STATE OF MINNESOTA

IN COURT OF APPEALS

A05-522

In the Matter of the Welfare of the Child of: J. D. B., Parent.

Filed November 1, 2005

Affirmed

Wright, Judge

Washington County District Court

File No. J-82-19424Y

Gregory J. Schmidt, Gregory J. Schmidt Law Office, 510 Spruce Tree Center, 1600 University Avenue, St. Paul, MN 55104 (for appellant J. D. B.)

Douglas H. Johnson, Washington County Attorney, Janet A. Reiter, Assistant County Attorney, 14949 62nd Street North, Box 6, Stillwater, MN 55082 (for respondent Washington County)

Sandra Gunderson, Washington County Guardian ad Litem Program, 14949 62nd Street North, Box 6, Stillwater, MN 55082 (Guardian ad Litem)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

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

WRIGHT, Judge

Appellant father challenges the termination of his parental rights after a finding of abandonment and neglect of parental duties. Because appellant has not established a relationship with the child, has never sought to establish paternity or to provide child support, and did not attempt to contact the child for a period of five years, we affirm.

FACTS

In 1998, while living with J.D.B. in Canada, S.C. gave birth to H.L.C.-B. J.D.B. has not been adjudicated the father of H.L.C.-B.; but J.D.B. does not deny paternity, and the parties do not contest the issue. The three lived together in Michigan for a brief period before S.C. left with the child. S.C. eventually moved to Minnesota in 2000. The child was removed from S.C.’s care and placed in temporary foster care in March 2003. S.C.’s parental rights were terminated in August 2003, and those proceedings are not the subject of this appeal. The child was placed in foster care with her adult half-sister who agreed to adopt her. Because J.D.B.’s name was on the child’s birth certificate, the adoption could not be completed until the status of his parental rights was established.

Washington County Community Services (WCCS) filed a petition to terminate J.D.B.’s parental rights in June 2004, and the matter proceeded to trial in January 2005. The district court terminated J.D.B.’s parental rights, finding that J.D.B. had abandoned H.L.C.-B. pursuant to Minn. Stat. § 260C.301, subd. 1(b)(1) (2004), had refused or neglected to comply with his parental duties pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2) (2004), and that termination of J.D.B.’s parental rights was in the best interests of the child pursuant to Minn. Stat. § 260C.301, subd. 7 (2004). This appeal followed.

D E C I S I O N

In a termination-of-parental-rights proceeding, the best interests of the child are paramount. Minn. Stat. § 260C.301, subd.7 (2004). Our review of the district court’s decision to terminate parental rights is “limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). In so doing, we afford considerable deference to the district court’s decision “because a district court is in a superior position to assess the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). Because parental rights may be terminated only for grave and weighty reasons, In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990), we scrutinize the record to assess whether the evidence clearly mandates the termination of parental rights, In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

J.D.B. argues that the district court clearly erred in finding that he abandoned H.L.C.-B. under Minn. Stat. § 260C.301, subd. 1(b)(1) (2004). Parental abandonment is presumed under law when, without a showing of good cause, “the parent has had no contact with the child on a regular basis and [has] not demonstrated consistent interest in the child’s well-being for six months . . . .” Minn. Stat. § 260C.301, subd. 2(a)(1) (2004). Absent the presumption, abandonment may be found when a parent has deserted the child and intends to forsake the duties of parenthood. In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004). Although it is unclear whether the district court found abandonment under the statutory presumption, our review of the record establishes substantial support for a finding of abandonment under either standard.

After S.C. left with H.L.C.-B., five years passed before J.D.B. made any effort to contact the child. During these years, S.C. brought the child to J.D.B.’s mother’s home for infrequent visits that lasted less than an hour. But J.D.B. rarely was present during these visits and spent four hours at most with the child from 1999 until 2004. J.D.B. did not attempt to be adjudicated the child’s father or to gain custody.

In March 2003, S.C. contacted J.D.B.’s mother to report that the child had died. S.C. stated that the child’s body was in Minnesota and requested money for funeral expenses. J.D.B.’s mother initiated a phone search to locate the child and determine how the child had died. After being informed that the child was safe and in foster care, J.D.B. still made no effort to visit or contact the child. During a phone conversation with WCCS in April 2003, J.D.B. expressed interest in gaining custody but made no other attempts to contact WCCS or to seek custody.

