This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-273

 

In the Matter of the Welfare of:

H.N.R., M.R.H.R, J.C.R., S.D.R., and S.M.R.

 

Filed August 20, 2002

Reversed

Randall, Judge

 

Otter Tail County District Court

File Nos. J6-01-50382, 50384, 50385, 50386, 50387

 

Mark S. Stolpman, Stolpman Law Office, P.O. Box 131, Fergus Falls, MN 56537-0131 (for appellant Ina Grace Randall)

 

Kurt A. Mortenson, Otter Tail County Attorney, Suite 320 Courthouse, 121 West Junius, Fergus Falls, MN 56537 (for respondent)

 

Schan E. Sorkness, 114 East Washington, Fergus Falls, MN 56537 (for children)

 

Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Hudson, Judge.

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

RANDALL, Judge

In this termination-of-parental-rights appeal, appellant-mother challenges the district court's termination of her parental rights to her daughter (H.N.R.). Appellant argues that the record lacks clear and convincing evidence that termination is in her daughter's best interests because her daughter is 17 years of age and opposes termination.

FACTS

Appellant I.G.R. has five children born to her: (1) H.N.R., born December 12, 1984; (2) S.D.R., born April 16, 1986; (3) M.R.H.R., born December 14, 1987; (4) S.M.R., born April 5, 1990; and (5) J.C.R., born April 20, 1992. Only S.D.R.'s father is known.

On September 2, 1987, all five children were adjudicated children in need of protected services. On September 12, 1997, the children were placed in foster care with the Hellands and long-term foster care was ordered on May 18, 1999.

At the time of the permanency hearing in 1999, adoption was not a viable option for H.N.R. and her siblings. At the time, the Hellands did not want to adopt the children. Because of the number and age of the children, it was unlikely that other families would want to adopt the children. The district court granted appellant visitation, determining it to be in the children's best interests for her to have monthly-supervised visits. Between May 18, 1999, and December 31, 2001, appellant exercised her visitation rights six times. Appellant requested to see the children in January 2001, but the children's schedule would not allow the visitation during the time frame appellant requested visitation.

The children manifested negative effects when appellant visited or missed visitations with the children. After visitations, S.M.R. became nervous, clingy, and wet the bed. J.C.R. engaged in self-mutilation and picked his arm until sores developed. H.N.R. wanted to visit with her mother, but she would become defiant after visits with her mother. When appellant failed to show up for a scheduled visit, M.R.H.R. experienced a setback in his emotional health to the point where he had to again undergo counseling. Appellant's favoritism towards certain children, such as making phone calls to and singling out certain children for gifts also created problems.

On June 29, 2001, because of the Hellands' now willingness to adopt all five of the children, petitions were filed to terminate appellant's parental rights. Appellant failed to attend any of the hearings held on January 2 and 3, 2002, to determine if her parental rights should be terminated. All four of the younger children want to be adopted by the Hellands. H.N.R. stated that she did not wish to be adopted because she was already 17 years old and because she did not want to hurt her mother's feelings.

The district court terminated appellant's parental rights to all five children on the basis of abandonment and neglect while in foster care. The district court found that H.N.R. had a "different, more mature, more independent relationship with her mother" than the other children, but terminated appellant's rights to H.N.R. anyway. The district court further found that H.N.R. wanted to continue living with the Hellands but did not wish to be adopted. The district court theorized that it was possible that once appellant's parental rights were terminated, H.N.R. may change her mind regarding adoption. The court terminated appellant's parental rights to H.N.R. on the basis that it was in H.N.R.'s best interests and in the best interests of the other children. The district court found that treating H.N.R. differently from the other children would somehow be detrimental to her siblings. This appeal as to H.N.R. follows.

D E C I S I O N

Appellant I.G.R. concedes that statutory factors exists for termination of her parental rights but contends that the district court erred in concluding that clear and convincing evidence existed to hold that the termination of her parental rights to H.N.R. was in the best interests of the child. Appellant asserts that termination is not in H.N.R.'s best interests because she is not adoptable and because she would not consent to be adopted as required under Minn. Stat. 259.24, subd. 3 (2000) (stating that a child over 14 must give written consent to be adopted).

