This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed March 13, 2007
Toussaint, Chief Judge
Lamar T. Piper, Watonwan County Attorney, Watonwan County Courthouse, 710 Second Avenue South, Post Office Box 518, St. James, MN 56081 (for respondent Watonwan County Human Services)
James D. Fleming, Fifth District Public Defender, Troy G. Timmerman, Assistant Public Defender, 2423 Albion Avenue, Suite 6, Fairmont, MN 56031 (for respondent R.A.T.)
Darci Jo Bentz, Scott Nielsen & Bentz, P.A., 117 North Main Street, Fairmont, MN 56031 (for respondent J.T.)
Shiree Oliver, Guardian ad Litem, Watonwan County Courthouse, 710 Second Avenue South, St. James, MN 56081
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this child-placement appeal arising after a termination of parental rights, appellant M.T.G., the children’s maternal grandmother, argues that the district court failed to give her a statutory preference to be the children’s custodian and that the record lacks evidence to rebut that statutory preference. We affirm the district court’s treatment of the statutory custody preference but reverse its rejection of grandmother as a potential custodian and remand for further proceedings.
The children who are the subject of
this proceeding are
Under Minn. Stat. § 260C.212, subd. 2(a) (2004):
policy of the state of
(1) with an individual who is related to the child by blood, marriage, or adoption; or . . . .
argues that, as the children’s blood relative, this statute makes her a favored
placement for the children. The county
disagrees, arguing that Minn. Stat. § 260C.212, subd. 2(a) applies to
temporary, rather than permanent, placements and that any priority given a
blood relative under prior versions of this or similar statutes and associated
caselaw has been removed. Questions of
statutory interpretation are legal questions that are reviewed de novo. In re
Welfare of J.M., 574 N.W.2d 717, 721 (
Under current law, if the court
terminates parental rights of both parents, it “shall order” transfer of the
guardianship and legal custody of the child to one of certain
In addressing grandmother’s petition, the district court stated that “placement with a relative is preferred under the language of Minn. Stat. § 260C.212, subd. 2, where all other considerations are either equal or otherwise favor such placement.” Grandmother argues that the district court misapplied the statute because, under Minn. Stat. § 260C.212, subd. 2(a)(1) (2004), she is entitled to “first priority in placement” and that she cannot lose this preference without a showing that placement of the children with her would be detrimental to the children. Grandmother is incorrect.
The caselaw grandmother cites to
support her argument is stale. The most
recent case she cites is In re C.H.,
554 N.W.2d 737 (
In 1997, the statutes creating the adoption and juvenile-protection placement preferences were amended. The juvenile-protection statute was amended as follows:
Subd. 3. PROTECTION OF
HERITAGE OR BACKGROUND-THE
CHILD’S BEST INTERESTS. (a) The policy of the state is to ensure
that the best interests of children are met by requiring due, not sole,
consideration of the child's race or ethnic heritage individualized
determinations of the needs of the child and of how the selected placement will
serve the needs of the child in foster care placements.
. . . .
(c) The court, in
transferring legal custody of any child or appointing a guardian for the child
under the laws relating to juvenile courts, shall
place the child, in the
following order of preference, consider placement, consistent with the
child’s best interests and in the following order, in the absence of
good cause to the contrary,- in the legal custody or guardianship of
an individual who (a)-(1) is related to the child by
blood, marriage, or adoption, or if that would be detrimental to the child
or a relative is not available, who (b)-(2) is an important
friend with whom the child has resided or had significant contact or if that
is not possible, who (c) is of the same racial or ethnic heritage as the child,
or if that is not possible, who (d) is knowledgeable and appreciative of the
child's racial or ethnic heritage. Placement
of a child cannot be delayed or denied based on race, color, or national origin
of the foster parent or the child. Whenever possible, siblings should be placed
together unless it is determined not to be in the best interests of a sibling.
