In re Welfare of Children of RW, No. A03-262.

• Citation: 678 N.W.2d 49
• Decision Date: 22 April 2004
• Docket Number: No. A03-262.
• Parties: In the Matter of the WELFARE OF the CHILDREN OF R.W.
• Court: Minnesota Supreme Court

678 N.W.2d 49

In the Matter of the WELFARE OF the CHILDREN OF R.W.

No. A03-262.

Supreme Court of Minnesota.

April 22, 2004.

Sherri Dawn Hawley, Walling, Berg, & Debele, P.A., Minneapolis MN, for Appellant's.

Arden Jay Fritz, Elk River, MN, for Respondent's.

Thomas Richards, Buffalo, MN, for Children's.

Barbara Onken, Guardian ad Litem, Elk River MN.

Considered and decided by the court en banc without oral argument.

OPINION

BLATZ, Chief Justice.

Following a contested hearing, the district court terminated appellant R.W.'s¹ parental rights to two children he had by K.K. based on findings that (1) appellant had abandoned the children; (2) appellant had substantially, continuously or repeatedly neglected to comply with the duties imposed upon him by the parent and child relationship; (3) reasonable efforts had failed to correct the conditions leading to the out-of-home placement; and (4) the children were neglected and in foster care. See Minn.Stat. § 260C.301, subd. 1(b)(1)-(2), (5), (8) (2002). The district court also found that termination was in the best interests of the children. The court of appeals rejected the district court's findings of fact and concluded that no statutory grounds for termination existed, but affirmed termination of appellant's parental rights on the ground that termination was in the best interests of the children. We conclude that the court of appeals erred in affirming termination based solely on the best interests of the children but nonetheless affirm the termination of appellant's parental rights because we conclude that the district court's order terminating parental rights was based on clear and convincing evidence that statutory grounds for termination were met and that termination is in the best interests of the children.

Appellant and K.K. are the biological parents of J.L.W., born on May 20, 1996, and A.A.W., born on November 5, 1997. Appellant and K.K. never married, but appellant lived with K.K. until March 1999, at which time K.K. asked appellant to move out. While appellant lived with K.K., both he and K.K. provided only marginal care for the children. After moving out, appellant visited the children weekly and often stayed overnight at K.K.'s home. Appellant, who was on probation for selling methamphetamine, knew that K.K. used methamphetamine but he did not consider K.K.'s drug use to be a problem and had no concerns about the children being left in K.K.'s care.

On April 6, 2000, appellant was arrested on a burglary charge and for violating the terms of probation. He is currently incarcerated in Appleton, Minnesota, and his earliest possible release date is in October 2005.

Initially, K.K. wrote letters to appellant in an attempt to reunite with him. However, K.K. stopped corresponding with appellant in December 2001 after appellant made it clear that their relationship was over. Appellant never sent cards or letters to A.A.W. or J.L.W. directly, and he never provided any gifts or financial assistance to the children. Any contact appellant had with the children was indirect through his correspondence with K.K.

In October 2001, Sherburne County Social Services (county) filed a child in need of protection or services (CHIPS) petition alleging that the children were in need of protection based on K.K.'s use of methamphetamine and evidence that K.K. had left the children at her home without heat for four days under the supervision of a baby-sitter. At the time the CHIPS petition was filed, A.A.W. and J.L.W. were ages 5 and 3, respectively. Pursuant to court order, the children were placed in foster care.

Appellant learned of the CHIPS petition from K.K. in October 2001, and he received formal notice of the petition on or about November 1, 2001. The notice informed appellant that he had the right to participate in the decision-making process affecting the future of his children and included a card with a toll-free number for the county that he could call for that purpose. Accompanying the petition was a request by the county for background information on the children. Appellant did not respond to the petition, provide information requested by the county regarding Indian heritage, or otherwise contact the county. Instead, appellant decided to rely on K.K. to comply with her case plan in order to have the children returned to her. Appellant did not request information on how to contact his children in foster care, nor did he ever make any attempt to have contact with them.

