In the Matter of the Welfare of the Child of: L. R. D. and Y. F. K., Parents.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0509
In the Matter of the Welfare of the Child of: L. R. D. and Y. F. K., Parents.
Filed November 22, 2021
Affirmed
Johnson, Judge
Concurring specially, Kirk, Judge*
Hennepin County District Court
File No. 27-JV-20-940
Kyle Wenners kirchen, Wennerskirchen & Blomquist, L.L.C., Wayzata, Minnesota (for
appellant mother L. R. D.)
Connor B. Burton, Messick Law, P.L.L.C., Woodbury, Minnesota (for respondent father
Y.F.K.)
John Keams, Minneapolis, Minnesota (guardian ad !item)
Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Kirk,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A child's mother petitioned the district court for the termination of the parental
rights of the child's father. The district court denied the petition. We conclude that the
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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district court did not err by finding that tennination of the father's parental rights is not in
the child's best interests. Therefore, we affinn.
FACTS
L.R.D. and Y.F .K. shared an intimate relationship for six weeks in mid-2011.
Approximately one week after the relationship ended, L.R.D. discovered that she was
pregnant. She infonned Y.F.K., who was surprised but pleased.
Shortly thereafter, L.R.D. met and began a relationship with another man, A.R., who
supported her during her pregnancy and was present when she gave birth to a boy, N.D.,
in May 2012. Y.F.K. visited L.R.D. and N.D. a few days later. Y.F.K. visited N.D.
approximately 12 times in the remainder of 2012. In November 2012, a Wisconsin court
adjudicated Y.F.K. as N.D.'s father, granted L.R.D. and Y.F.K. joint legal custody, and
ordered that Y.F .K. has a right to visitation with reasonable notice.
L.R.D. later moved from Wisconsin to Minneapolis to be closer to A.R., who lived
in Minneapolis, and to her job in Wayzata. In 2013, after learning that L.R.D. had moved
to Minneapolis, Y.F.K. moved from Wisconsin to Bloomington. Shortly thereafter, Y.F.K.
texted L.R.D. to request a "real plan" for shared custody that provided for more than short
visits. But Y.F.K.'s visits became less :frequent, in part because he often did not have a
valid driver's license or access to a vehicle, which required him to rely on others for
transportation. Nonetheless, in 2013 and 2014, Y.F.K. visited with N.D. occasionally,
often at a local park.
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In 2014, Y.F .K. lost his job and moved back to Wisconsin. During a few of his
occasional visits with N.D., L.R.D. perceived that Y.F.K. was exhibiting signs of substance
abuse. Y.F .K. later testified that he was using methamphetamine and alcohol during that
period of time but not on the days he visited N.D.
Meanwhile, L.R.D. and N.D. lived with A.R. at his home in Minneapolis and
received financial support from him. In 2013, L.R.D. and A.R. decided that they wanted
N.D. to have a sibling. In May 2014, L.R.D. gave birth to a daughter.
In November 2014, during one ofY.F.K.'s visits with N.D., L.R.D. told Y.F.K. that
she and A.R. wanted a "nuclear family," in which N.D. called A.R. "papa" and called
Y.F.K. by his nickname. After this conversation, Y.F.K. did not visit N.D. or request to
do so, and L.R.D. and Y.F.K. fell out of touch.
In July 2016, Y.F .K. pleaded no-contest to domestic-abuse charges arising from two
incidents involving a fonner girlfriend. A Wisconsin court imposed a sentence of two
years but withheld the sentence, ordered Y.F.K. to serve 30 days in jail, and placed him on
probation. His probation was revoked in January 2017, and he was ordered to serve nine
months in a county jail. In June 2017, Y.F.K. pleaded no-contest to battery arising from
an incident involving his brother. A Wisconsin court again imposed a sentence of two
years but withheld the sentence and placed Y.F.K. on probation.
