This opinion will be unpublished and

may not be cited except as provided by

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





In the Matter of the Welfare of:

P.L.F., a Child,

and the separate Petitions of Jeffrey Allen Johnson and Tamara Jean Johnson, and Randall Mark Gross and Belinda Joye Gross for adoption of said Child;
the Mille Lacs Band of Ojibwe Indians,


Filed September 14, 2004

Affirmed; motion denied

Peterson, Judge


Pine County District Court

File No. F6-03-50064

Richard W. Curott, Currott & Associates, P.O. Box 206, Milaca, MN  56353 (for appellants Jeffrey and Tamara Johnson)


Glen Boyce, Boyce Law Offices, P.O. Box 277, North Branch, MN  55056 (for respondents Randall and Belinda Gross)


John Swimmer, Solicitor General, Mille Lacs Band of Ojibwe Indians, 43408 Oodena Drive, Onamia, MN  56359 (for Mille Lacs Band of Ojibwe Indians)


            Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


In this adoption dispute, the district court allowed respondent-grandparents Randall and Belinda Gross to adopt a child despite the fact that the Commissioner of Human Services (CHS) consented to the adoption petition of appellant-foster parents Jeffery and Tamara Johnson.  Foster parents appeal, arguing that (a) CHS’s consent is required to adopt; (b) the district court must defer to CHS’s decision regarding consent to adopt; (c) CHS’s decision to deny grandparents permission to adopt was, on this record, reasonable; (d) the district court violated Minn. Stat. § 259.57 (2002) by giving grandparents an adoptive preference; and (e) the record does not support the district court’s ruling that it is in the child’s best interests to be in grandparents’ custody.  We affirm and deny grandparents motion to strike.


            Foster parents and grandparents both petitioned to adopt a child.  CHS consented to foster parents adopting the child.  After a hearing, the district court granted grandparents’ petition to adopt the child, ruling, among other things, that their status as grandparents made them a preferred placement for the child.  Foster parents appeal. 



            Foster parents allege that Minn. Stat. § 259.24 (2002) makes CHS’s approval of an adoption petition a prerequisite to an adoption.  We review questions of statutory interpretation de novo.  In re Petition to Adopt S.T., 512 N.W.2d 894, 897 (Minn. 1994); Art Goebel, Inc. v. N. Suburban Agencies, Inc., 567 N.W.2d 511, 515 (Minn. 1997). 

The statute does not state that consent of CHS is required for an adoption.  Minn. Stat. § 259.24.  Subject to specified exceptions, a child cannot be adopted without the consent of the child’s parents and any guardian.  Minn. Stat. § 259.24, subd. 1.  If there is not a parent or guardian to give consent, “consent may be given by [CHS]” and that consent “shall not be unreasonably withheld.”  Minn. Stat. § 259.24, subds. 1(d), 7.  The district court can review whether CHS’s withholding consent is reasonable.  In re Petitions to Adopt K.L.L., 515 N.W.2d 618, 622 (Minn. App. 1994); see S.T., 512 N.W.2d at 897 (stating “trial court must have jurisdiction over the adoption proceeding to determine whether or not [CHS’s] decision to deny consent was unreasonable”).  If a lack of CHS’s consent precludes adoption, a district court’s review of a CHS consent decision is pointless, and the statutory provision requiring that consent not be unreasonably withheld is superfluous.  That result would be inconsistent with the idea that the legislature intends an entire statute to be “effective and certain.”  Minn. Stat. § 645.17(2) (2002).  It would also be inconsistent with caselaw that applies Minn. Stat. § 259.24.  In S.T., the supreme court remanded for the district court to address the reasonableness of CHS’s withholding consent to adopt.  S.T., 512 N.W.2d at 898-99.  And in K.L.L., this court affirmed the district court’s grant of an adoption petition that was not approved by CHS.  K.L.L., 515 N.W.2d at 622-23.


            Citing cases that address the deference that courts give agency decisions, foster parents argue that the district court was required to give deference to CHS’s decision regarding consent to the adoption petitions.  We reject this argument for three reasons.  First, none of the cases foster parents cite involve adoption.  Second, the supreme court’s discussion of a district court’s review of CHS’s consent decision indicates limited deference to the CHS decision is required.  After noting that “[t]he role of this court and the judicial branch as a whole in this regard is to guard the welfare of children who are wards of the state after parental termination,” S.T., states:

These principles mandate that courts must give careful consideration to decisions which affect the welfare of children.  No decision is likely to have more bearing on the welfare of children who are wards of the state than the decision as to where they are permanently placed.  Because the decision to grant or deny consent to an adoption cannot be made without considering the particular situation of the child, the trial court must be free to examine all relevant evidence to determine whether [CHS’s] action was in the best interests of the child.


S.T. 512 N.W.2d at 898 (quotations omitted and emphasis added).  Third, when courts defer to agency decisions, it is usually because the agency has a familiarity with, and expertise in, the area of law at issue while the court does not.  See Hennepin County Court Employees Group v. Pub. Employment Relations Bd., 274 N.W.2d 492, 494 (Minn. 1979).  Adoption decisions are largely, though not exclusively, custody decisions, and courts regularly address custody questions.   Cf. Minn. Stat. § 518.17 (2002) (addressing custody in dissolutions).  Therefore, we decline to hold that a CHS consent decision is entitled to great deference by the courts.   


