This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1642

 

 

In the Matter of the Welfare of the Children of:  R.A.T. and J.T., Parents

 

 

Filed March 13, 2007

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

 

Watonwan County District Court

File No. 83-J0-05-050019

 

 

Laurie J. Miller, Nicole M. Moen, Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402 (for appellant M.T.G.)

 

Lamar T. Piper, Watonwan County Attorney, Watonwan County Courthouse, 710 Second Avenue South, Post Office Box 518, St. James, MN 56081 (for respondent Watonwan County Human Services)

 

James D. Fleming, Fifth District Public Defender, Troy G. Timmerman, Assistant Public Defender, 2423 Albion Avenue, Suite 6, Fairmont, MN 56031 (for respondent R.A.T.)

 

Darci Jo Bentz, Scott Nielsen & Bentz, P.A., 117 North Main Street, Fairmont, MN 56031 (for respondent J.T.)

 

Shiree Oliver, Guardian ad Litem, Watonwan County Courthouse, 710 Second Avenue South, St. James, MN 56081

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In this child-placement appeal arising after a termination of parental rights, appellant M.T.G., the children’s maternal grandmother, argues that the district court failed to give her a statutory preference to be the children’s custodian and that the record lacks evidence to rebut that statutory preference.  We affirm the district court’s treatment of the statutory custody preference but reverse its rejection of grandmother as a potential custodian and remand for further proceedings.

FACTS

            The children who are the subject of this proceeding are United States citizens and are children of Mexican citizens who live in Minnesota.  When one child was diagnosed with “shaken baby syndrome,” both children were placed in foster care.  The parents’ parental rights were later terminated, after which the parents had a third child.  The record indicates that the third child is the subject of a petition to terminate parental rights.  While it is undisputed that respondent Watonwan County Human Services did not do an adequate relative search when addressing the children’s placement, their maternal grandmother, a Mexican citizen, came from Mexico to Minnesota and petitioned for custody of the children.  After a trial on her petition, the district court denied the petition and directed the county to inform the foster parents that they could petition to adopt the children.

D E C I S I O N

I

            Under Minn. Stat. § 260C.212, subd. 2(a) (2004):

            The policy of the state of Minnesota is to ensure that the child’s best interests are met by requiring an individualized determination of the needs of the child and of how the selected placement will serve the needs of the child being placed.  The authorized child-placing agency shall place a child, released by court order or by voluntary release by the parent or parents, in a family foster home selected by considering placement with relatives and important friends in the following order:

 

            (1) with an individual who is related to the child by blood, marriage, or adoption; or . . . .

 

Grandmother argues that, as the children’s blood relative, this statute makes her a favored placement for the children.  The county disagrees, arguing that Minn. Stat. § 260C.212, subd. 2(a) applies to temporary, rather than permanent, placements and that any priority given a blood relative under prior versions of this or similar statutes and associated caselaw has been removed.  Questions of statutory interpretation are legal questions that are reviewed de novo.  In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn. 1998).

            Under current law, if the court terminates parental rights of both parents, it “shall order” transfer of the guardianship and legal custody of the child to one of certain statutorily-listed entities.  Minn. Stat. § 260C.325 (2004).  Before the 1999 reorganization of the juvenile-protection statutes, what is currently Minn. Stat. § 260C.325 was Minn. Stat. 260.242, subd. 1 (1998).  Compare Minn. Stat. 260.242, subd. 1 (1998) with Minn. Stat. § 260C.325 (2004).  In a permanent-placement case decided under the prior statute, the supreme court stated that after terminating parental rights, the district court was authorized to transfer the child’s guardianship and legal custody pursuant to Minn. Stat. § 260.242, subd. 1 (1988), and that “compliance with Minn. Stat. § 260.181, subd. 3 (1988), which defines an order of placement preference, is mandated.”  In re Welfare of M.M., 452 N.W.2d 236, 238 (Minn. 1990).  The provision that was Minn. Stat. § 260.181, subd. 3 (1988), with certain amendments, is what became Minn. Stat. § 260C.212, subd. 2(a) (2004), the statute under which grandmother seeks placement preference.  Compare Minn. Stat. § 260.181, subd. 3 (1988) with Minn. Stat. § 260C.212, subd. 2(a) (2004).  Thus, the supreme court has held that compliance with the current statute’s predecessor was required.  Without statutory or caselaw authority holding differently for the current statute, we conclude that compliance with the current statute is required here.

