This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1568

 

In the Matter of the Child of:

J.M.C. and A.P., Parents.

 

Filed May 11, 2004

Affirmed

Randall, Judge

 

St. Louis County District Court

File No.† JX-02-650441

 

Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN† 55802 (for appellant-father A.P.)

 

Bertha J. Swanson, and Jacqueline M. Beaulieu, 1113 East Franklin Ave., Suite 600, Minneapolis, MN† 55404 (for respondent-grandmother S.C., and)

 

Katalina Jimenez, 107 West First Street, Duluth, MN† 55802 (for respondent-mother J.M.C., and)

 

Alan Mitchell, St. Louis County Attorney, Patricia Shaffer, Assistant St. Louis County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, MN† 55802 (for respondent St. Louis County)

††††††††††† Considered and decided by Toussaint, Presiding Judge, Randall, Judge, and Forsberg, Judge.*

 

 

U N P U B L I S H E D†† O P I N I O N

RANDALL, Judge

On appeal in this custody dispute, appellant father argues that the district courtís order allowing grandmother to have custody is premature, claiming that grandmother has not complied with prior orders setting two conditions for grandmother to be awarded custody: (1) grandmother finding a safe home, and (2) obtaining an order for protection protecting her from a third party, her son.† We affirm.†

FACTS

††††††††††† A.P. (appellant) and J.M.C. are the parents of S.S.C. born March 26, 1996.† The parties are not and never were married, and both parties have a long history of problems with chemical abuse.† As a result, S.S.C. was in foster care from April 20, 2002, until October 29, 2002.† After a brief stint in appellantís custody, S.S.C. was again placed in foster care in February 2003.† Shortly thereafter, S.S.C.ís maternal grandmother, S.C. (respondent), became available as a permanency resource.

††††††††††† On April 29, 2003, J.M.C. filed a petition to transfer legal custody of S.S.C. to respondent.† A hearing was held on June 20, 2003, where both parents conceded that they are not in a position now or in the reasonable future to adequately parent their child.† Appellant and St. Louis County favored placement of S.S.C. in foster care on a permanent basis.† J.M.C. and the White Earth Tribe favored placement with the maternal grandmother.[1]† The district court determined that the transfer of legal and physical custody of S.S.C. to respondent was appropriate on the condition that respondent obtain safe housing and a harassment restraining order against her son D.C., who has a long history of drug abuse and harassing activities.

On September 3, 2003, a 90-day review hearing was conducted by the district court to determine if the conditions for a physical transfer of custody of S.S.C. to respondent had been satisfied.† At the hearing, the district court heard testimony concerning whether respondent had complied with the order to obtain adequate housing.† The district court found that respondent obtained housing at the St. Regis Apartments.† The court noted that the new management at the St. Regis Apartments recently addressed its well-documented problems in an aggressive manner.† The court found that the physical security of the building has improved and that the building manager recently received a certificate of recognition from the mayor of Duluth for his efforts in improving the properties that he manages.† Although the court expressed its concern over the buildingís past reputation, the court noted that during the year 2003, there was a significant reduction in the number of police calls to the St. Regis Apartments as compared to prior years.† Ultimately, the district court concluded that respondent obtained adequate housing in compliance with the June 30, 2003 order.†

The district court then considered whether respondent complied with the order to obtain a harassment restraining order against her son, D.C.† The court found that despite D.C.ís history of abusive behavior toward his mother, respondent did not want a restraining order against her son.† The court found that a restraining order was issued only with regard to S.S.C., and that according to the restraining order, D.C. can have limited contact with his mother so long as S.S.C. is not present.† The court noted that despite the concerns regarding D.C.ís history, both the Tribe and the guardian ad litem (GAL) still recommended that physical custody of S.S.C. be transferred to respondent.† The court granted the petition to transfer custody to respondent.† This appeal followed.††††††

D E C I S I O N

††††††††††† Appellant argues that the district court erred by transferring custody of S.S.C. to respondent because respondent did not satisfy the requirements of the June 30, 2003 order.† Appellant contends that despite the district courtís findings to the contrary, respondent (1) did not secure safe housing and (2) did not obtain an O.F.P. against her son D.C.†

††††††††††† This courtís review of the district courtís custody determination is limited to determining whether the district court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law.† Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).† Unless they are clearly erroneous, the district courtís findings will not be disturbed.† Minn. R. Civ. P. 52.01.† In determining whether the findings are clearly erroneous, we view the record in the light most favorable to the district courtís findings, giving deference to the district courtís credibility determinations.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

1.†††††††† Safe Housing

In the Order dated June 30, 2003, the district court established that ď[c]ustody shall not be transferred and shall remain with St. Louis County Social Services for continued temporary placement in foster care until the grandmother obtains . . . . adequate housing within a secure building, involving at least locked entries to the building.Ē† Appellant does not dispute the fact that it is in the best interests of S.S.C. to be in the custody of her grandmother.† Rather appellant contends that respondent should not have custody of S.S.C. at this time because the St. Regis Apartments do not constitute safe and appropriate housing.†††††††

In support of his contention, appellant points to the September 3, 2003, review hearing where he expressed concern about his daughter living at the St. Regis Apartments.† Appellant testified that the St. Regis Apartments have ďbeen trouble for years,Ē and as recently as August 9, 2003, he purchased drugs from an individual at the St. Regis Apartments.† Appellant also testified that the doors of the complex are not secure.† Appellant stated, ďI mean it might be secure but you can just pull it.† One good jerk and the door opens up, it opens up.† And Iíve seen people do that, and thatís my concern.Ē

