In the Matter of the Welfare of the Child of: G. A. and R. O. C. A., Parents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1407
In the Matter of the Welfare of the Child of: G. A. and R. O. C. A., Parents.
Filed February 21, 2017
Affirmed
Stauber, Judge
Anoka County District Court
File No. 02-JV-15-304
R. O. C. A., Minneapolis, Minnesota (pro se respondent)
Kassius O. Benson, Madelyn Adams, Minneapolis, Minnesota (for appellant G.A.)
Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.
UNPUBLISHED OPINION
STAUBER, Judge
On appeal from the denial of appellant-mother’s petition to terminate the parental
rights of respondent-father, appellant argues that (1) her due-process rights were violated
because the district court improperly relied on facts not in the trial record; (2) the district
court clearly erred by concluding that appellant failed to demonstrate by clear and
convincing evidence that respondent legally abandoned the minor child; and
(3) termination of respondent’s parental rights is in the child’s best interest. We affirm.
FACTS
Appellant-mother G.A. and respondent-father R.A. are the biological parents of C.A.
The parties met in 1999, and C.A. was born in July 2001. The parties eventually separated,
and in April 2008, the parties stipulated to child-custody matters; the parties were granted
joint legal custody of C.A., with appellant granted sole physical custody, subject to
respondent’s unsupervised parenting time. Shortly thereafter, on June 26, 2008, the district
court issued an order setting respondent’s child-support obligation.
Because he was in the country illegally, respondent was ordered deported from the
United States as a child in March 1995, at a hearing in which he was not present. But it was
not until June 2008, shortly after the parties reached the stipulation for parenting time, that
respondent was detained and officially deported from the United States to Ecuador. Since
his deportation, C.A. has resided with appellant and her husband M.M., and respondent has
had no contact with his daughter.
In March 2015, appellant petitioned to terminate respondent’s parental rights on the
grounds of abandonment. The petition alleged that the “purpose of the termination of
parental rights in this matter is in the best interests of the minor child and will make way for
an adoption by her stepfather, [M.M.].” Respondent entered a denial to the petition and,
shortly thereafter, filed an answer and counter-petition to prevent termination of his parental
rights. Specifically, respondent alleged that he had a relationship with C.A., but that “his
forced deportation” and appellant’s “efforts to keep [C.A.] from respondent and his
family . . . prevented him from successfully making contact with [C.A.] from June 2008 to
present.”
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Following an evidentiary hearing at which respondent appeared personally,1 the
district court found that appellant’s “claim that respondent never formed a meaningful
relationship with [C.A.] is belied by the findings [in the custody matter] and the fact that
[appellant] stipulated to joint physical and unsupervised parenting time between respondent
and the minor child.” The district court also found that while in United States Immigration
and Customs Enforcement (ICE) custody, respondent “consistently wrote and called”
appellant, but appellant ignored his calls, did not respond to his letters, and otherwise “shut
[respondent] out of the child’s life.” Moreover, the district court found that after he was
deported, appellant thwarted the efforts by respondent’s family to remain in contact with the
child. And the court found that although respondent “has had no contact with the minor
child since his deportation,” it was “not for lack of trying” because he “made repeated
efforts to contact the minor child,” but appellant made his “quest almost impossible.” Thus,
the district court concluded that it was “not respondent’s intention to abandon the minor
child.” The district court further concluded that “[e]ven if the court found abandonment,” it
was not in the child’s best interests to proceed with the termination. Therefore, the district
court denied appellant’s petition to terminate respondent’s parental rights. This appeal
followed.
After the appeal was filed, respondent did not file a brief. Consequently, this court
directed the appeal to proceed under Minn. R. Civ. App. P. 142.03.
1
Respondent lawfully returned to the United States in December 2015, and is now a lawful
permanent resident.
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DECISION
A district court may terminate parental rights if clear and convincing evidence
establishes at least one statutory ground for termination and if termination is in the child’s
best interests. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004). On
appeal, we review the district court’s findings of fact for clear error. In re Welfare of
Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). “A finding is clearly erroneous
if it is either manifestly contrary to the weight of the evidence or not reasonably
supported by the evidence as a whole.” In re Welfare of Children of T.R., 750 N.W.2d
656, 660-61 (Minn. 2008) (quotation omitted). But we review the ultimate determination
that the findings fit the statutory criteria for an abuse of discretion. In re Welfare of
Children of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), review denied (Minn. Jan.
6, 2012).
I.
The parent-child relationship is among the fundamental rights protected by the
constitutional guarantees of due process. In re Welfare of Children of B.J.B., 747
N.W.2d 605, 608 (Minn. App. 2008). The applicable due-process standard in a
termination of parental rights (TPR) proceeding arises out of the guarantee of
fundamental fairness. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-
95 (1982); B.J.B., 747 N.W.2d at 608. “Due process requires reasonable notice, a timely
opportunity for a hearing, the right to counsel, the opportunity to present evidence, the
right to an impartial decision-maker, and the right to a reasonable decision based solely
on the record.” In re Welfare of Children of D.F., 752 N.W.2d 88, 97 (Minn. App. 2008).
