                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1992

                 In the Matter of the Welfare of the Child of: A.H., Parent.

                                    Filed April 25, 2016
                                         Affirmed
                                      Stauber, Judge

                              Hennepin County District Court
                                 File No. 27-JV-13-3924

Kimberly J. Robinson, Jillian K. Duffy, Robinson Duffy, P.L.L.C., Minneapolis,
Minnesota (for appellant A.H.)

Samantha J. Gemberling, Wolf, Rohr, Gemberling & Allen, P.A., St. Paul, Minnesota (for
respondents K.W. and N.W.)

Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota; and

Kathryn Eilers, Special Assistant County Attorney, St. Paul, Minnesota (for respondent
HCHSPHD)

Deaundres D. Wilson, Minneapolis, Minnesota (for respondent Z.W.)

         Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Stauber,

Judge.

                                     SYLLABUS

         1.    The juvenile court has “original and exclusive jurisdiction” over visitation

issues raised in post-permanency proceedings under Minn. Stat. §§ 260C.503-.521

(2014).

         2.    The juvenile court must use the best-interests standard of Minn. Stat.

§ 260C.511 when deciding whether to modify visitation in a post-permanency

proceeding.
                                        OPINION

STAUBER, Judge

       Appellant biological mother permanently transferred legal and physical custody of

her child to a relative during the trial on a petition to terminate her parental rights. In this

post-permanency proceeding, appellant challenges the juvenile court’s order reducing her

visitation time with the child, arguing that the juvenile court (1) does not have

jurisdiction over the issue of visitation; (2) should have applied the best-interests

standards of Minn. Stat. § 518.175; (3) erred by not holding an evidentiary hearing; and

(4) abused its discretion. We affirm.

                                           FACTS

       Appellant A.H. and respondent Z.W. are the biological parents of A.W., born July

13, 2012. A.H. was a minor when A.W. was born; A.H. and Z.W. never married. On

November 12, 2012, when A.W. was four months old, he was removed from the parents’

custody and placed in protective care after a pediatrician discovered that A.W. had eight

healing rib fractures and several bruises. A child-in-need-of-protection-or-services

(CHIPS) petition was filed in December 2012. In June 2013, respondent Hennepin

County Human Services and Public Health Department (the county) filed a petition to

terminate the biological parents’ parental rights. After the first day of trial in January

2014, A.H. and Z.W. agreed to a permanent transfer of legal and physical custody of

A.W. to respondent K.W., a relative of the child, and his wife, N.W. (legal guardians).

As part of the transfer of legal and physical custody, A.H. and Z.W. were allowed twelve

hours a month of “combined supervised parenting time.” Strict conditions about


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visitation time, transport, supervision, participation, and expenses of visitation

supervisors are set forth in the agreement.

       Visitation has been a continuing source of conflict, and A.H. has been hostile

toward the legal guardians and dismissive of their requests regarding sweets and video

time during visitation. A.H. and Z.W. are angry because the legal guardians refer to the

child by a name other than his legal name, although his legal name is used in all

documents and records, and because the child refers to the legal guardians as “momma

and poppa.” The biological parents want the child to be encouraged to call them

“mother” and “daddy” or similar names.

       In September 2014, A.H. and Z.W. moved for expanded visitation time. The

juvenile court denied this motion, concluding that the biological parents had not shown

that expanded visitation was in the child’s best interests. The juvenile court cited Minn.

Stat. §§ 518.18, .185 (2014) to support its decision, but did not refer to either Minn. Stat.

§ 260C.511 (providing that court must consider best interests of child in permanency

proceedings) or Minn. Stat. § 518.175 (governing parenting time in marital dissolution or

separation proceedings).

       In September 2015, A.H. moved for changes to the visitation schedule and to

address issues of the child’s name, the child’s name for the legal guardians, and the

child’s name for A.H. The legal guardians filed a counter motion asking that visitation

be reduced to one three-hour visit per month. After reviewing the filings and hearing the

parties’ arguments, but without holding an evidentiary hearing, the juvenile court granted

the legal guardians’ motion to reduce visitation time and set forth other visitation


                                              3
conditions. The juvenile court denied all other motions and retained jurisdiction over the

case. A.H. appeals from this order.

                                          ISSUES

       1.     Does the juvenile court have jurisdiction over visitation issues arising in a

post-permanency proceeding under Minn. Stat. §§ 260C.503-.521?

