Welfare of Larson, In re

• Decision Date: 18 February 1977
• Docket Number: 46743,Nos. 46524,s. 46524
• Citation: 312 Minn. 210,251 N.W.2d 325
• Parties: In re WELFARE OF Melissa Ann LARSON. LUTHERAN SOCIAL SERVICES, petitioner, Appellant, Eva Lyn Larson, her mother, petitioner, Appellant, v. L. George STONER, her father, Respondent.
• Court: Minnesota Supreme Court

Page 325

251 N.W.2d 325

312 Minn. 210

In re WELFARE OF Melissa Ann LARSON LUTHERAN SOCIAL SERVICES, petitioner, Appellant Eva Lyn Larson, her mother, petitioner, Appellant, v. L. George STONER, her father, Respondent.

Nos. 46524, 46743.

Supreme Court of Minnesota.

Feb. 18, 1977.

Syllabus by the Court

1. An agency had no standing to appeal the termination of the parental rights of the mother of an illegitimate child after one of its agents, on its behalf, petitioned for the termination of the mother's rights.

2. The trial court had no evidence to terminate the parental rights of a mother of an illegitimate child in absence of written consent executed by her pursuant to Minn.St. 260.221 and where the other findings of fact did not support termination on any other statutory ground.

3. The trial court did not abuse its discretion in failing to terminate the parental rights of the father of an illegitimate child and in awarding him custody of the child.

William R. Kennedy, Hennepin County Public Defender, Catherine L. Anderson, Asst. Public Defender, Minneapolis, for Eva Lyn Larson.

James D. Kempf, Bloomington, for Lutheran Social Services.

James R. Bennett, Appleton, for respondent.

Heard before TODD, MacLAUGHLIN and YETKA, JJ., and considered and decided by the court en banc.

YETKA, Justice.

These appeals arise out of a dispute as to the custody of Melissa Ann Larson, a child born out of wedlock to appellant Eva Lyn Larson on May 17, 1975, and fathered by respondent L. George Stoner. Appellant Lutheran Social Services filed a petition for termination of parental rights. Appellants separately appealed from an order of the district court terminating the rights of Ms. Larson and transferring the guardianship and legal custody of the child to Mr. Stoner. We affirm in part and reverse in part.

The issues raised are the following:

(1) Whether Lutheran Social Services has standing to appeal the termination of Ms. Larson's parental rights after one of its agents, on its behalf, petitioned for the termination of her rights and the order appealed from granted relief consistent with that petition.

(2) Whether the trial court abused its discretion in terminating Ms. Larson's parental rights.

(3) Whether the trial court abused its discretion in failing to terminate the parental rights of Mr. Stoner, the father of the illegitimate child, and in awarding him custody of Melissa.

The conception of the child took place during a time of marital infidelity for Mr. Stoner, then 38 years old. Following his marriage in Florida in March 1973 to his present wife Joyce, who was also 38 years old, Mr. and Mrs. Stoner moved to a farm near Danvers, Minnesota. This was Mr. Stoner's second marriage and Mrs. Stoner's fourth marriage. In the spring of 1974 they began to disagree over their respective marital roles. Division of labor on the farm and the degree of personal freedom allowed Mrs. Stoner were the two principle subjects of disagreement. During this time Mrs. Stoner left Minnesota to stay for several days with her sister in Illinois, but did not attempt a separation.

Both Mr. and Mrs. Stoner were admitted to hospitals for mental health care during this period. Mr. Stoner entered Willmar State Hospital in July 1974 for a day and a half as a voluntary patient because of "nerves" associated with the marital problems he was having with his wife, but did not receive any medication, treatment, or diagnosis. The hospitalization apparently was an attempt to remove himself from conflict, to rest, and to reflect on the situation from within a different environment.

It was at Willmar State Hospital that Mr. Stoner met Ms. Larson, another patient. Ms. Larson, who was unmarried and 23 years old, had entered the hospital on July 3 and was being treated for a "chemical make-up deficiency." She had been hospitalized once before for the same reason for 3 weeks at Glenwood Hills Hospital in 1971. After spending a day and a half at the hospital, Mr. Stoner checked out and took Ms. Larson back to the farm where they stayed overnight while Mrs. Stoner was away.

In the middle of July, the Stoners separated after a brief trip to Texas together failed to result in a reconciliation. Mrs. Stoner moved to Florida and Mr. Stoner returned to the farm in Minnesota.

Upon his return, Mr. Stoner went to Willmar State Hospital for a half day, but did not receive any treatment. He picked up Ms. Larson and signed out of the hospital.

The ensuing intimate relationship between Mr. Stoner and Ms. Larson lasted about 5 months. After a brief visit to Mr. Stoner's brother in Illinois, the couple moved back to the Stoner farm where they lived until November 1974. At that time Mr. Stoner sought a reconciliation with his wife and, accompanied by Ms. Larson, went to Florida. Mrs. Stoner was aware Ms. Larson had accompanied Mr. Stoner and, although she did not see Ms. Larson during that time, understood that her husband and Ms. Larson were living together.

