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

In the Matter of the Welfare of the Children of:  M.S., C.M., and D.C., Parents. A06-828, Court of Appeals Unpublished, October 17, 2006.

This opinion will be unpublished and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

A06-828

 

 

In the Matter of the Welfare of the

Children of:  M.S., C.M., and D.C.,

Parents

 

 

Filed October 17, 2006

Affirmed

Lansing, Judge

 

Anoka County District Court

File No. J9-06-50330

 

Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN 55402 (for appellant JES)

 

Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent Anoka County)

 

Mary Amirahmadi, 33 Fourth Street Northwest, Osseo, MN 55369 (guardian ad litem)

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            JES appeals from an order terminating her mother's parental rights.  She raises three grounds for appeal.  First, JES argues that the district court failed to give her preference adequate weight when evaluating whether termination was in her best interests.  Second, JES argues that the district court retroactively applied the amended long-term foster-care (LTFC) statute.  Third, JES argues that the 2005 amendments to the LTFC statute violate separation-of-powers principles by infringing on the district court's ability to act in the best interests of a child.  Because the findings establish that the district court evaluated whether the termination is in JES's best interests and applied the correct law, we affirm.

F A C T S

            JES, the appellant, is the thirteen-year-old daughter of MS.  JES and her younger sister, SJM, have lived with their grandmother for most of their lives.  Because of their mother's methamphetamine addiction and related problems, JES and SJM were adjudicated as children in need of protection or services in June 2004.  Eventually, they were placed in foster care with their grandmother.  Their mother received drug treatment but later relapsed.  As a result, Anoka County filed a petition to terminate the parental rights to JES and SJM in November 2005. 

            With the termination petition, the county developed a plan for the grandmother to adopt JES and SJM.  JES opposes the county's plan and does not want to be adopted.  JES will turn fourteen on February 27, 2007.  A child's consent is necessary for adoption if the child is over fourteen years of age.  Minn. Stat. § 259.24, subd. 3 (2004).  Instead of termination, JES proposes that the children be placed in long-term foster care (LTFC) with their grandmother.  If JES's LTFC petition were approved, the mother's rights would not be terminated, the grandmother would receive about $185 more in monthly benefits, and a social worker would continue to provide the grandmother with support.

            The mother and CM, the father of SJM, support the LTFC petition.  They also filed voluntary termination-of-parental-rights petitions for use in the event that the court denied the LTFC petition.  DC, the father of JES, failed to respond to the county's petition, and his rights were terminated by default. 

            During the hearing, the grandmother testified that she would prefer LTFC because it would provide her with more money and because she would like the county social worker to continue to be involved.  But the grandmother explained that she would be willing to adopt the children if the LTFC petition were denied.  A county social worker testified that termination and adoption would be in the children's best interests because a permanent home would provide more stability and the children would not have the stigma of being foster children.

            The district court granted the termination petition and denied the foster-care petition.  In its termination order, the court provided a number of reasons for its decision.  Citing the newly amended LTFC statute, Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (Supp. 2005), the district court concluded that it could not order LTFC because the county had not recommended it.  The district court also noted that, under Minn. Stat. § 260C.201, subd. 11(d)(3)(ii)(A) (2004), it could not order LTFC because the county had found a relative who was willing to adopt the children.  In its findings, the district court weighed whether LTFC or termination would be in the children's best interests.  Although the court noted it was "cognizant of the fact that it is the desire of JES to be placed in long term foster care," the court concluded that termination would provide the children with a permanent home and greater stability.

            The district court denied JES's motion for a new trial.  She now appeals the termination order.

D E C I S I O N

I

            We review an order terminating parental rights to determine whether the evidence supports at least one statutory ground for termination and, if so, whether termination is in the child's best interests.  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).  "In analyzing the best interests of the child, the court must balance three factors:  (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 Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (quotation omitted).

            JES does not dispute that at least one statutory ground for termination is satisfied.  Instead, she challenges the district court's finding that termination is in the children's best interests.  Specifically, JES argues that the district court failed to weigh her personal preference when making its best-interests determination.

            A child's preference is a factor in determining whether termination is in the child's best interests.  In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn. 1998).  In its findings, the district court specifically noted that it "is cognizant of the fact that it is the desire of JES to be placed in long term foster care."  The findings establish that the district court considered JES's preference but concluded that termination is nonetheless in her best interests.  A child's preference is not dispositive, and there is no evidence that the district court failed to properly weigh JES's preference.

            Although the district court referred to the fact that JES's consent to adoption is not legally required because she is under fourteen years of age, this observation does not indicate that the district court ignored her preference with respect to termination.  JES's consent is relevant to the best-interests determination for an entirely different reason.  If JES had been over fourteen years old and able to withhold consent, the county would not have been able to go forward on its plan to have the grandmother adopt JES.  Under those circumstances, termination might not be in JES's best interests.  Because JES's consent is not required for adoption, the county's plan is viable and the district court could conclude that termination is in JES's best interests.

            The district court thus gave appropriate weight to JES's preference when deciding that termination is in her best interests.

II

            JES argues that the district court retroactively applied the amended LTFC statute.  This argument fails for two reasons.

            First, this issue was not raised in the district court.  On appeal, we generally limit our review to deciding only those issues that the record shows were presented and considered by the district court.  Thiele v. Stich, 425 N.W.2d 582-83 (Minn. 1988).

            Second, the termination petition was filed after the effective date of the LTFC statute.  The amended statute was enacted on May 31, 2005, without a specific effective date.  By operation of law, the statute therefore became effective on August 1, 2005.  Minn. Stat. § 645.02 (2004).  The termination petition was filed on November 3, 2005, and the LTFC petition was filed on December 14, 2005.  As a result, the amended statute was effective when both petitions were filed, and there was no retroactive application.

III

            Finally, JES argues that the amended LTFC statute violates separation-of-powers principles because the statute limits the inherent power of the courts to act in a child's best interests.  Under the amended LTFC statute, the court may order a child into long-term foster care "only if it approves the responsible social service agency's compelling reasons that neither an award of permanent legal and physical custody to a relative, nor termination of parental rights is in the child's best interests."  Minn. Stat. § 260C.201, subd.11(d)(3)(i) (Supp. 2005) (emphasis added).  Under the amended statute, the best-interests determination is partially delegated to the county.

            In this case, however, the district court found that termination is in the children's best interests because it will provide them with a permanent home and greater stability.  Even if the statute permitted the district court to make its own determination, parental rights would still have been terminated.  JES therefore lacks standing to raise the separation-of-powers issue because a threshold consideration of a litigant's rights to a determination on the merits of a claim is a traceable connection between a concrete injury and a requested remedy.  See Hanson v. Woolston, 701 N.W.2d 257, 261-62 (Minn. App. 2005) (discussing requirement of standing).

            Affirmed.