       2.     In a post-permanency proceeding involving visitation, did the juvenile court

err by applying the best-interests standard of Minn. Stat. § 260C.511, rather than the

endangerment standard of Minn. Stat. § 518.175?

       3.     Did the juvenile court err by deciding visitation issues in a post-

permanency proceeding without holding an evidentiary hearing?

       4.     Did the juvenile court abuse its discretion by reducing the biological

parents’ visitation time?

                                        ANALYSIS

                                             I.

       A.H. argues that the juvenile court lacks jurisdiction1 to modify visitation in post-

permanency proceedings, or that it has concurrent jurisdiction with the family court in

post-permanency proceedings. Because of this, A.H. asserts that questions of visitation

or parenting time should be referred to the family court and should be analyzed under the



1
 A.H. uses “jurisdiction” in the sense that the juvenile court lacks authority to address
visitation questions. See Moore v. Moore, 734 N.W.2d 285, 287 n.1 (Minn. App. 2007),
review denied (Minn. Sept. 18, 2007). Because the statute refers to the juvenile court’s
“original and exclusive jurisdiction,” we will refer to the juvenile court’s authority as
“jurisdiction.”

                                             4
family court standards for modification of parenting time. We review jurisdiction de

novo as a question of law. Nelson v. Schlener, 859 N.W.2d 288, 291 (Minn. 2015).

          The juvenile court has “original and exclusive jurisdiction in proceedings

concerning any child who is alleged to be in need of protection or services.” Minn. Stat.

§ 260C.101, subd. 1 (2014). It also has “original and exclusive jurisdiction in

proceedings concerning . . . permanency matters under sections 260C.503 to 260C.521.”

Minn. Stat. § 260C.101, subd. 2(2) (2014). These sections set forth the possible

permanency dispositions, including transfer of “permanent legal and physical custody to

a fit and willing relative.” Minn. Stat. § 260C.515, subd. 4. Under this section, the

juvenile court must “follow the standards applicable under this chapter and chapter 260,

and the procedures in the Minnesota Rules of Juvenile Protection Procedure.” Id., subd.

4(2).

          The juvenile court may maintain jurisdiction over the parties “for purposes of

ensuring appropriate services are delivered to the child and permanent legal custodian for

the purpose of ensuring conditions ordered by the court related to the care and custody of

the child are met.” 2 Id., subd. 4(10). Similarly, Minn. R. Juv. Prot. P. 42.07, subd. 7,

states:

                        When the court orders transfer of permanent legal and
                physical custody to a relative under this Rule, the court may
                retain jurisdiction over the responsible social services agency,
                the parents or guardian of the child, the child, and the

2
  Counsel for the county asserts that there is a typographical error in this clause based on
the mirror image text in the juvenile protection rules; the rule contains the word “or”
halfway through the clause that mirrors this statement from the statute. See Minn. R. Juv.
Prot. 42.07, subd. 7 (regarding retention of jurisdiction).

                                               5
              permanent legal and physical custodian. The court may
              conduct reviews at such frequency as the court determines will
              serve the child's best interests for the purpose of ensuring:
                     (a)    appropriate services are delivered to the child
                     and the permanent legal and physical custodian; or
                     (b)    conditions ordered by the court relating to the
                     care and custody of the child are met.

And Minn. R. Juv. Prot. P. 42.07, subd. 2, states, “If the court transfers permanent legal

and physical custody to a relative, juvenile court jurisdiction is terminated unless

specifically retained by the court.” These rules are incorporated into the statute under the

terms of Minn. Stat. § 260C.515, subd. 4(2). Although the language of the statute and the

rules is discretionary, in this case the juvenile court specifically retained jurisdiction in

both its original permanency order and the current order.3

       In Stern v. Stern, 839 N.W.2d 96, 99-104 (Minn. App. 2013), this court analyzed

whether the family court and juvenile court shared concurrent jurisdiction over the

appointment of a de facto custodian. This court acknowledged the “interplay” among

juvenile protection statutes, family law provisions, and criminal statutes, and concluded

that the family court and juvenile court did not share concurrent jurisdiction over issues

of permanent placement for children involved in CHIPS or other juvenile court

proceedings; rather, the juvenile court retained jurisdiction over issues assigned to its

“original and exclusive jurisdiction.” Id. at 100-01. For example, the juvenile court may

transfer a permanency case to the family court for purposes of establishing support or


3
  The juvenile court’s retention of jurisdiction is consistent with a standing order in
Hennepin County, which states that in cases involving a transfer of legal custody by the
juvenile court, “motions to change custody and parenting time assistance motions” filed
for orders entered after August 1, 2012, must be made in juvenile court.

