C.O. v. Doe, No. A07-826.

• Decision Date: 02 October 2008
• Docket Number: No. A07-826.
• Citation: 757 N.W.2d 343
• Parties: C.O., Appellant, v. John DOE, et al., Respondents.
• Court: Minnesota Supreme Court

757 N.W.2d 343

C.O., Appellant, v. John DOE, et al., Respondents.

No. A07-826.

Supreme Court of Minnesota.

October 2, 2008.

Rehearing Denied November 26, 2008.

Mark A. Olson, Olson Law Office, Burnsville, MN, for appellant.

Michelle L. MacDonald, MacDonald Law Firm, LLC, West St. Paul, MN, for respondents.

OPINION

PAGE, Justice.

C.O., the biological father of minor A.D., moved to enforce his rights under a contact agreement he entered into with John and Jackie Doe, A.D.'s adoptive parents, pursuant to Minn.Stat. § 259.58 (2006). In response, the Does moved to have C.O.'s motion dismissed and the contact agreement terminated. After hearing arguments on the motions but without holding an evidentiary hearing, the district court granted the Does' motion, concluding that C.O.'s conduct constituted "exceptional circumstances" under section 259.58 warranting termination of the agreement. The court of appeals affirmed. We reverse and remand.

A.D., the biological child of C.O. and T.M., was born in November 2003. A.D. has resided with the Does since two days after her birth. New Life Family Services, a licensed adoption agency, petitioned the Hennepin County District Court seeking the termination of C.O. and T.M.'s parental rights. A hearing on New Life's petition was held on March 7, 2005. That same day, as part of the Does' adoption proceeding, C.O. and T.M. entered into a contact agreement with the Does pursuant to Minn.Stat. § 259.58.

Under the agreement, C.O. had the right to overnight visitation with A.D. every third weekend, to take A.D. to church, to be called "Papa C.," to "reasonable telephone contact" with A.D., and to take A.D. (with the Does) to Panama in the fall of 2005 and again when A.D. is older. Under paragraph 11 of the agreement, C.O.'s contact with A.D. was "contingent" upon his abstaining from alcohol or drugs 24 hours before and during visits with A.D. Paragraph 11 also required that C.O. continue to attend substance abuse support group meetings as recommended by his sponsor, submit to breath analysis randomly and at the request of the Does, and let the Does inspect and approve any new home to which C.O. may move. The agreement specifically provided that if C.O. failed to comply with the terms of paragraph 11, the agreement was subject to termination. The agreement further required that C.O. attend adoption classes or adoption counseling and that disputes under the agreement were to be submitted to mediation before being submitted to the courts. On March 7, 2005, all of the parties to the adoption proceeding, which included both birth parents and their respective counsel, A.D.'s adoptive parents and their counsel, and the guardian ad litem and her counsel, as well as a representative of the adoption agency, signed the agreement. The district court also signed the agreement on that date and filed the agreement as its order for ongoing contact between the parties.

By order dated April 12, 2005, the district court, noting that both C.O. and T.M. consented to the termination of their parental rights and that all parties to the adoption proceedings and their representatives had executed an "Adoption Contact Agreement and Order," terminated C.O.'s and T.M.'s parental rights to A.D. The Does subsequently adopted A.D. on August 23, 2005, in Washington County.

Disputes over C.O.'s contact with A.D. under the agreement arose soon after it was executed. In September 2005, after the adoption was final, C.O. and the Does signed an "Addendum to Contact Agreement," postponing the Panama trip until 2006, setting weekly phone calls between C.O. and A.D., and changing overnight visitation to only 12 hours every 3 weeks on a Saturday. The addendum was not made part of the court's order. The Does apparently do not dispute that C.O.'s last visit with A.D. was on June 23, 2006. On July 27 and 31, 2006, and August 2, 2006, C.O. left voicemail messages for the Does' attorney. According to transcripts of the messages made by a paralegal working for the attorney, C.O. stated that A.D. was his daughter, not the Does', that the attorney was "looking for more problems," that the attorney should "prepare for something," and that the attorney was "in trouble."

