In the Matter of The Welfare of The Children of D.M.T.-R., A10–2301.

• Decision Date: 27 June 2011
• Docket Number: No. A10–2301.,A10–2301.
• Parties: In the Matter of the WELFARE OF the CHILDREN OF D.M.T.-R., M.C., and unknown fathers, Parents.
• Court: Minnesota Court of Appeals

802 N.W.2d 759

In the Matter of the WELFARE OF the CHILDREN OF D.M.T.-R., M.C., and unknown fathers, Parents.

No. A10–2301.

Court of Appeals of Minnesota.

June 27, 2011.

Syllabus by the Court

Under the child-protection provisions of the Juvenile Court Act, Minn.Stat. §§ 260C.001–260C.451 (2010), and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Minn.Stat. §§ 518D.101–518D.317 (2010), Minnesota district courts have original and continuing subject-matter jurisdiction over proceedings to terminate parental rights to children in Minnesota who are not United States citizens.

John E. Mack, Mack & Daby, P.A., New London, MN, for appellant.Lori Swanson, Attorney General, St. Paul, MN; and Jennifer K. Fischer, Kandiyohi County Attorney, Amy Isenor, Assistant Kandiyohi County Attorney, Willmar, MN, for respondent.Susan Peterson–Bones, Willmar, MN, Guardian ad Litem.Considered and decided by WRIGHT, Presiding Judge; SCHELLHAS, Judge; and WILLIS, Judge.^*

OPINION

WRIGHT, Judge.

Appellant-mother challenges the district court's termination of her parental rights to four of her children. She argues that the district court lacked subject-matter jurisdiction to terminate her parental rights to two of her children because they are not United States citizens. She also asserts that the district court erred by finding that her children suffered egregious harm while in her care and by not considering the citizenship of two of her children as a factor when analyzing whether the termination of appellant-mother's parental rights is in their best interests. For the reasons set forth below, we affirm.

FACTS

The four children of appellant D.M.T.-R. who are the subjects of this appeal ranged in age from 2 to 7 years old when D.M.T.-R.'s parental rights to the children were terminated. The children are D.R., born December 15, 2003; M.R., born March 28, 2005; and twins A.C.-T. and A.C.-T. (collectively twins), born July 14, 2008. D.M.T.-R. also has a 17–year–old son, P.A.O., who has been in foster care since 2008. Although their country of citizenship is not established in the record, P.A.O., D.R., and M.R. are not United States citizens. They reside in the United States on refugee status, and their putative father, P.O., is believed to be incarcerated in Honduras. The twins, who were born in the United States, are United States citizens. Their putative father, M.C., has been removed from the country.

On February 20, 2009, P.A.O. advised respondent Kandiyohi County (county) that when he was on a home visit he locked himself, D.R., and M.R. in a bathroom to hide from D.M.T.-R. because she was shouting, uttering obscenities, and throwing objects at the children. That same month, county child-protection caseworkers observed that M.R. had a swollen blood-stained lip along with red marks and abrasions on her hip and back. M.R. told the caseworkers that these injuries were inflicted when D.M.T.-R. punched her in the back and face with a closed fist. D.R. also reported to the caseworkers that D.M.T.-R. punched M.R. and hit the twins when they would not go to sleep.

The county petitioned the district court to declare D.R., M.R., and the twins children in need of protection or services (CHIPS). At an April 6, 2009 hearing, D.M.T.-R. admitted that she was unable to provide appropriate shelter and care for her children because she was in custody on criminal charges at that time. The district court granted the CHIPS petition and ordered that the children remain in a foster-care setting under the custody and control of the county. In May 2009, D.M.T.-R. pleaded guilty to misdemeanor malicious punishment of a child, a violation of Minn.Stat. § 609.377, subds. 1, 2 (2008), and aggravated forgery, a violation of Minn.Stat. § 609.625, subd. 1(1) (2008). Shortly thereafter, D.M.T.-R., who is not a United States citizen, was removed from the United States to Honduras. With input from county social workers and others, the district court periodically reviewed and continued the county's temporary custody of the children.

The county contacted the Honduran Consulate as well as relatives of the children in Willmar, St. Cloud, Florida, and Honduras in its efforts to find a suitable placement for the children with a relative or to reunite the children with D.M.T.-R. Specifically, the county spoke with D.M.T.-R.'s two sisters, D.M.T.-R.'s brother and his wife, and D.M.T.-R.'s father. The county concluded that these relatives were either unwilling or unsuitable to care for the children.¹ The county obtained passports for the twins to facilitate their transportation outside of the United States, if necessary. But the county was unable to obtain birth certificates for D.R. and M.R. or to confirm their citizenship. The county also facilitated visits between D.M.T.-R. and her children before D.M.T.-R.'s removal to Honduras and Internet video conference calls after D.M.T.-R. was removed.

