This opinion will be unpublished and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

A07-0826

 

C.O., petitioner,
Appellant,

vs.

John Doe, et al.,
Respondents.

 

Filed November 20, 2007

Affirmed

Halbrooks, Judge

Dissenting, Randall, Judge

 

 

Washington County District Court

File No. F6-06-71919

 

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Suite 100, Burnsville, MN 55337 (for appellant)

 

Michelle L. MacDonald, MacDonald Law Firm, LLC, 1069 South Robert Street, West St. Paul, MN 55118 (for respondents)

 

 

            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge. 

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant C.O. challenges the district court’s order to vacate the contact agreement between him and the adoptive parents of his biological daughter.  We affirm. 

FACTS

            Appellant’s daughter, A.D., was born on November 12, 2003.[1]  Two days after A.D.’s birth, the New Life Family Services adoption agency placed her with respondents John and Jackie Doe.  The parental rights of appellant and A.D.’s biological mother were terminated by district court order dated April 12, 2005, and respondents legally adopted A.D. in August 2005. 

            Approximately one month before appellant’s parental rights were terminated, he entered into a contact agreement with respondents pursuant to Minn. Stat. § 259.58 (2006).  This agreement provided that after respondents adopted A.D., appellant could continue to have limited contact with her under the terms of the agreement.

The contact agreement placed certain duties on each of the parties.  Respondents’ obligations included keeping appellant informed of important events in A.D.’s life, allowing appellant to visit A.D. every third weekend, and taking A.D. to visit appellant’s family in Panama.  The agreement also specified that appellant’s real relationship to A.D. would remain unknown; he was to be referred to only as “Papa Carlos.”  Appellant agreed to call respondents only at reasonable times and intervals and only for the purpose of contact with A.D.  Lastly, appellant and respondents agreed to hold the welfare of A.D. paramount and to subrogate their own interests when necessary to ensure that A.D.’s best interests were served.  If a dispute concerning contact with A.D. arose, the agreement required the parties to attempt to mediate the dispute.  If mediation did not resolve the dispute, the procedures outlined in Minn. Stat. § 259.58 regarding enforcement and modification of contact agreements governed.

            Within months of signing the agreement, a conflict arose between respondents and appellant regarding contact with A.D.  This resulted in the parties agreeing to amend the contact agreement in September 2005.  But disagreements between the parties continued, culminating when appellant moved in district court to enforce his rights under the contact agreement.  In their reply motion, respondents requested termination of the contact agreement pursuant to Minn. Stat. § 259.58(c).  Following a hearing, the district court granted respondents’ motion.  This appeal follows.  

D E C I S I O N

Minn. Stat. § 259.58 (2006) states, in part:

Adoptive parents and a birth relative or foster parents may enter an agreement regarding communication with or contact between an adopted minor, adoptive parents, and a birth relative or foster parents under this section.  An agreement may be entered between:

. . . .

(c) An agreed order entered under this section may be enforced by filing a petition or motion with the family court that includes a certified copy of the order granting the communication, contact, or visitation, but only if the petition or motion is accompanied by an affidavit that the parties have mediated or attempted to mediate any dispute under the agreement or that the parties agree to a proposed modification.  The prevailing party may be awarded reasonable attorney’s fees and costs.  The court shall not modify an agreed order under this section unless it finds that the modification is necessary to serve the best interests of the minor adoptee, and:

(1) the modification is agreed to by the parties to the agreement; or

(2) exceptional circumstances have arisen since the agreed order was entered that justify modification of the order.

 

            Appellant contends that the district court abused its discretion because no exceptional circumstances have occurred that justify modification or termination of the parties’ agreement and that he was not given an evidentiary hearing. 

“On appeal, a [district] court’s findings of fact are given great deference, and shall not be set aside unless clearly erroneous.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  In determining whether a finding is clearly erroneous, we view the evidence in the light most favorable to the district court’s findings, Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn. 1990), and defer to the district court’s credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  We will determine that a finding is clearly erroneous only if we are “left with the definite and firm conviction that a mistake has been made.”  Fletcher, 589 N.W.2d at 101 (quotation omitted).

            Minn. Stat. § 259.58(c) authorizes a district court to modify a contact order only if it finds that “exceptional circumstances have arisen since the agreed order was entered” and that the modification would be in the “best interests of the minor.”  The terms of the contact agreement here required each party to meet certain conditions in order to comply with the agreement, and there were contractually defined consequences for failure to meet those conditions. 

