In re Welfare of Child of L. A. M.
| Decision Date | 02 November 2020 |
| Docket Number | A20-0742,A20-0743 |
| Parties | In re the Matter of the Welfare of the Child of: L. A. M. and N. J. K., Parents (A20-0742), In re the Matter of the Welfare of the Child of: L. A. M. and C. M.-N., Parents (A20-0743). |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
*
Otter Tail County District Court
File Nos. 56-JV-19-954; 56-JV-19-955
Paul B. Hunt, Karkela, Hunt & Cheshire, PLLP, Perham, Minnesota (for appellant N.J.K.)
Brian R. Geis, Geis Law Office, Fergus Falls, Minnesota (for respondent L.A.M.)
Kathleen Schur, Otter Tail County Department of Human Services, Fergus Falls, Minnesota (for Otter Tail County Department of Human Services)
Amy Twedt, Fergus Falls, Minnesota (guardian ad litem)
Considered and decided by Frisch, Presiding Judge; Johnson, Judge; and Cleary, Judge.
UNPUBLISHED OPINION
In these consolidated appeals from the denial of a private petition for termination of parental rights and an order denying the posttrial motion of appellant N.J.K. (father), father argues that the district court erred in finding that respondent L.A.M. (mother) did not abandon the children, did not fail to fulfill parental duties, and was not palpably unfit to be a party to the parent-child relationship. Mother challenges the district court's finding that she failed to pay child support without cause. Father further argues that the district court misunderstood the best-interests-of-the-child standard, misapplied that standard to the facts of this case, and mischaracterized expert testimony. We affirm.
This is an unusual appeal, in that it arises from a private petition to involuntarily terminate parental rights. We note at the outset that this appeal does not involve a child protection matter; rather, it addresses only termination of mother's parental rights. There is a long history of custody disputes between the parties, beginning almost a decade ago.
Mother is the biological mother of S.M.M., now eleven years old, and M.J.K.-M., now nine years old. Father is the biological father of M.J.K.-M. C.M.-N. is the biological father of S.M.M. Father and mother met in June 2009, approximately six months after S.M.M. was born. They were not married but lived together from April 2010 until July 2011, during which time M.J.K.-M. was born.
After father and mother separated in 2011, the children resided with mother in South Dakota. At first, mother had temporary custody and father had parenting time every other weekend. But during this time, mother was in an abusive relationship, had unstable housing, and used methamphetamines and other drugs. In February 2012, mother was arrested for drug possession, whereupon father moved for emergency custody of the children. Mother did not appear at the subsequent hearing, and the court awarded father sole temporary legal and physical custody of both children. The court granted mother supervised parenting time once per week for five hours, and granted the children's maternal grandparents' visitation rights one weekend per month, so long as they did not allow mother to contact the children. Mother did not exercise her visitation rights until five months later, but did maintain irregular phone contact. Mother's parenting time was further reduced in September 2012, but the district court provided that mother could petition for increased visitation if she (1) completed a chemical dependency evaluation; (2) completed a psychological evaluation; and (3) remained law abiding.
Between 2012 and February 2014, mother visited the children only seven times. During this time, mother was in a relationship with J.H.Y., Jr. (J.H.Y.), with whom she had another child. She and J.H.Y. used methamphetamines regularly. She did not follow through on the court-ordered conditions to increase parenting time, failed to consistently exercise parenting time, and sought phone contact with the children only sporadically. When mother and J.H.Y. split up, J.H.Y. was granted custody of their child.
After additional motions by both parties to modify custody and parenting time, the district court found on July 13, 2016 that restricting mother's contact with S.M.M. and M.J.K.-M. was in their best interest. The district court found that mother's inconsistent parenting time and phone calls, as well as mother's mental and chemical health, emotionally harmed the children. The district court prohibited mother's phone contact with the children and also ordered mother to follow through with certain conditions to reinstate parenting time: (1) undergo a chemical dependency evaluation and follow any resulting recommendations; (2) undergo a psychological evaluation and follow any resulting recommendations; (3) notify father and the children's therapists of evaluation results; (4) sign a release so that father and therapists could obtain her records; and (5) remain law abiding.
