In the Matter of the Welfare of: B.T.M.T. and D.R.E.T., Children. C2-96-1181, Court of Appeals Unpublished, November 5, 1996.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1181

In the Matter of the Welfare of:

B.T.M.T. and D.R.E.T.,

Children.

Filed November 5, 1996

Affirmed

Short, Judge

Scott County District Court

File No. 96568

Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Peggy Flaig Hellier, Assistant County Attorney, 206 Scott County Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for respondent)

Steve L. Bergeson, 111 South Broadway, Jordan, MN 55352-1505 (for appellant)

Nancy C. Platto, 218 Pine Street, P.O. Box 257, Chaska, MN 55318 (Guardian ad litem)

Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies, Judge.

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

SHORT, Judge

On appeal from the trial court's order terminating parental rights to B.T.M.T. (born 9-27-90) and D.R.E.T. (born 3-11-92), Thomas Torchia argues the trial court erred because: (1) there is insufficient evidence to support the trial court's finding of abandonment; and (2) termination is not in the best interests of the children. We affirm.

D E C I S I O N

In an action to terminate parental rights, a petitioner bears the burden of proving by clear and convincing evidence the existence of one or more of the statutory grounds for termination. Minn. Stat. § 260.241, subd. 1 (1994); In re Welfare of C.K. & K.K., 426 N.W.2d 842, 847 (Minn. 1988). This burden is subject to the presumption that a natural parent is a fit person to be entrusted with the care of the parent's child, and that it is ordinarily in the best interest of the child to be in the custody of his or her natural parent. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). On appeal, we determine whether the trial court's findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). We exercise great caution in termination proceedings, finding termination proper only when clearly mandated. In re Welfare of P.J.K. & J.L.K., 369 N.W.2d 286, 290 (Minn. 1985). The best interest of the child is the paramount concern in all parental termination cases. Minn. Stat. § 260.221, subd. 4 (1994); In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986).

Torchia argues the trial court erred in finding clear and convincing evidence that he intended to forsake entirely the duties of parenthood. See Minn. Stat. 260.221, subd. 1(b)(1) (1994) (presuming abandonment where parents fail to contact their children on a regular basis and show no consistent interest in their children's well-being for six months, provided the social service agency has made reasonable efforts to establish contact and good cause has not prevented contact); Staat v. Hennepin County Welfare Bd., 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970) (an intention to forsake the duties of parenthood must be present before abandonment can be found). We disagree. The record demonstrates: (1) during the past three years, Torchia only made a few telephone calls to Scott County Human Services, wrote two letters, and made one request to see his children; (2) prior to filing the petition for termination of parental rights, Torchia never visited with or asked to see his children; (3) while the children were in foster care, Torchia never telephoned his children or inquired about their well-being, financial needs, health issues, or status in school; (4) Torchia never paid any child support; (5) Torchia failed to appear at the CHIPS hearings; and (6) when he failed to appear at the once-continued hearing on termination of his parental rights, Torchia did not contact his attorney to offer an explanation. Given these facts, the trial court's finding of abandonment is supported by clear and convincing evidence.

Torchia also argues the social service agency made no effort to reunite his children with him. However, the record shows: (1) Scott County made numerous telephone calls to Torchia advising him of the CHIPS hearings, encouraging Torchia to participate in the proceedings, directing Torchia to pursue a home placement study through Florida Social Services, and suggesting that Torchia telephone his children; (2) Torchia has no physical, emotional, or chemical dependency problem; and (3) Torchia was employed most of the time. Under these circumstances, we cannot say the trial court erred in concluding that the county made reasonable efforts to reunite the family and Torchia voluntarily chose not to contact his children.

II.

Torchia argues the trial court erred by concluding the best interests of the children require no further contact with him. However, the trial court specifically found: (1) Torchia has shown no interest in the children for over two years and has failed to be a part of their lives; and (2) termination of parental rights is in the children's best interests so the county can proceed with finding the children a permanent home. After a careful review of the record, we conclude that the trial court appropriately considered the children's interests because this case involves long-term foster care and D.R.E.T. has special needs due to past abuse. See In re Welfare of J.J.B., 390 N.W.2d at 279-80 (an important factor in arriving at a best interests determination is the effect on the child of long-term foster care). While we are sympathetic to Torchia's desire to retain his parental rights, we cannot say the trial court clearly erred. Its extensive findings address the statutory requirements for termination and are supported by clear and convincing evidence, including the recommendation from the guardian ad litem. Under these circumstances, the trial court did not err in terminating Torchia's parental rights to B.T.M.T. and D.R.E.T.

Affirmed.