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maintenance. Id. at 101-02. But “the family court must . . . defer to the original and

exclusive jurisdiction of the juvenile court relative to issues within its authority.” Id. at

101. Here, the juvenile court had original and exclusive jurisdiction over the permanency

issue based on the statute, rules, and the judicial district’s standing order, and it

specifically retained that jurisdiction.

       Finally, the focus of the marital dissolution statutes is to identify the rights of

parties to a marriage. See Minn. Stat. § 518.175, subd. 1(a) (stating that the family court

shall grant parenting time “[i]n all proceedings for dissolution or legal separation”).4 In

contrast, the juvenile protection statutes state “[t]he paramount consideration in all

juvenile protection proceedings is the health, safety, and best interests of the child,”

Minn. Stat. § 260C.001, subd. 2(a) (2014), and “[t]he paramount consideration in all

proceedings for permanent placement of the child . . . is the best interests of the child.”

Minn. Stat. § 260C.001, subd. 3(3) (2014). Here, the focus is on the best interests of

A.W., and not on the interests of the biological parents. The juvenile court had and

retained original and exclusive jurisdiction over the question of visitation in a post-

permanency proceeding.

                                              II.




4
 The district court also determines custody and parenting time using the standards set
forth in Minn. Stat. §§ 518.17, .175, when paternity is established under Minn.
Stat. §§ 257.51-.74 (2014). Z.W. admitted paternity, and these parties were not in family
court as part of a paternity action but were in juvenile court because of the CHIPS and
TPR petitions.

                                               7
       A.H. argues that the juvenile court erred by not applying the standards of Minn.

Stat. § 518.175, which govern “parenting time” in marital dissolution matters. In

conjunction with this argument, A.H. contends that the juvenile court awarded her

“parenting time,” a concept of family law set forth in the dissolution statute, and that the

juvenile court did this in a final order, thus establishing the law of the case. The juvenile

court refers interchangeably to “parenting time” and “visitation” throughout its order, and

did so as well in the April 3, 2014 permanency order. In its September 3, 2014 visitation

order, the juvenile court again uses the terms interchangeably, and at one time asserts that

it has the power “to modify visitation or parenting time” under Minn. Stat. § 518.175.

       The juvenile court erred in this assertion. The juvenile protection statute does not

give the juvenile court authority to award, much less modify, visitation under Minn. Stat.

§ 518.175, although it “may” apply the standards of Minn. Stat. §§ 518.18, .185 in

modifying permanent legal and physical custody to a relative. Minn. Stat. § 260C.521,

subd. 2. But “we will not reverse a correct decision simply because it is based on

incorrect reasons.” Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987).

       This matter has taken place exclusively in the juvenile court under the juvenile

protection statutes, Minn. Stat. §§ 260C.001-.637 (2014). The juvenile court never

terminated its jurisdiction, which would permit transfer to the family court; instead, the

juvenile court specifically retained jurisdiction in its orders. See Minn. R. Juv. Prot. P.

42.07, subd. 2 (stating that juvenile court jurisdiction is terminated after transfer of

permanent legal and physical custody to a relative “unless specifically retained by the

court”) (emphasis added)).


                                               8
       The juvenile court has jurisdiction over this case and these parties; and the

juvenile-protection statutes neither require nor allow the juvenile court to use the family

court marital-dissolution statutes to establish or evaluate visitation, which the juvenile

court has the authority to award. The juvenile court here may have loosely alternated

between use of the terms “parenting time” and “visitation,” but that does not change the

law applicable to this case.

       The juvenile-protection statutes discuss visitation in several circumstances:

(1) with parents of a child subject to a CHIPS petition, Minn. Stat. § 260C.178, subd. 3;

(2) when children are in foster care, Minn. Stat. § 260C.201, subd. 5; (3) when children

are in out-of-home placement, Minn. Stat. § 260C.204(c) (2); (4) as part of a

communication or contact agreement after termination of parental rights, Minn. Stat.