In June 2017, Y.F.K. also was convicted of a felony for possessmg child
pornography in December 2015. Y.F .K. was imprisoned in Wisconsin until approximately
May 2020. While in prison, Y.F.K. completed cognitive-behavioral therapy to address his
substance abuse. He also participated in programs providing anger-management strategies
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to address his history of domestic violence. He is on extended supervision until May 2023,
with two additional years of probation to follow. His release is conditioned on his
completing sex-offender treatment, having no contact with minors, having no unauthorized
internet access, not leaving Wisconsin without permission, complying with a curfew,
maintaining sobriety, and submitting to drug tests upon request. At the time of trial, Y.F .K.
was in a sex-offender-treatment program that typically lasts between 12 and 18 months.
In late 2017 or early 2018, L.R.D. and A.R. ended their romantic relationship, and
A.R. moved out of the home they had shared into a nearby home. But L.R.D. and A.R.
continued to maintain a friendly relationship and had a "flexible" arrangement in which
N.D. and his younger sister spent roughly three days per week with A.R. At the time of
trial, L.R.D. and A.R. did not have a court order for custody or parenting time with respect
to N.D.'s younger sister and had not discussed such arrangements with respect to N.D.
In November 2019, L.R.D. petitioned the district court for the tennination of
Y.F.K.'s parental rights to N.D. The case was tried over two days in February 2021.
L.R.D. and A.R. testified that they wanted Y.F.K.'s parental rights to be terminated so that
A.R. could adopt N.D. Their testimony emphasized the close bond between A.R. and N.D.
Y.F .K. testified on his own behalf. He stated that he had a "great desire" to be a
parent to N.D. He testified that L.R.D.' s move from Wisconsin to Minnesota in 2012 made
it difficult for him to visit N.D. He testified that he had received chemical-dependency
treatment while in prison, that he is making progress in sex-offender treatment, and that he
is employed.
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N.D.'s interests were represented by a guardian ad litem, who had 18 years of
experience as a practicing attorney and 11 years of experience as a guardian ad litem. He
prepared a written report after meeting and talking with L.R.D., Y.F.K., A.R., N.D., and
five other persons. In his report, the guardian ad litem summarized his assessment of
N.D. 's best interests as follows:
Obviously, [Y.F.K.] has a significant history of mental
and chemical health issues, domestic violence, and
involvement in the criminal justice system. And having been
out of prison less than a year, it is speculative whether he will
be able to maintain on a long-tenn basis the compliance with
his parole conditions that he had been demonstrating until early
this month. However, there is in my opinion only one arguably
compelling reason in favor of termination of [Y.F.K.]'s
parental rights. That reason would be that it would clear a path
for [ A.R.] to pursue adoption and thus ensure his legal standing
should [L.R.D.] die or become unable to care for [N.D.] during
his minority. On the other hand, there is no particular reason
to anticipate that [L.R.D.], who is healthy and under the age of
50, will die or become unable to care for [N.D.] over the next
10 or so years. Even if such an unfortunate scenario were to
come to pass and [Y.F.K.] still retained parental rights, [A.R.]
would likely have a strong claim for third-party custody unless
by that time [Y.F .K.] had proven stability and fitness to parent.
While I also understand [L.R.D .]' s wish to shield her family
and [N.D.] from the potentially disruptive and emotionally
taxing challenge of [Y.F .K.] seeking custody or parenting time,
there are ample safeguards that I would expect any judicial
officer to insist upon before granting [Y.F.K.] any custody
rights or parenting time. First among these safeguards would
be a requirement that [Y.F.K.] show that he is mentally and
chemically stable enough to reconnect with his son in a child­
centered way. Another safeguard would be a requirement that
any reunification process be therapeutically guided so that
[N.D.]'s emotional needs are paramount, supported, and
protected.
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At trial, the guardian ad !item testified that-after considering N.D.'s well-being and
relationships and the potential consequences of termination and non-termination-he
believed that termination ofY.F.K.'s parental rights is not in N.D.'s best interests.
In March 2021, the district court filed an order in which it found that L.R.D. had
proved one of the four alleged statutory grounds for termination. But the district court
found that termination of Y.F.K.'s parental rights is not in N.D.'s best interests.
Consequently, the district court denied L.R.D. 's petition. L.R.D. appeals.
