In the Matter of the Child of D.B., Parent.

In the Matter of the Child of D.B., Parent. A05-1941, Court of Appeals Unpublished, March 7, 2006.

This opinion will be unpublished and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

A05-1941

 

 

In the Matter of the Child of D.B., Parent.

 

Filed ­­­March 7, 2006

Reversed and remanded

Dietzen, Judge

 

Steele County District Court

File No. J5-02-50415

 

Bethene M. Koch, Assistant Third District Public Defender, 525 East First Avenue, Shakopee, MN 55379 (for appellant D.B.)

 

Christine A. Long, Assistant Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent Steele County Human Services)

 

Julie A. Nelson, 1850 Greenhaven Lane, Owatonna, MN 55060 (guardian ad litem)

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant child (D.B.) challenges the district court order directing Steele County Human Services to determine the permanent long-term, foster-care placement of appellant and concluding that the placement need not be reviewed by the court.  Because the district court is required to review and make findings before determining the long-term, foster-care placement of D.B., we reverse and remand.

FACTS

            D.B. was born on September 15, 1988, and is the oldest of four siblings born to D.B. (father) and their mother.[1]  D.B. and her siblings resided with their father until October 2002, when Steele County Human Services (SCHS) filed a child-in-need-of-protection-and-services (CHIPS) petition.  In November 2002, the district court granted the CHIPS petition, adjudicating all four children in need of protection and ordered that the care and custody of D.B. and her siblings remain with SCHS.  The district court also ordered that father participate in an anger-management plan, attend a support group, and maintain sobriety.  D.B. was temporarily placed in foster care with her younger sister pending permanent placement by the district court.  SCHS moved for permanent placement of D.B.  Following the hearing in October 2003, the district court issued findings of fact, conclusions of law, and an order for permanent placement, directing that D.B. permanently be placed in foster care with her maternal uncle in North Carolina.  D.B.'s siblings remained in foster care in Minnesota. 

D.B. then moved for extended unsupervised visitation with her father; and the GAL responded expressing concerns regarding this extended visitation.  Following the hearing, the district court ordered that D.B. remain in the custody of SCHS, that placement remain with her uncle in North Carolina, and granted D.B.'s motion for unsupervised visitation with her father for the Christmas break.  When D.B.'s foster-care placement with her uncle had "failed," the district court conducted a review hearing on the permanent placement of D.B.  Following the hearing, the district court ordered that the custody of D.B. remain with SCHS for placement with father on a temporary basis.

The GAL then requested review of temporary placement with father, alleging that D.B. was not being adequately supervised and was having inappropriate contact with her younger sister.  D.B. wrote a letter to the district court opposing changing placement and expressing her wishes to remain with her father.  After a hearing, the district court issued an order in August 2005, directing SCHS to supervise contact between D.B. and her sister, to investigate permanent placement options and potential foster homes for D.B., and then to report back to the court.

SCHS completed its review, and submitted a letter recommending that D.B. continue in permanent long-term foster care with the county.  Following a hearing, the district court ordered that:  (1) SCHS retain custody of D.B. for placement in long-term foster care; and that (2) SCHS "shall pursue finding another permanent long-term foster care placement for [D.B.], said placement need not be reviewed by the Court.  Steele County Human Services has the authority acting as legal guardian of the Child to make the placement."  The district court based its order on Minn. Stat. § 260C.212, subd. 6 (2004), which provides that if a child is removed from permanent placement within one year of the placement, the child must be returned to the placement facility preceding the permanent placement, or a hearing must be held within ten days after the child is removed.

The district court issued an order appointing an attorney for D.B. in order that she could appeal the August 30, 2005 placement order.  This appeal follows.

D E C I S I O N

I.

 

            D.B. raises two issues on appeal.  First, D.B. contends that the district court erred in failing to review and make findings whether her continued placement in long-term foster care is in her best interests.  On appeal from a permanent placement order, a reviewing court must determine whether the district court's "findings address the statutory criteria and are supported by substantial evidence, or whether they are clearly erroneous." In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (quotation omitted).  

            Minn. Stat. § 260C.201,[2] provides that once a child is permanently placed in long-term foster care, review of that decision is required at least every 12 months.  Id., subd. 11(g) (Supp. 2005).  In conducting this annual review, the court must make detailed findings to consider the child's best interests.  Id., subd. 11 (h)(1) (Supp. 2005).  Aside from the annual review process, further court review is necessary if there is a "disruption" in the long-term placement.  Id., subd. 11(f)(4) (Supp. 2005).  Here, the record is unclear as to whether the district court's order of August 30, 2005, was generated by a "disruption" in her foster-care placement or by the court's annual review. 

