In Re Welfare of Bergin , 299 Minn. 218 ( 1974 )

Per Curiam.

This appeal arises out of an order of the Juvenile Division of the Hennepin County District Court ordering the physical custody of three minor girls retained by their father, to whom, custody had been awarded in prior divorce proceedings between the parents. We reverse and remand.

The proceedings were precipitated by a petition to the district court alleging the father to have sexually molested two of the girls, then ages 10 and 8, during the period of his initial custody. The trial court found that the allegations were proved.

After nine different hearings, interspersed with psychiatric examination of the father and the mother, the court ordered that legal custody of the children be placed in the Hennepin County Welfare Department with physical custody to be awarded to the mother if she filed with the court a bond in the sum of $2,000 conditioned upon her not removing the children from this state nor to a residence unknown to the Hennepin County Welfare Department without authority from the court. The order further provided that in the event the mother failed to comply with the condition requiring the filing of the bond, physical custody will be with the father (1) for so long as he maintains in his residence an adult approved by the Hennepin County Welfare Department, and (2) when he files his consent that his residence may be inspected with or without notice by the welfare department at any time. The mother failed to comply with the requirement that she file the bond, whereupon custody was awarded to the father.

We hold that the ordering of custody in the father was an abuse of discretion. The gravity of the offenses disqualifies him as a custodial parent, and the retention of the custodial relationship, with or without the conditions imposed by the court, would not remove the emotional scars upon the children. There was, therefore, no substantial purpose in guaranteeing the father’s rights of visitation by the condition of the bond. Whether or not the father may at a future time be sufficiently reformed to alter these consequences, this record falls far short of even the acknowledgment by the father of his offense which must precede reformation.

It may be that the trial court was not fully persuaded that the mother was herself sufficiently fit to be the alternative custodian, at least without supervision of the Hennepin County Welfare Department. We accordingly remand for further proceedings in the district court to determine whether the best interests of the children would be served by placing the physical custody in the mother or in a foster home.

Reversed and remanded with directions.