Minn. Stat. 260C.301 (Supp.2001) governs termination of parental rights. There is a presumption the "natural parent is a fit and suitable person to be entrusted with the care of his child" and that it is in the child's best interests to be in the natural parent's custody. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980) (citation omitted). The child's best interests are "the paramount consideration in every termination case." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citations omitted); see Minn. Stat. 260C.301, subd. 7. The district court ruled that it was in H.N.R.'s best interests to terminate appellant's parental rights because visitation was not in the best interests of H.N.R. or her siblings, and if H.N.R. did not also have the parental rights of her mother severed with her, appellant could continue to claim visitation rights.

On appeal in termination proceedings, appellate courts inquire into the sufficiency of the evidence to determine whether it is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). The district court found:

The visitations between birth mother and [H.N.R.] in the interim have not been beneficial to the children, but to [H.N.R.] specifically * * * .

 

I.G.R argues that H.N.R.'s preference not to have her mother's parental rights terminated, her choice not to be adopted, and her age and maturity preclude a finding that termination was in the best interests of the child. We agree.

"[A] child's best interests may preclude terminating parental rights even where one or more of the statutory prerequisites for termination are present." In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996). To determine whether termination of parental rights is in a child's best interests, the court must balance "the child's interest in preserving the parent-child relationship, an interest shared by the parents, against any competing interests of the child." In Re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987). Such competing interests include stability, the child's expressed preference, and the child's health. Id. In addressing each child's best interests, the court should examine each child's choice, the value of the existing parent/child relationship, and the benefits of termination. In re Welfare of M.P., 542 N.W.2d at 75-77.

We agree with appellant's contention that the record fails to contain clear and convincing evidence to support the district court's conclusion that termination is in H.N.R.'s best interests. The district court, when it terminated appellant's rights, was primarily concerned with the effect that visitation between mother and daughter would have on the other children's emotional health. But "termination" is not necessary to ensure that appellant will have no contact with the other children while visiting H.N.R. As appellant correctly notes, if the Hellands do not want to have the visitation between mother and H.N.R. at their home, they can require appellant and H.N.R. to meet at locations away from the Hellands' home. The Hellands, as property owners and as legal parents of the other four children, have the perfect right to require appellant and H.N.R. to exercise their visitation at some place other than at the Hellands' family home.

More importantly, we note that the issue of "visitation" is a short-term concern, at best. Visitation as to H.N.R. will be resolved in approximately three or four months when H.N.R. turns eighteen years of age in December. "Visitation" is a term used to describe visits with minor children, not with adults. As an adult, H.N.R. will be free to see whomever she chooses. If H.N.R. and her mother decide to have contact when H.N.R. turns 18, this contact will no longer be deemed "visitation." The Hellands will continue to have the right, if they so choose, to ask H.N.R. to see her mother at some place other than the Helland family home.

It is also possible that the issue of visitation may be a non-issue. Appellant may well not ask to visit H.N.R. between now and December 2002, when H.N.R. reaches 18 years of age. As the district court pointed out:

I.G.R. has continued to manifest her erratic behaviors and her lack of consistent, dependable and responsible parenting activities in that she can't even ask for appointments for visits, she can't keep them when they're provided * * *.

 

The record shows that appellant has exercised her right to visitation only six times between May 18, 1999, and December 31, 2001. Given her infrequent and inconsistent visits with her children, it is possible that appellant may never ask for visitation before her daughter's eighteenth birthday. If, in the next few months, appellant does ask to visit H.N.R., the solution is simple: set up the visitation at some place other than at the Hellands' home.

We further conclude that the district court erred when it rationalized that "the best interests" of the other children made it necessary to terminate appellant's parental rights as to H.N.R. The district court found that termination was in H.N.R.'s best interests because the other children will feel that they are not "favored" by their mother if her rights are terminated as to them, but not as to H.N.R. The court stated that there is

a fair amount of weight from [H.N.R.] individually, but also in recognition of the fact that we have such a clear record here, I think, of favoritism, or at least perceived favoritism among the children by the mother as to certain children, not always the same child, not always the same way, and that there would truly be a detriment easily identifiable detriment, to the other four children if [H.N.R.] was treated by this court differently than the others.