On June 3, 2010, the county filed a termination-of-parental-rights (TPR) petition, seeking to terminate D.M.T.-R.'s parental rights to D.R., M.R., and the twins on three statutory grounds: (1) D.M.T.-R.'s palpable unfitness to be a party to the parent and child relationship, Minn.Stat. § 260C.301, subd. 1(b)(4); (2) the failure of reasonable efforts, under the direction of the district court, to correct the conditions leading to the children's out-of-home placement, Minn.Stat. § 260C.301, subd. 1(b)(5); and (3) the egregious harm experienced by the children while in D.M.T.-R.'s care, Minn.Stat. § 260C.301, subd. 1(b)(6). Following a hearing on the TPR petition, the district court terminated D.M.T.-R.'s parental rights to D.R., M.R., and the twins on the three statutory grounds asserted by the county. In doing so, the district court concluded that the statutory grounds had been proved and termination of D.M.T.-R.'s parental rights is in the best interests of the children. This appeal followed.

ISSUES

I. Did the district court lack subject-matter jurisdiction to terminate appellant-mother's parental rights to her two children who are not United States citizens?

II. Did the district court err by finding that at least one of the statutory grounds for terminating parental rights had been proved and by not considering the children's citizenship as a factor when conducting the best-interests analysis?

ANALYSIS

I.

D.M.T.-R. first asserts that the district court lacked subject-matter jurisdiction to terminate her parental rights to D.R. and M.R. because they are not United States citizens and federal courts have exclusive subject-matter jurisdiction over international child-custody matters. Whether subject-matter jurisdiction exists presents a question of law, which we review de novo. Schroeder v. Schroeder, 658 N.W.2d 909, 911 (Minn.App.2003).

Whether Minnesota courts have subject-matter jurisdiction over child-custody proceedings regarding children who are not United States citizens is an issue of first impression. We begin our analysis by examining the sources of subject-matter jurisdiction for child-protection proceedings in Minnesota courts. As a general matter, Minnesota district courts have original and exclusive subject-matter jurisdiction in CHIPS and TPR proceedings involving children who are present in the state, regardless of the child's legal residency. Minn.Stat. §§ 260C.101, subds. 1, 2(1), 260C.141, subd. 1(a) (providing that CHIPS petition may be filed regarding “a child in this state or ... a child who is a resident of this state” (emphasis added)), 260C.307, subd. 1 (providing that TPR petition is to be filed in the same manner as provided in section 260C.141). In addition, the UCCJEA, Minn.Stat. §§ 518D.101–518D.317, confers subject-matter jurisdiction to Minnesota district courts when rendering “an initial child custody determination” in child-custody proceedings if Minnesota is the child's “home state.” Minn.Stat. § 518D.201(a)(1). And the district court that makes an initial child-custody determination has continuing, exclusive subject-matter jurisdiction over the child-custody proceedings. Minn.Stat. § 518D.202(a). Under the UCCJEA, a “child custody determination” includes determinations made in both CHIPS and TPR proceedings; and a child's “home state” is the state where the child lived with a parent for at least six consecutive months immediately before a child-custody proceeding is commenced. Minn.Stat. § 518D.102(d), (e), (h).

Minnesota courts have applied the UCCJEA in the context of interstate jurisdictional disputes. For example, in Reed v. Albaaj, we held that a Minnesota district court properly exercised subject-matter jurisdiction under the UCCJEA to render a child-custody decision, even though appellant-father resided in another state, because respondent-mother and the children had resided in Minnesota for nearly seven months before the child-custody proceeding commenced. 723 N.W.2d 50, 53, 56 (Minn.App.2006). Also under the UCCJEA, Minnesota courts “shall treat [an Indian tribe] as if it were a state of the United States” when applying the general and jurisdictional provisions of the UCCJEA. Minn.Stat. § 518D.104(b); accord Gerber v. Eastman, 673 N.W.2d 854, 855, 858 (Minn.App.2004) (citing Minn.Stat. § 518D.104(b)) (rejecting appellant-father's contention that UCCJEA does not apply to, and tribal court has exclusive jurisdiction over, child-custody proceeding regarding Indian child and biological Indian mother), review denied (Minn. Mar. 16, 2004).

Similarly, Minnesota courts “shall treat a foreign country as if it were a state of the United States” for purposes of applying the general and jurisdictional provisions of the UCCJEA. Minn.Stat. § 518D.105(a). Although we have not interpreted section 518D.105(a) as it applies to children who are not United States citizens, we have held that the predecessor to the UCCJEA, the Uniform Child Custody Jurisdiction Act (UCCJA), conferred subject-matter jurisdiction to Minnesota...