            The dissent characterizes respondents’ position as “buyers’ remorse” and suggests that respondents used the contact agreement as “bait” to secure appellant’s agreement to voluntarily terminate his parental rights.  We respectfully disagree.  The record here supports the district court’s factual findings, with a few exceptions, and provides a proper basis for the district court’s conclusion that exceptional circumstances have arisen that make modification of the agreement in A.D.’s best interests.

The district court made multiple factual findings in this matter, including:

5.         [Appellant] has made threats to disrupt the adoption, and used destructive language regarding the child’s adoption.

6.         The [appellant] has failed to comply with and abide by the contingencies in the contact agreement and order by his failure to abstain from consumption of alcohol, and his failure to attend substance abuse support group meetings.  He has failed to submit to reasonably requested random breath analysis, and has refused to allow the Respondents to inspect and approve of his living environment.

7.         Additionally, the [appellant] has failed to abide by the contact agreement and order requiring him to attend an adoption class or adoption counseling in order to learn more about the process of adoption.

8.         [Appellant] has made verbal threats to disrupt the adoption, including a threat to go to Respondents’ house [safe place] and remove the child.  The [appellant] left a voice mail message in which he threatened to take the child from the Respondents’ home.  [Appellant’s] conduct shows an overall disregard and contempt for the duly entered decree of adoption.

9.         The parties’ agreement provides that “failure to comply with the terms set forth in this paragraph may be grounds for termination of the agreement as it applies to the birth father [appellant].”

10.       [Appellant] made no showing with respect to his compliance with the terms set forth in the parties’ contact agreement.  Pursuant to the terms of the agreement, the [appellant’s] contact with the child was contingent upon his compliance with the specific terms as set forth in the agreement.

11.       [Appellant] has repeatedly used destructive and disrespectful language when referring to the child and her adoption by the Respondents.  The Respondents are fearful of the [appellant].

12.       At the hearing before [the district court], the [appellant] continued to refer to the child as “his daughter” and told [the district court] that in his opinion the child was purchased from the adoption agency by Respondents for $13,000.00.  [Appellant] argues that he has a good heart, that he was falsely accused of domestic assault, that he needs to have visitation with his “daughter.”  This further demonstrated his contempt and disregard for the adoption and the Respondents as [A.D.’s] parents.

. . . .

14.       Contact with the [appellant] will interfere with the parent child relationship between the Respondents and the child.  [Appellant] has not been respectful of Respondents role as the child’s parents and is likely to continue to be disrespectful of the parameters of the contact.

 

The record in this matter supports the vast majority of the district court’s findings of fact.  Respondents provided an affidavit from Jennifer Patrick, the director of the adoption agency that placed A.D. with respondents, that states that since appellant entered into the contact agreement with respondents, she has witnessed “extreme hostility and volatility from [appellant] towards agency representatives” and toward the adoption itself.  Appellant’s hostility has caused Patrick “grave concerns about the physical and psychological safety and well-being” of A.D.  Patrick’s affidavit also states that her 13 years of experience as a social worker and her involvement in hundreds of adoptions has led her to believe that continued contact with appellant would be “extremely detrimental” to A.D. 

A separate affidavit from Karissa Stel, office manager of the adoption agency, details similar abusive conduct by appellant.  Stel’s affidavit states that appellant became enraged when he called the agency and she told him that Patrick was not available to take his phone call.  He threatened to sue the agency for $45,000 and called Stel a “f--king b‑tch.”

Respondents submitted an affidavit that states that appellant has used abusive language toward them and that this, in combination with appellant’s other conduct, has led them to fear him and to have concerns that he might abduct A.D.  The tone of appellant’s messages left on respondents’ home telephone prompted them to call the police on one occasion.  The district court had recordings of several phone messages that appellant left on respondents’ phone, including:

That’s my daughter.  I make that baby with my body.  It’s my creation, it’s my daughter.  It’s not [respondents’] daughter. . . .  This is my daughter and what protect my daughter on my life my life just necessary. . . .  I tell you, I protect this baby with my life if necessary okay.  Okay, I’m ready for anything. . . .  [J]ust tell those people don’t make me mad . . . .

 

This is my daughter in here, in Panama, in America, in Jesus’s law is my daughter, okay.  Is my daughter, is my daughter no matter what it’s my daughter. . . . You are nothing.  You are nothing to stop the visitation. . . . You are nothing to stop the visitation.  You looking for more problems. . . .  The judge before no listen.  Talking my lawyer no good.  This time I promise you it’s different. . . .  Prepare for something. 

