Durkin v. Hinich
| Decision Date | 07 July 1989 |
| Docket Number | No. C6-88-876,C6-88-876 |
| Citation | 442 N.W.2d 148 |
| Parties | Deborah DURKIN, Respondent, v. Kathryn HINICH, Appellant. In re the Matter of S.A.H. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Family court may consolidate dependency and neglect petition under Minn.Stat. c. 260 (1986) and custody petition under Minn.Stat. c. 518 (1986) in one evidentiary hearing.
2. Family court did not abuse its discretion in dismissing a dependency and neglect petition while awarding a change of custody based on a custody petition where appellant had initially sought to have the dependency and neglect petition dismissed and the court fully considered both petitions throughout the evidentiary hearing.
3. Grave and weighty reasons existed to award a change of custody from a natural parent to a third party where the third party was not a total stranger to the family and all expert testimony found in favor of awarding custody to the third party.
Barbara J. May, J. Oakes & Associates, St. Paul, for appellant.
Wright S. Walling, Jody Ollyoer, DeSmidt, Mahoney & Walling, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
S.A.H. was born to Kathryn Hinich, appellant, and P.M. Johnson on January 21, 1983. The parents were not married. In September 1986, S.A.H. went to live with Deborah Durkin, respondent, at the request of Johnson. On February 17, 1987, Johnson filed a dependency and neglect petition under Minn.Stat. c. 260 (1986) against Hinich in Ramsey County Juvenile Court. The court found probable cause existed. Hinich moved for a dismissal.
On March 3, 1987, Durkin filed a petition for permanent custody of S.A.H. in Ramsey County Family Court under Minn.Stat. c. 518 (1986). Thereafter, the juvenile court continued the dependency and neglect matter until the custody issue in family court was resolved.
On April 28, 1987, the family court concluded that concurrent proceedings in juvenile and family court were permitted and a custody evaluation and recommendation should be prepared by the Ramsey County Department of Court Services. On October 15, both petitions were consolidated in one action under the jurisdiction of the family court.
A hearing was held on October 20, 1987 before a family court referee who recommended an evidentiary hearing be held. After the December 4-9, 1987 hearing, the court concluded a) permanent legal and physical care, custody and control of S.A.H. should be awarded to Durkin; b) the dependency and neglect petition brought by Johnson should be dismissed; and c) visitation between S.A.H. and Hinich should be suspended until such time as it is deemed appropriate by the child's therapist.
The Court of Appeals affirmed the family court's ruling on November 15, 1988 granting permanent custody to Durkin. Durkin v. Hinich, 431 N.W.2d 553 (Minn.App.1988). We affirm.
At the time of S.A.H.'s birth, Hinich was 31 years old and the father, Johnson, was 73 years old. Hinich was uncertain at first about keeping the child, so a social worker from United Hospital contacted the Ramsey County Human Services Agency and the child was placed in foster care. Approximately six weeks later, on Hinich's request, the child was released to her and she decided to keep the child.
S.A.H. remained in the care and custody of Hinich until September 13, 1986 when Hinich dropped off S.A.H. at her mother, Muriel Hinich's, house. Johnson testified that prior to Hinich's leaving S.A.H. at her mother's, Hinich had called him saying she was unable to care for S.A.H. anymore and S.A.H. could be picked up at Muriel Hinich's home. Muriel Hinich also called Johnson and told him she could not care for the child either, so he would have to come and pick up S.A.H. Johnson picked up the child and took the child over to Durkin's house. Johnson had previously discussed with Durkin the possibility of her caring for the child since they were longtime family friends and Durkin agreed.
According to Johnson and Durkin, neither Hinich nor her mother objected to the placement of the child with Durkin. Hinich testified Johnson told her the arrangement would only be temporary. Muriel Hinich testified she only agreed to the arrangement because she thought it would give her daughter a respite and allow Johnson more time to see the child. She also said there was no discussion of the length of time the child would be with Durkin. Dorothy Hinich, Kathryn Hinich's sister, also initially supported placement of the child with Durkin.
Three weeks after S.A.H. was placed with Durkin, Hinich saw the child when Durkin brought S.A.H. to Muriel Hinich's home for a visit. Hinich continued to see S.A.H. when Durkin brought her to Muriel Hinich's home for weekly visits. This visitation was voluntarily performed by Durkin; and court ordered visitation did not begin until February 1987.
The parties differ when the first request was made to return S.A.H. to Hinich who testified she called Durkin about a month after S.A.H. had been living there and requested she be returned. Durkin testified Hinich never made any request for the child during the first three months the child was living there. She also testified she only saw Hinich three times during the fall of 1986 and spoke on the phone with her approximately 5-10 times.
Noticeable problems with the living arrangement were evident on Christmas Day 1986 when Johnson arrived at Muriel Hinich's home to get S.A.H. who had been visiting with her mother and grandparents. Hinich grabbed the child and began shouting she did not want S.A.H. to leave. Eventually Hinich allowed Johnson to take the child, but Durkin testified when the child arrived at her house she was visibly upset and it took some time to calm her down.
In April 1987, Hinich violated a court ordered visitation schedule by not having S.A.H. ready for Johnson on Easter Sunday afternoon. Johnson arrived at Muriel Hinich's home and was told by Muriel Hinich she did not know where Hinich or S.A.H. were. Johnson secured a court order to have the child returned and on the following Tuesday, S.A.H. was turned back to Johnson and Durkin by Hinich.
A number of psychologists and counselors testified as to the mental states of the parties and their parenting abilities. All of the experts making custody recommendations concluded that custody should be awarded to Durkin. Dr. Linda Burkett conducted a psychological evaluation of Hinich and Durkin as part of Ramsey County's custody hearing. She found Hinich had little control over S.A.H., there was no significant level of attachment between them and concluded as a result of Hinich's inability to focus her energy on anyone other than herself, she is unable to meet S.A.H.'s needs. Dr. Burkett expressed no concerns about Durkin and concluded Durkin would be able to provide nurturing and effective care.
Dr. Sandra Hewitt, a licensed consulting psychologist, hired by Durkin to conduct an evaluation of S.A.H. shortly after the child came to live with her, observed S.A.H. on November 18, 1986 and noted S.A.H. was a very difficult and manipulative child who would not listen to directions. She concluded S.A.H. had not established any bonding or attachment with Kathryn Hinich. Dr. Hewitt examined S.A.H. again in December 1987 after she had been living with Durkin for over a year, and noticed dramatic changes in S.A.H. including significant bonding between S.A.H. and Durkin. Dr. Hewitt expressed grave concerns about returning S.A.H. to the care of Hinich. Dr. Georganne Farseth, a psychologist who evaluated S.A.H. at the request of Dr. Hewitt also concluded removal of S.A.H. from Durkin's custody would be extremely detrimental and result in severe emotional and behavioral regression.
Dr. Diane Stellrecht, a psychologist to whom Hinich brought S.A.H. for an evaluation, also testified. Dr. Stellrecht found bonding had taken place between S.A.H. and Hinich but S.A.H. was emotionally delayed by approximately two years. In addition, she was unable to provide any opinion as to Hinich's parenting abilities.
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