In re the Custody of B. B. F. F.

This opinion is nonprecedential except as provided by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
A23-1449

In re the Custody of B. B. F. F.

Filed July 22, 2024
Affirmed
Klaphake, Judge *

Wright County District Court
File No. 86-FA-21-1670

John DeWalt, Melissa Chawla, Dewalt, Chawla + Saksena, LLC, Minneapolis, Minnesota
(for appellants)

Heather D. Olson, Collin B. Ostroot, Olson Law, LLC, Buffalo, Minnesota (for respondent)

Considered and decided by Wheelock, Presiding Judge; Harris, Judge; and
Klaphake, Judge.
NONPRECEDENTIAL OPINION
KLAPHAKE , Judge
Appellants argue that the district court abused its discretion by dismissing their
third-party custody petition. We affirm.
DECISION
Appellants-maternal grandparents Benjamin Joseph Jerulle and Jennifer Diane
Jerulle filed a petition for third -party custody of B.B.F.F. (the child) on April 12, 2021.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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This occurred approximately two weeks after respondent -father Brock Richard Flamang
left the child in appellants’ care while he r eturned to his home in Wisconsin to attend to
legal issues. Respondent and the child had been living with appellants since the child’s
birth on March 7, 2021, after the child’s mother (appellants’ daughter) unexpectedly died
from childbirth complications.
The district court filed an ex parte order granting appellants temporary sole legal
and temporary sole physical custody of the child and respondent supervised parenting time
pending an evidentiary hearing. Following that hearing, the district court dismissed
appellants’ petition, concluding that appellants failed to establish that they are interested
third parties under Minn. Stat. § 257C.03, subd. 7 (2022) , because they did not prove one
of the three endangerment factors. Appellants challenge the dismissal of their petition.
Appellate courts review a district court’s third -party custody determination for an
abuse of discretion. In re Custody of A.L.R., 830 N.W.2d 163, 166 (Minn. App. 2013). A
district court abuses its discretion by “making findings unsupported by the evidence or by
improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). This
court will uphold a district court’s factual findings unless they are clearly erroneous. Minn.
R. Civ. P. 52.01. This court also defers to the district court’s witness credibilit y
determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Appellants argue that the district court erred in its analysis of section 257C.03,
subdivision 7, and by failing to consider additional statutory factors, including the best-
interest factors under section 257C.03, subd ivision 7(a)(2). The interpretation and
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construction of statutes are questions of law that this court reviews de novo. Lewis -Miller
v. Ross, 710 N.W.2d 565, 568 (Minn. 2006).
To establish that they are an interested third party, appellants had to
(1) show by clear and convincing evidence that one of the
following factors exist:
(i) the parent has abandoned, neglected, or otherwise
exhibited disregard for the child’s well -being to the
extent that the child will be harmed by living with the
parent;
(ii) placement of the child with the individual takes
priority over preserving the day- to-day parent -child
relationship because of the presence of physical or
emotional danger to the child, or both; or
(iii) other extraordinary circumstances;

(2) prove by a preponderance of the evidence that it is in the
best interests of the child to be in the custody of the interested
third party; and

(3) show by clear and convincing evidence that granting the
petition would not violate section 518.179.