 

I want to know who are you for stop the visitation time.  You know what.  You look for big trouble. You already looking for trouble for you this time I tell you you in trouble. 

 

Bring [A.D.] at the time of the visitation time, okay? . . . You don’t want to do it, . . . me go to your house and get her!

 

            Respondents’ affidavit describes communication that they had with appellant when they suggested mediation as a means of resolving their differences:  “The day we asked Carlos to mediate on the phone, and told him our attorney would send him a list of mediators, he left some furious messages, threatening to come to our house which address is supposed to be unknown to him and get her.”  In addition, respondents addressed their acceptance of the concept of “open adoption” in their affidavit:

We also need the court to know that we are not requesting termination because we oppose open adoption.  To the contrary, we have an open adoption with the birth mother of our daughter, [respondents’ other child] and her family, and we have visited and have regular communication with A.D.’s birth mother, T.M.

 

            The record supports the district court’s findings that appellant violated multiple provisions of the contact agreement.  The contact agreement required appellant to attend an adoption class to learn more about the process of adoption.  There is no evidence he ever did so.  The agreement also required appellant to attend substance-abuse support classes.  While the record demonstrates that appellant irregularly attended Alcoholics Anonymous meetings from May 2003 to December 2004, there is no evidence that he attended a meeting after entering into the agreement. 

On the other hand, the district court’s findings that appellant failed to abstain from the use of alcohol within 24 hours of visiting A.D., failed to submit breath tests, and failed to allow inspection of his residence lack factual support in the record.  But these unsupported findings represent a small portion of the above-excerpted factual findings.  In addition, the dissent notes that respondents’ affidavit contains various hearsay statements made by appellant’s ex-wife and argues that this hearsay is inadmissible.  But the district court’s findings of fact do not reference any of the hearsay statements contained in respondents’ affidavit.  Therefore we do not conclude that the district court relied on them.  Aside from the few findings noted above that are unsupported by the record, we conclude that the overall record provides a sufficient basis for the district court’s factual findings. 

            Examining appellant’s assertion that his due-process rights were violated, the record shows that appellant moved the district court to enforce the contact agreement in August 2006.  In response to this motion, the respondents requested termination of the agreement.  Both parties submitted affidavits in support of their motions.  Appellant chose to represent himself at the hearing.  Upon commencement of the hearing, the district court told appellant to “[g]o ahead” and “make your argument, it’s your motion.”  Appellant then made his argument, concluding by stating, “At the moment, that’s all.”  After respondents’ attorney finished her argument, appellant was again given an opportunity to be heard.  While English is not appellant’s first language, he was provided with an interpreter at the hearing.  Because appellant was given a sufficient opportunity to be heard, we conclude that his due-process rights were satisfied.  See In the Matter of Welfare of HGB, MAB, & DJB, 306 N.W.2d 821, 825 (Minn. 1981) (“It is settled that the nature of due process is flexibility.  The amount of process due varies with the circumstances of the case.”).

Based on this record, we conclude that the district court’s factual findings are not clearly erroneous and support its determination that appellant’s threats to respondents’ and to A.D.’s safety and liberty constitute exceptional circumstances that arose after the contact agreement was entered into.  The district court did not abuse its discretion by concluding that vacation of the contact agreement is in A.D.’s best interests.

            Affirmed.

 


RANDALL, Judge (dissenting)

I respectfully dissent.  This case is “buyers’ remorse” in an atypical adoption scenario.  Within months of the adoptive parents getting what they wanted from appellant – him terminating his parental rights and their adopting his biological child – they regretted an agreement they had entered into before the adoption which allowed appellant contact with the child.  The court erred in finding “exceptional circumstances” had arisen justifying termination of the agreement.  The court clearly erred in finding they arose after the contact agreement, a prerequisite to termination of the agreement under the statute.  Minn. Stat. § 259.58(c) (2006).  Respondents’ allegations referred to circumstances that not only predated the agreement, but in many cases, were the impetus to the agreement.    

“Exceptional” means what it says.  Exceptional means grave and weighty; egregious, not just bad.  “Exceptional circumstances,” as used in Minn. Stat. § 259.58(c), is not defined by the statute and there is no case law on point.  “[W]ords and phrases are construed according to rules of grammar and according to their common and approved usage.”  Minn. Stat. § 645.08 (2006).  In ordinary usage “exceptional” is defined as:  “Being an exception; uncommon . . . .  Deviating widely from a norm . . . .”  The American Heritage College Dictionary 486 (4th ed. 2007).  None of respondents’ allegations rose to the level of exceptional. 

