This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1887

In the Matter of the Welfare of: A. D. W.

Filed March 25, 1997

Affirmed

Norton, Judge

Hennepin County District Court

File No. 207533

Jean M. Gerval, Child Advocacy Clinic, 190 Law Center, 229 - 19th Ave. S., University of Minnesota, Minneapolis, MN 55455 (for Appellant Erika DeJesus)

Christopher H. Williams, 2414 Twin Oaks, Wichita, KS 67216 (Respondent Pro Se)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant challenges the custody award of her niece to respondent, the child's biological father. We affirm.

FACTS

A.D.W., the subject of this custody dispute, was born in Kansas on March 25, 1991. Her mother and respondent separated shortly after she was conceived. Six months after her birth, A.D.W. and her mother moved to Minnesota. When A.D.W. was three, her mother died, and A.D.W. and her two half-siblings went to live with appellant, their mother's half sister. Respondent learned of the mother's death when he attempted to call her in October 1994. He then called appellant and expressed an interest in obtaining custody of his child. Shortly thereafter, appellant began custody proceedings for the three children.[1] By ex parte order, appellant gained temporary custody of A.D.W. Respondent also filed for custody.[2]

At two temporary hearings, the district court granted respondent visitation and extended visitation, respectively, and ordered further custody studies. After a three-day evidentiary hearing, the court granted respondent sole legal and physical custody of A.D.W. and granted appellant annual visitation for one week during winter school vacation and one month in the summer.

Appellant subsequently requested a review and a stay of the custody order. The court denied the request for a stay and later affirmed the custody order.

D E C I S I O N

An appellate court will not reverse a custody determination unless "the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). We must sustain the trial court's findings unless they are clearly erroneous. Id.

1. Correct Standard in Determining Custody

Appellant first argues that the district court incorrectly characterized the determinative standard applicable in custody placement situations. In custody disputes between a parent and a third person, the Minnesota Supreme Court has stated:

[I]t would seem to be a fundamental rule of law that, all things being equal, as against a third person, a natural [parent] would be entitled as a matter of law to custody of [a] minor child unless there has been established on the [parent's] part neglect, abandonment, incapacity, moral delinquency, instability of character, or inability to furnish the child with needed care, or unless it has been established that such custody otherwise would not be in the best welfare and interest of the child.

Wallin v. Wallin, 290 Minn. 261, 266, 187 N.W.2d 627, 630 (1971) (citations omitted); Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989). As between the parental preference and the best interest of the child, "the overriding consideration in custody proceedings is the child's welfare." Wallin, 290 Minn. at 265, 187 N.W.2d at 630.

The courts have long presumed that the natural parent is entitled to custody of a child. See Durkin, 442 N.W.2d at 153; Wallin, 290 Minn. at 264-65, 187 N.W.2d at 629-30; State ex rel. Olson v. Sorenson, 208 Minn. 226, 227-28, 293 N.W. 241, 241-42 (1940); In re Custody of N.M.O., 399 N.W.2d 700, 702-03 (Minn. App. 1987); In re Welfare of P.L.C., 384 N.W.2d 222, 225 (Minn. App. 1986). This presumption, however, "may be overturned if there are 'grave and weighty' reasons to separate a child from his or her natural parents." Durkin, 442 N.W.2d at 153. The burden of disproving this presumption is on the one "who asserts the contrary to prove it by satisfactory evidence." In re Klugman, 256 Minn. 113, 118, 97 N.W.2d 425, 429 (1959).

Here, the district court considered both parental preference and best interest of the child in determining custody. For parental preference, the court applied the "grave and weighty reasons" standard as set forth in Durkin, 442 N.W.2d at 153. The court also addressed each of the 12 best-interest statutory factors in determining the best interest of the child under Minn. Stat. § 257.025 (a) (1996). The district court applied the correct standards in making its decision.

Appellant also argues that respondent abandoned A.D.W. and has therefore forfeited his custodial rights. Abandonment contradicts the presumption that a natural parent is entitled to custody. See Wallin, 290 Minn. at 265, 187 N.W.2d at 630 (listing abandonment as one of "grave reasons" to deprive parent of custody). It is, however, only one part of the two-prong test that looks at both parental preference and the best interest of the child. Since the best-interest test is overriding, abandonment, even assuming that it occurred here, does not necessitate a forfeiture of custodial rights.

