This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2470

 

In the Matter of the Welfare of the Child of:
C. P. C. and R. V. L., Jr., Parents,

and

C. P. C., petitioner,
Respondent,

vs.

R. V. L., Jr.,
Appellant.

 

 

Filed June 19, 2007

Affirmed

Wright, Judge

 

Chisago County District Court

File Nos. 13-JV-06-177, 13-FA-06-341

 

 

Ann M. Tessneer, Tessneer & Kelsey Law Office, 440 North Emerson Street, Cambridge, MN55008 (for appellant)

 

William D. Siegel, Beverly K. Dodge, Barna, Guzy & Steffen, 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN† 55433 (for respondent)

 

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

In this appeal from the district courtís termination of his parental rights and denial of his motion for a new trial, appellant-father maintains that respondent-mother violated discovery rules by failing to produce witness statements before trial.† He also challenges the sufficiency of the evidence that he abandoned the child and that termination of parental rights is in the childís best interests. ††We affirm.

FACTS

D.L.L. was born to appellant R.V.L. (father) and respondent C.P.C. (mother) in June 2000.† The parties signed a recognition of parentage, and a formal adjudication of paternity occurred in conjunction with the instant case.† During their relationship, father used drugs and alcohol and physically abused mother.† On one occasion, while caring for D.L.L., father passed out after consuming an excessive quantity of alcohol.† When mother returned home, an altercation ensued; father was arrested and charged with disorderly conduct.† The parties ended their relationship when D.L.L. was three months old.

††††††††††† In 2001, the district court granted mother sole physical and legal custody of D.L.L. and granted father parenting time supervised by D.L.L.ís paternal grandparent.† Father was ordered to pay child support and cease acts of domestic abuse against mother. †The district court further ordered the parties to have no direct contact with one another.

According to motherís testimony, father participated in supervised parenting time with the assistance of D.L.L.ís paternal grandfather on approximately five occasions.† On the last occasion, D.L.L.ís grandfather returned D.L.L. and refused to supervise future visits because father was not caring for his son.† Two weeks later, father attempted to pick up D.L.L. for parenting time without supervision.† Mother refused. †Since that occasion, father has not attempted to contact D.L.L.†

††††††††††† In 2004, father was convicted of first-degree murder and sentenced to a prison term of 30 years to life.† Father continued to make no effort to contact D.L.L.† With the exception of one payment made during the first year of D.L.L.ís life, father has not contributed to D.L.L.ís support.

In March 2006, mother petitioned to terminate fatherís parental rights, alleging that father had abandoned D.L.L., neglected his parental duties, and is unfit to be a party to the parent-child relationship.† The district court appointed a guardian ad litem (GAL) on behalf of D.L.L.† During the GALís investigation, she spoke with mother, father, and D.L.L.; reviewed county records; and spoke with D.L.L.ís teachers and school counselors.†

On June 5, 2006, father moved for discovery of ďcopies of written summaries of any witness statementsĒ as required under Minn. R. Juv. Prot. P. 17.01(a).† The district court denied fatherís motion.† Trial commenced on August 23, 2006, and father moved for reconsideration of his motion to compel discovery.† The district court denied the motion, observing that mother was not required to ďproactively provide [father] with the substance of anticipated testimony.Ē††

At trial, the GAL testified that D.L.L. has a very close relationship with mother, has no relationship or knowledge of his father, and is doing very well in school.† She also testified that D.L.L. has not seen father or any member of fatherís extended family since he was one-and-one-half years old.† Based on the investigation, the GAL concluded that termination of fatherís parental rights is in D.L.L.ís best interests.† D.L.L.ís maternal grandmother and maternal aunt both testified that they have never heard D.L.L. ask any questions about father.† Regarding D.L.L.ís relationship with fatherís extended family, mother testified that fatherís extended family had made no attempt to contact D.L.L. for almost five years since supervising fatherís parenting time.† †

In its order filed September 22, 2006, the district court terminated fatherís parental rights and granted motherís request to change D.L.L.ís name to D.L.C.† Father moved for a new trial, which the district court denied.† This appeal followed.†

D E C I S I O N

 

I.