Appellant would not have agreed to terminate his parental rights to the child if not for the contact agreement.  He agreed to the adoption because he was told he would be at the child’s wedding someday.  Open adoptions can be a beneficial arrangement.  Here, the adoptive parents were allowed to use a contact agreement as bait.

Respondents convinced the district court that appellant should not have contact with the child because he did not respect the adoption process.  Most of that argument is based on appellant calling the child “his daughter.”  Respondents were worried this would be confusing to the child because she does not yet know that she was adopted.  Pursuant to the contact agreement the parties agreed “that the child shall know [appellant] and the parties shall refer to [him] as ‘Papa Carlos.’”  The contact agreement did not tell “Papa Carlos” how to refer to the child.  At the motion hearing, the adoptive parents’ counsel argued it “is very confusing if little ears hear [appellant refer to the child as his ‘daughter’].” 

            The parties agreed to an open adoption whereby the natural father would be known to the child as “Papa.”  The terminology agreed upon by the adoptive parents created this title for appellant.  Appellant calling the child his “daughter” is a natural consequence from this self-created ambiguity – not an “exceptional circumstance.”  Also, the adoptive parents’ concern that appellant reveal that the child was adopted cannot be considered an “exceptional circumstance.”  It is logically inconsistent to have an open adoption without explaining the situation to the child.    

Appellant did refer to the adoption as a “sale” which the court found to be an exceptional circumstance justifying terminating the contact order.  Appellant’s feelings are not a sudden change of heart occurring after the contact agreement was executed.  Because this belief prompted the contact agreement itself, it is difficult to say that this situation has “arisen since the agreed order” as required by the statute to allow modification.  Minn. Stat. § 259.58(c).  To allow otherwise would permit adoptive parents to terminate a contact agreement for the very reason it was created – that the biological parent would not have terminated his parental rights unless he knew he could have a presence in the child’s life.

Respondents’ affidavit submitted to the district court contained numerous damaging statements about the appellant made by his ex-wife.  First of all, these out-of-court statements offered for their truth were hearsay and therefore presumptively inadmissible.  Minn. R. Evid. 801.  There is no evidence that the statements were made in context that would allow admissibility (i.e., present sense impression, excited utterance).  Further, these statements would not fit into the “catch-all” hearsay exception because they lack circumstantial guarantees of trustworthiness.  Minn. R. Evid. 807.  In addition to the obvious bias based on her “ex-wife” status, included in her statements provided by respondents the ex-wife said “I would love to see [appellant] go to prison . . . .”  Further, the ex-wife and appellant had divorced eight years’ prior to her statements.  Her bad opinion of appellant was not only suspect for credibility reasons, but also existed long before the parties entered into the contact agreement.  See Minn. Stat. § 259.58(c).

Respondents also attached evidence that appellant had several misdemeanor convictions in support of their motion.  But not only do all offenses predate the contact agreement, they also all predate the birth of A.D.  Again, because only exceptional circumstances that occur after the contact agreement is executed may be considered as a justification for its termination, this information should not have been considered.  Minn. Stat. § 259.58(c).  Respondents repeatedly ignored that the statute is not designed to allow termination if the relevant circumstances existed before the parties entered into the agreement.  See id.  Respondents had no obligation to enter into a contact agreement with appellant.  But because they decided to do so, appellant agreed to terminate his parental rights.  The adoptive parents should not be given an “out” for facts that existed when they entered into the agreement.

Respondents also challenged a letter appellant submitted from former Minnesota Twins player, Juan Berenguer, stating that he had witnessed John Doe driving over appellant’s feet during a visitation exchange.  Respondents claim this letter is fraudulent because it was from a “prominent baseball player,” the signature on the letter was identical to an autographed baseball card found on the internet, and this submission was indicative of appellant’s “mental illness.”  But appellant’s counsel stated that the letter was not a fraud:  Berenguer is appellant’s cousin and had accompanied appellant to his attorney’s office.  Respondents did not rebut appellant’s explanation.

