This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1626

 

C.B. and A.B, petitioners,

Respondents,

 

vs.

 

M.M.C., f/k/a M.M.S.,

Appellant,

 

D.V.C.

Respondent.

 

Filed May 9, 2006

Affirmed

Collins, Judge*

 

Hennepin County District Court

File No. PA 47846

 

Peter M. Banovetz, Banovetz Law Firm, L.L.C., 1711 West County Road B, Suite 300N, Roseville, MN  55113 (for respondents C.B. and A.B.)

 

Charles A. Beckjord, 301 Fourth Avenue South, Suite 270, Minneapolis, MN  55415 (for appellant M.M.C.)

 

D.V.C., 11 – 92nd Lane Northwest, Blaine, MN  55434 (pro se respondent D.V.C.)

 

            Considered and decided by Klaphake, Presiding Judge; Hudson, Judge; and Collins, Judge.


U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

In this third-party custody dispute, appellant mother argues that (1) respondent third parties cannot be de facto custodians under Minn. Stat. § 257C.01 (2004) because they interfered with mother’s custody of the child; (2) the record does not support the district court’s best-interests findings; and (3) the district court failed to apply In re Custody of N.A.K., 649 N.W.2d 166 (Minn. 2002).  We affirm.

FACTS

This dispute involves the custody of nine-year-old J.D.C., who is the son of appellant-mother M.M.C. and respondent-father D.V.C.  From mid-August 1999, until May 23, 2002, J.D.C. was informally in the sole care of his uncle and paternal aunt, respondents C.B. and A.B.  On May 23, 2002, mother took J.D.C. for a visit and did not return him.  Mother allowed alternate weekend visits with aunt and uncle until late 2002, when she terminated contact with them.

On May 7, 2003, aunt and uncle initiated this proceeding by service of a custody petition, together with supporting affidavits, on mother.  In September 2003, visitation with aunt and uncle on alternate weekends was reinstated by court order.  Following a two-day trial, the district court awarded custody of J.D.C. to aunt and uncle.  Mother’s new-trial motion was denied and this appeal followed.

D E C I S I O N

            Appellate review of custody determinations is limited to assessing whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996); Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); see In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (reciting this standard in case involving removal of children from natural parent).  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Pikula, 374 N.W. at 710; see N.A.K., 649 N.W.2d at 174.  But issues of statutory interpretation are reviewed de novo.  Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn. 2001).

I.

            A petitioner seeking recognition as a de facto custodian must show by clear and convincing evidence that the provisions of Minn. Stat. § 257C.01, subd. 2, are met.  Minn. Stat. § 257C.03, subd. 6(a)(1) (2004).  Minn. Stat. § 257C.01, subd. 2 (2004), states:

(a) “De facto custodian” means an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of:  . . . 

            (2) one year or more, which need not be consecutive, if the child is three years of age or older.

 

            (b) For purposes of the definition in this subdivision, any period of time after a legal proceeding has been commenced and filed must not be included in determining whether the child has resided with the individual for the required minimum period.

 

            (c) For purposes of the definition in this subdivision, “lack of demonstrated consistent participation” by a parent means refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship, including, but not limited to, providing the child necessary food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child’s physical, mental, or emotional health and development.

 

See also Minn. Stat. § 257C.03, subd. 6(b) (2004) (listing additional factors to consider in determining a parent’s lack of demonstrated consistent participation),

            Mother argues that the evidence does not show a lack of demonstrated consistent participation on her part.  Although it is undisputed that aunt and uncle had custody of J.D.C. from August 1999 until February 2000,[1] while mother achieved sobriety, mother contends that aunt and uncle thereafter wrongfully refused to return J.D.C. to her when requested to do so.  Uncle testified that from sometime in 2000 until May 23, 2002, mother had visitation with J.D.C. one or two weekends each month, but that prior to May 23, 2002, there had been no request or discussion about J.D.C. staying with mother indefinitely.

            This proceeding was duly commenced on May 7, 2003; thus, the immediately preceding 24-month period dates from May 7, 2001.  J.D.C. resided with aunt and uncle for more than one year of that time period, from May 7, 2001, until May 23, 2002.  It is evident that during that time, aunt and uncle were the primary caretakers for J.D.C. and that they and not mother performed the parental duties set forth in Minn. Stat. § 257C.01, subd. 2(c).  Clear and convincing evidence supports the district court’s finding that aunt and uncle were J.D.C.’s de facto custodians.

II.

            Mother challenges the district court’s findings on several of the best-interests factors.  Proof by a preponderance of the evidence is required to show that it is in the child’s best interests to be in the custody of the de facto custodian.  Minn. Stat. § 257C.03, subd. 6(b); see Minn. Stat. § 257C.04, subd. 1 (2004) (listing best-interests factors).

            Intimacy

            The district court found:

            Of the adult caretakers in his life, the minor child has the most intimate relationship with and is most bonded to [aunt]; the child is least bonded to [mother].  He is more bonded to [stepfather][2] than to his mother.  This is especially significant because the child’s bond remained strongest with [aunt] even though he had been residing with his biological mother for over two years.