            CHS’s consent to foster parents’ adoption petition was, in effect, a withholding of consent for grandparents’ adoption petition.  And the district court’s granting grandparents’ adoption petition was, in effect, a determination that CHS’s consent decision was not reasonable.  Foster parents challenge that ruling.  Citing In re Niskanen, 301 Minn. 53, 223 N.W.2d 754 (1974), foster parents argue that this court must review the district court’s ruling for an abuse of discretion.  But Niskanen addresses the standard for reviewing a district court’s grant of one of multiple competing adoption petitions, not a district court’s determination of whether CHS’s consent decision was reasonable.  Niskanen, 301 Minn. at 55, 223 N.W.2d at 755.  Generally, what is reasonable is a fact question determined in light of surrounding circumstances and reviewed for clear error.  E.g., Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 884-85 (Minn. 2000) (reasonableness of insured’s refusal to attend independent medical exam); Haug v. Comm’r of Pub. Safety, 473 N.W.2d 900, 902 (Minn. App. 1991) (reasonableness of refusing to take a breath test); Karlstad State Bank v. Fritsche, 374 N.W.2d 177, 181 (Minn. App. 1985) (reasonableness of sale of asset). 

            Here, the district court rejected CHS’s consent determination because CHS lacked a complete record: CHS (a) “was never given any of the reports of the [GAL]”; (b) did not consider the GAL’s recommendations and observations; and (c) never got the HOPE adoption study.  The GAL, the GAL’s reports, the HOPE adoption study, and the social worker that did the HOPE adoption study, all favored allowing grandparents to adopt the child.  Even if CHS would not have been swayed by the GAL’s reports and the HOPE adoption study, the ultimate decision whether CHS’s consent decision was reasonable belongs to the district court and, in making that decision, the district court had the GAL’s reports, the HOPE adoption study, the testimony of the GAL and those responsible for the HOPE adoption study (including cross-examination of those witnesses), the direct and cross-examined testimony of those responsible for the county’s recommendation to CHS, and CHS’s adoption of that recommendation. 

After considering information that CHS lacked when it made its consent decision, the district court concluded that CHS’s decision was not based on a complete record and rejected the decision.  On this record, we conclude that the district court’s rejection of CHS’s consent determination is neither an “abuse of discretion” nor “clearly erroneous.”  It is not an abuse of discretion to rule that a consent decision is not reasonable when the decision was made without the benefit of all relevant information and when the information that CHS did not consider favored allowing grandparents to adopt the child, and it is not clearly erroneous to rule that a decision that is not based on a complete record is not reasonable.  Cf. S.T., 512 N.W.2d at 898 (stating “the trial court must be free to examine all relevant evidence to determine whether [CHS’s consent determination] was in the best interest of the child”).


            After finding that foster parents and grandparents “are [both] equally capable of meeting the child’s needs, now and into the future,” the district court stated that grandparents “are the preferred adoptive placement” based on “all the evidence herein and particularly upon the fact that [grandparents] are the child’s grandparents.”  Foster parents allege that giving grandparents a preference because of their status as grandparents is contrary to Minnesota’s adoption statute.  But the adoption statute states:

            In reviewing adoptive placement and in determining appropriate adoption, the court shall consider placement, consistent with the child’s best interests and in the following order, with (1) a relative or relatives of the child . . . . Whenever possible, siblings should be placed together unless it is determined not to be in the best interests of a sibling.


Minn. Stat. § 259.57, subd. 2(c) (2002); see also Minn. Stat. § 259.57, subd. 2(b) (requiring consideration of factors listed in Minn. Stat. § 260C.193, subd. 3(b) and statutes cited therein, which also require consideration of placing child with relatives)[1].


            Foster parents argue that it is not in the best interests of the child to be adopted by grandparents.  In doing so, they candidly admit that this court has previously observed that current law “leaves scant if any room for an appellate court to question the trial court’s balancing of the best-interests considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  They argue, however, that “[t]his is a case that cries out to be the exception to the general rule.”  The crux of foster parents’ argument is that grandparents cannot be adequate custodians because (a) despite regular visits with the child, they did not notice that the child had been abused; (b) even after the abuse was brought to their attention, they denied it; and (c) after they admitted the existence of abuse, they denied that the child’s mother was responsible for the abuse.  To say that the abuse-related concerns were thoroughly litigated at trial and were the subject of numerous findings by the district court, would be an understatement.  On this record and in light of these findings, it is apparent that the district court was aware of, and rejected, foster parents’ abuse-related concerns.  Absent a viable challenge to the underlying findings of fact or application of the law, we decline to make an “exception” in this case to the general rule stated in Vangsness


Grandparents move this court to strike the factual assertions in sections II and IV of foster parents’ brief for which foster parents did not cite the record.  See Minn. R. Civ. App. P. 128.02, subd. 1(c) (stating “[e]ach statement of a material fact shall be accompanied by a reference to the record”); Hecker v. Hecker, 543 N.W.2d 678, 681-82 n.2 (Minn. App. 1996) (stating “material assertions of fact in a brief properly are to be supported by a cite to the record” and stating such cites are “particularly important” where “the record is extensive”), aff’d 568 N.W.2d 705 (Minn. 1997).  Grandparents, however, do not allege any prejudice as a result of the lack of citations to the record or that any of the facts mentioned by foster parents are unsupported by the record.  Therefore, we deny the motion to strike.  Cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, appellant must show both error and prejudice). 

            Affirmed; motion denied.

[1] Neither the parties nor the district court address the Indian Child Welfare Act.  Under it, “[i]n any adoptive placement of an Indian child under State law, a preference shall be given in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family.”  25 U.S.C.A. § 1915(a) (Supp. 2000) (emphasis added).  Under ICWA, an “Indian child” includes “any unmarried person who is under age eighteen” who is “a member of an Indian tribe,” and an “adoptive placement” includes “the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.”  25 U.S.C.A. § 1903(4)(1)(iv) (Supp. 2000) (respectively).  This child is a member of the Mille Lacs Band of Ojibwe Indians and this proceeding will produce a “final decree of adoption.”