 

Father argues that the district court erred by denying his motion for a new trial on the grounds of a discovery violation.† Father maintains that motherís failure to disclose before trial the substance of oral statements made by motherís witnesses violated Minn. R. Juv. Prot. P. 17.01(a).† Whether motherís actions constitute a discovery violation is an issue of law, which we review de novo.† State v. Scanlon, 719 N.W.2d 674, 685 (Minn. 2006).

Rule 17.01(a) provides in pertinent part:

The petitioner shall allow access at any reasonable time to all information, material, and items within the petitionerís possession or control which relate to the case.† The petitioner shall permit inspection and copying of any relevant documents, recorded statements, or other tangible items which relate to the case within the possession or control of the petitioner and shall provide any party with the substance of any oral statements which relate to the case.

 

Minn. R. Juv. Prot. P. 17.01(a).† To address the issue presented, we apply the canons of construction to the Minnesota Rules of Juvenile Protection Procedure.† Minn. Stat. ß 645.001 (2006); Breza v. City of Minnetrista, 706 N.W.2d 512, 515 n.3 (Minn. App. 2005).† In doing so, we first determine whether the language of the rule is facially ambiguous.† Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001).† Such language is ambiguous only when the plain meaning of the words and phrases is subject to more than one reasonable interpretation. †Minn. Stat. ß 645.08(1) (2006); Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn. 1999); Frankís Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).†

Mother did not interview her witnesses or obtain any witness statements, written or oral, until one-half hour before trial.† The plain and unambiguous language of rule 17.01(a) does not, as father urges, require a petitioner to create summaries of anticipated oral testimony in advance of trial and provide them to an opposing party.† After the witness interviews, the district court permitted father to obtain the substance of any information that mother received during the interviews.† There is no evidence that mother intentionally postponed witness interviews to avoid compliance with the discovery requirements.†

Father contends that he suffered prejudice because, had he received earlier disclosure of the witnessesí oral statements, he would have sought a continuance to prepare evidence to rebut motherís allegations.† But rule 17.01 does not require a party to interview its witnesses on a schedule that best suits an opposing party.† Indeed, rule 17.01 does not require witness interviews at all.† Rather, the rule requires the disclosure of oral or written witness statements when they exist.† Furthermore, the petition to terminate parental rights and the GAL report gave father notice of the specific allegations at issue in the case.† And father was free to obtain additional information by deposing or interviewing motherís witnesses in advance of trial.†

Fatherís interpretation of rule 17.01(a) is inconsistent with its plain language.† Because the record establishes as a matter of law that a discovery violation was not committed, the district courtís denial of fatherís request for a new trial was proper.††

II.

†Father also argues that the district courtís determination that he abandoned D.L.L. is without sufficient evidentiary support.† We review a district courtís order terminating parental rights to determine whether the district courtís findings address the requisite statutory criteria, are supported by substantial evidence, and are not clearly erroneous.† In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).† Although we accord deference to a district courtís decision to terminate parental rights, we closely examine the evidence to determine whether it is clear and convincing.† Id.† Such ďevidence 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.Ē† In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).† We will affirm the decision to terminate parental rights if at least one statutory ground alleged in the petition for termination is supported by clear and convincing evidence and termination is in the childís best interests.† In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); seeMinn. Stat. ß 260C.301, subds. 1(b) (providing grounds for termination of parental rights), 7 (2006) (providing that best interests of child is paramount consideration).†

Father argues that the district courtís finding that he intentionally abandoned D.L.L. is clearly erroneous because his failure to maintain contact with D.L.L. is in part the result of motherís actions.† Parental abandonment is presumed when, without a showing of good cause, ďthe parent has had no contact with the child on a regular basis and [has] not demonstrated consistent interest in the childís well-being for six months.Ē †Minn. Stat. ß 260C.301, subd. 2(a)(1) (2006).Absent this statutory presumption, abandonment may be found when a parent has deserted the child and intends to forsake the duties of parenthood.† R.W., 678 N.W.2d at 55.† A finding of abandonment, however, may not be based solely on a parentís incarceration.† Id. (citing In re Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (Minn. 1970)).† Factors in addition to incarceration must support an abandonment finding.† Id.†Such factors may include a parentís failure to maintain direct contact with the child during incarceration, failure to visit or inquire about the child when not incarcerated, violent history, current behavior, and intent to forsake the duties of parenthood.† Id. at 56; Staat, 287 Minn. at 506, 178 N.W.2d at 713; In re Children of Vasquez, 658 N.W.2d 249, 254 (Minn. App. 2003).

