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In re Children of Wildey

September 30, 2003

IN THE MATTER OF THE CHILDREN OF RICHARD WILDEY.


Sherburne County District Court File No. J7-02-50745

Considered and decided by Randall, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

SYLLABUS BY THE COURT

1. Imprisonment may combine with other factors, such as parental neglect and the withholding of parental affection, to support a finding of abandonment.

2. Incarceration is not sufficient, per se, to constitute abandonment. Abandonment requires the actual desertion of the child and an intention to forsake the duties of parenthood.

3. Pursuant to Minn. Stat. § 260C.001, subd. 3 (2002), the most important consideration in all proceedings for the termination of parental rights is the best interests of the child.

4. When analyzing the best interests of the child, the court must balance three factors: (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 interest of the child.

The opinion of the court was delivered by: Randall, Judge

Affirmed

OPINION

On appeal in this termination-of-parental-rights proceeding, appellant-father, who is incarcerated, argues (a) the county failed to make reasonable efforts to reunite the family and the district court's reliance on In re Welfare of L.A.F., 554 N.W.2d 393 (Minn. 1996) to rule that such efforts were not required, misreads the case; (b) the record does not support the determination that father abandoned his children where the county failed to give father the information necessary to contact his children; (c) the record does not support the determination that father failed to abide by the duties of being a parent and the district court's ruling on this point was improperly based on its determination that termination was in the children's best interests, rather than on the relevant statutory criteria; (d) the record does not support the determination that the children are neglected and in foster case where father took advantage of the services offered to him; and (e) the record does not show that termination is in the children's best interests. The district court and the county social services improperly placed too much weight on appellant's incarceration. Because the best interests of the child are paramount in termination of parental-rights proceedings, we conclude that the district court did not abuse its discretion when it terminated appellant's parental rights.

FACTS

Appellant Richard Wildey and Kristi Karels are the biological parents of A.A.W., born November 5, 1997, and J.L.W., born May 20, 1996. Appellant and Karels are not and have never been married. Appellant lived with the children and Karels from 1996 (when J.L.W. was born) until early 1999, during which time he assisted in the daily care of the children. In early 1999, appellant was asked to leave the home because of relationship problems between him and Karels. Appellant continued to see the family on weekends and provided some money when needed until he was incarcerated April 6, 2000. Appellant has never been the primary custodian or caregiver for the children, and he last saw his children on March 23, 2000.

Appellant was taken into custody on April 6, 2000, for burglary and for a probation violation for a prior conviction for the sale of methamphetamine. He has been continuously in jail or prison since that date and is currently serving a sentence for a felony burglary offense committed in Eau Claire County, Wisconsin. Appellant has not seen the minor children in at least three years, and has had no direct contact with them since March 2000. His earliest possible release date from prison is October 2005.

On October 5, 2001, the court placed the minor children in foster care due to neglect and methamphetamine use by their mother. On or about November 1, 2001, appellant received a written notification from Sherburne County Social Services of the existence of a child-protection case involving the minor children. This letter informed appellant that: (1) he was entitled to notice of the proceedings and copies of all pleadings; (2) he was entitled to participate in the proceedings; and (3) inquired about Native American heritage. At trial, appellant testified that he received this notification, but never responded, claiming that Karels had assured him she was complying with court orders and that the children would be returned to her care.

On March 26, 2002, Robert LaCroix, a social worker for Sherburne County Social Services, sent a form to appellant in prison requesting that appellant agree to a voluntary termination of parental rights. Shortly thereafter, appellant responded to the letter stating that he needed more time to contact a family member to take care of the children and that he did not want to "lose" his children. But, despite appellant's attempts, no relative agreed to care for the children.

Appellant was personally served with a summons and petition to terminate his parental rights to the children on July 19, 2002. The petition included a statement of his rights and responsibilities and indicated the right to court-appointed representation. Appellant claims that he responded to the petition in writing asking for information on how he could contact his children. He also contends that he sent in his application for legal representation. However, no documents were ever received by either Social Services or Court Administration.

At a hearing on August 27, 2002, Karels, the mother, voluntarily agreed to terminate her parental rights. Appellant was found in default due to his non-appearance at the hearing, and his parental rights were terminated. It was later determined that appellant had arranged with his case-manager to be present by telephone for the hearing. The court determined that appellant had been placed on "hold" on a telephone extension in the Sherburne County Court Administration Office and was waiting to participate in the hearing. As a result, the court granted appellant's motion to vacate the order terminating his parental rights, and set the matter for trial on January 24, 2003.

At trial, appellant testified that while in prison he completed a parenting class and wrote letters to the children's mother asking about them. Appellant also testified that because the children were too young to read, he drew them pictures, made them birthday cards, and has spoken to the girls on the telephone during his incarceration. He testified that his plan upon release from prison is to get a job, get housing, and "start getting to know his children again."

The court found that appellant intermittently lived with Karels and the children from the dates of the children's births through early 1999. The court determined that during this time, neither appellant nor Karels provided food, clothing, shelter, and other care for the children, except to a marginal extent. In addition, the court noted that during this period, appellant occasionally fought with Karels and would leave for long periods of ...


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