This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




In the Matter of the Welfare of:

R. S. K., C. R. K., T. S. K., L. C. K.

Affirmed in part, reversed in part, and vacated in part.

Lansing, Judge

Hennepin County District Court

File No. J496053029

William E. McGee, Hennepin County Public Defender, Warren R. Sagstuen, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (for appellant father)

Steven C. Thal, 11650 Wayzata Boulevard, Minnetonka, MN 55305 (for respondent mother)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Thoreen, Judge.*



A father appeals a juvenile court order terminating his parental rights to his four minor children on grounds of abandonment, failing to contribute to the children's financial support, and palpable unfitness. We vacate that part of the appeal pertaining to the parental rights of the oldest child, who reached majority before the termination order was filed, we reverse the termination of parental rights to the two 17-year-old children, and we affirm as to the 11-year-old child on grounds of palpable unfitness and the best interests of the child.


Morris Klock and Susan Klock Weaver ended their 17-year marriage in 1990. An Indiana court awarded Weaver custody of their six children: J.A.W., born January 15, 1974; M.G.W., born September 19, 1976; R.S.K., born November 10, 1979; C.R.K. and T.S.K., born June 5, 1981, and L.C.K., born December 12, 1986. Morris was ordered to pay $248 per week in child support.

In May 1991, Weaver obtained an order for protection against Klock as a result of physical abuse and other threats. The court further ordered that any visitation take place through the Department of Court Services' Genesis II program. Klock participated in four or five supervised visits with the children as of January 1993. When Genesis II refused to monitor further visits because of Klock's inappropriate behavior, the court gave him the opportunity to find alternative supervised visitation and ordered him to complete a domestic abuse program. In May 1994, the court ordered further visitation but limited the topics of conversation because of Klock's profane references to the children's mother. Klock claimed he was merely trying to provide religious instruction and saw the court's order as an attempt to change his religious beliefs. Klock left a series of profane and abusive voice mail messages for the assistant county attorney who represented Weaver in the case. Due to this and other similar behavior, the district court terminated further supervised visitation.

On February 29, 1996, Weaver filed a private termination of parental rights petition against Klock, asking that his parental rights to their four minor children be terminated. By this time, their two oldest children had already reached the age of majority and another child was nearing majority. Both Weaver and Klock testified at the trial in May 1997; other witnesses included Weaver's current husband, the court-appointed guardian ad litem, and the assistant county attorney who represented Weaver in the 1994 proceeding. The hearing was continued to allow the guardian ad litem to reinterview the children.

On January 26, 1998, the court granted the petition and terminated Klock's parental rights on three grounds: (1) abandonment, under Minn. Stat. § 260.221, subd. 1(b)(1); (2) failing to contribute to the financial support of the children, under Minn. Stat. § 260.221, subd. 1(b)(3); and (3) palpable unfitness, under Minn. Stat. § 260.221, subd. 1(b)(4). Klock appeals.


A court may terminate parental rights only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). In an appeal from a district court order terminating parental rights, this court "must determine whether the district court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous." Id. (citing In Re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988)). The best interests of the children remain the "paramount consideration." Id. (citations omitted). Because the district court is in a better position to assess credibility, this court must give considerable deference to the district court's decision. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

We address, first, the termination of Klock's parental rights as to R.S.K., who turned 18 after Weaver initiated the petition but before the district court issued its termination order. Because R.S.K. had already reached the age of majority, she was no longer subject to the termination statute. See Minn. Stat. § 260.221, subd. 1 (Supp. 1997) (grounds for termination of parental rights); Minn. Stat. § 260.015, subd. 2 (1996) (for purposes of juvenile chapter, "child" means an individual under age 18). Therefore, we vacate the district court's order as to R.S.K.

With respect to the three remaining minor children, we conclude, as a matter of law, that Klock's refusal to follow court orders on visitation and refusal to follow recommendations of Genesis II cannot constitute abandonment. Although Minn. Stat. § 260.221 does not define the term abandonment, see Minn. Stat. § 260.221, subd. (1)(1) (Supp. 1997), the Minnesota Supreme Court has held that for purposes of a termination proceeding, abandonment requires both actual desertion of the child and "an intention to forsake the duties of parenthood." L.A.F., 554 N.W.2d at 398 (quoting In re Welfare of Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970)). To satisfy the statute, the petitioner must establish that the abandonment was intentional and not "due to misfortune and misconduct alone." Id. at 398 (quoting Staat, 287 Minn. at 506, 178 N.W.2d at 713). In light of this definition, we are constrained from affirming termination based on "constructive" abandonment that results from a father's failure to follow court orders on visitation. While we agree that Klock could have remedied the situation by complying with these orders, his refusal does not constitute intentional abandonment.