DECISION
L.R.D. argues that the district court erred by finding that tennination of Y.F.K.'s
parental rights is not in N.D. 's best interests.
A district court may not terminate a parent's parental rights unless the court finds
that termination is in the child's best interests. In re Welfare of R. W, 678 N.W.2d 49, 55
(Minn. 2004). A best-interests analysis should include consideration and evaluation of"all
relevant factors," Minn. Stat. § 260C.51 l( a) (2020), including "a review of the relationship
between the child and relatives and the child and other important persons with whom the
child has resided or had significant contact." Minn. Stat. § 260C.51l( b). The supreme
court has identified three factors that must be considered in every analysis of a child's best
interests: (1) the child's interest in preserving the parent-child relationship; (2) the parent's
interest in preserving the parent-child relationship; and (3) any competing interests. In re
Welfare of L.A.F., 554 N.W.2d 393, 399 (Minn. 1996); see also Minn. R. Juv. Prot. P.
58.04(c)(2)(ii). This court applies a clear-error standard of review to a district court's
findings of fact, In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995), and an abuse-
6
of-discretion standard of review to a district court's ultimate finding of a child's best
interests, In re Welfare of Children of JR.B., 805 N.W.2d 895, 905 (Minn. App. 2011),
rev. denied (Minn. Jan. 6, 2012).
In this case, the district court considered and discussed each of the three standard
best-interests factors. L.R.D. has challenged the district court's findings with respect to
each of those factors as well as the district court's ultimate best-interests finding.
A. Child's Interest in Preserving Relationship
With respect to the first factor, the district court noted L.R.D. 's acknowledgement
that N.D. should know about his father and possibly meet him again someday. The district
court also noted L.R.D.'s argument that Y.F.K. does not presently have an actual
relationship with N.D. But the district court stated that L.R.D. is partially responsible for
N.D.'s current belief that A.R., rather than Y.F.K., is his father. The district court found
that N.D. "has an interest in preserving the parent-child relationship."
L.R.D. contends that the district court erred on the ground that N.D. and Y.F.K. do
not have an actual relationship because N.D., who was eight years old at the time of trial,
has not spent time with Y.F.K. since he was very young. For that reason, L.R.D. asserts
that there is no parent-child relationship to preserve except for "a legal and biological
bond."
L.R.D.'s contention is not supported by the relevant caselaw. There is no authority
for the proposition that a child cannot have an interest in a parent-child relationship unless
the child and the parent are actively engaged in a personal relationship at the time of a
termination trial. It is not uncommon for district courts to consider tenninating the parental
7
rights of persons who are not in contact with a child due to incarceration or other reasons,
yet neither the supreme court nor this court has held that such a situation necessarily
forecloses a finding that the child has an interest in preserving the parent-child relationship.
See, e.g., In re Welfare of MD.O., 462 N.W.2d 370, 379 (Minn. 1990); In re Welfare of
Chosa, 290 N.W.2d 766, 768-69 (Minn. 1980); J.R.B., 805 N.W.2d at 904-05. L.R.D.'s
contention also is inconsistent with the Minnesota Parentage Act, which defines the term
"parent and child relationship" to mean "the legal relationship existing between a child and
the child's biological or adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations." Minn. Stat. § 257.52 (2020); see also Minn.
Stat. § 260C.007, subd. 25 (2020) (defining "parent" in manner consistent with chapter
257). That statutory definition does not require any particular amount of active
engagement between a parent and a child for a parent-child relationship to exist.
Thus, the district court did not clearly err by finding, with respect to the first best­
interests factor, that N.D. has an interest in preserving the parent-child relationship between
him and Y.F.K.
B. Parent's Interest in Preserving Relationship
With respect to the second factor, the district court stated that Y.F .K. testified that
he has a "great interest" in re-establishing a relationship with N.D. The district court stated
that Y.F.K. has made progress toward rehabilitation through the programming available in
prison. The district court found that Y.F.K. had "adequately supported his interest in
preserving a relationship with his son."
