In the Matter of the Welfare of the Children of: C.M. and B.J.D., Parents.

In the Matter of the Welfare of the Children of: C.M. and B.J.D., Parents. A06-704, A06-705, Court of Appeals Unpublished, December 12, 2006.

 This opinion will be unpublished and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

A06-704

A06-705

 

In the Matter of the Welfare of the Children of:

C.M. and B.J.D., Parents

 

Filed December 12, 2006

Affirmed

Ross, Judge

 

Itasca County District Court

File Nos. 31-JV-05-3489, 31-FA-06-279

 

 

Michael W. Jonak, Jonak Law Office, 426 Northwest Fourth Street, Grand Rapids, MN 55744 (for appellants C.M. and B.J.D.)

 

John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County Health and Human Services)

 

Timothy R. Reuter, Casey C. Kolb, Kelm & Reuter, P.A., 1287 Second Street North, Suite 101, Sauk Rapids, MN 56379 (for respondents Linda and Roger Host)

 

Tomi R. Kruchowski, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (guardian ad litem)

 

Mike and Sue Dimich, P.O. Box 492, Washburn, WI 54891 (pro se intervenors)

 

 

            Considered and decided by Worke, Presiding Judge; Ross, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

Appellants C.M. and B.J.D. challenge the district court's order terminating their parental rights.  They argue that the district court erred by relying on their oral stipulation as a basis for the termination and by finding that termination rather than transferring legal custody of the children was in the children's best interests.  We affirm.

FACTS

Appellants, mother B.J.D. and father C.M., are the unmarried parents of twins, a boy and a girl born in July 2004.  In May 2004, the district court adjudicated another child of B.J.D. to be in need of protection or services, after Itasca County established that B.J.D.'s significant cognitive and functional deficits affected her ability to parent.  Because of these deficits, immediately after the twins' birth, the county filed a petition for an order declaring them in need of protection or services.  The district court determined they were in need of protection or services about two weeks after their birth.

The county implemented a three-month family-foster-care plan at the home of C.M.'s parents.  The plan enabled C.M. and B.J.D. to live with their children.  A public health nurse and a children's mental health caseworker met regularly with the twins' parents to address the twins' needs.  The plan terminated before its completion because B.J.D. falsely accused C.M.'s father of making sexual advances toward her.  Itasca County continued the family-foster-care plan at another foster home.  The plan ended in October 2004, with neither parent making significant progress in enhancing his or her parenting ability.

C.M. and B.J.D. separated and the children remained in foster care at the second home.  In November 2004, the county social worker concluded that reunification was no longer feasible.  The social worker arranged a group decision-making process involving a mediator, C.M. and B.J.D., and members of their immediate and extended families, to develop a permanent-placement plan for the children.  The participants agreed to transfer permanent legal and physical custody to C.M.'s parents, who expected C.M. to assist them in parenting the twins.  But in January 2005, C.M.'s parents notified the social worker that they no longer agreed with the permanency plan because C.M. was leaving their home to rejoin B.J.D.  C.M. explained that he was not prepared to sacrifice his relationship with B.J.D. for parenting responsibilities.

The county searched for other relatives willing to provide a permanent home for the twins and, in August 2005, placed them with Roger and Linda Host.  The next month, the county filed a petition for involuntary termination of C.M.'s and B.J.D.'s parental rights.  Two months after the county filed its petition, C.M. and B.J.D. petitioned to transfer permanent legal and physical custody of the twins to Mike and Sue Dimich, who are also related to the twins.  The district court allowed the Dimiches and the Hosts to intervene as parties, and scheduled an evidentiary hearing on both petitions.

At the start of the hearing, the district court denied as untimely the alternative petition of C.M. to transfer permanent legal and physical custody to C.M.'s parents if the court denied the petition to transfer custody to the Dimiches.  The district court accepted a stipulation, entered orally on the record, in which C.M. and B.J.D. agreed to terminate their parental rights if the district court found that termination was in the children's best interests.  The county agreed to amend its petition to seek voluntary, rather than involuntary, termination, which would allow C.M. and B.J.D. to avoid the presumption that they are unfit parents.  The goal of the two-day hearing then became to determine whether termination of parental rights was in the children's best interests and to pave the way for adoption, or to transfer permanent legal and physical custody to the Dimiches.

The district court found that all statutory predicates for C.M. and B.J.D. to voluntarily terminate their parental rights to the twins were met and that clear and convincing evidence established that transferring guardianship to the Minnesota Commissioner of Human Services to enable adoption was in the children's best interests.  The district court therefore dismissed the petitions to transfer permanent legal and physical custody.  The district court issued a separate order terminating the parental rights of C.M. and B.J.D.  C.M. and B.J.D. appeal from both orders.

D E C I S I O N

I

C.M. and B.J.D. argue that the district court should not have accepted their stipulation because they did not provide informed or written consent.  The district court ultimately terminated their parental rights under Minn. Stat. § 260C.301, subd. 1(a) (2004), which states that "[t]he [district] court may upon petition, terminate all rights of a parent to a child with the written consent of a parent who for good cause desires to terminate parental rights."  An order for voluntary termination of parental rights generally may be rescinded only upon a showing of fraud, duress, or undue influence.  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  Appellate review is limited to determining whether the district court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.  Id.  The paramount concern is for the children's best interests.  Id.