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Appellant contends that, in assessing her credibility, the district court “improperly
relied on facts not in the trial record,” which “denied her of her right to an impartial trial,
impartial adjudicator, and reasonable decision based solely on the record in violation of
constitutional due process and the Minnesota Code of Judicial Conduct.” To support her
claim, appellant cites rule 2.9(C) of the Code of Judicial Conduct, which states: “A judge
shall not investigate facts in a matter independently, and shall consider only the evidence
presented and any facts that may properly be judicially noticed.” Appellant claims that
under State v. Dorsey, 701 N.W.2d 238 (Minn. 2005), “automatic reversal is required”
because her due process deprivation prejudiced her and “constitutes a structural error.”
As an initial matter, appellant provides no support and no analysis for her claim
that a violation of rule 2.9(C) necessitates reversal in a civil case. In Dorsey, the
defendant relied on Minn. R. Crim. P. 26.03, subd. 14(3), which states that “[a] judge
must not preside at a trial or other proceeding if disqualified under the Code of Judicial
Conduct.” In fact, the supreme court ultimately reversed and remanded in Dorsey based
on the criminal defendant’s Sixth Amendment right to an impartial judge and fact-finder.
701 N.W.2d at 253. Thus, Dorsey does not provide a basis for reversal, but even if it did,
it would require a remand rather than a reversal for structural error.
Moreover, “[s]tructural errors resulting in automatic reversal occur only in a very
limited class of cases.” Colbert v. State, 870 N.W.2d 616, 624 (Minn. 2015) (quotation
omitted). Instead, “[m]ost errors are trial errors, which are reviewed under a prejudicial-
impact analysis to determine whether they require reversal and a new trial.” State v.
Watkins, 840 N.W.2d 21, 25-26 (Minn. 2013). The Minnesota Supreme Court has
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applied this analysis to a due process challenge in a TPR case in which it held that
“prejudice as a result of [an] alleged [due process violation] is an essential component of
the due process analysis.” In re Welfare of Child of B.J.-M., 744 N.W.2d 669, 673
(Minn. 2008). Therefore, for appellant to prevail on her due process claim, she must
demonstrate error and prejudice. See id.; see also D.F., 752 N.W.2d at 98 (applying
harmless-error test to due process argument in a TPR case).
Appellant’s first claimed error is that the district court found that appellant
represented in her TPR petition that respondent “never had a relationship with the minor
child since the child was born.” Appellant argues that this finding is “contradicted by the
document, which explicitly states [that] respondent ‘has not seen or contacted [C.A.] or
her mother since he was deported.’”
We disagree. Appellant’s TPR petition does emphasize that respondent has had
no contact with the minor child “since he was deported.” But earlier in the petition, in
the section referring to the “statutory grounds for the termination of parental rights,”
appellant asserts that “respondent has never had a relationship with [C.A.].” Thus, the
district court’s finding is supported by the record.
Appellant’s second claimed error is that the district court “erroneously found that
[appellant] failed to provide current addresses to respondent consistent with the June 26,
2008 custody order” because the record reflects that she maintained a P.O. Box consistent
with the order. But appellant again mischaracterizes the district court’s finding by
reading it in isolation from the remaining paragraph. The finding attacked by appellant is
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a footnote referencing the difficulties respondent encountered in attempting to
communicate with appellant. Specifically, the district court found:
Despite the very clear language of the June 26, 200[8],
Order which stated “Each party shall notify the other of any
changes in address, residence, or employment within seven
days of the change[.]” [Appellant] failed to provide current
addresses to respondent . . . . [Appellant] has lived in several
different locations in the intervening years, all titled in
[M.M.’s] name. [Appellant] maintains no social media
presence where she could be located electronically.
Respondent testified that despite attempting to communicate with appellant
through the P.O. Box, she never answered him or his family members. He also testified
that he did not have appellant’s address and had no other way of communicating with
appellant. The district court found respondent’s testimony to be credible and this court
defers to the district courts credibility determinations. In re Welfare of M.D.O., 462
N.W.2d 370, 374-75 (Minn. 1990). Therefore, when read in context with the whole
paragraph, the district court’s finding that appellant concealed her location from
respondent is supported by the record.
Appellant’s third claimed error is that the district court erroneously found that
appellant was “unrepresented” when she informed respondent’s mother that she could
contact appellant’s attorney if appellant’s mother wished to arrange a visit with the minor
child. We acknowledge that there does not appear to be any specific evidence in the
record supporting this finding. But there is also no evidence contradicting this finding.
Moreover, appellant cannot establish that she was prejudiced by any error in the district
court’s finding. The district court’s reference to appellant being unrepresented was made
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in a footnote after the district court found that respondent’s mother approached appellant
at a community pool when appellant was with the minor child. The court found that
appellant “would not let [respondent’s mother] near the child,” “threatened to call the
police and have her deported,” and “informed respondent’s mother that she could contact
[her] attorney.” In the footnote, the district court found that appellant “was actually
unrepresented at the time,” and that her conduct was as “an example of [appellant]
secreting the child from respondent and his family.” The district court’s finding
regarding this incident is supported by the record, and regardless of whether she was
represented by an attorney, supports the district court’s determination that appellant was
“secreting the child from respondent and his family.”