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L.R.D. again contends that this factor should favor the termination of Y.F.K.'s
parental rights on the ground that he "does not presently have a relationship with the child."
That contention fails for the same reasons that are stated above. See supra part A.
L.R.D. also contends that Y.F .K.' s interest in the parent-child relationship is simply
a weak interest on the ground that Y.F .K. has no more than "a general stated curiosity ...
to maybe develop some relationship with the child" and that Y.F .K. has not made any
attempt to develop a relationship with N.D. since he was very young. This contention is
inconsistent with the district court's statement that Y.F.K. has a "great interest" in re­
establishing a relationship with N.D. The district court's statement is supported by the
evidentiary record. Y.F .K. testified that he "absolutely" wanted a relationship with his son
and that it was his "great desire" for the relationship to include visitation and parenting
time. He also testified that he understands that the reunification process will be time­
intensive and will require therapy. The record reveals that Y.F.K. pursued a relationship
with N.D. until L.R.D. told him that she wanted a "nuclear family." Y.F .K. later committed
crimes that resulted in his incarceration, which impeded his ability to contact L.R.D. and
visitN.D.
Thus, the district court did not clearly err by finding, with respect to the second best­
interests factor, that Y.F .K. had "adequately supported his interest in preserving a
relationship with his son."
C. Competing Interests
With respect to the third factor, the district court acknowledged L.R.D.'s argument
that tenninating Y.F.K.'s parental rights would promote stability for N.D. The district
9
i
court also stated that N.D. presently has a stable environment. The district court noted that,
in the near future, "there is no realistic possibility that [Y.F.K.] will be able to enforce any
legal custody rights or function as a custodial parent." But the district court stated that
Y.F.K. might be able to have parenting time with N.D. at some point in the future if he
makes progress in his treatment. Accordingly, the district court stated that tennination of
Y.F .K.' s parental rights "is not necessary to ensure that the child has a stable enviromnent."
The district court also noted L.R.D. 's argument that terminating Y .F .K.' s parental rights
would allow him to be adopted by A.R. But the district court stated that such an adoption
would not promote permanency because L.R.D. and A.R. do not live together and have no
legal relationship with each other.
L.R.D. contends that the district court "erred in failing to give weight to" N.D. 's
interests in a stable home enviromnent and in being adopted by A.R. Again, the district
court acknowledged those interests but found that they are outweighed by other interests.
Specifically, the district court found that N.D. presently has a stable home environment
that would continue to be stable even if the termination petition were denied, and the district
court further found that adoption by A.R. would not necessarily promote pennanency.
The district court's findings on these issues are supported by the record. Throughout
their testim ony, L.R.D. and A.R. emphasized that creating and preserving a stable
enviromnent for their children has always been a priority for them. The guardian ad !item
testified that A.R. was "ensconced" in N.D. 's "family system," but he also noted that the
preservation of a "family system" is never guaranteed. In addition, the record shows that
A.R. does not reside with L.R.D. or N.D., that A.R. and L.R.D. do not have a legal
10
relationship, and that A.R. and L.R.D. do not have a court-ordered custody arrangement
regarding their daughter. In November 2014, L.R.D. discouraged Y.F.K. from visiting
N.D. by saying that she wanted a "nuclear family," but her household has changed since
then. The district court did not clearly err by reasoning that tennination might not promote
the goal of permanency.
Thus, the district court did not clearly err in its findings concerning the competing
interests identified by L.R.D.
D. Summary
The district court concluded its best-interests analysis as follows:
[T]he Court concludes that the competing interest of a potential
adoption by [A.R.] does not outweigh the child's interest and
the parent's interest in preserving the relationship .... [A.R.]
has testified that he intends to remain in the child's life as he
has from the beginning and will continue to be a father figure
for the child, regardless of the outcome of this case. The child
is in a stable healthy enviromnent, and there are many
safeguards in place to ensure that when the time is right,
[Y.F.K.] will be able to work toward having a healthy
relationship with the child. Preserving [Y.F.K.'s] parental
rights will no� alter the stability of the child's environment.