C.M. and B.J.D. first argue that they did not understand what they were agreeing to when they stipulated to voluntary termination of their parental rights.  The district court did not expressly find that the parents understood the agreement, but the record reveals substantial evidence that their consent was given with understanding, freely, and knowingly.  C.M. and B.J.D. were represented by separate counsel who ensured that the parents' consent was in the parents' interest.  At their request, the county agreed to amend its petition to seek voluntary termination.  Once accepted by the court, this agreement would avoid a presumption of parental unfitness that would otherwise have attached to C.M. and B.J.D. upon termination.  See Minn. Stat. § 260C.301, subd. 1(b)(4) (2004) (stating that a parent is presumed to be "palpably unfit" for parent-child relationship if parent's rights were involuntarily terminated).

C.M.'s and B.J.D.'s trial testimony also demonstrates knowledge and understanding.  C.M. testified that he consented to termination if the court found it to be in the children's best interests.  He agreed that it was the best thing he could do for the children, allowing them a permanent home with able parents.  He saw this chance at stability as good cause to terminate his parental rights.  He testified that he understood that if the district court decided to terminate his parental rights, it would be permanent, and that his agreement was also permanent.  He testified that he understood that he did not have to consent and that he had a right to a hearing.

B.J.D. agreed that she and her attorney had sufficient time to discuss her consent to terminate her parental rights, and she testified that she understood that she need not agree.  She admitted that termination was best, acknowledging that the termination would be permanent and her children would not return to her if the district court terminated her rights.  She agreed that good cause supported the agreement because "if [she] can't handle the kids right now . . . they'll be better off with somebody else for their best interests."  She testified that she understood that the sole issue for trial was whether to terminate her parental rights or to transfer permanent custody of the children to the Dimiches.

The district court found that C.M. and B.J.D. stipulated to a permanency determination after adequate and appropriate consultation with their attorneys.  The record supports this finding  Both parents testified that they understood the finality of their termination decision and the benefit that the children would receive from a permanent placement with other parents.  The parents offer nothing to support their contention that they lacked understanding of their agreement.  Their assertion that their average and low respective I.Q. scores render their agreement unknowing is not supported by legal argument or citation to authority.  We do not take lightly the parents' reference to their cognitive abilities, being mindful that the parents' alleged significant deficits in this regard sparked the county's original concern about their ability to parent.  But they do not contend that they are mentally incompetent to enter the agreement, and they were represented by counsel concerning it.  We see no basis to reverse the district court's decision to accept the parents' stipulation of voluntary termination of their parental rights.

C.M. and B.J.D. also argue that their consent was invalid because it was not in writing, as required by statute.  But despite the gravity of termination proceedings, an argument that consent to termination is invalid because it was not reduced to writing is waived when raised for the first time on appeal.  D.D.G., 558 N.W.2d at 485.  Because C.M. and B.J.D. did not raise this argument in the district court, we will not review the issue.

II

 

C.M. and B.J.D. next argue that termination of their parental rights was not in the twins' best interests because the district court had the option to transfer permanent custody to relatives.  Three factors guide the district court's determination of a child's best interests: "(1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interest of the child."  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests include the child's emotional and psychological stability, and the child's health needs and interest in a stable, safe environment.  Id.  "Where the interests of parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7 (2004).

In its 17-page order, the district court made 101 findings concerning the children's best interests, reflecting thorough consideration of the record and the testimony at the two-day evidentiary hearing.  The district court heard testimony from B.J.D., C.M., the Dimiches, the Hosts, C.M.'s parents, the guardian ad litem, one foster parent, one social worker, two child mental health caseworkers, the public health nurse, a child psychologist, a dispositional advisor, and relatives and friends of C.M. and B.J.D.  The district court also considered C.M.'s psychological testing, which indicated a substantial risk of dysfunction in his relationship with his children.  It found that neither C.M. nor B.J.D. expressed interest in participating in the process of selecting a permanent home for their children.  The court further considered the conflicted relationship between C.M. and B.J.D., who had separated several times.  It noted that the relationship between their respective families had not been stable because of this behavior.  The district court expressed concern that, if it transferred custody instead of terminating parental rights, disputes over visitation between C.M., B.J.D., and their families could adversely affect the children.

The district court specifically found that transferring permanent legal and physical custody to the Dimiches would not be in the children's best interests.  It considered evidence that Mike Dimich had made suicide threats and had been hospitalized for mental health problems.  It noted that his children had problems involving alcohol, mental illness, and domestic violence.  The district court observed that the Dimiches' home was busy with relatives and friends frequently coming and going, including relatives in crisis situations.  These issues raised the district court's concerns that placement with the Dimiches would disrupt the twins' need for a regular, calm environment.

The court also considered input from others concerned about transferring custody.  The twins' original foster parent had concerns about their condition after they returned from visits with C.M.'s parents and with B.J.D.'s mother.  The social worker and the children's mental health caseworker also reported concerns about the detrimental effect family visits were having on the children.  The district court found that the best interests of the twins, who had some developmental delays, included having consistent, permanent caregivers.

The district court weighed transfer to a family member against adoption.  The record supports the district court's finding that adoption is more likely to meet the twins' best interests.  The court considered the Hosts' willingness to provide a permanent home for the twins through adoption and noted that their affection for the children had grown.  The children's mental health caseworker observed that the children need attachment and that the Hosts exhibited the greatest commitment to them.  The twins have lived continuously with the Hosts since August 2005, and the Hosts successfully integrated them into their lives.  The district court considered evidence that the twins' significant developmental gains since being placed with the Hosts would be in jeopardy if their relationship with the Hosts were interrupted.  It concluded that the twins' interests in adoption with the Hosts significantly outweighed their interests in maintaining all other family relationships. 

The district court carefully weighed the interests of preserving the parent-child relationship against the children's competing interests.  The record includes clear and convincing evidence to support its decision that termination of parental rights, which provides the opportunity for adoption of the twins, is in the twins' best interests.

Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.