Our careful review of the record establishes that substantial evidence supports the district courtís determination that, both before and during his incarceration, father failed to maintain contact with D.L.L. and demonstrated an intent to forsake his parental duties.† Father has utilized his parenting time on only approximately five occasions. †After his incarceration for first-degree murder, father continued to make no effort to contact D.L.L.† With the exception of one child-support payment made during D.L.L.ís first year of life, father has not contributed to D.L.L.ís support. †And the record reflects these circumstances are unlikely to change in the foreseeable future.

Father contends that he failed to remain an active part of D.L.L.ís life because he did not know where mother and D.L.L. lived and, therefore, was unable to contact D.L.L.† Father admitted, however, that he never made efforts to contact mother or her attorney to arrange visitation with D.L.L.† The record establishes that D.L.L. and mother lived in the home of D.L.L.ís maternal grandparents until May 2004.† The telephone number for this residence has always been published in the telephone book, as has the telephone number for the business owned by D.L.L.ís maternal grandfather where father once had been employed.† Father also could have attempted to learn D.L.L.ís whereabouts from motherís brother who continues to live at the same location where father and mother lived when D.L.L. was born.† There is substantial evidence that father made little or no effort to locate D.L.L. or to arrange for parenting time after 2001.† Fatherís conduct meets the statutory presumption of abandonment, and the district courtís determination that father abandoned D.L.L. is supported by substantial evidence.

III.

††††††††††† Even after a statutory ground for termination of parental rights has been proved by clear and convincing evidence, the district court may terminate parental rights only if the best interests of the child will be served by termination.† Minn. Stat. ß 260C.301, subd. 7 (ď[T]he best interests of the child must be the paramount consideration . . . .Ē); see also In re Welfare of D.L.R.D., 656 N.W.2d 247, 252 (Minn. App. 2003) (holding that district court did not err by finding termination of parental rights in childís best interests).† The best interests of the child are determined by balancing three factors: the childís interests in preserving the parent-child relationship; the parentís interests in preserving the parent-child relationship; and any competing interests of the child.† In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).† Competing interests include such factors as a stable environment, health considerations, and the childís preferences.† Id.

††††††††††† The district court found that it would be in D.L.L.ís best interests to terminate the parent-child relationship with father who ďhas long since abandoned [D.L.L.] and who has chosen a life of crime and violence.Ē† In balancing the best-interests factors, the district court found that father and D.L.L. have ďno relationship to preserveĒ and that ďthe competing interests of the child in stability and consistency tip the scales in favor [of] termination as in the best interest[s] of the child.Ē †This finding is supported by substantial evidence including fatherís lack of contact with D.L.L. for almost five years.† The GALís determination that D.L.L. has no memory of his father and has not seen any member of fatherís extended family since he was one-and-one-half years old, along with the testimony of several witnesses, including D.L.L.ís maternal grandmother and maternal aunt, that they have never heard D.L.L. ask any questions about father lend ample support to the determination that D.L.L. does not have an interest in preserving the parent-child relationship.† Moreover, under motherís care, D.L.L. lives in a stable environment, performs well in school, and enjoys a very close relationship with his mother.

††††††††††† Father maintains that the district court gave insufficient weight to the effect that terminating fatherís parental rights would have on D.L.L.ís relationship with fatherís extended family.† But it is clear from the district courtís order that the district court was persuaded by the GALís best-interests analysis in which she acknowledged the benefits of extended-family relationships and ultimately concluded that terminating fatherís parental rights was in D.L.L.ís best interests.† Moreover, the district court independently considered the evidence and determined that neither paternal grandparent had attempted to contact or visit D.L.L. for almost five years before the commencement of the termination-of-parental-rights action.† On this record, the district court properly balanced the competing interests of father and D.L.L. †Its determination that termination of fatherís parental rights is in D.L.L.ís best interests is supported by substantial evidence.

††††††††††† Affirmed.††