This opinion will be unpublished and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:


Filed March 3, 1998


Short, Judge

Hennepin County District Court

File No. J49568751

Wright S. Walling, Jody Ollyver DeSmidt, Nathalie S. Rabuse, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellants)

William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401, and

Thomas Giblin Dunnwald, Special Assistant Public Defender, 400 Flour Exchange, 310 Fourth Avenue, S., Minneapolis, MN 55415 (for respondent mother)

David L. Piper, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent guardian ad litem)

Michael O. Freeman, Hennepin County Attorney, Michael Q. Lynch, Assistant Hennepin County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent county)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Harten, Judge.


SHORT, Judge

On appeal from the trial court's order denying their private petition for the termination of Kimberly Moon's parental rights to A.N.A. (born 2-22-88) and adjudicating A.N.A. a "child in need of protection," the petitioners argue the trial court erred because: (1) clear and convincing evidence exists to terminate Moon's parental rights; and (2) the adjudication of A.N.A. as a "child in need of protection or services" (CHIPS) is contrary to the law. Moon argues we lack jurisdiction to hear this matter. We affirm.


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. In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988); see also Minn. Stat. § 260.241, subd. 1 (1996) (providing court may terminate parental rights if it finds by clear and convincing evidence that one or more statutory grounds exist). 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). We exercise great caution in termination proceedings, finding termination proper only when clearly mandated. In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985). On appeal from a termination petition, 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). Moreover, the allegations contained in a "Child in Need of Protection or Services" (CHIPS) petition must be proven by clear and convincing evidence, and we will affirm a trial court's CHIPS decision if its findings are supported by substantial evidence and are not clearly erroneous. See Minn. Stat. § 260.155, subd. 1(a) (1996) (requiring clear and convincing evidence). The best interests of the child remains the paramount concern in all parental termination cases and in all CHIPS adjudications. See Minn. Stat. § 260.221, subd. 4 (1996) (parental termination cases); Minn. Stat. § 260.011, subd. 2(a) (1996) (CHIPS adjudications).


Abandonment requires both an actual desertion of the child and an intention to forsake the duties of parenthood. In re Welfare of L.A.F., 554 N.W.2d 393, 398 (Minn. 1996). A petitioner must establish that the conduct was intentional rather than due to misfortune and misconduct alone, and a sporadic visitation history by itself will not support termination of petitioner's rights. See In re Welfare of Solomon, 291 N.W.2d 364, 368 (Minn. 1980) (holding sporadic visitation history by itself is insufficient to support termination of parental rights); Hennepin County Welfare Bd. v. Staat (In re Welfare of Staat), 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970) (requiring intentional conduct). In a termination case, courts will not rely primarily on past history but, to a great extent, on the "projected permanency of the parent's inability to care" for the child. Solomon, 291 N.W.2d at 368.

The petitioners argue there is "undeniable clear and convincing evidence" that Moon abandoned A.N.A. because, although she has always had the ability to contact her child, she has made "no effort at all" to have a relationship with her child. Although Moon's visitation is less than typical, the record is replete with evidence of Moon's attempts at maintaining a relationship with her child. It is undisputed: (1) the petitioners moved the child out of Moon's state of residence, Tennessee, without her permission, and failed to provide Moon with the child's new address or phone number; (2) the petitioners obtained a court order restricting Moon's visitation to two-hour visitation periods in Minnesota; (3) the petitioners restricted Moon's phone contact with her daughter; (4) despite a limited income, Moon continued to make child support payments on a regular basis; (5) Moon has continued a one-way correspondence with her daughter through cards, notes, and photographs sent on A.N.A.'s birthday and on holidays; and (6) with the exception of 1993, Moon has provided a Christmas gift to A.N.A. each year. Given these facts, there is substantial evidence to support the trial court's denial of the termination petition because the petitioners have failed to prove abandonment by clear and convincing evidence. See State v. Clark, 148 Minn. 389, 391, 182 N.W. 452, 453 (1921) (concluding "abandonment" means an intention to sever parental relation and wholly throw off its obligations).

The petitioners also argue the trial court erred in failing to terminate Moon's parental rights because clear and convincing evidence exists that she refused or neglected to comply with her parenting duties, and that she is "palpably unfit" to be a party to the parent-child relationship. See Minn. Stat. § 260.221, subd. 1(b)(2) (1996) (providing for termination in cases of neglect of parenting duties where parent has substantially, continuously, or repeatedly neglected to comply with parenting duties, parent is financially and physically able to meet those duties, and reasonable efforts by social service agency have failed to correct conditions); Minn. Stat. § 260.221, subd. 1 (b)(4) (1996) (providing termination petition may be granted for reasons of "palpable unfitness" if there is consistent pattern of specific conduct before child, directly relating to parent and child relationship, of duration or nature that renders parent unable to care appropriately for needs of child for reasonably foreseeable future). We disagree. Given the petitioners' failure to inform Moon of their address or phone number and their efforts to thwart her attempts at contacting A.N.A. by telephone, the trial court's denial of the termination petition on the grounds of neglect or palpable unfitness was based on substantial evidence and is not clearly erroneous. See M.D.O., 462 N.W.2d at 374-75 (concluding considerable deference given to trial court's decision because it is in superior position to assess credibility of witnesses).

