This opinion will be unpublished and

may not be cited except as provided by

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




In re the Termination of the Parental Rights of

Edward Landt to J.J.L.

Filed April 29, 1997

Reversed and remanded.

Randall, Judge

Hennepin County District Court

File No. J4-96-56836

Gary A. Debele, Walling & Berg, P.A., 121 South Eighth Street, Minneapolis, MN 55402 (for appellant).

Renee Bergeron, Assistant Hennepin County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent J.J.L).

Nancy K. Jones, Assistant Hennepin County Attorney, 12th Floor, Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415 (for respondent county).

Albert Turner Goins, Sr., Wood & Goins, 1885 University Avenue, Suite 1, St. Paul, MN 55104 (for respondent guardian ad litem).

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.



Edward Landt appeals a district court order dismissing his petition, by summary judgment, for voluntary termination of parental rights. We reverse and remand.


Edward and Sheila Landt were married on June 25, 1988. Sheila had three sons from a previous marriage: Jered (9-13-79), J.L.(7-7-81); and N.L. (5-16-84). Landt had a daughter from a previous marriage, L.L. (3-6-80). The Landt's had one child together, C.L. (3-2-91). On July 8, 1991, Landt adopted Sheila's three sons.

On February 28, 1994, 14-year-old Jered shot and killed his mother Sheila and then committed suicide. Shortly after Sheila's death, J.L. began to exhibit behavior similar to that of his brother Jered just before Jered killed Sheila and himself. J.L.'s behavioral pattern included becoming belligerent, disrespectful, nonresponsive, and difficult to control at home and at school.

Edward Landt, acknowledging that he could not take care of J.L., sent him to live with his maternal aunt and uncle for the 1994-95 and 1995-96 school years. J.L.'s behavioral problems continued, resulting, among other things, in five arrests. The aunt and uncle also were unable to deal with J.L.'s behavior, and on April 1, 1996, they sent J.L. back to live with Edward Landt.

Upon J.L.'s return, Landt obtained an order for protection against J.L. J.L. was then placed at the Bar None Shelter in Anoka County. On May 3, 1996, Landt filed a petition for voluntary termination of his parental rights to J.L., which the court allowed on May 7, 1996

On May 20, 1996, the court appointed a public defender and guardian ad litem (guardian) for J.L. J.L.'s guardian and the Hennepin County Department of Children and Family Services (HCDCFS) moved to dismiss Landt's petition. On July 12, 1996. J.L.'s guardian filed a CHIPS petition on behalf of J.L. The court found probable cause that J.L. was a child in need of protection or services and transferred interim custody to HCDCFS.

On August 8, 1996, the court found that Landt failed to show good cause to justify termination of his parental rights and that termination was not in the best interests of the J.L. The court denied Landt's petition for termination and ordered Landt to produce J.L.'s brothers for visitation. Landt challenged the dismissal of his termination petition and, by petition for prohibition, the visitation order.

This court dismissed the petition for prohibition and limited Landt's brief on appeal to the dismissal of his petition to terminate parental rights.


As a preliminary matter, we note that although the district court did not state whether it dismissed Landt's petition under Rule 12 or Rule 56 of the Minnesota Rules of Civil Procedure, the parties agree, and we find, that because the court looked beyond the pleadings, the court's decision resembled a rule 56 summary judgment more than a rule 12 dismissal. Accordingly, we review the court's decision as a summary judgment.

On an appeal from summary judgment, the reviewing court must ask whether any genuine issues of material fact exist and whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Under Minnesota law, a court may grant a voluntary termination with "the written consent of a parent who for good cause desires to terminate parental rights." Minn. Stat. § 260.221, subd. (1)(a) (1996). The supreme court has interpreted "good cause" in light of the general purposes of section 260.221 to permit courts to remove children from destructive or unhealthy home environments without parents' consent and to facilitate adoption. In re the Welfare of Alle, 304 Minn. 254, 257, 230 N.W.2d 574, 576 (1975). This court affirmed a finding of good cause where parents were unable to deal with their adopted son's emotional and behavioral problems and those problems produced an unhealthy home environment. See In re the Welfare of D.C.M., 443 N.W.2d 853, 855 (Minn. App. 1989), review denied (Minn. Sept. 21, 1989).

D.C.M. involved a couple who adopted a 10-year-old child with serious emotional and behavioral problems that persisted even after several years of counseling. 443 N.W.2d at 854. The adoptive parents, who had two other children, ultimately petitioned for termination of parental rights to D.C.M. because they could not "cope with D.C.M.'s problems and the way his behavior affected their family." Id. The district court granted the requested termination, and this court affirmed the termination as supported by substantial evidence. Id. at 855.