The contact agreement contained four contingencies that if appellant did not comply with them it “may be grounds for termination” of the agreement.  Appellant had submitted a letter to the district court stating that he had followed the required contingencies.  This letter was not mentioned at the hearing.  The district court’s conclusions that appellant had violated the contingencies are not supported by the evidence. 

The contact agreement stated that appellant’s contact with the child “is contingent upon him abstaining from the use of alcohol or any other mood altering substances twenty-four hours prior to, and during visits with the minor child.”  Respondents alleged appellant had sounded intoxicated in a voice mail message, but did not refer to any alcohol use surrounding visits with the child.  The contact agreement also specified that appellant “agrees to be subject to random breath analysis for the use of alcohol.”  Respondents did not allege any request had been denied.  In the contact agreement appellant agreed if he moved to allow the adoptive parents “to inspect and approve that the new environment is healthy and stable for the visits.”  Again, respondents did not allege any request had been denied.  In the contact agreement appellant “agree[d] that he will continue to attend substance abuse support group meetings as recommended by his sponsor.”  Respondents alleged in their affidavit that he had not attended meetings, but did not explain how they possessed this knowledge given their limited contact with appellant under the terms of the agreement.  Appellant claimed in his letter, disregarded by the district court, that he had been regularly attending meetings. 

In the contact agreement appellant agreed to “attend an adoption class or adoption counseling in order to learn more about the process of adoption.”  The adoptive parents’ motion alleged appellant had not fulfilled this requirement.  However, unlike the contingencies discussed above, the contact agreement did not provide that a deficiency in this area would be grounds for terminating the contact agreement.  And the agreement did not specify when these classes or counseling must be completed.  Respondents did not allege appellant was not still planning to receive this education.  The district court erred in concluding this contingency had been violated.    

The district court considered holding an evidentiary hearing but was told by respondents’ counsel one was unnecessary.  An “abbreviated hearing and lack of sworn testimony” can violate “the due-process right to a right to a meaningful opportunity to be heard.”  Beardsley v. Garcia, 731 N.W.2d 843, 849 (Minn. App. 2007) (interpreting the level of due process protection in a parenting-time hearing), review granted (Minn. Aug. 7, 2007).  Appellant, appearing pro se and speaking through an interpreter, attempted to tell the judge he had abided by the requirements contained in the contact agreement.  Appellant was not allowed to speak or to present his documentation:

THE COURT:  His failure to comply with the prerequisites to carry out the contract –

            INTERPRETER FOR APPELLANT:  I did it.

            THE COURT:  – And as well as sufficient evidence,

            including recordings –

            INTERPRETER FOR APPELLANT:  Your Honor, I

            did it.

            THE COURT:  I’m talking.  And therefore it is in the

            best interest of the child that the contract and amended

            contract are void . . . .

 

The district court relied upon respondents’ self-serving affidavit as the only evidence appellant had not abided by the terms of the contact agreement.  It is questionable whether this abbreviated hearing was sufficient.  The district court did not listen to appellant as he attempted to present his case.  The district court found appellant “made no showing with respect to his compliance with the terms set forth in the parties’ contact agreement” after ignoring his letter and refusing to let him speak.  Because the rights terminated at the hearing were significant, appellant should have been given a more meaningful opportunity to be heard. 

It is worth noting respondents’ motion to terminate the contact agreement was a counter-motion to appellant’s motion to enforce the agreement.  Appellant’s claim that he had not been allowed to see the child as allowed under the contact agreement was not denied by respondents and not addressed by the district court.  Any negative feelings appellant had toward the adoption process were exacerbated by respondents’ failure to abide by their agreement.  Respondents seized on appellant’s frustration as further evidence that he should not be in his child’s life.

Ultimately, interpretation of adoption-related issues must be guided by the best interests of the child.  In re S.T. & N.T., 512 N.W.2d 894, 898 (Minn. 1994).  The contact agreement provided “[a]ll parties consent and agree that they shall hold the interests of the child paramount and shall subrogate their own interests where necessary to ensure the best interests of the minor child are served.”  The district court’s reliance upon respondents’ affidavit, an evidentiary hearing was unnecessary, and unwillingness to listen to appellant as he tried to present his case does not suggest the best interests of the child were considered.

An unambiguous contract was signed.  The parties agreed to contact between appellant and the minor child.  It would have been better for the district court judge to continue the contract, reminded appellant of his obligations, and add additional strictures to the arrangement if needed. 

I respectfully dissent.  The district court should be reversed.

 

 



[1] A.D.’s biological mother, T.M., is not party to this appeal.