 

            The district court’s finding is supported by the report and testimony of custody- evaluator Maryellen Baumann.  Mother suggests that Baumann spent insufficient time with the parties and J.D.C.  We disagree.  Between October 2003 and April 2004, Baumann interviewed aunt and uncle on four occasions for a total of five hours; mother on five occasions for a total of 5.75 hours; and mother and stepfather on one occasion for two hours.  She also conducted a one-hour home visit of J.D.C. with aunt and uncle; a one-hour home visit of J.D.C. with mother and stepfather; and interviewed J.D.C. at school for one hour.  In July 2004, Baumann met for two hours with the parties and their attorneys.  In addition to her own observations, Baumann also relied on the report of child psychologist Susan DeVries, who evaluated J.D.C.

            Baumann concluded in her evaluation:

            [J.D.C.] is the least bonded to [mother].  This is surprising given the amount of time she has had him in her home.  His comments about her are favorable but he experiences her as busy and unavailable to play with him.  He wishes this would change.  His experience with her is cleaning or helping with the ministry, both enjoyable to him, but still work rather than child centered.

 

            [J.D.C.] praises [uncle] as a good uncle who plays interactively with him.  However, of all of the parties, [J.D.C.] is most attached to [aunt].  This is the conclusion of myself and Susan DeVries, M.A., L.P., Child Psychologist . . . .  [J.D.C.] views [aunt] as real nice, helping him with grades and the strongest source of caretaking for him.  The activities he is involved in with her are more child centered and he experiences [aunt and uncle’s] home as more fun.

 

            Mother argues that the district court apparently ignored evidence suggesting that J.D.C. had strongly bonded with mother and his siblings.  We defer to the district court’s assessment of the weight and credibility of evidence.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

            Primary caretaker

            The district court found, “The primary caretakers of the minor child for the majority of his life have been [aunt] and [uncle], especially prior to the service of the Petition o[f] Custody in this matter.  [Mother] has been the primary caretaker since May 23, 2002.”

            Mother argues that the district court erred in finding that aunt and uncle were J.D.C.’s primary caretakers for the majority of his life.  Mother concedes that aunt and uncle were the primary caretakers between 1999 and May 23, 2002.  But she argues that she and father initially shared caretaking duties and then father was the primary caretaker until 1999.  However, uncle testified that J.D.C. spent about six months with aunt and uncle during 1997; frequently stayed with them during the week in 1998 and 1999; and was with them for a total of about nine months in 1998.

The evidence supports a finding that aunt and uncle were J.D.C.’s primary caretakers during time periods before father’s arrest in August 1999.  Also, the district court properly focused on the time period recently before this proceeding was initiated.  Cf. Sefkow, 427 N.W.2d at 211-12 (explaining that primary caretaker is to be determined as of the separation of the parties if the separation date is reasonably close to the actual trial but analysis must be adjusted when there is a lengthy time period between separation and final resolution of case).

            Interaction and interrelationship of child with parents and siblings

            Mother argues that the district court assigned insufficient weight to J.D.C.’s relationship with his sister and half-sister, both of whom live with mother.  The district court found that J.D.C. has a good relationship with both of them.  It is the district court’s role to weigh the best-interests factors in light of the facts as found.  Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn. 1990).

Child’s adjustment to home, school, and community

            The district found that J.D.C. initially had problems adjusting to living with mother but is now comfortable in both homes.  Mother argues that no current problems were noted with J.D.C. living with mother.  But the district court found, “Based on the testimony of [Baumann], [J.D.C.] shows greater anxiety and is guarded and engages in monitoring adult reactions at [mother’s] residence.  He does not show this anxiety or guarding at [aunt’s and uncle’s] residence, indicating he is more comfortable there.”  Baumann testified that both she and DeVries observed that at mother’s home, J.D.C. showed greater anxiety and was more on-guard, “monitoring what adults are thinking, how they’re watching him with their indications of their pleasure or displeasure of his behavior, and it’s not present at all in any other home.”

            Length of time child lived in stable, satisfactory environment, and desirability of maintaining continuity

            Mother argues that the district court’s finding on this factor improperly ignored evidence that J.D.C. is comfortable and doing well in his current school.  Even if J.D.C. is comfortable and doing well in school, the district court’s finding shows a legitimate concern with mother’s failure to promote stability in J.D.C.’s life.  Specifically, the district court found:

            The minor child experienced significant change and chaos in his life after [mother] kept him in May, 2002.  She cut off almost all contact between the child and the [aunt and uncle], who unquestionably were his “emotional” parents at that time.  As noted in the custody evaluation and other places in these Findings, this forced separation resulted in emotional turmoil for the child.  Further, [mother] moved him to a new home, ceased his long-time karate lessons, and changed his school and daycare.  Although he functionally had been an “only child” up until then, he had to adjust to siblings in the home, other siblings in and out of the home, and later the presence of [stepfather] . . . .  The custody evaluation indicates that the child has had “an extremely unstable environment early in life and again within the last two years.”  This is “more impactful” in this child’s situation because both biological parents have histories of chemical abuse and impulsivity which may be inherited by [J.D.C.], therefore a need for “Greater stability is critical.”