J.D.B. was incarcerated for alcohol-related driving offenses in early 2003. He was serving his sentence in Michigan when he received notice of the termination-of-parental-rights proceeding. After receiving that notice, J.D.B. contacted the child by sending letters and cards from prison. He had no other contact with the child prior to the termination hearing.

A finding of abandonment may not be based solely on a parent’s incarceration. R.W., 678 N.W.2d at 55 (citing In re Welfare of Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970)). Factors in addition to incarceration must support an abandonment finding. These factors may include the parent’s failure to maintain direct contact with the children during incarceration, failure to visit or inquire about the child when not incarcerated, failure to inquire about the child after learning of the child’s placement in foster care, failure to respond to a child-in-need-of-protection-or-services (CHIPs) petition, violent history, current behavior, and intent to forsake the duties of parenthood. Id. at 56; Staat, 287 Minn. at 506, 178 N.W.2d at 713; In re Children of Vasquez, 658 N.W.2d 249, 254 (Minn. App. 2003).

The district court’s findings related to J.D.B.’s lack of contact are not based on J.D.B.’s incarceration. To the contrary, these findings focus on the period when J.D.B. was not incarcerated. In addition, when, as here, there is no established parent-child relationship prior to the parent’s incarceration, sporadic correspondence from prison is insufficient to avoid an abandonment finding. See Staat, 287 Minn. at 506-07, 178 N.W.2d at 713. J.D.B.’s lack of contact and lack of consistent interest in the child meet the statutory presumption of abandonment.

J.D.B.’s minimal level of contact with the child also meets the more stringent abandonment standard applicable when the statutory presumption of abandonment is not satisfied. This standard requires both actual desertion and an intention to forsake the duties of parenthood. L.A.F., 554 N.W.2d at 398. As such, the incarcerated parent’s abandonment must be intentional, not the product of misfortune and misconduct alone. Id.

It is undisputed that, even when J.D.B. was not incarcerated, he never established paternity, failed consistently to provide financial support for the child, and did not seek to obtain custody. Moreover, during the hearing, J.D.B. testified that he wanted the district court to “[g]ive my mother parental rights until she feels I am [a] capable father.” Indeed there is substantial evidence in the record to support the district court’s finding that “any desire to parent the child is that of [the grandmother] and not [J.D.B.].” Similar to the facts of L.A.F., in which the Minnesota Supreme Court affirmed a finding of abandonment, the record demonstrates that J.D.B.’s intention is to prevent the child’s adoption but “avoid parenting responsibilities for himself.” Id. On the whole, the district court did not clearly err in finding that J.D.B.’s conduct shows that he intentionally abandoned his child.

Citing In re Welfare of Chosa, J.D.B. argues that the district court erred in examining his entire history with the child because “evidence relating to termination must address conditions that exist at the time of the hearing.” 290 N.W.2d 766, 769 (Minn. 1980) (reversing termination order when teenage mother demonstrated increased maturity related to parenting, mother was successfully parenting second child under county supervision, and adoption plan for first child had failed). But the holding in Chosa rests on examining the entire span of a parent’s interaction with the child, not only the circumstances at the moment the termination hearing occurs. Moreover, the extraordinary circumstances that existed in Chosa are not present in this case. J.D.B. is a mature adult who for several years failed to make any effort to parent H.L.C.-B. The nature of J.D.B.’s contact with the child, initiated only after the commencement of termination-of-parental-rights proceedings, fails to overcome the evidence of his actual desertion of the child and his intention to forsake the duties of parenthood.

J.D.B. also challenges the district court’s decision to terminate his parental rights based on the finding that J.D.B. intentionally neglected to comply with the duties imposed by the parent-child relationship. Those duties include “providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development, if the parent is physically and financially able.” Minn. Stat. § 260C.301, subd. 1(b)(2).

J.D.B. argues that he did not intentionally neglect his parental duties, but he does not contest any of the facts that led to the district court’s finding. Although J.D.B. had been employed and had provided child support for two children from a previous marriage, he has provided no support for H.L.C.-B. Even assuming, as J.D.B. argues, that he could not fulfill his parental duties because the child’s mother concealed her location from him, J.D.B. continued to neglect his duties after discovering the child’s whereabouts. The district court found that, after WCCS contacted him in April 2003, “even with the new-found information regarding the child’s whereabouts and the shocking fabricated story that the child was dead, [J.D.B.] made no effort to contact the child, visit her, be adjudicated the father, obtain custody of her, or support her in anyway.” On this uncontested record, the district court correctly found that J.D.B. had substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed by the parent-child relationship.