            The crux of this appeal is whether the district court is required by statute to determine the best interests of D.B. in ordering her permanent placement in foster care with SCHS.  One of two statutes may apply.  First, the district court could have ordered a new placement under Minn. Stat. § 260C.201, subd. 11(d)(3) (long-term foster care according to certain conditions).  Alternatively, Minn. Stat. § 260C.201, subd. 11(j) (Supp. 2005), provides that, "[a]n order for permanent legal and physical custody of a child may be modified under sections 518.18 and 518.185.  The social services agency is a party to the proceeding and must receive notice."  Id.     But under ­­­either statute, whether it be a new or modified placement, the district court "must be governed by the best interests of the child, . . . ."  Section 260C.201, subd. 11(e) (Supp. 2005).

The district court based its order on Minn. Stat. § 260C.212, subd. 6 (2004), which provides that, if the child is removed from permanent placement within one year of that placement, the child must be returned to the placement facility the child occupied before entering such placement.  Because the child was originally placed with SCHS in October 2003, we do not believe that this statute applies.  The issue before the district court required review of D.B.'s permanent placement in long-term foster care with SCHS; and determining physical custody of D.B.  Both issues require an analysis of the best interests of D.B., supported by findings of fact and conclusions of law.

Here, the district court erred in concluding that, as legal guardian, SCHS has the authority to make the determinations of permanent placement and physical custody without review by the court.  We conclude that Minn. Stat. Ch. 260C requires that both decisions be made by the district court.

II.

            Second, D.B. contends that she has the right to petition for modification of permanent placement under Minn. Stat. § 260C.201, subd. 11(j) (Supp. 2005).  Respondent argues that D.B. lacks standing because that subdivision identifies the parent, and not the child, as the one who can bring the petition.

            Here, it is not necessary for us to resolve the statutory interpretation issue raised by the parties.  The issues of D.B.'s permanent placement and physical custody require a determination of the best interests of D.B.  In such a proceeding, the parties should include D.B.'s GAL and any other person, including a child, designated as a party if that person is deemed by the court to be important to a resolution that is in the best interests of the child.  Minn. R. Juv. Prot. P. 21.01, subd. 1(a), (g) (parties to a protection proceeding); 2.01 (k)(4) (protection proceeding includes out-of-home placement of a child).  A child is deemed a party to a proceeding when the district court appoints counsel for the child.   In re Welfare of J.B., Jr., 623 N.W.2d 640, 642 (Minn. App. 2001), overruled on other grounds by In re Welfare of J.R., Jr., 655 N.W.2d 1, 3, n.1 (Minn. 2003).  Because D.B. is currently represented by legal counsel appointed by the district court and, therefore, is a "party," and given D.B.'s age, we conclude that D.B. has the right to challenge decisions by the district court regarding her permanent placement and physical custody.

III.

            We reverse and remand to the district court to determine whether continued permanent placement in foster care with SCHS is in the best interests of D.B. and to determine physical custody in accordance with D.B.'s best interests.  The district court may, but is not required to, conduct an evidentiary hearing.

Reversed and remanded.

 

[1] Father and D.B.'s guardian ad litem (GAL) participated in the proceedings generating this appeal, but did not file briefs with this court.  D.B.'s mother did not participate in the prior proceeding and did not file a brief on appeal.

[2] A brief explanation of the statutory date cited herein is warranted. The district court did not identify the year of the statutes in question. Minn. Stat. § 260C.201, subd. 11, was amended and re-organized, effective August 1, 2005.  2005 Minn. Laws ch. 159, art. 2, § 18 (bill signed by Governor June 3, 2005); see Minn. Stat. § 645.02 (2004) (unless otherwise specified, each law enacted by the legislature takes effect on August 1 following its final enactment).  Because the statute was effective before the challenged order, which was issued August 30, 2005, and the new statute does not otherwise change or alter the rights of the parties, the new statute will be referred to throughout this analysis.  See McClelland v. McClelland, 393 N.W.2d 224, 22627 (Minn. App. 1986) (indicating that the current version of the statute will be used unless it changes or alters a matured or unconditional right of the parties or creates some other injustice), review denied (Minn. Nov. 17, 1986).