L.R.D. contends that this case is similar to In re Welfare of R.TB., 492 N.W.2d 1
(Minn. App. 1992), in which this court affinned a district court's grant of a mother's private
petition to tenninate a father's parental rights. The facts of the R. TB. case are similar to
this case in some ways but different in other ways. Notably, the father in R. TB. frequently
was violent toward both the child and the child's mother. Id. at 2. On one occasion, the
father threatened the child and his mother with a loaded handgun. Id. The father had been
11
sentenced to 13 8 months of imprisonment in federal prison, and it appears that the sentence
would not expire until the child was approximately 16 years old. Id. In addition, the mother
had married another man. Id. Most importantly, the district court found that termination
of the father's rights was in the child's best interests, and this court concluded that the
district court's finding was supported by the evidence. Id. at 4. Because a deferential
standard of review applies, the outcome of the R. T.B. case does not compel the same
outcome in this case.
L.R.D. also contends that tennination is in N .D.' s best interests because Y .F .K. was
found to be palpably unfit to be a parent, because Y.F .K. is a convicted sex offender who
presently is prohibited from having contact with minors, and because N.D. has a strong
relationship with another parental figure, A.R. We acknowledge that L.R.D.'s argument
has some merit. L.R.D.' s evidence and arguments likely presented the district court with
a difficult decision. The district court noted that the prospects of a meaningful parent-child
relationship between Y.F.K. and N.D. are contingent on his rehabilitation, which is not
imminent. But N.D. was only eight years old at the time of trial, so he would remain a
child for approximately ten more years. As the guardian ad !item noted in his report, if
Y.F.K. were to seek parenting time or custody at a later date, there would be "ample
safeguards" to protect N.D.'s best interests, including "a requirement that [Y.F.K.] show
that he is mentally and chemically stable enough to reconnect with his son in a child­
centered way" and "a requirement that any reunification process be therapeutically guided
so that [N.D.]'s emotional needs are paramount, supported, and protected." The district
court also reasoned that tennination of Y.F .K.' s parental rights is not necessary to alleviate
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any present risk to the stability of N.D.'s environment. With or without an order
tenninating Y.F.K.'s parental rights, N.D. and A.R. can continue to pursue a relationship
that is beneficial to N.D. Furthennore, the benefits of tennination are somewhat limited
by the fact that L.R.D. and A.R. do not live together and do not have an intimate
relationship. L.R.D. 's explanation that A.R. 's adoption ofN .D. would provide security for
N.D. is rather attenuated given the low probability that L.R.D. will die during N.D.'s
childhood. And if that scenario were to present itself, A.R. could, as the guardian ad !item.
noted in his report, pursue a third-party custody action. Moreover, the district court's
decision is supported by the written report and oral testimony of an experienced guardian
ad !item. Finally, we are mindful of our deferential standard of review, which is based on
the district court's superior understanding of the facts and nuances of the case. See In re
Tanghe, 672 N.W.2d 623, 625 (Minn. App. 2003); L.A.F., 554 N.W.2d at 396. All things
considered, we cannot say that the district court abused its discretion in making its ultimate
detennination that tennination ofY.F.K.'s parental rights is not in N.D.'s best interests.
Before concluding, we note that L.R.D. also argues that the district court erred by
finding that she did not prove three of the four statutory grounds for termination that she
alleged in her petition. It is not necessary to resolve those issues. Only one statutory basis
is necessary for the termination of parental rights. Minn. Stat. § 260C.3 l 7, subd. 1 (2020);
In re Welfare of S.Z., 547 N.W.2d 886, 890 (Minn. 1996). The district court found that
L.R.D. had proved the existence of one statutory basis. The district court's denial of
L.R.D.'s petition is based on the district court's finding that tennination is not in N.D.'s
best interests. The outcome of the case in the district court would have been no different
13
if the district court had found that additional statutory bases were proved. Likewise, the
outcome of the case on appeal would be no different ifwe were to conclude that the district
court erred in its findings concerning the three other statutory bases.
In surn, the district court did not err by denying L.R.D.' s petition to tenninate
Y.F.K.'s parental rights to N.D.