§ 260C.317, subd. 1(2); and (5) as part of a communication-and-contact agreement after

adoption, Minn. Stat. § 260C.619. All of these sections require the juvenile court to

assess whether the proposed visitation is in the best interests of the child. The juvenile-

protection statutes define “best interests” to include “all relevant factors to be considered

and evaluated.” Minn. Stat. § 260C.511(a). There is no reference to the parenting-time

statute, Minn. Stat. § 518.175. The juvenile court did not err by applying the juvenile-

protection standards rather than the family court standards of Minn. Stat. § 518.175.

                                             III.

       A.H. argues that she was denied her right to an evidentiary hearing. A.H. relies on

Minn. Stat. § 518.175, subd. 1(b), which provides that the district court “after a hearing”

shall restrict parenting time when a child’s physical or emotional health and development


                                              9
are endangered. But this statute applies to modification of parenting time under the

dissolution statutes, not modification of visitation in a post-permanency proceeding. We

note that A.H., who objects here to the legal custodians’ submission of a parenting report,

had received the parenting report in a timely fashion and was allowed to submit a

response to the parenting report after the motion hearing. The juvenile court did not err

by deciding this issue without an evidentiary hearing.

                                             IV.

       We review a juvenile court’s assessment of best-interest factors for an abuse of

discretion. In re Welfare of Children of D.F., 752 N.W.2d 88, 95 (Minn. App. 2008)

(stating standard of review of court’s best interest analysis in a termination-of-parental-

rights case). Relying on Minn. Stat. § 518.175, subd. 5, A.H. argues that the juvenile

court erred by reducing her parenting time because this section requires a court to find

endangerment before restricting parenting time. But under the juvenile-protection

statutes, the juvenile court must consider the best interests of the child, not the parents’

interests. “Best interests” include “all relevant factors to be considered and evaluated.”

Minn. Stat. § 260C.511(a). “In making a permanency disposition order . . ., the court

must be governed by the best interests of the child, 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.” Id. at (b).

       Here, the juvenile court conducted a thoughtful analysis of the child’s best

interests: (1) A.H. and Z.W. “did not seem to have the ability to control their behavior or

to put the needs of the child first”; (2) A.H. and Z.W. continued to make an issue of what


                                              10
the child calls himself and the legal guardians, despite being warned not to do so because

it was stressful for the child; (3) A.H. “demonstrate[s] no willingness . . . to engage with

the Legal Guardians, despite this Court’s strong urging to do so”; (4) both A.H. and Z.W.

“want to exert an ownership interest over this child” and “lack an understanding and

fundamental acceptance of the fact that they transferred physical and legal custody of this

child to the Legal Guardians”; (5) the legal guardians have attempted to follow the

suggestions of a psychologist “but with little success due to the biological parents’

unwillingness to communicate and cooperate about these issues”; and (6) “[t]he

continued stress and adversity of the visits, the lack of consistency for the child, the

challenge of the child for how he describes himself and others are all contrary to his best

interests.”

       These findings are supported by the record, which contains three years of the

visitation supervisor’s notes, and are not clearly erroneous. See D.F., 752 N.W.2d at 94

(stating, in a TPR proceeding, that appellate court reviews findings for clear error). The

juvenile court’s decision to reduce visitation to one three-hour visit per month was not an

abuse of discretion.5

                                      DECISION


5
 A.H. also raises a claim of violation of her substantive due-process rights, arguing that
the relationship between a parent and child is a fundamental right protected by the
constitution. This fundamental right is based on a presumption that fit parents act in the
best interests of their children. Troxel v. Granville, 530 U.S. 57, 68, 120 S. Ct. 2054,
2061 (2000). But A.H. and Z.W. voluntarily agreed to place A.W. in the permanent legal
and physical custody of the legal guardians, and by doing so, gave up basic rights to
make childrearing decisions. See In re Welfare of the Child of P.T., 657 N.W.2d 577,
588 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).

                                              11
       When it has specifically retained jurisdiction, the juvenile court has exclusive and

original jurisdiction over visitation issues in a post-permanency proceeding. The juvenile

court uses the best-interests standard of Minn. Stat. § 260C.511, which includes all

relevant factors, not the endangerment standard of Minn. Stat. § 518.175, when

addressing visitation. The juvenile court did not abuse its discretion by limiting A.H.’s

visitation time to three hours per month.

       Affirmed.




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