This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the

Petition for the Adoption of RMM


Filed February 22, 2005


Lansing, Judge


Hubbard County District Court

File No. F6-03-50025



George L. Duranske III, Duranske Law Firm, 1435 Anne Street Northwest, P.O. Box 1383, Bemidji, MN 56619-1383 (for appellants Julie Lynn Morris and Jesse Howard Morris)


Franklin Marrocco, 803 – 56th Avenue North, Brooklyn Center, MN 55430 (pro se respondent)


            Considered and decided by Wright, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


The district court denied the mother and stepfather’s petition to terminate the father’s parental rights in this combined proceeding for termination of parental rights and adoption.  On appeal, RMM’s mother and stepfather argue that the district court erred in finding that the evidence did not clearly and convincingly establish any of the four statutory criteria for termination and that maintaining a parent-child relationship with her father was in RMM’s best interests.  Because a careful review of the record discloses no erroneous findings and because a child’s best interests, although paramount, are not independently sufficient to support termination of parental rights, we affirm.


            RMM was born to Franklin Marrocco and Julie Morris in 1998 during their three-year marriage.  Morris and Marrocco shared parenting duties until their separation in May of 1999.  After her parents’ separation, RMM lived with her mother, and Marrocco had visitation rights.  Following their marital dissolution, Marrocco and Morris each began a new relationship that produced another child for each of them.

            The record contains conflicting testimony about the role of Marrocco in RMM ’s life following her parents’ separation.  Morris testified that RMM’s visits with Marrocco were sporadic, that he often passed up the opportunity to see his child, and that he failed to demonstrate significant interest in the child’s welfare or special occasions.  Marrocco, on the other hand, testified that he had substantial difficulty visiting RMM because he did not have reliable transportation to get to Morris’s house, which was in a different city, Morris was inflexible in rescheduling visitations for weekends that would work for him, and she often refused to allow visitation.  He asserted that he nonetheless spent time at least once a month with RMM.  Some of these visits occurred when RMM was with Marrocco’s mother.  Marrocco’s mother and Morris are on good terms, and RMM has a good relationship with both Marrocco’s mother and his second child.

            Marrocco is obligated by court order to pay child support for RMM.  It is undisputed that Marrocco made two initial payments of $400 followed by a few smaller payments of $75.  Marrocco testified that he was unable to meet his obligations fully because he was often unemployed, had difficulty finding adequate employment, and suffered from other disabling conditions.

            In December 2001, Marrocco was arrested for a fifth-degree controlled substance crime for possession of marijuana.  He pleaded guilty and was in custody from the time of his arrest until his release on December 22, 2003.  While Marrocco was in custody, Morris and her husband petitioned for the termination of Marrocco’s parental rights and for Morris’s husband to adopt RMM. 

The record contains conflicting testimony about Marrocco’s relationship with RMM during his incarceration.  In his testimony, Marrocco explained the effect his incarceration had on his ability to support RMM and to participate in her life.  He stated that he was unable to pay child support because his financial obligations exceeded his prison wages.  Although acknowledging he had not seen RMM since his incarceration, he stated that prison was not the proper environment for his children to get to know him, that he knew he needed to “grow up,” and that he was committed to ending his involvement with drugs.  As evidence of his positive growth while in prison, he points to his voluntary participation in parenting and anger-management courses and his certification for cabinetry. 

During his incarceration, Marrocco attempted to maintain contact with RMM by writing her numerous letters.  These letters include repeated expressions of affection, concern, and two poems he wrote for RMM.  He testified that he wrote these letters so that RMM would know he loved her and that she was not alone.  Morris, however, never read these letters to RMM because she believed they would confuse the child, who, according to Morris, does not know who Marrocco is and who refers to her stepfather as “daddy.”

            To rebut Marrocco’s assertions that he is a loving and responsible father, the Morrises offered several letters that he wrote to a friend while incarcerated.  These letters make repeated references to his earlier experiences with marijuana and drinking.  They also describe his observations about his incarceration, including the availability of illicit substances.  Morris testified that she believed Marrocco had been involved in selling marijuana and that the letters demonstrate that he used marijuana while in prison and intended to return to selling it after his release.

            Marrocco was no longer incarcerated at the time of the hearing.  He testified that the letters were taken out of context and exaggerated.  He stated that he no longer used marijuana, that he had stopped using it six months before his arrest, and that he had never used marijuana when he was responsible for caring for his children.  As evidence of his intention to meet his parental responsibilities, he testified that he was actively seeking employment and that he had no objections to having his wages garnished to meet his financial obligations to RMM.  He reiterated a desire to have continued visitation with RMM, even if the visits must be supervised.

            On this evidence, the district court concluded that the Morrises had failed to meet their burden to prove clearly and convincingly any of the four alleged statutory bases for terminating Marrocco’s parental rights.  The Morrises appeal from this decision.


A district court’s order terminating parental rights is appropriate “as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests.”  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004) (citing In re Welfare of L.A.F., 554 N.W.2d 393, 396-97 (Minn. 1996)).  Thus, on appeal in a termination proceeding, we “are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.”  In re Welfare of D.D.G.,558 N.W.2d 481, 484 (Minn. 1997).  In our review, we accord “[c]onsiderable deference . . . to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.”  L.A.F., 554 N.W.2d at 396.  The evidence must relate to conditions that exist at the time of termination, and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

            In considering whether to terminate parental rights, the best interests of the child must be the chief consideration.  Minn. Stat. § 260C.301, subd. 7 (2002).  In ordinary circumstances we presume that the child’s best interests are served by being with the parent.  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).  Nonetheless, the best interests of the child are insufficient, standing alone, to support the involuntary termination of a parent’s rights; at least one of the statutory criteria must also be present.  Children of R.W., 678 N.W.2d at 54.  The statute enumerates several criteria for terminating the parental rights of a nonconsenting party, four of which are at issue in this case. 