On December 31, 1974, Mr. and Mrs. Stoner reconciled their marital differences. The next day Ms. Larson left Florida by bus and returned to her parent's home in Clinton, Minnesota. Mr. and Mrs. Stoner left several weeks later and returned to their farm.

Ms. Larson made her first contact with appellant Lutheran Social Services on March 10, 1975. Her pregnancy was confirmed the next day when she visited a doctor in Minneapolis. She did not try to contact Mr. Stoner, who knew of the possible pregnancy several months earlier. After the initial screening, Ms. Larson met with Elsa Skogerboe, a social worker and employee of Lutheran Social Services, on March 17. Ms. Skogerboe became "primarily responsible" for Ms. Larson's care and later became the petitioner in the termination proceedings. Working as an intermediary, Ms. Skogerboe wrote to Mr. Stoner on April 4 explaining that Ms. Larson was making plans to place her child for adoption and requesting that he arrange to sign the necessary consent forms. She further informed him if he did not respond they would proceed with termination proceedings. Mr. Stoner wrote to Ms. Larson in care of Ms. Skogerboe during the first week in May. The contents of the letter, however, were not introduced into evidence. Ms. Skogerboe wrote to Mr. Stoner again on May 15, 1975, on behalf of Ms. Larson and requested a meeting to talk about plans for the child.

On May 17, 1975, Melissa was born. Her birth certificate did not name her father. On May 21 and again on May 28, Mr. Stoner called Ms. Skogerboe to inquire, in general terms, about possible plans for Melissa. In response, Ms. Skogerboe arranged a meeting for June 2 between Ms. Larson and Mr. Stoner. Mr. Stoner did not keep the appointment.

On June 4, 1975, Ms. Skogerboe, acting as an agent of Lutheran Social Services, petitioned Hennepin County District Court, Juvenile Division, ¹ for a termination of parental rights, alleging that Melissa was illegitimate and that Ms. Larson could not provide a home for her and was unable to assume responsibility for the child's care. The petition, which did not list Mr. Stoner as the father, further alleged that these facts established the first of six possible grounds for termination of parental rights under Minn.St. 260.221 namely, "written consent of parents who for good cause desire to terminate their parental rights." ² A hearing date was set for June 19.

At the hearing on June 19, both Mr. and Mrs. Stoner appeared as interested parties and the matter was continued until July 18, at which time the court entertained a request from Ms. Skogerboe for a custody report on Mr. and Mrs. Stoner by the Swift County Welfare Department.

On July 25 Mr. Stoner executed an acknowledgment of paternity pursuant to Minn.St. 259.261. ³

The custody report was received August 4, and on August 7 the termination hearing took place. In addition to the facts already recited, the principle evidence received was the custody report, which was favorable to Mr. and Mrs. Stoner. In addition to this evidence, Ms. Larson testified under cross- examination as to her intent to give the child up for adoption. Based on this evidence the court terminated the parental rights of Ms. Larson and ordered custody of the child transferred to Mr. Stoner.

Lutheran Social Services, however, failed to transfer custody of the child to Mr. Stoner, whereupon Mr. Stoner petitioned for a writ of habeas corpus. At the same time Lutheran Social Services and Ms. Larson brought a motion for amended findings or, in the alternative, for a new trial, arguing that Ms. Larson had not consented to the termination. The motions were heard together, and thereafter the court issued a further order which affirmed his previous order.

1. One of Lutheran Social Services' agents, Elsa Skogerboe, is the petitioner and one of its attorneys appeared at the termination proceedings. Only when the court failed to terminate the rights of Mr. Stoner in addition to terminating the rights of Ms. Larson did Lutheran Social Services begin to question the validity of its own petition.

On appeal Lutheran Social Services challenges not only the granting of custody to Mr. Stoner but also the termination of Ms. Larson's rights, and, thus, the validity of their own petition. Fundamental principles of estoppel, however, prevent them from so doing. See, 6B Dunnell, Dig. (3 Rev. ed.) § 3218, and cases cited under footnote 93. Cf. Watson v. Watson, 238 Minn. 403, 57 N.W.2d 691 (1953); Kenning v. Reichel, 148 Minn. 433, 435, 182 N.W. 517, 518 (1921). See, generally, 28 Am.Jur.2d Estoppel, §§ 68 to 75; 31 C.J.S. Estoppel §§ 116 to 118. ⁴

In Behrens v. Kruse, 121 Minn. 90, 98, 140 N.W. 339, 343 (1913), this court stated:

"* * * No principle is better settled than that litigants cannot be permitted either to assume inconsistent positions during the progress of litigation or to shift their claims or the facts at their pleasure. This is especially true if such...