 

The evidence supports the district’s finding that aunt and uncle, in contrast, have consistently provided J.D.C. with a stable environment.

            Permanence as a family unit of existing or proposed custodial home

            Mother argues that although stepfather is a convicted murderer, he complied with an extensive treatment program while incarcerated and is no longer violent and does not pose any threat to J.D.C.  The district court acknowledged stepfather’s rehabilitation, specifically finding that stepfather “obtained significant chemical dependency and mental health treatment during his 24 years in prison and has functioned well since returning to the community and has had no issues which would cause concern.”

            Mother argues that since attaining sobriety five years ago, she has been able to financially support herself and her children and provide J.D.C. with a stable and permanent family unit.  Although mother’s current sobriety is undisputed, evidence of record casts doubt on mother’s ability to provide J.D.C. with a stable home and permanent family unit in the long term.  Specifically, the district court found:

            [Mother] has had a very unstable life.  She has had multiple marital or quasi-marital relationships resulting in children with several different men.  This has a negative effect on children in her household because they become attached to the current partner and their sense of permanence is disrupted when that person leaves the household.

 

The district court also considered mother’s history of chemical abuse and the stressors in her relationship with stepfather.

Mother cites no authority indicating that the district court erred in considering her previous history and the stressors in her current relationship with stepfather.  Absent such authority, there is no basis for this court to conclude that the district court erred in weighing this factor in favor of aunt and uncle.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (noting that to prevail on appeal appellant must show error and that error caused prejudice).

            Mental and physical health of all individuals

            Mother argues that the district court improperly minimized her sobriety.  The district court found, “Although [mother] is sober at this time, there is significant concern because she has been shown to minimize her chemical use history and her sobriety was so rapid as to cause concern whether she has adequately addressed the issues underlying her chemical dependency.”  The district court’s finding is supported by Baumann’s testimony:

[W]hile [mother] has made a good recovery from her chemical dependency, certainly one of the treatment centers, the treatment center she most recently went to, described what is commonly referred to in the health field as “the flight to health,” which is a recovery without addressing the underlying issues.

 

We defer to the district court’s assessment of the weight and credibility of evidence.  Sefkow, 427 N.W.2d at 210.

            Mother argues that the district court should have considered aunt’s and uncle’s ages as they are in their 60s and much older than mother and stepfather.  Although the district court did not make a specific finding on their ages, the court did consider their physical and mental health and interactions with J.D.C.

            Capacity of parties to give child love, affection, and guidance and disposition of each parent to encourage and permit contact between other parent with child

            Mother argues that the district court divested her of her parental rights because she does not get along with aunt and uncle.  The district court did not divest mother of her parental rights.  The district court granted mother parenting time with J.D.C., and an order in a third-party custody proceeding is subject to possible future modification of custody under Minn. Stat. § 518.18 (2004).  Minn. Stat. § 257C.06 (2004).  Compare Minn. Stat. § 260C.317 (2004) (severing all parental rights after termination proceeding, including all rights to custody, control, parenting time, or support).  The district court properly considered mother’s relationship with aunt and uncle to the extent of noting that mother’s interactions with and attitude toward them negatively impacted J.D.C.

            The district court made detailed findings on the best-interests factors.  Those findings are amply supported by the evidence and are not clearly erroneous; what is clear is that the district court carefully considered all of the evidence.  The district court did not abuse its discretion in determining that awarding custody to aunt and uncle is in J.D.C.’s best interests.

III.

            Mother argues that the district court failed to apply the standard that a natural parent can only be deprived of custody of a child upon a showing of extraordinary circumstances of a grave and weighty nature.  See N.A.K., 649 N.W.2d at 175 (citing Durkin v. Hinich, 442 N.W.2d 148 (Minn. 1989); Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971)).  N.A.K. was decided before the effective date of chapter 257C.  Minn. Stat. § 257C.04, subd. 1(c) (2004), states, “The court must not give preference to a party over the de facto custodian or interested third party solely because the party is a parent of the child.”

            We need not determine whether the N.A.K. standard still applies following the enactment of chapter 257C because the district court’s findings in this case are sufficient to meet the standard of extraordinary circumstances of a grave and weighty nature.

            The district court did not err in awarding custody of J.D.C. to his aunt and uncle.

            Affirmed.



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

[1] The reference in mother’s brief to February 2005, appears to be a typographical error.  It appears that mother intended to refer to February 2000, which is when she regained custody of her other children.

[2] The reference to “father” in this finding appears to be a typographical error.  The custody evaluation states that J.D.C. is closer to stepfather than to mother and that J.D.C. does not currently have contact with father.