When a child is to be placed out of the child’s home, the placing authority is to search for relatives of the child who might be able to provide a home for the child. Minn. Stat. § 260C.212, subd. 5 (2004). The district court found, and on appeal the county admits, that the relative search in this case did not satisfy the statute. The district court also found that “[n]otwithstanding” the inadequate relative search, “it is clear that the relative the parents wanted to come forward and obtain custody of the children was [grandmother,]” and this finding is not challenged on appeal.
The district court further found that the county’s inadequate relative search affected neither the district court’s determination that “[father] presents a threat to the safety of the children” nor its determination that “the children would probably be reunited with [father] if custody were transferred to [grandmother,]” and that, while the “Court would prefer to place the children with a family of Mexican descent[,] . . . the choice between cultural heritage and the physical safety of the children is, in reality, no choice at all[.]”
The record before this court includes the order terminating the parents’ parental rights. That order quotes medical testimony, some of it graphic, from the termination trial describing the extent and permanency of the injuries inflicted on the child who suffered “shaken baby syndrome,” the fact that these injuries could not have been accidentally inflicted, and the significant delay in getting medical attention for the injured child. This record amply supports the finding that the parents, and particularly father, present a danger to the children.
The district court’s finding that grandmother might expose the children to the parents is a prediction of grandmother’s future conduct. While both the social worker and the guardian ad litem expressed concerns that grandmother would allow the parents back into the children’s lives, that otherwise unsupported testimony and the district court’s finding are directly contrary to grandmother’s explicit testimony that she would not do so and that she would honor the termination of parental rights.
We recognize that a district court’s
findings of fact are not set aside on appeal unless clearly erroneous. C.H.,
554 N.W.2d at 743. We also recognize
both that district courts are in the best position to judge the weight and
credibility of evidence, as well as to make any inferences based on that
evidence, and that appellate courts generally defer to a district court’s
determinations on these subjects. See, e.g., In re Welfare of L.A.F., 554 N.W.2d 393, 396 (
First, the record presented to the
district court is incomplete. The
relative search and associated investigations are admittedly less than required
by statute. Second, the inferential
findings made by the district court seem to exceed the scope of the inferences
reasonably supportable by the record. See In
re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (
Also, the district court based its inference that grandmother is unable to refuse mother’s wishes to contact the children in part on grandmother and her husband allowing mother, at mother’s 15th birthday party, to marry someone of whom grandmother did not approve. But this inference seems inconsistent with the district court’s simultaneous statement that it was “not concerned by the fact that [grandmother] allowed [mother] to marry as [mother] chose.” Similarly, the district court’s finding that grandmother facilitated mother’s contact with the children after the termination of mother’s parental rights is based on grandmother giving a dress, provided to her by mother, to one child and taking pictures of the children. But the district court also found that “the dress incident was not technically a violation of the court order” and that both grandmother and her husband are professional photographers.
Moreover, while the district court found “some
ambivalence in [grandmother’s] attitude towards the diagnosis of shaken baby
syndrome, and the resultant termination of [the parents’] parental rights,”
grandmother’s ambivalence is only natural in light of the fact that the county
failed to provide grandmother with any specific information about the
diagnosis. Finally, while the district
court noted that grandmother’s desire to move the children to
On this incomplete record, and particularly in light of the district court’s stated preference “to place the children with a family of Mexican descent[,]” we cannot affirm the district court’s rejection of grandmother as a custodian of the children.
Because we conclude that this record does not support the inferential findings based upon which the district court eliminated grandmother from consideration as a potential placement for the children, we reverse this aspect of the district court’s ruling and remand for further development of the record and for the district court, in light of that developed record, to readdress grandmother’s petition for custody of these children. We express no opinion on the ultimate disposition of grandmother’s petition. Whatever the ultimate disposition of her petition is, it must be on an adequately developed record and findings supported by that record. Because we are remanding for further development of the record, we do not further address grandmother’s argument regarding the children’s best interests.
Affirmed in part, reversed in part, and remanded.