See Minn. Stat. § 257C.03, subd. 7(a) (emphasis added).
The district court determined that appellants failed to satisfy their burden to
establish the first requirement . The district court further determined that, because
appellants failed to establish the first requirement, it did not need to consider the second
and third. Appellants argue that the statute mandates the district court to analyze all three
requirements. We agree with the district court’s determination.
The statute uses “and,” requiring appellants to establish three requirements . Even
if the district court had determined that appellants made the required showing on the second
and third requirements, they would not have satisfied all requirements because they failed
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on the first. The district court appropriately interpreted the statute. See Tuthill v. Tuthill,
399 N.W.2d 230, 232 (Minn. App. 1987) (ruling, in maintenance -modification context,
that movant’s failure to show statutorily required change of circumstances was fatal to
motion to modify maintenance, and hence that “it is not necessary for the [district] court to
make findings regarding any other factors addressed in the statute”). We must now
determine whether the district court properly concluded that appellants failed to establish
the first requirement.
The district court determined that appellants failed to “show by clear and convincing
evidence that [respondent] has abandoned, neglected, or otherwise exhibited disregard for
the child’s well-being to the extent that the child will be harmed by living with [him].” See
Minn. Stat. § 257C.03, subd. 7(a)(1)(i). The district court also determined that appellants
failed to show that the child was in physical or emotional danger while living with
respondent. See id., subd. 7(a)(1)(ii). Finally, the district court determined that appellants
failed to show that other extraordinary circumstances existed that would r esult in the
granting of the petition. See id. , subd. 7(a)(1)(iii).
Appellants argue that (1) respondent abandoned the child when he left the child in
appellants’ care, (2) respondent neglected the child, (3) respondent disregarded the child’s
well-being by missing parenting time and refusing to take a hair-follicle drug test,
(4) respondent endangers the child because he is chemically dependent, and (5) they have
a substantial relationship with the child and can attend to the child’s medical condition.
The district court considered these assertions and determined that none rose to
endangerment.
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The district court found that appellants testified that respondent did not abandon the
child and that he always planned to return. The district court found that respondent’s
parenting time was positive and that there was not substantial evidence that respondent has
a chemical-dependency issue. Finally, the district court determined that the child’s medical
condition would be considered with the creation of a transition plan. The record supports
the district court’s findings.
At the evidentiary hearing, appellant-grandmother testified that the parties a greed
that the child would stay with appellants when respondent went to Wisconsin. Appellant-
grandmother testified that she did not believe that respondent “ever” abandoned the child .
Appellant-grandmother testified that appellants are the child’s primary caregivers,
and that respondent was neglectful in caring for the child when he lived with them. But
she also testified that she did not believe that respondent neglected or disregarded the
child’s well-being. And while appellant- grandfather believed that respondent neglected
the child, he admitted that the child wa s not harmed . The district court determined that,
even assuming that respondent was not active in the child’s care when he resided with
appellants, “there is no evidence that his alleged lack of care rises to the level of
abandonment, neglect, or disregard for the child’s well-being. Rather, [appellants] testified
that the child was well provided for.” Additionally, the district court observed that the
notes from respondent’s parenting time “are positive and do not show any present neglect
or disregard for the child’s well-being.”
Appellant-grandmother testified that she was concerned about the child’s safety in
respondent’s care because she alleged that he abused drugs and alcohol and had mental -
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health issues. But, as the district court stated, appellant-grandmother’s opinion is based on
her awareness of respondent’s use. The district court found that appellant -grandmother
testified “that she is not aware of any diagnoses or any professional statement that
[respondent] is chemically dependent .”
Appellants are concerned about the child while in respondent’s care because his
chemical use in the past led to acts of violence, including against appellants’ daughter. The
district court considered this concern and concluded that “[a]lthough [ appellants] provided
evidence as to various incidents . . . [they] were either before the child was born or while
the child was not present.” The district court determined that appellants are “concerned of
the potential” danger to the child but “acknowledge[] that those concerns have not yet
affected the child.”
Regardless of any concern we may share with appellants regarding respondent’s
noncompliance with substance-use testing, the district court correctly applied the law . See
In re Welfare of M.D.O., 462 N.W.2d 370, 374- 75 (Minn. 1990) (stating that role of this
court is to correct errors); Pikula, 374 N.W.2d at 710 (stating district court does not abuse
its discretion when it properly applies law). Because the district court determined that
appellants failed to satisfy the showing of abandonment or endangerment , it did not abuse
its discretion by dismissing appellants’ petition without considering additional statutory
factors, including best-interest factors. See Tuthill, 399 N.W.2d at 232.
Affirmed.