Opinion
No. C8-96-407.
Filed July 9, 1996.
Appeal from the District Court, Carver County, File No. J4-94-50601.
James L. Berg, (for appellant father).
John Sperry, (for respondent mother).
Michael A. Fahey, Carver County Attorney, Duane A. Bartz, Assistant Carver County Attorney, (for respondent Carver County Community Social Services).
Considered and decided by Harten, Presiding Judge, Willis, Judge, and Davies, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Father argues that the district court erred in a Minnesota CHIPS proceeding by improperly assuming emergency jurisdiction under Minn. Stat. § 518A.03, subd. 1(c) (1994), and by failing to commence trial in the time period provided by Minn.R.Juv.P. 59.02. We affirm.
FACTS
In 1985, a North Dakota district court transferred physical custody of L.D.G. to appellant father (respondent mother's new husband had been convicted of intrafamilial sexual abuse). Eight years later, in 1993, L.D.G. ran away from father's home. A North Dakota district court placed her in the custody of a social service agency, which placed her in a long-term foster care program. In September 1994, L.D.G. ran away again, this time to mother in Minnesota. The North Dakota district court ordered mother to return L.D.G. to North Dakota.
Mother immediately filed a CHIPS petition in Minnesota. The Minnesota district court ordered that L.D.G. be placed in the custody of respondent Carver County Community Social Services (Carver County) and ordered an evaluation of L.D.G.'s psychological condition and of her allegations of mistreatment and neglect in North Dakota. The district court also appointed a guardian ad litem. The district court declined to address father's jurisdictional challenge pending the completion of L.D.G.'s evaluation, finding that it was in L.D.G.'s best interests to remain for the time being in the custody of Carver County because her immediate release from custody would endanger her health and welfare.
In February 1995, following L.D.G.'s psychological evaluation, the Minnesota district court resolved the jurisdictional issue, asserting emergency jurisdiction over L.D.G. under Minn. Stat. § 518.03, subd. 1(c) (child present in this state). This court denied appellant's petition to restrain the district court from enforcing that order.
In January 1996, after the North Dakota court dismissed that state's custody proceeding, the Minnesota district court denied father's motions to dismiss the CHIPS petition and to return L.D.G. to his custody.
DECISION
On appeal, we review custody decisions for abuse of discretion, inquiring whether the [district] court applied the law improperly or made findings without evidentiary support. This standard applies in a multijurisdictional context.
Coleman v. Coleman , 493 N.W.2d 133, 135 (Minn.App. 1992) (citations omitted).
I.
Father argues that the Minnesota district court erred by refusing to dismiss this case for lack of jurisdiction under the Uniform Child Custody Jurisdiction Act, (enacted as Minn. Stat. ch. 518A (1994)). In determining jurisdiction, a court must: (1) determine whether it has jurisdiction under Minn. Stat § 518A.03; (2) inquire whether another custody proceeding is pending in a court of another state with jurisdiction; and (3) apply inconvenient forum analysis if dual jurisdiction exists. In re Marriage of Schmidt , 436 N.W.2d 99, 104 (Minn. 1989).
Father contends that the requirements for emergency jurisdiction under Minn. Stat. § 518A.03, subd. 1(c), are not satisfied here because L.D.G. was not abandoned or threatened with mistreatment by her placement with the North Dakota foster care program. But the Act also authorizes a court to assume emergency jurisdiction over a child who is physically present in this state and "otherwise neglected or dependent." Minn. Stat. § 518A.03, subd. 1(c)(2). The district court determined L.D.G. to be subject to Minnesota jurisdiction under that provision because she was "otherwise neglected or dependent." The record supports that finding, for a Carver County evaluator said a risk of suicide would arise if L.D.G. were returned to foster placement in North Dakota.
Father incorrectly relies on Schoeberlein v. Rohlfing , 383 N.W.2d 386 (Minn.App. 1986), for the proposition that, to show immediate present danger allowing emergency jurisdiction, the danger must be from a third party, which would make the suicide risk alone insufficient. The Rohlfing court did not indicate that the threat of harm must stem from a third party, but rather that when allegations of abuse related only to the mother's past conduct toward the children, the allegations did not show a present danger in the home state. Id at 389. This case differs factually because here there is a present threat that L.D.G. will harm herself if returned to North Dakota.
Father also argues that Minnesota did not have jurisdiction because a proceeding concerning L.D.G. was pending in North Dakota. Father's argument is moot because the North Dakota district court dismissed its jurisdiction over L.D.G. Consequently, we need not address whether Minnesota is a more convenient forum than North Dakota.
II.
Father contends that the Minnesota district court failed, as required by Minn.R.Juv.P. 59.02, to commence the CHIPS trial within 90 days after the allegations of the petitions were denied. A petition, if not followed by a timely trial, must be dismissed "unless good cause is shown why the matter has not been brought to trial within the required time." Minn.R.Juv.P. 59.02, subd. 2.
Here, good cause was shown for failing to commence trial within the limitation period; it was reasonable to delay a trial until the jurisdictional issues could be resolved. The Minnesota district court scheduled a first appearance to commence promptly (within three weeks) after the dismissal of the North Dakota proceeding. Further, the North Dakota and Minnesota counties were working together to develop a case plan that would serve L.D.G.'s best interests, and L.D.G. was in the process of undergoing evaluations that were necessary before a trial on the merits.
III.
Father claims that a second CHIPS petition was improperly filed to avoid dismissal under rule 59.02. This argument fails, for the district court stated that it was proceeding on the first petition, with certain amendments, rather than on the second petition. See Minn.R.Juv.P. 53.04 (juvenile petition may be amended by order of court "at any time" and "amendments shall be freely permitted in the interest of justice and the welfare of the child").