Parental rights may be terminated when the parent has abandoned the child.  Minn. Stat. § 260C.301, subd. 1(b)(1) (2002).  The incarceration of a parent is insufficient alone to demonstrate abandonment, but we consider it along with other factors.  In re Welfare of Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970).  The other relevant factors include parental neglect, withholding of parental affection, failing to maintain contact with the child or inquire about the child’s welfare, and manifesting an intention to abandon the child.  Children of R.W., 678 N.W.2d at 55-56.

The district court concluded that the facts of this case do not support a finding of abandonment.  Although incarcerated, Marrocco attempted to maintain contact with RMM through correspondence in which he inquired about her welfare and expressed his love for her.  He manifested no intention to abandon her upon his release.  His efforts at self-improvement and his future plans demonstrate an intent to assume parental responsibilities.  Because we defer to the district court’s assessment of the credibility of the witnesses, we conclude that sufficient evidence exists in the record to support the district court’s conclusion that Marrocco, at the time of the hearing, had not abandoned RMM.


            A court may terminate parental rights if the parent has “substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship.”  Minn. Stat. § 260C.301, subd. 1(b)(2) (2002).  This ground for termination further requires a finding that “either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.”  Id.

            Even if the district court had concluded that Marrocco substantially, continually, or repeatedly failed to provide for RMM, this criterion would not be satisfied because it also requires that the parent be physically and financially able to provide for the child and that social services took reasonable steps to correct this condition.  The record contains no evidence of social services involvement. 

Furthermore, the district court weighed the conflicting testimony and concluded that Marrocco did not have the capability to support RMM during the relevant time period.  The record demonstrates that, before his incarceration, his employment was haphazard, he made a few payments to Morris, and he saw RMM approximately once a month.  The court reasonably concluded that these efforts, which it referred to as intermittent rather than continuous, were sufficient in light of his financial difficulties.


            A third statutory ground for terminating parental rights exists when a parent, who the court has ordered to pay child support, “has continuously failed to do so without good cause.”  Minn. Stat. § 260C.301, subd. 1(b)(3) (2002).  The provision creates an exception “if that parent . . . cannot financially contribute to the support of the child.”  Id.

            It is undisputed that the court ordered Marrocco to pay child support and that he only paid a small sum of the ordered amount.  But the determination of whether Marrocco was financially capable of paying child support is factual.  The district court apparently accepted Marrocco’s testimony about his financial difficulties or found that his initial payments meant that his failure to pay was not continuous as required by the statute.  The record provides a basis for the district court to determine that Marrocco’s failure to pay child support was for good cause or that he was financially incapable at the time.  Furthermore, given his testimony that he was actively seeking employment and was willing to have his wages garnished, the record supports a finding that Marrocco would meet his financial responsibilities in the reasonably foreseeable future. 


The final statutory criterion at issue provides for termination when a parent is “palpably unfit to be a party to the parent and child relationship.”  Minn. Stat. § 260C.301, subd. 1(b)(4) (2002).  A petitioner for termination must prove a specific pattern of conduct or specific conditions that directly relate to the parent and child relationship.  Id.  The court must also determine that these conditions are of a “duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.”  Id.

To establish palpable unfitness, the evidence must clearly and convincingly establish a consistent pattern of specific conduct that directly relates to the parent-child relationship.  The Morrises allege that Marrocco’s repeated involvement in drugs satisfies this prong.  This evidence undeniably has probative value.  The district court evaluated whether Marrocco’s adjudicated and reputed drug activities were directly related to the parent-child relationship.  The record allows a conclusion that Marrocco’s activities did not affect his relationship with RMM.  Marrocco and his mother testified that he never abused drugs in RMM’s presence, and the record does not otherwise demonstrate that RMM suffered adverse effects from Marrocco’s alleged or proven drug activities.

The district court examined the facts at the time of the hearing and concluded that the evidence was insufficient to establish that Marrocco could not and would not care for RMM’s needs for the foreseeable future.  Marrocco’s testimony indicates that he no longer uses marijuana and that he understands the importance of being a responsible parent.  The record does not contain clear and convincing evidence to the contrary.


A careful review of the record discloses no erroneous findings that would provide a basis for rejecting the district court’s conclusion that any of the four criteria advanced for termination were not proved by clear and convincing evidence.  Because this burden has not been met, RMM’s best interests alone cannot support termination of Marrocco’s parental rights.  See Children of R.W., 678 N.W.2d at 54-55 (holding that termination requires findings that at least one statutory criteria is present).  It is self-evident that RMM’s best interests are served by maintaining positive relations with as many loving and responsible adults as possible.  It is also evident that RMM’s mother and stepfather initiated this proceeding because they believed that it would serve RMM’s best interests.  The district court carefully evaluated the testimony, evidence, and competing considerations and determined that none of the statutory grounds for termination of Marrocco’s parental rights existed at the time of the hearing.  We discern no error in that determination.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.