Opinion
No. C5-96-848.
Filed September 3, 1996.
Appeal from the District Court, Cottonwood County, File No. J039350155.
L. Douglas Storey, Cottonwood County Attorney, Victor I. Vieth, Assistant County Attorney, (for Cottonwood County)
Frank C. Nielsen, (for Mother)
John Scholl, (for Father)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
In a child in need of protection or services (CHIPS) proceeding, a mother appeals from a dispositional order that transferred custody of her minor child from the father's home to a county family service agency. Because the district court did not explicitly address the mother's request for a transfer of custody to her, we affirm in part, reverse in part, and remand.
FACTS
D.J.R. was adjudicated a child in need of protection or services in October 1993. D.J.R. was then seven years old and had been living primarily with his father. D.J.R.'s parents were never married to one another, and they separated when D.J.R. was approximately three years old. The district court ordered the Cottonwood County Family Service Agency to provide protective supervision of D.J.R. in his father's home. Upon reviewing the case the following year, the district court found D.J.R. still to be in need of protection or services and ordered continued in-home supervision for D.J.R.
In September 1995, two years after the initial CHIPS adjudication, the Cottonwood County Family Service Agency submitted to the district court a report in which the agency expressed concerns about D.J.R.'s continued placement with his father and recommended that custody be transferred to the agency so that it could place D.J.R. in a foster home. The district court found D.J.R. to be in continued need of protection or services, but ordered a dispositional review hearing for later in the year.
At the dispositional review hearing in December 1995, the court heard testimony from a number of witnesses, including D.J.R.'s father. Although D.J.R.'s mother did not testify at the hearing, she indicated that she would like to have custody of D.J.R. transferred to her in the event that the court found it necessary to remove D.J.R. from his father's home.
In March 1996 the district court found D.J.R. to be in continued need of protection or services and ordered that his custody be transferred to the Cottonwood County Family Service Agency "for placement outside of the parental home." The district court's order did not explicitly address the mother's request for custody.
D
A dispositional order in a CHIPS case "shall set forth in writing" information including why the best interests of the child are served by the disposition ordered, what alternative dispositions were recommended to the court and why such dispositions were not appropriate, and whether reasonable efforts were made to prevent the need for removal of the child from his family. Minn. Stat. § subd.(1994); Minn.R.Juv.P. As a general rule, the preferred placement of a child is with his parent, absent an affirmative showing that such a placement would be detrimental to the child's interests. In re Welfare of M.M. , 452 N.W.2d 236, 239 (Minn. 1990) (construing Minn. Stat. § subd.(1988)); In re Welfare of Solomon , 291 N.W.2d 364, 369 (Minn. 1989).
D.J.R.'s mother argues that the district court erred in transferring custody of D.J.R. to the county family service agency without expressly finding that placement with her was inappropriate. We agree that the dispositional order focused on D.J.R.'s father and did not address D.J.R.'s experiences in his mother's home even though he apparently has spent alternate weekends with her since she established a separate residence more than five years ago. While the district court implicitly denied the mother's request for a transfer of custody to her, the court did not expressly find that placement of D.J.R. with his mother would be detrimental to him. The district court's order also fails to mention the mother's request as one of the dispositional alternatives that was suggested to the court. The findings are adequate to support D.J.R.'s placement outside his father's home, but the failure to address placement with D.J.R.'s mother makes the findings inadequate to support the transfer of custody to the Cottonwood County Family Service Agency.
Because the order lacks the findings required to support the disposition, we remand the case for the district court to address more explicitly the mother's request for custody. We recognize the child's need for stability and that the file contains some indications that the mother's home may not be suitable. For these reasons we conclude that, pending the resolution of this case on remand, D.J.R. should remain in the custody of the Cottonwood County Family Service Agency. See Minn.R.Civ.App.P.(allowing appellate courts to take such action "as the interest of justice may require").