there was considerable evidence presented concerning appellant's likely inability to be a fit parent that support the district court's determination that termination of appellant's parental rights is in A.R.H.'s best interests. 

The record supports the district court's findings that appellant:  (1) has a sporadic, inconsistent work history; (2) has a criminal record; (3) has engaged in inappropriate sexual acts (including the incident that led to his incarceration before A.R.H.'s birth) that led the therapist who operated the anger management program to express "serious and significant concerns about [appellant's] potential as a parent"; and (4) has no viable, long-term plan to live independently or to independently care for A.R.H. after finishing his incarceration.

Moreover, at the time of trial, A.R.H. was 10 months old and had lived in foster care her entire life.  Thus, had the district court not terminated appellant's parental rights, the court found A.R.H. would have remained in foster care for many additional months while appellant attempted to address his significant shortcomings as a parent.  In addition, the district court credited the opinions of both caseworkers, the therapist, and the guardian ad litem, that appellant would not be able to properly parent A.R.H. in "the reasonably foreseeable future."

Finally, the district court specifically stated that it was not in A.R.H.'s best interests to "be compelled to continue to languish in foster care" while her biological father "figures out how to care for her."  We agree, and affirm the district court's finding that there was clear and convincing evidence that termination of appellant's parental rights is in A.R.H.'s best interests.

Affirmed.