In the Matter of the Welfare of the Children of: D. L. O., R. D. J. and A. P. R., Parents. ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1929
A14-1931
In the Matter of the Welfare of the Children of:
D. L. O., R. D. J. and A. P. R., Parents.
Filed April 13, 2015
Appeals dismissed
Bjorkman, Judge
Dakota County District Court
File Nos. 19HA-JV-13-1637
19HA-JV-14-916
David L. Ludescher, Caitlin M. Elliot, Grundhoefer & Ludescher, P.A., Northfield,
Minnesota (for appellant A.P.R.)
James C. Backstrom, Dakota County Attorney, Jennifer L. Jackson, Assistant County
Attorney, Hastings, Minnesota (for respondent Dakota County Social Services
Department)
Jacob Trotzky-Sirr, Guardian ad Litem Program, West St. Paul, Minnesota (guardian ad
litem)
Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
In these consolidated appeals, appellant-father challenges the district court’s order
resolving a child-protection proceeding and transferring permanent custody of his child
from respondent-mother to the paternal grandparents of the child’s half-sister. Because
father lacks standing to challenge the order, we dismiss the appeals.
FACTS
Respondent D.L.O. (mother) has two daughters: A.O., born January 2011, and
J.O., born August 2012. Mother and respondent R.D.J. believed that R.D.J. was the
father of both children. But mother had sole legal and physical custody.
In July 2013, the children were living with mother and her boyfriend, E.V.M. On
July 14, after E.V.M. physically assaulted mother and J.O., the children were placed on a
health and welfare hold and subsequently placed with R.D.J. and his parents, M.J. and
A.J. Respondent Dakota County Social Services (the county) investigated the incident
and learned that E.V.M. likely was using heroin at the time and that both mother and
E.V.M. had a history of illegal drug use. The county filed a petition alleging that A.O.
and J.O. needed protection or services.
On July 31, mother admitted the petition, and the district court adjudicated the
children in need of protection or services (CHIPS). The district court ordered the
children to remain in the custody of R.D.J. and his parents, and directed mother to
undergo chemical-dependency and psychological evaluations and follow treatment
recommendations.
R.D.J. underwent paternity testing in October, which confirmed that R.D.J. is the
father of J.O. but revealed that he is not A.O.’s father. In March 2014, testing revealed
that appellant A.P.R. (father) is the father of A.O. Father and mother signed a
recognition of parentage (ROP), and father expressed willingness to parent A.O. He was
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subsequently added as a party to the CHIPS case. But because A.O. had experienced
trauma in mother’s home and had only known R.D.J. as a father, A.O. was not
immediately introduced to father.
On May 23, the county filed a permanency petition, recommending that legal and
physical custody of the children be transferred from mother to M.J. and A.J. The county
alleged that it is not in the children’s best interests to be returned to mother’s home and
sought the transfer of custody as a final resolution of the CHIPS case. Father denied the
allegations of the transfer-of-custody (TOC) petition but did not file a competing petition.
Trial was scheduled for October 23-24.
Father began supervised visits with A.O. in late June. A month later, father filed a
proposed case plan in the CHIPS case and a proposed permanency plan in the TOC case.
Father argued that there was no allegation or finding that A.O. is in need of protection or
services as to him and requested more liberal visitation and to have A.O. united with him
no later than September 1. The district court found continued placement with M.J. and
A.J. to be in A.O.’s best interests. But the district court subsequently awarded father
overnight visitation with A.O.
On the day of trial, mother agreed to transfer her custody of both children to M.J.
and A.J. She explained that she would have agreed to transfer custody of A.O. to father
“if there were a viable petition by [father].” But she stated that under the circumstances
she believes transferring custody of both children to M.J. and A.J. is in the children’s best
interests. The guardian ad litem agreed.
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The district court ordered the transfer of legal and physical custody of the children
to M.J. and A.J., subject to mother’s, father’s, and R.D.J.’s visitation, and terminated its
jurisdiction in the CHIPS case, “subject to reopening for purposes of amending the
custody order, upon proper motion by a party.” The district court further stated that
father “may waive any statutory timelines and petition the court for a modification of
custody of [A.O] at any time he believes it is in the best interest of the child and with the
support of the child’s therapist, if any.” Father appeals.
