This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-996

 

 

Deborah Sharon Robinson, et al., petitioners,

Respondents,

 

vs.

 

Candy Ann Stegora, f/k/a Stanton, et al.,

Appellants.

 

 

Filed May 6, 2003

Affirmed

Robert H. Schumacher, Judge

 

Ramsey County District Court

File No. F794115

 

 

Dale C. Nathan, Nathan & Associates, 1230 Eagan Industrial Road, Suite 150, Eagan, MN 55121-1286 (for appellants)

 

Deborah S. Robinson, Arnold S. Robinson, 795 Geranium Avenue East, St. Paul, MN 55106 (pro se respondents)

 

 

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

 

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

ROBERT H. SCHUMACHER, Judge

Appellants Candy Ann Stegora, f/k/a Stanton and Cory Stegora, biological parents of two minor children, argue that the district court erred by transferring legal and physical custody of the children to respondents Deborah Sharon Robinson and Arnold Marvin Robinson, the children's grandparents and sometimes-primary caregivers. The Stegoras claim that they were denied due process of law because they received notice of the custody trial only one day prior to trial, they were not advised of their "right" to counsel, and the district court proceeded without appointing counsel to represent them. The Stegoras also claim that the record does not support the district court's determination that custody should be permanently transferred. Following the district court's order and judgment transferring custody, the Stegoras brought a motion to vacate, which the district court denied. The Stegoras have appealed from both the judgment transferring custody and the order denying the motion to vacate. We affirm.

FACTS

The district court made the following findings of fact following the bench trial:

1. The Stegoras are the biological parents of a son born April 28, 1990, and a daughter born June 23, 1994. Deborah Robinson is the children's grandmother, and Arnold Robinson is the children's step-grandfather.

2. The children's primary caregivers have been the Stegoras at times and the Robinsons at others. The son has lived with Deborah Robinson several weeks to several months since he was born. The Robinsons supplied daycare for both children up until February 2000, including frequent sleep-overs.

3. In February of 2000, Cory Stegora physically abused his son. Prior to this, child protection had made numerous findings of maltreatment of the children by both of the Stegoras.

4. The parents were regarded as high risk and required ongoing services to lessen the risk to the children. Although Candy Ann Stegora cooperated with child protection workers and parenting workers regarding the issues of neglect and abuse prior to February of 2000, Cory Stegora remained resistant to counseling, psychological, or other parenting help in regards to his abusive behavior toward his son.

5. At the time of the February 2000 abuse incident, child protection workers had been attempting to get the Stegoras to cooperate in a safety plan for the children; the Stegoras would not work whole-heartedly toward implementing a safety plan. Cory Stegora's untreated anger represents a danger to both children.

6. The Stegoras' home has been condemned for uncleanliness twice.

7. The Stegoras have demonstrated antagonism toward the Robinsons, and they have limited the children's contact with the Robinsons to the children's detriment.

8. During the times when the Stegoras acted as primary caregivers for the children there have been significant problems of physical abuse and neglect, and the children have suffered physical, emotional, and psychological harm while with their parents. Although Candy Ann Stegora has an intimate, loving relationship with the children, Cory Stegora has a more difficult time showing affection to the children, and he has not cooperated with parenting classes and other social services.

9. The Robinsons have close, affectionate, relationships with both children.

10. The custody dispute and hostility surrounding it have caused the children considerable emotional stress. They are socially immature and their future emotional development is at risk. This risk is lessened if they are placed in the Robinsons' custody. During the times the children have been with the Robinsons, they have had consistent, stable parenting.

11. While the children have been with the Stegoras, their residence has not been consistently stable and satisfactory. The situation had improved over the six months preceding the April 2001 order, however.

12. Both the guardian ad litem and court services recommended that the Robinsons be granted sole legal and physical custody of the children.

D E C I S I O N

Whether the Stegoras were denied due process of law amounts to a legal question, which this court reviews de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). As for the district court's determination as to custody, our review "is limited to whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).

1. The Stegoras claim that the district court erred by not advising them of their "right" to court-appointed counsel prior to the April 3, 2001 custody trial. No such right exists. The Stegoras incorrectly cite Minnesota Statutes chapter 260 as support for their claim. Minnesota Statutes Chapter 260 deals with juvenile proceedings, including CHIPS proceedings and termination of parental rights proceedings and includes specific directives as to a right to counsel. This custody proceedings is dealt with under Minnesota Statutes Chapter 257, which does not create a right to counsel for the Stegoras.

Case law has not addressed this precise issue. The supreme court has determined that an indigent defendant in a paternity action must be provided court-appointed counsel. Hepful v. Bashaw, 279 N.W.2d 342, 348 (Minn. 1979). The supreme court also stated, however, that this right to counsel in paternity actions does not affect the right of indigent defendants in other civil actions to court-appointed counsel. Id. Then, in Cox v. Slama, 355 N.W.2d 401, 403 (Minn. 1984), the supreme court addressed the rationale for providing court-appointed counsel in paternity actions but not in other civil proceedings. A defendant in a paternity action could face financial liability and ultimately face incarceration for failure to meet that liability. Moreover, a paternity action is an adversarial proceeding in which the county attorney represents the complainant. Id.; see also In re Matter of Peters, 332 N.W.2d 10, 16-17 (Minn. 1983) (when complainant is represented by county attorney at public expense and nature of paternity proceeding is adversarial, defendant is entitled to court-appointed counsel, but right to court-appointed counsel does not extend to other civil proceedings).

