This opinion will be unpublished and

may not be cited except as provided by

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





In re the Matter of:
John Dwayne Land and Stacy Marie Land,
o/b/o Lawrance Dwayne Skagen, a minor,


Linda Sue Skagen and Kirk Andrew Sander,


Filed November 13, 2007


Kalitowski, Judge


Washington County District Court

File No. F0-04-7300


John Dwayne Land, Stacy Marie Land, 6386 207th Street North, Forest Lake, MN 55025 (pro se respondents)


Kathy K. Hart, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for appellants)


            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants Kirk and Linda Sander challenge the district court’s award of sole legal and physical custody of their biological son to respondents, his maternal aunt and uncle, as de facto custodians under Minn. Stat. § 257C.01, subd. 2(a) (2006).  Appellants argue that:  (1) respondents’ custody petitions were deficient; (2) respondents failed to establish by clear and convincing evidence that they were the child’s de facto custodians; (3) the child was placed with respondents for the purposes of adoption, which would exclude them from the definition of de facto custodians; (4) the district court improperly applied the best-interest-of-the-child factors for third-party custody; and (5) the district court abused its discretion by denying appellant’s motion for a new trial.  We affirm. 



            Appellants argue that respondents failed to allege the required jurisdictional facts in their custody petitions.  Custody determinations are reviewed against an abuse of discretion standard.  In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002).  Statutory interpretation is a question of law reviewed de novo. Turner v. Mut. Serv. Cas. Ins. Co., 675 N.W.2d 622, 624 (Minn. 2004).  A petition for third-party custody must allege, verify, and establish 15 elements by competent evidence.  Minn. Stat. § 257C.03, subd. 2 (2006).  “Competent evidence” lacks a precise definition, but it is less than petitioners’ ultimate burden.  See Lewis-Miller v. Ross, 710 N.W.2d 565, 570 (Minn. 2006) (declining to determine the meaning of “competent evidence” for the purposes of Minn. Stat. § 257C.03, subd. 2(b), but remarking that it is the lesser burden of the statute’s two-stage process). 
            Appellants acknowledge that respondents’ original petition for custody properly alleged the 15 jurisdictional requirements.  We reject appellants’ argument that respondents omitted two elements in their amended petition for custody and adoption:  (1) the length of time the child resided with respondents and (2) that it is in the child’s best interest for respondents to have custody.  Respondents stated in their petition that “since the birth” of the child they “have had physical custody of the minor child in their home” and claimed that granting their petition “is in the best interests of the child . . . .” 
            Appellants further argue that respondents failed to prove by competent evidence that they are the child’s de facto custodians because appellants provided some care for the child while he was in respondents’ custody.  But petitioners are not required to demonstrate the biological parents had no contact with their child.  Rather, they must establish that the child “resided with [petitioners] . . . with a lack of demonstrated consistent participation by a parent.”  Minn. Stat. § 257C.01, subd. 2(a). 
            Respondents have had physical custody of the child since he left the hospital, two days after his birth.  Respondents alleged in their amended petition that they “received the child into their home and openly held out the child as their natural child.”  Appellants argue that because they provided some child care over a one-year period they consistently participated.  But this arrangement is not equivalent to the “demonstrated consistent participation” required by the statute.  Id., subd. 2(c). 
            Appellants also argue that the district court erred in considering respondents’ amended petition for custody and adoption under the third-party custody statute.  But appellate review is generally limited to issues presented and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Rather than challenging the application of the third-party custody statute at trial, appellants requested it be applied in amended findings by the district court.   
            Because respondents fully complied with the petition requirements of the third-party custody statute, and appellants did not challenge the statute’s application at trial, the district court did not err in considering respondents’ petition. 


Appellants argue that respondents did not show by clear and convincing evidence that they were the child’s de facto custodians.  We disagree.  A district court’s findings of fact will be sustained unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.  “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Appellate courts defer to a district court’s credibility determinations.  Id. at 472 (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)). 
A third party seeking custody of a child as a “de facto custodian” must have been the child’s “primary caretaker” for 12 of the 24 months immediately preceding the filing of the custody petition if the child is three years old or older.  Minn. Stat. § 257C.01, subd. 2(a).  Primary caretakers reside with the child “without a parent present and with a lack of demonstrated consistent participation by a parent.”  Id. 

            ‘[L]ack 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.  



            The following factors must be considered by the court in determining a parent’s lack of demonstrated consistent participation for purposes of section 257C.01, subdivision 2:

(1)  the intent of the parent or parents in placing the child with the de facto custodian;

(2)  the amount of involvement the parent had with the child during the parent’s absence;

(3)  the facts and circumstances of the parent’s absence;

(4)  the parent’s refusal to comply with conditions for retaining custody set forth in previous court orders;

(5)  whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and

(6)  whether a sibling of the child is already in the petitioner’s care.


Minn. Stat. § 257C.03, subd. 6(b).  The petitioners must demonstrate that they are “de facto custodians” by clear and convincing evidence.   Id., subd. 6(a).    