On March 26, 2002, a county social worker sent a form to appellant asking appellant to agree to voluntary termination of his parental rights. This request was made based on representations by the children's mother that appellant had not been involved with the children for more than two years and on the fact that appellant had not contacted the county or the children following receipt of the November 1, 2001 notice of the CHIPS petition.

In response to the request for voluntary termination of his parental rights, appellant sent a letter requesting more time to contact family members to care for the children. However, appellant never provided the name of a relative who was interested in custody of the children and no member of his family ever contacted the county. Although appellant stated that he did not want to "lose" his children in the letter, he again did not request information about their whereabouts, their status, or how to initiate contact with them.

On July 19, 2002, appellant was personally served with a summons and petition to terminate his parental rights. At a district court hearing on August 27, 2003, K.K. voluntarily terminated her parental rights to A.A.W. and J.L.W. The district court terminated appellant's parental rights based on his failure to appear.

After receiving notice of the order terminating his parental rights, appellant wrote to the social worker and to the district court. In the letter to the district court, appellant claimed that he had telephoned the court on August 27 for the hearing, but had been placed on "hold" and never put through to the judge. Upon confirming that appellant had in fact attempted to participate by telephone, the district court granted appellant's motion to vacate the default termination order. A new trial was subsequently scheduled.

At trial, appellant testified that he did not respond to the CHIPS petition because K.K. told him that she would comply with her case plan and have the children returned to her. He further testified that he had "done everything that [he] could" to oppose termination after learning that the children would not be returned to K.K. On cross-examination, appellant acknowledged that the only action he took to prevent termination of his parental rights was to write two letters to the social worker and one letter to the district court. He admitted that he never contacted the children's guardian ad litem in the case or attempted to have contact with his children after they were placed in foster care. In contrast, appellant testified that while incarcerated he has had contact through letters and phone calls with another minor child, not the subject of the current petition.

At trial, the guardian ad litem for A.A.W. and J.L.W. testified that while the children asked about their mother when first placed in foster care and continue to do so, they have never spoken or inquired about their father. The guardian ad litem stated that she had not contacted appellant in the course of her evaluation because appellant had never responded to the CHIPS petition. She further testified that she had not considered appellant a permanent placement option because appellant was incarcerated and it was not in the children's best interests to delay permanent placement to "wait[] for maybes."

In its order terminating appellant's parental rights, the district court found that appellant's claim that he had maintained a continuous relationship with the children while incarcerated was not credible. Instead, on the evidence before it, the court found that there was clear and convincing evidence to support termination of appellant's parental rights under four separate statutory criteria: (1) that appellant had abandoned the children; (2) that appellant substantially, continuously or repeatedly neglected to comply with the duties imposed upon him by the parent and child relationship and that reasonable efforts to correct the conditions that formed the basis for the petition would be futile; (3) that reasonable efforts had failed to correct the conditions leading to the out-of-home placement; and (4) that the children were neglected and in foster care. Minn.Stat. § 260C.301, subd. 1(b)(1)-(2), (5), (8). The court also found that termination was in the children's best interests because of their need for permanent placement.

Appellant appealed, challenging the district court's findings that statutory grounds for termination existed and that termination was in the children's best interests. Although the court of appeals rejected the district court's findings of fact and concluded that no statutory grounds for termination existed, the court of appeals nonetheless affirmed termination of appellant's parental rights. It did so on the basis that it was in the children's best interests because the children would have to wait at least two years before appellant would be available to parent them due to his incarceration.

We granted appellant's petition for further review to address whether the court of appeals erred in concluding that appellant's parental rights could be terminated in the absence of statutory grounds for termination. If not, we must also address whether the court of appeals' decision should nonetheless be affirmed on the basis that the district court's findings as to the statutory grounds for termination are supported by clear and convincing evidence.

I.

The court of appeals concluded that termination of appellant's parental...