Mother's circumstances appear to have changed for the better after the district court's July 2016 order. Mother saw a therapist, Dr. Mark Bontreger, on July 29, 2016, two weeks after the district court's July 2016 order re-imposing the conditions for increasing parenting time. The district court found that mother visited Dr. Bontreger approximately six times from July 29, 2016 to November 1, 2017. Mother testified credibly at trial that she was able to work through her history of drug use, abusive relationships, and custody issues with Dr. Bontreger, and that she took steps to improve herself following her sessions with him.1 After several visits, Dr. Bontreger said that shecould see him on an as-needed basis, rather than for regular, scheduled appointments. Dr. Bontreger recommended that mother avoid all mood-altering chemicals, and the district court found that she substantially complied with this recommendation. Mother also testified credibly at trial that she had not used methamphetamine since early 2016, though she continued to consume alcohol sporadically in limited amounts. After clarification early in the proceedings at issue here that she should also abstain from alcohol, she testified that she had done so.
Mother's housing and relationships also appear more stable. She has lived with B.S. since early 2017, and they have a child together. B.S. credibly testified that mother had not used controlled substances during their relationship, that she attended therapy and had no extreme mood swings, and that she provided adequate care for the couple's child. Mother stays home to care for that child, but hopes to go to work when the child reaches school-age.
Meanwhile, both S.M.M. and M.J.K.-M. have lived with father since 2012. The children have a good relationship with father. He provides a stable home for them, and they are generally doing well academically and socially. However, both children have emotional and psychological issues stemming from mother's absence and sporadic contact. For example, Deena McMahon, MSW, LICSW (Ms. McMahon) testified that S.M.M. feels she needs to please everyone, and she feels it is her fault if grownups are sad. Ms.McMahon testified that M.J.K.-M. tends to bottle up her feelings and have explosive tantrums, attributable to internalizing her feelings about mother.2 S.M.M. on two instances told friends and teachers that her mother had died, after which father took her to see a child psychologist. S.M.M.'s statements about her mother may stem from her need to explain mother's absence. Ms. McMahon testified extensively to the harmful effects of mother's absence and inconsistency on the children.
Despite mother's absence, both children have professed a desire to see mother.3 They have asked to write to mother. When the guardian ad litem, Amy Twedt (Ms. Twedt), visited the children, they had numerous questions about mother. Both children expressed desire to spend time with mother, though S.M.M. told the district court that starting with phone calls would be best given mother's history of inconsistency. Both Ms. McMahon and Ms. Twedt stated that the children should retain at least some contact with mother. Additionally, the children see their maternal grandparents for visitation approximately one weekend each month. Both would like to continue these visits. Both children would also like to maintain contact with their half-siblings through mother, which contact Ms. McMahon also supported.
Father's significant other, S.H., has lived with father and the children since summer of 2019. Both children have a close relationship with S.H. and see her as a mother figure. Father and S.H. intend to get married, and both father and S.H. hope to adopt S.M.M.; however, at the time of trial, the district court found it lacked assurances that marriage and adoption would indeed occur.
Mother filed a motion to modify custody on February 26, 2019, seeking a gradual increase in parenting time. Father filed a response to mother's motion, but we note that on the same day, he filed the private petition for involuntary termination of parental rights, seeking to terminate both mother's and C.M.-N.'s parental rights. The district court held trial on October 15-16, 2019, November 12, 2019, December 18, 2019, and March 12, 2020. At trial, the district court received testimony from father, mother, both of mother's parents (the children's maternal grandparents), J.H.Y., B.S., M.H.4, Ms. McMahon, and Ms. Twedt. Ms. McMahon qualified as an expert in child trauma, abandonment, adoption, child development, and attachment. We note that the district court judge in this case has presided over family law disputes between these parties for the past decade and was therefore well-positioned to understand mother's progress and assess the credibility of those testifying at trial.
The district court denied father's petition to terminate mother's...
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