            In addressing grandmother’s petition, the district court stated that “placement with a relative is preferred under the language of Minn. Stat. § 260C.212, subd. 2, where all other considerations are either equal or otherwise favor such placement.”  Grandmother argues that the district court misapplied the statute because, under Minn. Stat. § 260C.212, subd. 2(a)(1) (2004), she is entitled to “first priority in placement” and that she cannot lose this preference without a showing that placement of the children with her would be detrimental to the children.  Grandmother is incorrect.

            The caselaw grandmother cites to support her argument is stale.  The most recent case she cites is In re C.H., 554 N.W.2d 737 (Minn. 1996), which involved an adoption placement preference parallel to the then-existing juvenile-protection placement preference.  Compare Minn. Stat. § 259.57, subd. 2 (1994) (adoption placement preference) with Minn. Stat. § 260.181, subd. 3 (1994) (child-protection placement preference).  C.H. recognized that under the then-existing adoption-placement-preference statute, “good cause” could allow avoidance of the statutory placement preference, but that the existence of “good cause” was only an element of the more weighty best-interests analysis.  C.H., 554 N.W.2d at 743.

            In 1997, the statutes creating the adoption and juvenile-protection placement preferences were amended.  The juvenile-protection statute was amended as follows:

Subd. 3. PROTECTION OF HERITAGE OR BACKGROUND-THE CHILD’S BEST INTERESTS. (a) The policy of the state is to ensure that the best interests of children are met by requiring due, not sole, consideration of the child's race or ethnic heritage individualized determinations of the needs of the child and of how the selected placement will serve the needs of the child in foster care placements.

 

. . . .

 

(c) The court, in transferring legal custody of any child or appointing a guardian for the child under the laws relating to juvenile courts, shall place the child, in the following order of preference, consider placement, consistent with the child’s best interests and in the following order, in the absence of good cause to the contrary,- in the legal custody or guardianship of an individual who (a)-(1) is related to the child by blood, marriage, or adoption, or if that would be detrimental to the child or a relative is not available, who (b)-(2) is an important friend with whom the child has resided or had significant contact or if that is not possible, who (c) is of the same racial or ethnic heritage as the child, or if that is not possible, who (d) is knowledgeable and appreciative of the child's racial or ethnic heritage.  Placement of a child cannot be delayed or denied based on race, color, or national origin of the foster parent or the child. Whenever possible, siblings should be placed together unless it is determined not to be in the best interests of a sibling.

 

Minn. Laws ch. 86 § 12; see also 1997 Minn. Laws ch. 86, §§ 9, 10 (amending adoption placement-preference statute in similar fashion).  Thus, while C.H. recognized that the then-existing “good-cause” requirement for avoiding the statutory placement preference was only an element of the overall best-interests analysis, the 1997 amendments of the statutes removed “good cause” as a requirement to avoid the statutory placement preferences.  The subsequent 1999 reorganization of the juvenile-protection statutes that produced the current statutes did not alter this aspect of the preference statute.  Compare Minn. Stat. § 260.181, subd. 3 (Supp. 1997) with Minn. Stat. 260C.212, subd. 2 (2004).  As a result, the current statute only directs consideration of placement with relatives before other placements when the relative placement is in a child’s best interests; it does not provide a basis for placement with a relative when such a placement is not in a child’s best interests.  For this reason, we do not address grandmother’s argument that the county failed to rebut a statutory presumption.

II

            When a child is to be placed out of the child’s home, the placing authority is to search for relatives of the child who might be able to provide a home for the child.  Minn. Stat. § 260C.212, subd. 5 (2004).  The district court found, and on appeal the county admits, that the relative search in this case did not satisfy the statute.  The district court also found that “[n]otwithstanding” the inadequate relative search, “it is clear that the relative the parents wanted to come forward and obtain custody of the children was [grandmother,]” and this finding is not challenged on appeal.

            The district court further found that the county’s inadequate relative search affected neither the district court’s determination that “[father] presents a threat to the safety of the children” nor its determination that “the children would probably be reunited with [father] if custody were transferred to [grandmother,]” and that, while the “Court would prefer to place the children with a family of Mexican descent[,] . . . the choice between cultural heritage and the physical safety of the children is, in reality, no choice at all[.]”