DECISION
Father argues that the district court erred by resolving the CHIPS case and
transferring custody of A.O. to M.J. and A.J. without first addressing his parental fitness.
And he contends that the district court’s findings are insufficient to support the custody
transfer. The county argues that father lacks standing to appeal the district court’s order.
Standing is a legal requirement at every stage of litigation, including when a party
appeals a decision. In re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011).
Accordingly, we turn first to the threshold issue of standing.
“Standing to appeal may be conferred by a statute or by the appellant’s status as an
aggrieved party.” Id. at 513. A person has standing to appeal a final order of the juvenile
court if he is “aggrieved” by the order. Minn. R. Juv. Pro. P. 47.02, subd. 1; D.T.R., 796
N.W.2d at 513. A person is “aggrieved” when the order in question adversely affects his
substantial right. In re Welfare of L.L.P., 836 N.W.2d 563, 569 (Minn. App. 2013). We
independently determine whether this requirement is met. Id. at 567.
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Father contends that he is “aggrieved” because the order results in a “loss of
custodial rights” and infringes on his parental rights. He cites the ROP as legal
recognition that his parental status gives him fundamental rights “in A.O.’s welfare.” We
are not persuaded. The rights father asserts—to determine the care and control of a
child—are custodial rights. See Minn. Stat. §§ 260C.007, subd. 10 (defining “custodian”
as one legally obligated to or actually providing “care and support” for a minor), 518.003,
subd. 3(a), (c) (defining “legal custody” as “the right to determine the child’s upbringing,
including education, health care, and religious training” and “physical custody” as “the
routine daily care and control and the residence of the child”) (2014); see also Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2059-60 (2000) (discussing “the interest of
parents in the care, custody, and control of their children” in determining constitutionality
of statute permitting anyone to obtain visitation rights against the wishes of the custodial
parent). It is undisputed that mother had sole legal and physical custody of A.O. at the
time of the CHIPS adjudication. The ROP did not grant father custodial rights; it merely
provided a basis for father to seek custody. Minn. Stat. § 257.75, subd. 3 (2014).
Father could have sought custody by timely filing his own TOC petition to oppose
the county’s petition.1 Minn. R. Juv. Prot. P. 33.01, subd. 4, 35.01, subd. 1(c)(1),
42.04(a); see also Minn. Stat. § 260C.507(b) (2014). He declined to do so. This is not,
as father asserts, a mere technical omission. As a noncustodial parent, father was not
required to admit or deny the TOC petition. See Minn. R. Juv. Prot. P. 35.01, subd.
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As father acknowledges, any attempt to establish custody in a separate proceeding
during the pendency of the CHIPS case would have been ineffective. See Minn. Stat.
§ 260C.101 (2014); Stern v. Stern, 839 N.W.2d 96, 100 (Minn. App. 2013).
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1(c)(1). But any party, including a noncustodial parent, who disagrees with the
permanent placement proposed in the county’s petition “shall” file its own permanent
placement petition. Minn. R. Juv. Prot. P. 33.01, subd. 4(b). Absent such a petition, the
district court need only decide whether to return the children to their custodial parent or
order the proposed disposition and resolve the CHIPS case. See Minn. Stat. § 260C.509
(2014); see also Minn. R. Juv. Prot. P. 42.07, subd. 2 (providing that juvenile court
jurisdiction terminates upon transfer of custody). That is precisely what the district court
did here.
In sum, the district court’s order transferring custody of A.O. from mother to M.J.
and A.J. neither deprives father of custodial rights nor denies him the opportunity to
obtain custodial rights. While we recognize and applaud father’s active interest in A.O.’s
welfare, more is required to establish standing. Because the transfer of custody does not
adversely affect any of father’s substantial rights, he lacks standing to challenge the
district court’s order. Accordingly, we dismiss these appeals.
Appeals dismissed.
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