                           This opinion will be unpublished and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                          UNPUBLISHED OPINION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.”


                                                2
       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.

                                               3
                                      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).


                                               4
       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


                                               5
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




                                              6
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



                                             7
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


                                              8
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


                                               9
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


                                               10
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.


                                              11