 

We simply do not accept the reasoning that H.N.R.'s strong preference not to have her mother's parental rights terminated as to her should be ignored because of the possibility that a younger brother or sister might feel bad because H.N.R. retains a legal relationship with her biological mother and the other four minor children do not.

Respondent acknowledges that the four younger children want to be adopted by the Hellands and that H.N.R. does not. If the four younger children want to be adopted and they get their wish, it is illogical for the state to argue that somehow the four younger children are being singled out for unfair treatment and that the way to rectify that "unfair treatment" is to terminate appellant's parental rights as to H.N.R. so that all five of appellant's children "are in the same boat." This is a fallacious argument. First of all, all five of appellant's children are individuals, each is unique, and, thus, they never were "in the same boat." Each of the five children is entitled to have his best interests considered individually. If you want to talk about long-term psychological damage, what about the permanent wedge between H.N.R. and her four younger brothers and sisters if she has her parental ties with her mother severed against her will, all for the sake of a four-month window before she technically becomes an adult. Any psychological damage to the four younger children if appellant's parental rights as to H.N.R. are not terminated is conjecture at best.

If H.N.R.'s younger brothers and sisters question her about why her mother's parental rights were not also terminated, H.N.R. can simply and honestly explain to her brothers and sisters that she is a person about to become an adult and it is her personal choice to allow their biological mother to retain a legal tie to at least one of her five children. It will be easier for H.N.R.'s younger brothers and sisters to live with the truth as opposed to some societal/judicial artificial contrivance.

Appellant argues that termination is not in H.N.R.'s best interests because H.N.R. has expressed that she does not want her mother's parental rights to be terminated and that she would not consent to an adoption if the Hellands asked to adopt her. We agree. The choice of a child who is old enough to express a preference about the termination of parental rights is given significant weight when examining a child's best interests. In re Welfare of M.P., 542 N.W.2d at 75 (citations omitted).

The district court recognized H.N.R.'s argument stating that she:

has a different, more mature, more independent relationship with her mother and desires to have the Court know that she doesn't want to feel lost between the space of not having a parent and because this court takes away the rights of [appellant] to be the mother and cannot with certainty provide to [H.N.R.]. a path that will certainly lead to adoption by the Hellands, I find it interesting [H.N.R.] has that maturity to be able to articulate through her attorney to this court.

 

H.N.R is 17 years old and will shortly turn 18. She is old enough and mature enough to express a preference as to whether she wants her mother's rights terminated and whether she would consent to adoption. Having expressed that preference, the district court should have given that preference serious weight. Because of her age and her preference against adoption, statutory law supports appellant's contention that termination (just for the possibility that H.N.R. might want to be adopted later) was not in H.N.R.'s best interests. See Minn. Stat. 259.24, subd. 3 (2000) (if a child over age 14 is to be adopted "the child's written consent * * * shall be necessary"); 645.44, subd. 16 (1994) ("'[s]hall' is mandatory").

There is no conflict in this case between appellant and H.N.R. and the Hellands. The record shows the Hellands to be kind and generous people. Some time ago, the Hellands told H.N.R. that they would continue with financial and emotional support for her whether or not they were able to adopt her. H.N.R.'s four siblings are going to the home of a couple that want them and can care for them. H.N.R. becomes a legal adult in December of this year. She made a studied and serious decision against terminating her mother's parental rights as they relate to her. She did that knowing her decision would foreclose the possibility of her being adopted by a good couple, the Hellands. The district court recognized on the record H.N.R.'s emotional maturity and her ability to sort out her feelings for the different people in her life, while growing up in a neglected situation and under pressure. We conclude that it is in the best administration of justice to honor H.N.R.'s choices as to her own life.

The district court's findings do not support the decision that it is in the best interests of H.N.R. to have her mother's parental rights terminated. Neither does the record support the heavy conclusion that it is so much in the best interests of H.N.R.'s siblings to have appellant's parental rights terminated as to H.N.R. that H.N.R.'s best interests should be subservient to her siblings.

As to H.N.R., the decision of the district court is reversed. Appellant retains her parental rights to H.N.R.

Reversed.