A decision to extend the right to court-appointed counsel to include custody proceedings is not the province of this court. The court of appeals has recognized that decisions of this nature are for the supreme court. See McDonnell v. Comm'r of Pub. Safety, 460 N.W.2d 363, 368 (Minn. App. 1990) ("this court will not extend the state constitutional right to counsel beyond the bounds recognized by the supreme court"), review granted (Minn. Nov. 9, 1990), aff'd in part and rev'd in part, on other issues, 473 N.W.2d 848 (Minn. 1991). The district court did not err by failing to advise the Stegoras of a right to counsel. We note that all parties to this proceeding were pro se.

2. The Stegoras also maintain that the district court erred by proceeding with the trial despite the Stegoras claim that they received the notice only one day prior to the date of trial. The Stegoras did not raise this issue before the district court, and there is nothing in the transcript of the April 3, 2001 trial noting an objection or a request for a continuance.

One year later, the Stegoras brought a motion to vacate under Minn. R. Civ. P. 60.02. On an appeal from a district court's decision to deny relief under Rule 60.02, we consider whether the district court's decision constituted an abuse of discretion. Charson v. Temple Israel, 419 N.W.2d 488, 490 (Minn. 1988).

In their motion to vacate, the Stegoras claimed court personnel told them, via telephone, on the day before the trial began that they did not need an attorney. The Stegoras could not identify who told them this, speculating that it might have been the guardian ad litem or the court services worker. Both these individuals submitted affidavits to the district court denying ever making these statements. The district court specifically found the Stegoras' testimony was not credible. This court defers to the district court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court did not abuse its discretion by denying the Stegoras' Rule 60.02 motion.

3. The leading case as to the proper standard and analysis when addressing a request to transfer custody from a biological parent or parents to a third party is In re Custody of N.A.K., 649 N.W.2d 166 (Minn. 2002). In this case, the supreme court set forth the appropriate standard under which the district court can order a transfer of legal custody of one's biological child to another party:

[T]he right of a parent to custody of their child is paramount and either parent is presumed to be a fit and suitable person to be entrusted with care of child or children born to and belonging to them. The burden of disproving this presumption rests upon those who challenge it.

* * * *

The natural parent is entitled, as a matter of law, to custody of a minor child unless "there has been established on the part of the [parent's] part neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care, * * * or unless it has been established that such custody otherwise would not be in the best interests of the child." Wallin v. Wallin, 290 Minn. 261, 266, 187 N.W.2d 627, 630 (1971). Although the presumption favors [parents], it may be overturned if there are "grave and weighty" reasons to separate a child from his or her natural parents." Id.

 

N.A.K., 649 N.W.2d at 174-75 (quoting Durkin v. Hinich, 442 N.W.2d 148, 152-53 (Minn. 1989).

In N.A.K., the supreme court reversed a transfer of custody from a biological father to a third-party relative and remanded the matter to the district court because "the findings and conclusions do not clearly reflect a proper incorporation of the parental presumption into the court's analysis." Id. at 176. In that case, the district court's comments suggested that the district courts "are not permitted to advance a core belief that biological parents should be entitled to custody of their children vis vis non-biological parents." Id. The supreme court was thus concerned that the district court had not applied the proper standard and remanded to the district court to determine unequivocally whether or not "extraordinary circumstances of a grave and weighty nature exist to support the grant of permanent custody to a third party." Id. The supreme court noted that although the district court "appear[ed] to [have] implicitly conclude[d] * * * that an 'overwhelming case' of best interests factors favoring a third party over a parent constitutes extraordinary circumstances," other language in the district court's order "seems to misapprehend our case law." Id. at 177.

The supreme court acknowledged, however, that "the law does not require that the district court use the words 'extraordinary circumstances' or 'grave and weighty reasons' in its conclusions of law" in every instance where a determination to transfer custody from a biological parent to a third party is made. Id. This district court's order should not raise doubts as to whether or not the proper standard and analysis has been applied to the facts and circumstances of a particular case. Id.

In the present case, the district court's findings and conclusions of law are not complicated. The findings set forth significant problems the Stegoras face relative to their parenting, significant risks the children have faced and will face in the event they were to remain in the Stegoras custody, and the lack of progress the Stegoras have made with respect to eliminate these problems and risks. The district court's findings regarding the physical abuse, the psychological and emotional harm, and multiple condemnations of the living space establish the "grave and weighty" circumstances needed for a custody transfer. The court noted the recommendations of the guardian ad litem and court services worker that custody should be transferred. The record indicates that the district court believed the "extraordinary circumstances" were present here, overcoming the presumption the natural parent enjoys, warranting a transfer of custody.

The district court's findings and conclusions do not raise the doubts and concerns regarding the proper standard that led the supreme court to reverse the district court in N.A.K. Instead, the findings and conclusions indicate that the court understood and applied the proper standard when determining the appropriate custody disposition.

Affirmed.