Affirmed.
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KIRK, Judge ( concurring specially)
While I concur in the result, because of the broad discretion we as an error­
correcting court give to the district court, I write separately to address an issue that we do
not reach under the unusual facts in this case. The legislature has constructed the law on
tennination of parental rights (TPR) to make it relatively easy and straightforward for a
petitioner, usually the county, to tenninate the parental rights of a parent convicted of
certain crimes and who, as a result of the conviction, is now required to register as a
predatory offender. See Minn. Stat. §§ 260C.301, subd. l(b)(9), 260.012(g)(5) (2020).
Because the district court found, on the basis of the plain language of the statute, that
conviction of a predatory crime cannot be proven as a ground for tennination where the
parent is not, at the time of the TPR trial, a Minnesota resident, it did not do a complete
analysis of the child's best interests considering that statutory ground for termination. Such
an analysis may have led to a different result, particularly because the underlying crime in
this case involves a crime against a child or children.
I have repeatedly read the string of statutes that leaves a Minnesota resident-parent
subject to loss of parental rights but not a nonresident parent, and I agree with the district
court that under the plain language of the statutes involved in this case, this ground should
be applied only if the parent is a Minnesota resident. See Minn. Stat. §§ 260C.301, subd.
l(b)(9), 260.01 2(g)(5), 243.166, subd. lb(a)(2)(vii), (b) (2020). As a result, the district
court was not required to consider the child's best interests specifically as to this statutory
ground for TPR, although the legislative intent would seem to suggest a heightened cause
for concern.
CS-1
The legislative intent when this type of conviction is present is obvious in the
statutory scheme. All the petitioner must prove is that the parent has been convicted of a
crime that would require registration as a predatory offender in Minnesota, and the string
of statutes creating this requirement includes crimes committed in another state that are
similar to the same crime in Minnesota. See Minn. Stat. §§ 260C.301, subd. l(b)(9),
260.012(g)(5), 243.166, subd. lb(b)(l) (2020). In this case each state, Minnesota and
Wisconsin, has a similar crime for possession of child pornography. See Minn. Stat.
§ 617.247 (2014); Wis. Stat.§ 948.12 (2015-16). In 2017, the defendant was convicted of
this crime in Wisconsin and is presently registered as a sex offender in Wisconsin. Yet the
plain language in our statutes indicate that he must be required to register as a predatory
offender in Minnesota to meet the elements of this ground for a TPR. See Minn. Stat.
§§ 260C.301, subd. l(b)(9), 260.012(g)(5), 243.166, subd. lb(b)(2) (2020). Because he is
a resident of Wisconsin, he is not required to register in Minnesota. As a result, on the
facts of this case, we end up treating a nonresident differently than a resident when this
ground for termination is asserted. That is not likely to have been the intent of these laws.
The intent of the legislation was to protect children from predatory offenders, and a
stronger analysis of best interests of the child in this type of case can be inferred from these
and related statutes. For instance, where the county has brought a child protection
proceeding, it is relieved of the duty to exercise reasonable efforts to reunite the child with
the parent where the parent has been convicted of possession of child pornography. Minn.
Stat. § 260.012(a)(6) (2020). And Minn. Stat. § 260C.503, subd. 2(a)(6) (2020) indicates
that the county must immediately ask the county attorney to terminate parental rights where
CS-2
a parent has committed a crime under Minn. Stat. § 243.166, subd. lb(a) or (b), which
includes possession of child pornography. The statute then says that the county attorney
shall file a TPR petition unless certain conditions apply that are not present in this case.
See Minn. Stat. § 260C.503, subd. 2( d) (2020).
It is unlikely that the legislature intended to treat nonresident parents differently
than resident parents under Minn. Stat. § 260C.301, subd. l( b )(9). An error in drafting the
legislation may have created this anomaly; however, it is up to the legislature or the
supreme court to address this quirk in the law, not an error-correcting court like ours. See
Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) ("[T]he task of extending
existing law falls to the supreme court or the legislature, but it does not fall to this court."),
rev. denied (Minn. Dec. 18, 1987).
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