In addition to his testimony regarding the St. Regis Apartments, appellant cites the district courtís initial reaction to respondentís choice of housing.† At the review hearing, the district court stated:

The St. Regis Apartments have a terrible reputation.† And we all know that, I think Ė maybe not.† I know that.† Everybody knows that, and I donít know if itís changed.† But [the ICWA worker] had indicated that thereís new management, and maybe things have changed, I donít know.† But it is not an appropriate Ė in the past, at least, itís not been an appropriate placement for a child of any age.† Itís not an appropriate place for adult of any age, unless itís completely changed.† And thatís possible, thatís what the Court relies on to let us know that.† But the reputation is the pits.† I mean, weíve had CHIPS cases in past, and one of the big concerns is that the parent was living in the St. Regis Apartments; and the children were exposed to terrible things going on all the time, night and day.† Drunks barging in and terrifying people, and drugs in and out of that place, and so fourth.† Itís a terrible place; in the past it was, recent past.† I donít know if itís turned around or not.

 

Appellantís attorney also commented on the St. Regis Apartmentís reputation.† Counsel for appellant told the court that the apartments are located in ďĎThe Zone,í which is a drug-infested neighborhood, and itís just up the hill from the Cozy Bar.† Lots of drugs and lots of illegal activity there.† The Regency is apparently raided all the time for illegal activities.Ē†

Finally, appellant notes that although the GAL and the ICWA worker had high hopes that the new management at the St. Regis Apartments was ďcleaning upĒ the apartment complex; the GAL and the ICWA worker were still aware of the apartmentís poor reputation.† Therefore, based on the testimony regarding the St. Regis Apartmentís poor reputation, appellant argues that the district court clearly erred by finding that respondent had complied with the order to obtain safe housing.†

Although the record shows that the St. Regis Apartments have a poor reputation, there is support for the district courtís findings that respondent reasonably complied with the order requiring her to obtain safe and adequate housing.† At the review hearing respondentís attorney stated that her client had told her that the apartment was a locked and secure building.† In addition, the ICWA worker testified that:

I . . . . went to check to make sure that the building was a locked facility, and it is indeed a locked facility.† Thereís three doors leading to that building and theyíre locked.† You canít get in there unless you buzz the apartment owner.

 

Also, the GAL submitted a report concerning the safety of the St. Regis Apartments.† The GALís report documented the significant reduction in the number of police calls to the property, and detailed the locks installed on the entrances to the apartment complex.† The report further noted that the properties have HUD tenants, which means they are inspected to meet HUD guidelines.† Finally, the report stated that the building has in fact been inspected by the Building Inspector and is in compliance with the safety code.

††††††††††† Based upon the evidence presented, the St. Regis Apartments may not have been the safest housing available, but may have been the safest affordable housing available.† The order required that the housing be ďwithin a secure building, involving at least locked entries to the building,Ē and there is sufficient evidence to support the district courtís finding that the St. Regis Apartments are now secure.† Most of the parties involved, including the social worker, the GAL, and the Tribe all recommended a transfer of custody to respondent.† The court balanced this information and concluded that respondent complied with the June 30, 2003 order.† Although the evidence is not overwhelming, and we understand appellantís arguments, the evidence in the record supports the district courtís conclusion that respondent substantially complied with the order.† Accordingly, the district court did not err by finding that respondent had met the condition of the prior order to obtain adequate housing.

2.†††††††† Order For Protection

††††††††††† The district courtís order dated June 30, 2003, also mandated that:

Custody shall not be transferred and shall remain with St. Louis County Social Services for continued temporary placement in foster care until the grandmother obtains either a harassment restraining order or an OFP against D.C. . . .†† It is understood that the grandmother shall keep the restraining order in effect and maintain a secure living situation as long as possible, in light of the long-term threat posed by D.C.

 

Although respondent did obtain a harassment restraining order against D.C. that prohibited contact between D.C. and S.S.C., the protection order is limited to only six months and does not protect respondent from D.C.

Appellant argues that the harassment restraining order obtained by respondent does not meet the requirements of the June 30, 2003 order.† In his brief, appellant documents many of D.C.ís violent episodes, especially those involving respondent and J.M.C.† Appellant argues that despite D.C.ís repeated episodes of violence, respondent continually returns to him and cannot say ďnoĒ to him.† Appellant notes that the district court was aware of D.C.ís violent history, yet made its decision without even seeing the restraining order that respondent obtained.† Thus, appellant contends that the district court erred by transferring custody of S.S.C. to respondent.†††††††

D.C.ís history of violence is troubling.† But respondent is D.C.ís mother, and she has expressed a desire to have some minimal contact with her son.† J.M.C., the GAL, and the Tribe all agreed that some limited contact between respondent and D.C. would be permissible as long as the contact occurred in a public place, D.C. was sober, and there was no contact between S.S.C. and D.C.† Although it is questionable as to whether respondent can adhere to the order and prohibit her son from having contact with her in the presence of S.S.C., the district court was aware of all the relevant factors and made findings that support its conclusion.† The district court did not abuse its discretion by transferring custody of S.S.C. to respondent.†††††

††††††††††† Affirmed.



*† Retired Judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

[1]† J.M.C. and S.S.C. are registered White Earth Tribe band members.