To support her position, appellant relies on In re Welfare of L.A.F., 554 N.W.2d 393 (Minn. 1996). There, the Minnesota Supreme Court upheld a district court finding that a father had no intent to parent his child and therefore had abandoned the child. Id. at 399. The facts in the case at hand are distinguishable. While respondent admits that he was not a responsible father to A.D.W. in her early years, this lack of responsibility can be explained partly by the mother's move from Kansas to Minnesota. Between the move and the paternity proceeding, respondent did not know where his child was living. Further, during A.D.W.'s early years, respondent was an active alcoholic. Since that time, however, respondent has undergone chemical dependency treatment and has remained sober for nearly three years. Also, since respondent learned of the death of A.D.W.'s mother, he has expended considerable time, effort, and funds in order to gain custody of his child. The district court found that respondent is sincere in his desire to be a custodial parent. We defer to this credibility determination. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Appellant argues that the trial court improperly weighed the testimony of the four expert witnesses and, as a result, misapplied the best-interest test. This argument is without merit.

It is for the trier of fact to decide the "weight and credibility of the testimony, including that of the expert witnesses."

Buzick v. City of Blaine, 491 N.W.2d 923, 925 (Minn. App. 1992) (quoting Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970)), aff'd, 505 N.W.2d 51 (Minn. 1993). Here, the referee discussed in detail the testimony of each of the expert witnesses, devoting 16 findings to expert testimony. The referee found portions of respondent's expert testimony more credible than that of appellant's expert. "Deference must be given to the opportunity of the trial court to assess the credibility of the witnesses." Sefkow, 427 N.W.2d at 210; Minn. R. Civ. P. 52.01.

Based on the record, the district court did not abuse its discretion by improperly applying the law.

2. Findings Unsupported by the Evidence

Minn. Stat. § 257.025 (a) sets out 12 factors the district court must consider in determining the best interest of a child. Appellant argues that the evidence does not support the district court's findings on four of these factors.

Appellant first contends that A.D.W.'s relationship with her aunt was significantly more intimate than her relationship with her biological father. It is not disputed that, at the time of the custody hearing, A.D.W. had a more intimate relationship with her aunt than with respondent. It is only natural that a close relationship would develop between A.D.W. and her aunt during the two years that the aunt had temporary custody of the child. The record, however, supports the court's finding that the father has developed a positive relationship with A.D.W. "which has potential for a close and loving father-daughter relationship" if the two are given the "same opportunity to live together on a day-to-day basis." The fact that A.D.W. had a more intimate relationship with appellant at the time of the custody hearing is not sufficient to defeat the district court's determination that custody placement with respondent is in the best interest of the child.

Second, appellant argues that the district court erred by not attaching the appropriate consideration to A.D.W.'s separation from her half-siblings. The court's findings make it evident, however, that the court did consider the separation of the siblings. The referee found that A.D.W. would probably miss her siblings, but that this loss of daily contact could be mitigated by visits and telephone calls and by becoming involved with new playmates and schoolmates.

Appellant also presented case law holding that courts do not favor splitting up siblings. But those cases describe custody disputes involving biological siblings. Here, respondent is the father of only one of the three siblings. Separation of half-siblings is unavoidable if the surviving parent is to have custody of his or her child.

Third, appellant alleges that the district court failed to grant enough weight to the severity of respondent's alcoholism and lack of insight and initiative in dealing with his disability. The findings show, to the contrary, that the court took respondent's history of alcoholism very seriously. The court acknowledged that respondent was at risk for relapse and that the consequences of such a relapse would be "catastrophic." The court went on to address this concern by ordering that respondent abstain from the use of alcohol, that he undergo random urinalysis for one year, and that he attend AA meetings and other aftercare services for one year. The court also found that respondent's family would serve as a support system should he have a relapse.

Fourth, appellant argues that the district court erred by summarily dismissing the importance of A.D.W.'s cultural background. The record does not support this argument. The court found that respondent lives in a racially integrated neighborhood and that A.D.W. will attend a well-integrated school. The court also found "no evidence * * * that the child's mother observed any particular cultural practices or identified with any ethnic community." Further, neither appellant nor respondent shares the identical ethnic heritage as A.D.W., and, thus, both may be at a disadvantage when it comes to helping A.D.W. appreciate her ethnic and cultural heritage.

The evidence supports district court's findings on the child's best interests.

Affirmed.

[ ]1 Of the three children, only A.D.W. is the child of respondent.

[ ]2 Respondent was adjudicated A.D.W.'s biological father in early 1993. Prior to filing for custody, he had little contact with his daughter, visiting her only twice when she was less than a month old. During the summer of 1994, he began talking with her and her mother monthly by telephone. Respondent has an extended history of alcoholism, but has been sober since April 1994.