            The record before this court includes the order terminating the parents’ parental rights.  That order quotes medical testimony, some of it graphic, from the termination trial describing the extent and permanency of the injuries inflicted on the child who suffered “shaken baby syndrome,” the fact that these injuries could not have been accidentally inflicted, and the significant delay in getting medical attention for the injured child.  This record amply supports the finding that the parents, and particularly father, present a danger to the children.

            The district court’s finding that grandmother might expose the children to the parents is a prediction of grandmother’s future conduct.  While both the social worker and the guardian ad litem expressed concerns that grandmother would allow the parents back into the children’s lives, that otherwise unsupported testimony and the district court’s finding are directly contrary to grandmother’s explicit testimony that she would not do so and that she would honor the termination of parental rights.

            We recognize that a district court’s findings of fact are not set aside on appeal unless clearly erroneous.  C.H., 554 N.W.2d at 743.  We also recognize both that district courts are in the best position to judge the weight and credibility of evidence, as well as to make any inferences based on that evidence, and that appellate courts generally defer to a district court’s determinations on these subjects.  See, e.g., In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (credibility and inferences); In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (weight and credibility).  Finally, we recognize that the county’s initial failure to do an adequate relative search combined with its subsequent failure to cure that defect put the district court in the awkward position of having to resolve a thorny question without a fully-developed record and that, as a result, the district court’s findings were based on inferences it drew from the record and the testimony of the social worker and the guardian ad litem.  The testimony of the social worker and the guardian ad litem, however, were also inferences from the limited information that they had.  Thus, not only was the district court’s finding that grandmother might expose the children to the parents an inference, but that inference was based on the inferences drawn by the testifying witnesses, and that testimony was, in turn, composed primarily of inferences.  Generally, the drawing of inferences is squarely within the district court’s discretion, but the record does not support the inferences drawn here for two reasons.

            First, the record presented to the district court is incomplete.  The relative search and associated investigations are admittedly less than required by statute.  Second, the inferential findings made by the district court seem to exceed the scope of the inferences reasonably supportable by the record.  See In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996) (stating “evidence and its reasonable inferences . . . in the light most favorable to the prevailing party” (emphasis added)).  Specifically, the district court noted grandmother’s delay in arriving in this country was the result of “bureaucratic problems involving the issuance of a visa [to grandmother] by the Mexican government” and the county’s initial problems in gathering information about grandmother arose, in significant part, because the attorney the representing the children’s parents precluded communication between the parents and the county “unless the attorney were present[,]” and that this “dramatically reduced, if not eliminated, any meaningful communication.” 

            Also, the district court based its inference that grandmother is unable to refuse mother’s wishes to contact the children in part on grandmother and her husband allowing mother, at mother’s 15th birthday party, to marry someone of whom grandmother did not approve.  But this inference seems inconsistent with the district court’s simultaneous statement that it was “not concerned by the fact that [grandmother] allowed [mother] to marry as [mother] chose.”  Similarly, the district court’s finding that grandmother facilitated mother’s contact with the children after the termination of mother’s parental rights is based on grandmother giving a dress, provided to her by mother, to one child and taking pictures of the children.  But the district court also found that “the dress incident was not technically a violation of the court order” and that both grandmother and her husband are professional photographers.

Moreover, while the district court found “some ambivalence in [grandmother’s] attitude towards the diagnosis of shaken baby syndrome, and the resultant termination of [the parents’] parental rights,” grandmother’s ambivalence is only natural in light of the fact that the county failed to provide grandmother with any specific information about the diagnosis.  Finally, while the district court noted that grandmother’s desire to move the children to Mexico could create problems enforcing the order of a Minnesota court, nothing in the record indicates or even suggests that the Mexican courts are unwilling or unable to adequately supervise grandmother and the children.

            On this incomplete record, and particularly in light of the district court’s stated preference “to place the children with a family of Mexican descent[,]” we cannot affirm the district court’s rejection of grandmother as a custodian of the children.

III

            Because we conclude that this record does not support the inferential findings based upon which the district court eliminated grandmother from consideration as a potential placement for the children, we reverse this aspect of the district court’s ruling and remand for further development of the record and for the district court, in light of that developed record, to readdress grandmother’s petition for custody of these children.  We express no opinion on the ultimate disposition of grandmother’s petition.  Whatever the ultimate disposition of her petition is, it must be on an adequately developed record and findings supported by that record.  Because we are remanding for further development of the record, we do not further address grandmother’s argument regarding the children’s best interests.

            Affirmed in part, reversed in part, and remanded.