Finally, the petitioners argue the best interests of A.N.A. require termination of Moon's parental rights. Under the best interests standard, there must be a balancing of the child's interest in preserving the parent-child relationship against any competing interests of the child. In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987); see also In re Welfare of H.G.B., 306 N.W.2d 821, 826 (Minn. 1981) (concluding balancing of interests is active process rather than static attribution of equal weight to each interest). Moreover, in the absence of the existence of a statutory factor supporting termination, establishing that termination is in the child's best interests will not by itself support the termination petition. See Minn. Stat. § 260.221, subd. 4 (stating best interests of child paramount consideration in termination proceeding provided existence of at least one statutory factor supporting termination). The trial court found: (1) at one time there was a close attachment between Moon and A.N.A.; (2) A.N.A. has been emotionally hurt by the lack of contact between herself and Moon; (3) Moon has a strong interest in a relationship with A.N.A.; (4) Moon demonstrates knowledge of the "appropriate nurturing and disciplining of children and awareness of child development"; and (5) for her own self-esteem, A.N.A. deserves an objective perspective on Moon. After a careful review of the record, we find ample evidence supporting the trial court's findings that a relationship between A.N.A. and Moon is in A.N.A.'s best interests. See In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (holding reviewing court will not overturn findings of fact unless clearly erroneous because trial court's opportunity to observe parent and other witnesses is so crucial to accurate evaluation of what is best for child).


The court may designate a child as CHIPS if, after a hearing, it denies the termination of parental rights petition, but determines the child is in need of protection or services. Minn. Stat. § 260.235 (1996). The petitioners, joined by the guardian ad litem and Hennepin County,[1] argue the trial court erred as a matter of law in adjudicating A.N.A. a "child in need of protection or services" (CHIPS). See Minn. Stat. § 260.015, subd. 2a (1996) (providing statutory prerequisites for CHIPS designation).

In making the CHIPS determination the trial court found: (1) the reestablishment of the mother-child relationship between Moon and A.N.A. is in the best interests of A.N.A.; (2) the petitioners are unable to provide the professional assistance necessary to effectuate the best interests of A.N.A.; (3) the petitioners and Moon have limited financial resources; (4) the petitioners' move to Minnesota caused geographic separation between Moon and A.N.A.; (5) the petitioners demonstrated an inability or unwillingness to cooperate in the reestablishment of the mother-child relationship and to follow through with A.N.A.'s therapeutic needs; (6) the petitioners contribute to A.N.A.'s negative view of Moon; and (7) therapy and additional professional supervision will be necessary to reestablish the mother-child relationship. At oral argument, the petitioners conceded that the CHIPS adjudication is necessary to maintain the integrity of the trial court's order, and that the best interests of A.N.A. are the paramount consideration in this case. Under these circumstances, the trial court's findings supporting the CHIPS adjudication are not clearly erroneous. See Minn. Stat. § 260.015, subd. 2a (providing definition of "child in need of protection or services" includes child in need of care whose parent is unwilling or unable to provide, or child whose parent fails to provide such care because of parent's lack of maturity); see also In re Welfare of S.A.C., 529 N.W.2d 517, 518 (Minn. App. 1995) (concluding paramount consideration in CHIPS proceedings is best interests of child, and purpose of the CHIPS provision is to secure care and guidance for child).


Moon argues we lack jurisdiction to consider this matter, and Hennepin County had no jurisdiction to enter a 1994 order restricting her visitation rights. However, the record demonstrates: (1) the father has had permanent custody of A.N.A. since November 1991; (2) Moon, pursuant to a 1993 agreement between the parties, eventually consented to A.N.A.'s domicile in Minnesota; (3) A.N.A. and the father have been domiciled in Minnesota since May 1993; and (4) the termination petition was filed in Minnesota in October 1995. Under these circumstances, our exercise of jurisdiction over this matter is proper because Minnesota is A.N.A.'s home state and there is no evidence in the record that the father "snatched" A.N.A. and brought her to Minnesota with the intention of seeking a more favorable judicial forum. See Minn. Stat. § 518A.02(e) (1996) (defining "home state" under Uniform Child Custody Jurisdiction Act (UCCJA) as state in which child immediately preceding time involved lived with child's parents for at least six consecutive months); Rees v. Reyes, 602 A.2d 1137, 1140 (D.C. 1992) (purpose of Parental Kidnapping Prevention Act (PKPA) is to prevent jurisdictional conflicts and competition over child custody, and in particular, to deter parents from abducting children for purpose of obtaining custody awards); Brown v. Brown, 847 S.W.2d 496, 499 (Tenn. 1993) (concluding purpose of PKPA to make child custody jurisdiction uniform throughout 50 states and prevent non-UCCJA states from becoming "havens for forum-shoppers and child snatchers"). Furthermore, we decline to address the jurisdictional arguments related to the July 1994 Hennepin County court order because an appeal was not taken from that order. See Minn. R. Civ. App. P. 104.01 (providing appeal from order must be taken within 30 days after service by adverse party of written notice of filing); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate courts generally refuse to address issues and theories not raised to and decided by the trial court).


[ ]1 We note the county failed to join in this appeal. See Nash v. Allen, 392 N.W.2d 244, 247 (Minn. App. 1986) (concluding when party fails to file notice of appeal or join in appeal, issues raised by that party will not be considered), review denied (Minn. Oct. 22, 1986). Because no party objected to the county's brief, the county did not raise any new issues, and Moon was not prejudiced by the brief, we decline to strike the county's brief. See In re Petitions to Adopt K.L.L., 515 N.W.2d 618, 623 (Minn. App. 1994) (declining to strike brief under similar circumstances).