Because the child was three years old when respondents filed their third-party custody petition, they must prove they were his primary caretaker for 12 of the preceding 24 months.  Appellants do not dispute that the child has lived with respondents since birth.  Rather, appellants argue that respondents failed to prove the “lack of demonstrated consistent participation” element during the period when appellants helped with the child’s care.  We conclude that the district court properly considered the required factors and that its conclusions are supported by the record. 
            The district court found that appellants gave up the child to respondents intending never to exercise parental rights over him again.  The record supports this finding.  Appellants testified that they wanted to give up their child for adoption.  Appellants waived their parental rights in a document consenting to his adoption by respondents.  The biological father testified that he and the child’s mother wished “to be a part of [the child’s] life on a continual basis, not a hundred percent obviously, but a percentage amount where it was like he would know who we were regardless.” 
            The district court found appellants’ involvement in the child’s life to be inexcusably sporadic.  This too is supported by the record.  The child’s biological father testified that they saw the child only at holidays during his first few months, then increasing to every other weekend until the child was six months old.  For the next year respondents lived in Pine City and appellants did not see their child.  Although appellants argue their absence was involuntary because respondents “hid” in Pine City, the district court did not find appellants’ explanation credible.
            The time period when appellants provided some child care was not considered by the district court to be “consistent participation.”  Although the district court concluded that appellants provided far less care for the child than they claim, its ultimate conclusion that appellants never assumed the role of his “parents” does not depend on a determination of the exact length of time the child-care arrangement existed.  “Except for some intermittent child care from August 2003 to August 2004, [respondents] have provided near complete caretaker functions for [the child] since his birth.” 

[T]he care and involvement provided by the Respondents during this short period of time was within the purview of babysitters or daycare providers.  It is likely true that at some times this included providing food or milk for [the child].  But their claim that they were primary caretakers – or that they were stepping into the role of parents – is simply not believable.


The biological father himself testified that respondents “have played an exceptional role over the past nearly five years” and “have raised [the child].”  Further, the custody evaluator testified that respondents were clearly the primary caretakers of the child.
            Finally, the record supports the district court’s conclusion that the remaining factors were inapplicable to the facts of the case.  We conclude that the district court’s determination that respondents were the de facto custodians of the child was not clearly erroneous.


            Appellants argue that respondents were excluded by the statute as de facto custodians because the child was placed with them for the purposes of adoption.  We disagree.  Issues of statutory interpretation are reviewed de novo.  Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn. 2001).  Under the statute, “‘[d]e facto custodian’ does not include an individual who has a child placed in the individual’s care . . . for adoption under chapter 259.”  Minn. Stat. § 257C.01, subd. 2(d) (emphasis added).  “‘Placement’ means the transfer of physical custody of a child from a birth parent or legal guardian to a prospective adoptive home.”  Minn. Stat. § 259.21, subd. 8 (2006). 
            Direct adoptive placement, where the birth parent places the child in the adoptive parent’s home, must follow a procedure imposed by statute.  Id., subd. 10.  “Before a child is placed in a prospective adoptive home by a birth parent or legal guardian, other than an agency, the placement must be approved by the district court in the county where the prospective adoptive parent resides.”  Minn. Stat. § 259.47, subd. 3 (2006).
            Although there is evidence that the parties agreed respondents would adopt the child, the record does not establish that the child was placed in respondents’ care for adoption under chapter 259.  Because the child’s placement was not approved by the district court, the placement was not within the chapter.  We conclude that respondents are not excluded from the definition of de facto custodians because the record does not indicate that the child was placed with them for adoption under chapter 259.


Appellants argue that the district court did not properly apply the best-interest-of-the-child factors under the third-party custody statute.  We disagree.  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); see In re Custody of N.A.K., 649 N.W.2d 166, 174 (Minn. 2002) (applying this standard when children were removed from a natural parent).  After third-party custody petitioners have shown by clear-and-convincing evidence they are “de facto custodians,” they must prove by a preponderance of the evidence that an award of custody in their favor is in the child’s best interest.  Minn. Stat. § 257C.03, subd. 6(2) (2006).  
            Appellants argue that the district court erred in concluding the best-interest factors for third-party custody are the same as the factors for custody.  We disagree.  The best-interest factors are nearly identical.  Minn. Stat. § 518.17, subd. 1 (2006), Minn. Stat. § 257C.04, subd. 1 (2006).  Thus, the district court, having improperly made its original findings based on the custody statute, was correct in concluding that the best interest evaluation did not require further analysis to comply with the third-party custody statute.
            On this record, the district court did not abuse its discretion in finding that it was in the child’s best interest for custody to be awarded to his de facto custodians.  The custody evaluation prepared by Washington County specifically addressed “the Best Interest Factors identified in Minnesota Statute 257C.04” and concluded it was in the child’s best interest to remain with respondents.  The evaluator, who has 20 years of experience in child custody resolution, reiterated her findings in her trial testimony.  Furthermore, in the third-party custody context the court may not give preference to a biological parent “solely because the parent is a parent.”  Minn. Stat. § 257C.04, subd. 1(c).  We conclude that the district court’s findings on the best-interest factors were supported by the evidence.


Appellants argue that the district court should have granted their motion for a new trial.  We disagree.  Because the district court has the discretion to grant a new trial, its decision will not be disturbed absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).    An appellate court usually defers to the district court, “which has the feel of the trial,” in its decision whether to grant a new trial.  Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983), appeal after remand, 363 N.W.2d 351 (Minn. App. 1985).  Additionally, “[o]n a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct entry of a new judgment.”  Minn. R. Civ. P. 59.01. 
            Appellants argue that they were entitled to a new trial because the decision was incorrectly based on the custody statute and not supported by the evidence.  A decision not justified by the evidence or contrary to law is grounds for a new trial.  Id.  But “
it shall not be presumed, on appeal, to have been made on the ground that the verdict, decision, or report was not justified by the evidence.”  Id.  

            The district court admitted that its original order erroneously applied the custody statute in lieu of the third-party custody statute.  But because this error was corrected by the court in its amended order, a new trial was unnecessary.  We reject appellants’ argument that the evidence did not support its decision because appellants’ argument merely challenges the district court’s credibility determination.  We conclude that the district court did not abuse its discretion by denying appellants’ motion for a new trial.



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