When seeking to terminate parental rights on the basis of abandonment or neglect of parental duties, the county is required to make reasonable efforts to facilitate contact and to correct the conditions that formed the basis of the petition unless reasonable efforts would be futile. Minn. Stat. § 260C.301, subds. 2(a)(1), (1)(b)(2).

J.D.B. argues that the county’s efforts to locate him and communicate with him about the child were not reasonable under the circumstances. But the record establishes that, after WCCS spoke with J.D.B. by telephone in April 2003, WCCS received no communication from him for more than a year, despite the agency’s attempts to contact him by mail and through his mother.

After H.L.C.-B. was removed from her mother’s care, WCCS conducted a relative search and attempted to contact J.D.B. by certified mail at his last known address. J.D.B.’s letter was returned as undelivered. In May 2003, a WCCS social worker spoke with J.D.B.’s mother who advised the agency that J.D.B.’s whereabouts were unknown. WCCS filed a petition for termination of J.D.B.’s parental rights in June 2004. WCCS did not obtain an address for J.D.B. until July 2004, when J.D.B.’s mother advised a WCCS social worker that J.D.B. was in a Michigan prison. In October 2004, WCCS began transmitting J.D.B.’s correspondence to the child. WCCS sent an out-of-home-placement plan to J.D.B. in November 2004. WCCS asked J.D.B. to sign and return the document, but he failed to do so. Although WCCS’s efforts to locate J.D.B. and correct the conditions that gave rise to the petition were not extensive, we agree with the district court’s determination that the efforts made by WCCS were reasonable under the circumstances.

J.D.B. also has failed to establish that it was clear error for the district court to determine that any additional efforts on the part of WCCS would have been futile. Indeed, WCCS need not “provide a case plan to parents who have shown but minimal interest or involvement with their children,” and it need not “facilitate contact between appellant and the child[ ] to assist appellant in establishing a relationship with the child[ ].” R.W., 678 N.W.2d at 56. Here, although WCCS did both, J.D.B. nonetheless testified that he wanted his mother to have parental rights. Accordingly, mandating further efforts would have been futile and would “force [WCCS] to attempt to reunify [H.L.C.-B.] with a parent who has little interest in reunification.” Id.

“The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.” Minn. Stat. § 260C.001, subd. 3 (2004). Once statutory grounds for termination of parental rights have been proven, the district court may terminate parental rights only if it finds that the best interests of the child will be served by termination. Minn. Stat. § 260C.301, subd. 7. The district court did so here.

In analyzing the best interests of the child, the district court balances three factors: the child’s interest in preserving the parent-child relationship; the parent’s interest in preserving the parent-child relationship; and any competing interests of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). Competing interests include such factors as a stable environment, health considerations, and the child’s preferences. Id.; see also Minn. Stat. § 257.025 (2004) (listing “best interests” factors to be considered in custody disputes, such as the intimacy of the relationship between parent and child, the interaction of the child with siblings, and the child’s cultural background).

H.L.C.-B. has experienced many transitions in her childhood. As noted above, the importance of stability for a child is of critical importance. The record establishes that J.D.B. has struggled with alcoholism throughout his adult life and that his ability to manage this problem outside of prison is unproven. In light of his personal history, which includes prior incarceration and lack of a permanent residence, J.D.B.’s ability to maintain a stable home for the child is questionable at best. The district court found that the child’s only continuing, stable relationship is with her adult half-sister. Our review of the record establishes substantial support for this finding. H.L.C.-B.’s half-sister moved with the child from Michigan to Minnesota, lived with the child for a short period, and maintained daily contact from 2000 until 2002, when S.C. took the child back to Michigan. In August 2003, after several changes of residence, the child was placed in foster care with her half-sister, where she has remained. Her cultural needs as a mixed-race child are being addressed through extended family, school, and day-care. The child has a strong bond with her other half-siblings and with her maternal grandmother. In contrast, she has spent only a few hours with her paternal relatives other than the six months she spent with her parents in Michigan as an infant. In addition, H.L.C.-B. indicated that she wishes to live with her half-sister. The district court’s finding that termination of J.D.B.’s parental rights is in the child’s best interests is well-supported by the record.

Affirmed.