Finally, the fourth error claimed by appellant is that the district court “improperly
relied on evidence for purposes beyond the scope upon which it was admitted” by
admitting the June 2008 final custody order “for the limited purpose of establishing
whether child support was ordered and in what amount,” but then “quoting and
referencing the findings of fact from the final custody order to support the conclusion that
[appellant] thwarted respondent’s attempt to maintain a relationship with the minor
child.” But even if the district court erred, appellant cannot demonstrate that she was
prejudiced by the error. Notwithstanding the June 2008 order, there is ample evidence in
the record demonstrating that respondent formed a meaningful relationship with his
daughter before he was deported, including as the district court found, the “fact that
[appellant] stipulated to joint physical custody and unsupervised parenting time between
respondent and the minor child.” There is also evidence in the record demonstrating that
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appellant was uncooperative and denied respondent access to his daughter. As a result,
the district court could have made these findings without referencing the June 2008 order.
Accordingly, appellant’s due process claim fails.
II.
Abandonment is one of nine statutory criteria listed in Minn. Stat. § 260C.301,
subd. 1(b) (2014), that serve as a basis to terminate parental rights. A presumption of
abandonment is created when “the parent has had no contact with the child on a regular
basis and not demonstrated consistent interest in the child’s well-being for six months
and the social services agency has made reasonable efforts to facilitate contact,” or when
a child under age two has been deserted under circumstances that show intent not to
return to care for the child. Minn. Stat. § 260C.301, subd. 2(a) (2014). But it is not
necessary to prove one of the statutory presumptions to establish abandonment. Id.; In re
Welfare of L.A.F., 554 N.W.2d 393, 397 (Minn. 1996). “Abandonment may be
established . . . if the parent has actually deserted the child and has an intention to forsake
the duties of parenthood.” In re Children of R.W., 678 N.W.2d 49, 55 (Minn.
2004) (quotation omitted).
The presumptions for abandonment are not applicable in this case because this is
not a case in which social services made reasonable efforts to facilitate contact. Instead,
appellant claims that respondent abandoned the child by actually deserting her with the
intention to forsake the duties of parenthood. She contends that the record illustrates a
significant number of factors supporting a finding of abandonment, including that for
over eight years, respondent (1) neglected the child and withheld parental affection from
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her by failing to care for her or acknowledge her existence; (2) failed to maintain direct
contact with the child; (3) failed to visit the child; (4) failed to inquire about the child;
and (5) forsook the duties of parenthood by failing to pay child support. Thus, appellant
argues that the district court erred by concluding that she failed to demonstrate by clear
and convincing evidence that respondent abandoned the minor child.
We disagree. Abandonment must be intentional, rather than due to misfortune or
misconduct alone. L.A.F., 554 N.W.2d at 398. While incarceration alone is insufficient
evidence of abandonment, when combined with other factors, such as parental neglect
and withholding parental affection, it can support a finding that a parent has abandoned a
child. In re Children of Vasquez, 658 N.W.2d 249, 254 (Minn. App. 2003).
Here, it is undisputed that respondent had no contact with the child after he was
deported in 2008. But the district court “liken[ed] deportation to incarceration” because
respondent “was not free to re-enter the country, just as an inmate is not free to depart
incarceration.” Thus, the district court concluded that respondent’s unavailability to the
child was “not voluntary” because he was “deported against his wishes.” And, the
district court found that it “was not respondent’s intention to abandon the minor child,”
but rather it was appellant’s efforts that thwarted respondent from staying in contact with
the child.
The district court’s findings are supported by the record. Respondent testified that
after his relationship with appellant ended, appellant “disappeared” with C.A. and would
not answer his calls. Respondent also testified that after a few months of having “no
idea” of appellant or his daughter’s whereabouts, he was eventually able to file a petition
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for parenting-time and custody. But respondent testified that shortly after the court order
awarding him visitation rights with C.A., he was placed in ICE custody where he called
and wrote to appellant “many times” from his cell to no avail. Respondent further
testified that after he was deported, he and his family members attempted to locate and
communicate with appellant, but were unsuccessful. If believed, this evidence
establishes that respondent did not intentionally desert the child to forsake the duties of
parenthood. Although appellant claims that the evidence shows that respondent “had a
myriad of means through which he could” contact the minor child but “voluntarily chose
to utilize none of them,” the district court believed respondent’s testimony that his lack of
contact with his daughter was unintentional and the result of appellant secreting the child
from respondent. It is well settled that this court will not disturb the district court’s
credibility determinations because the district court is in a superior position to determine
the credibility of witnesses. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).
Therefore, in light of the deference given the district court in assessing witness
credibility, the district court did not abuse its discretion by concluding that appellant did
not abandon the minor child. And because the district court did not abuse its discretion
by concluding that appellant did not abandon the minor child, we need not address
whether termination was in the child’s best interests. See R.W., 678 N.W.2d at 55
(stating that a petition for termination of parental rights may only be granted if one
statutory ground for termination is established and termination is in the child’s best
interests).
Affirmed.
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