We are also unable to affirm a termination of Klock's parental rights for nonpayment of support. As of July 1997, Klock had paid $8,517.96 toward support in seven years and had accumulated unpaid arrearages of more than $70,000. While Klock's past failure to pay support has been protracted, we cannot ignore the fact that he is currently making child support payments from wage withholding. See In re Petition of Linehan, 280 N.W.2d 29, 31 (Minn. 1979) (test for termination is whether parent is "able and willing to assume his responsibilities," not whether he has been derelict in the past); see also In re Petition of M.G., 375 N.W.2d 588, 591 (Minn. App. 1985) (trial court did not err in refusing to terminate parental rights on grounds of non-support when father willing to resume payments).

Because we reject the first two statutory grounds cited by the district court, the termination of parental rights turns on whether the district court's finding that Klock is palpably unfit is supported by substantial evidence and is not clearly erroneous. Minnesota law provides that

a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.

Minn. Stat. § 260.221, subd. 1(4) (Supp. 1997).

Although the record contains no evidence of physical abuse, Klock's conduct during four or five supervised visits between 1991 and 1993 demonstrates a pattern of emotional abuse that resulted in an adverse effect on the children's emotional well-being. Weaver presented probative evidence on questionable living conditions she observed while Klock had custody of the children in 1990 and his harsh methods of disciplining the children, and the court-appointed guardian ad litem confirmed that the children are still fearful of the emotional abuse they suffered during their contact with their father.

This evidence of unfitness, however, must be balanced against the best interest of each child, and in this respect the district court's analysis falls short. To determine whether termination of parental rights is in a child's best interest, the court must balance "the child's interest in preserving the parent-child relationship, an interest shared by the parents, against any competing interests of the child." In Re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987). Such competing interests include stability, the child's expressed preference, and the child's health. Id.

As the paramount consideration in a termination proceeding, "a child's best interests may preclude terminating parental rights where one or more of the statutory prerequisites for termination are present." In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996). Thus, the district court's findings in a termination proceeding must address whether termination is in each child's best interests and, if so, explain why. Id. at 75. In addressing each child's best interests, the court should examine each child's choice, the value of the existing parent/child relationship, and the benefits of termination. Id. at 75-77.

After reviewing the record, we conclude that termination of Klock's parental rights as to the two 17-year-old children, C.R.K. and T.S.K., will change little more than Klock's obligation for child support. Born on June 5, 1981, both C.R.K. and T.S.K. will reach age 18 next June. Due to the family court's restrictions, Klock has not had formal supervised visitation with the children in more than four years; he has not had custody of the children since 1990. Termination of Klock's parental rights is not necessary to alleviate harmful or destructive living conditions, nor will it facilitate the children's adoption. Accordingly, we conclude that neither the facts nor the findings adequately address whether the termination is in the best interest of either child.

The best-interest determination for the youngest child, L.C.K., now age 11, is supplemented by additional facts. L.C.K., who was four years old at the time of the divorce, participated in just four or five supervised visits with Klock since 1990. She has not had any contact with Klock in more than four years. Testimony from Weaver and her current husband indicates that L.C.K. enjoys a close relationship with her stepfather, who wishes to adopt her. Because Klock has played a limited role in L.C.K.'s life, and because the district court's decision will facilitate her adoption by her stepfather, we affirm the termination as to L.C.K.

We reject Klock's claim that the district court was required to address whether the Religious Freedom Restoration Act prohibits the court from limiting his ability to instruct his children as to his religious beliefs. After reviewing the record, we conclude that Klock has not demonstrated that his statements are expressions of religious beliefs or that religious and First Amendment rights can override the state's compelling interest in terminating his parental rights as to L.C.K.

Affirmed in part, reversed in part, and vacated in part.

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