Respondents argue that In re the Welfare of J.D.N., 504 N.W.2d 54 (Minn. App. 1993), rather than D.C.M., governs here. We disagree completely. J.D.N. involved an adoptive father who separated from J.D.N.'s mother and then refused to provide J.D.N. with clothing, food, or financial support after the separation. 504 N.W.2d at 55. The father never made voluntary child support payments, made no attempt to pay child support arrearages, and sought to obtain forgiveness of his support arrearages through termination of his parental rights. Id. at 55-56. The trial court granted termination and forgave the father's support arrearages. Id. at 56. This court reversed the trial court on the ground that the father had failed to show good cause for terminating his parental rights. Id. at 58. It is crystal clear from the case that J.D.N.'s father merely wanted to avoid child support after the divorce. Because it is equally clear that, in this case, Edward Landt's motives are not financial, J.D.N. has no relevance to this case.

Here, the record is clear that Edward Landt, like the parents in D.C.M., is unable to cope with the behavior of an adopted son and fears the effects of that behavior on his family. Unlike the father in J.D.N., Landt did not petition for termination solely to avoid his financial obligations to J.L. Instead, Landt legitimately fears for his own personal safety and the safety of his remaining children, if something isn't done to change J.L.'s behavior. Landt candidly acknowledges that he cannot.

Even respondents concede that the facts are present in this case to give rise to Edward Landt's serious misgivings about being able to raise J.L. in his family. Respondents acknowledge that J.L.'s brother killed his own mother and himself and that following that, J.L. began to exhibit serious behavioral problems similar to those exhibited by Jered before the killing. The record shows that at one point J.L. even suggested that he needed a gun to respond to his adoptive father's efforts to deal with his conduct. The record shows that at times J.L. has acted in a similar fashion to Jered before Jered killed his mother and then committed suicide. The undisputed record shows that Edward Landt's allegations create genuine and serious issues of material fact as to whether Edward Landt should be forced to continue as the parent of J.L. It is not that there is zero chance that Edward Landt and J.L. can ever have a father-son relationship. But it is our conclusion that a quick summary judgment furthered no one's interest here, either Edward Landt's or J.L.'s.

The respondents' brief focuses on monetary support that, in the context of this case, is a red herring, a nonissue.

Respondents point to In re the Welfare of J.D.N., wherein it states that a denial of termination may serve a child's best interests because it preserves valuable rights to support social security and intestate inheritance. J.D.N. has nothing to do with these facts. J.L. is 16 years of age. In just two years Landt will have no obligation to support him. Landt has every right to draw up a will disinheriting any child, including J.L. Possible social security benefits are only a factor for the next two years, and only then, in the unlikely event that Edward Landt, now in normal health, suddenly dies before J.L. is 18. Social security benefits are generally only payable to a child upon the death of a parent if the child was a dependent of the parent, and then only until the age of 18. 42 U.S.C. § 402(d)(1) (1996). The social security act defines a child as dependent if, at the time of the parent's death, the parent lived with or contributed to the support of the child. Id. at § 402(d)(3) (1996).

The key problem in this case is respondents overlooking the entire point of Edward Landt's petition to voluntarily terminate his own parental rights in his son. He admits that he cannot raise his son, and J.L. does not contend any different. The undisputed facts about J.L.'s background, and the background of J.L.'s older brother Jered, show a truly dysfunctional family in need of outside help.

Edward Landt has not had an opportunity to present psychological examination reports on himself and all of his children to permit the court to assess the healthiness of the current relationship among J.L., Landt, and his other children. We flatly reject Hennepin County's contention, made in response to direct questioning at oral argument, that "thorough independent psychological examinations will not assist the evaluation of J.L.'s best interests." On this record, that statement is disingenuous and borders on the unprofessional. It is difficult to believe that the Hennepin County Attorney's office, the Hennepin County Public Defender's office and the guardian ad litem are not demanding of the trial court that thorough independent psychological examinations and workups be completed on the entire family, Edward Landt, and all of his children, not just J.L., but J.L. most importantly. A trial, with a reasonable amount of time allotted for pretrial discovery and the needed psychological examinations, will allow the trial court, as best it can, to get some handle on this family, and what is best for J.L. Without those reports, neither the trial court nor any reviewing court will have much of a chance.

This set of facts is unlike any of those in the cases cited by respondent in which preservation of the parental relationship counted against a proposed termination of parental rights. Over the last few years, J.L. has been shuttled among at least four different homes. The record gives no indication that J.L. will return to live with Landt even if Landt's petition to terminate his parental relationship is denied. From the record before us, the probabilities are that J.L. will be kept away from his family in some kind of juvenile secured setting under some kind of court order for his own protection and treatment. If Hennepin County's real agenda is that for the next two years they just want a court order forcing Landt to contribute to the cost of J.L.'s temporary placement, that does not say much for their concerns for the future of Edward Landt, his children, and J.L.

On this record, it is clear that genuine issues of material fact exist as to whether Landt has good cause to terminate his parental rights to J.L. Genuine issues of material fact exist as to what course of action is in the best interests of J.L. Without thorough psychological examinations and thorough reports on J.L. and the rest of his family, the trial court will be severely hampered in proceeding fairly and in the best interests of J.L., Edward Landt, and J.L.'s brothers and sister.

The district court erred by granting summary judgment against Landt.

Reversed and remanded.