C.O. sought mediation through Hennepin County Family Court Services to resolve the issues that had arisen under the contact agreement. The Does rejected mediation through Family Court Services and indicated that they intended to pay for private mediation. It is unclear, however, whether private mediation was attempted. In any event, on August 17, 2006, C.O. brought a pro se motion in Hennepin County District Court to enforce his rights under the contact agreement. On September 15, 2006, the Does moved to dismiss C.O.'s motion; to transfer venue to Washington County, their county of residence and of the adoption; to find C.O. in contempt of the contact agreement; and to terminate C.O.'s contact with A.D. based on "exceptional circumstances." As part of their motion, the Does submitted an affidavit detailing the events allegedly occurring between the Does and C.O., including hearsay statements made by C.O.'s former wife. Copies of C.O.'s criminal records were attached to the affidavit.¹ The Does also submitted an affidavit from the adoption agency director indicating that the "agency witnessed extreme hostility and volatility from [C.O.] towards agency representatives, prior to and following the termination of his parental rights," and that "it is our strong belief that [C.O.] rejects and disregards the adoption order itself." C.O. submitted an affidavit indicating that he had attended Alcohol Anonymous classes, completed a 12-hour parenting class, contacted his sponsor weekly, and that he worked and attended church.²

Venue was transferred from Hennepin County to Washington County, and on January 12, 2007, the Washington County District Court held a hearing on the parties' motions.³ C.O. appeared with an interpreter but without counsel. The Does were represented by counsel at the hearing. A representative for the adoption agency also was in attendance.

After assurances from the Does' counsel that the district court did not need to appoint a guardian ad litem for A.D. or hold an evidentiary hearing, and after argument by the Does' counsel and statements from C.O., the court indicated that it was vacating the contact agreement and asked counsel for the Does to draft a proposed order. In its written order, apparently taken verbatim from the Does' proposed order,⁴ the court found, among other things, that: (1) C.O. "[had] made threats to disrupt the adoption, and used destructive language regarding the child's adoption"; (2) C.O. did not comply with the contact agreement because he failed to abstain from alcohol consumption, attend substance abuse meetings, submit "to reasonably requested random breath analysis," and refused to allow the Does to inspect his home; (3) C.O. failed to attend an adoption class or counseling as required by the contact agreement; (4) C.O.'s threats to take A.D. from her adoptive home "show[ ] an overall disregard and contempt for the duly entered decree of adoption"; (5) C.O. "made no showing with respect to his compliance with the terms" of the contact agreement; (6) C.O. "has repeatedly used destructive and disrespectful language" regarding A.D. and her adoption; (7) the Does fear C.O.; (8) C.O. referred to A.D. as his "daughter" at the hearing and told the court the Does "purchased" A.D. for $13,000; (9) exceptional circumstances have arisen; (10) continued contact between C.O. and A.D. would interfere with the Does' parental relationship with A.D.; and (11) it is in A.D.'s best interests to have no further contact with C.O. As a result of these findings, the court ordered C.O. to have no further contact with A.D. or the Does. C.O. appealed.⁵

In an unpublished decision, a divided court of appeals affirmed the district court order terminating C.O.'s contact with A.D. C.O. v. Doe, et al., No. A07-0826, 2007 WL 4111206, at *1 (Minn.App. Nov.20, 2007). The court concluded that "[t]he record supports the district court's findings that [C.O.] violated multiple provisions of the contact agreement," including the requirements that he attend an adoption class and substance abuse counseling. Id. at *4. Although the court acknowledged that the district court's findings that C.O. failed to abstain from alcohol before visiting A.D., failed to submit to breath tests, and failed to allow the Does to inspect his home were not supported by the record, the court concluded that the unsupported findings "represent a small portion" of the district court's findings.⁶ Id. The court of appeals appears to have also concluded that the district court's admission of certain hearsay evidence⁷ did not prejudice C.O. because the district court did not reference the hearsay in its findings of fact. Id. As for C.O.'s argument that he was entitled to an evidentiary hearing, the court noted that C.O. was given an opportunity to "make [his] argument" at the hearing and that he was provided an interpreter. Id. at *5. Therefore, according to the court, "[C.O.] was given a sufficient opportunity to be heard" and "his due-process rights were satisfied." Id. Finally, the court concluded that the district court's determination that C.O.'s threats constituted "exceptional circumstances" was not clearly erroneous and that the district court did not abuse its discretion in vacating the contact agreement in A.D.'s best interests. Id.

Here, C.O. argues that: (1) the termination provision in the contact agreement is not enforceable, as Minn.Stat. § 259.58 allows only modification of contact agreements and not termination; (2) if the provision is enforceable, the party whose rights are subject to termination should have the same procedural rights as individuals whose parental rights are being terminated; (3) no "exceptional circumstances" exist in this case; and (4) the...