Opposition Brief — Johnson v. Dodge County Department of Human Services

i

No. 93-1041

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 199

JAY JOHNSON,

Petitioner,

vs.

DODGE COUNTY

DEPARTMENT OF HUMAN SERVICES,

Ot Gi.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

BRIEF IN OPPOSITION

Kimball G. Orwoll

Gregg S. K. Orwoll Counsel of Record

9th Floor Siebens Bldg. Suite 1l

200 First Street SW 400 South Broadway

Rochester, MN 55905 Rochester, MN 55904

(507) 284-2659 (507) 281-0077

Attorneys for Respondent

Guardian Ad Litem, Gail D. Baker

QUESTIONS PRESENTED

Respondent, guardian ad litem Gail D.

Baker, is dissatisfied with Petitioner's

statement of the questions presented.

Petitioner has not complied with Rule

14.1(a) of the Rules of the Supreme Court

of the United States by his inclusion of

three introductory paragraphs. Those

paragraphs are argumentative and contain

misstatements of facts. Respondent is not

dissatisfied with the form of the four

enumerated questions presented. However,

the facts in this case do not give rise to

Petitioner's Questions Presented as

legitimate justiciable federal questions,

as will be discussed hereinafter.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.......cccccccccees i

a ii

wemmmee GO MPROMETINGD. oc ccccccccvecennn iv

DG eSceseessceccccovcceccsee 2

STATEMENT OF THE CASE.......cccccccece 2

A UE SOR FOCEBecccccccceccces 2

B. Petitioner's Failure To

Raise the Federal Questions

in Proceedings In State

PUP U eee vde dese sebceesececs 20

REASONS FOR DENYING THE WRIT ......... 24

1. Petitioner's due process

rights were not violated

by the consolidation of

the CHIPS and custody

PEOSSOEIRG ce ccccccccesccccess 24

2. Petitioner's due process and

equal protection rights as a

biological father were not

ii

ee ere ye eT ee eee ere 33

3. Petitioner's First Amendment

rights to freely exercise his

religious beliefs were not

VEOSOCOE ss 660 66 chk Keedensebe< 34

Ps 6 66 64N eb ob he bones ee ekexeds 39

APPENDIX

A. Legal Issues Portion of

Petitioner's Brief to the

Minnesota Court of Appeals... RA-1

B. Petitioner's Petition to

the Minnesota Supreme Court.. RA-4

iii

TABLE OF AUTHORITIES

CASES: Page:

In the Matter of the Welfare of C.J.,

481 N.W.2d 861 (Minn. Ct. App.

| POPE PEPE Tee eee rT yer Tree 29

In the Matter of the Welfare of C.K.,

426 N.W.2d 842 (Minn. 1988)....... 35,36

In Re Welfare of Clausen, 289 N.W.2d

Sue Gees Bee eesbeceeuvessscocece 35

Durkin v. Hinick, 442 N.W.2d 148

SUEnes BOOM ecececceceeveotovceaces 27

In Re Custody of E.A.Q.D., 405 N.W.2d

262 (Minn. Ct. App. 1987)......... 27

In the Matter of the Welfare of J.L.U.,

450 N.W.2d 642 (Minn. Ct. App.

i a ee 27,28

Jaroszewski v. Prestige, 249 Minn. 80,

Se Meme FEe Ghee bevscccccscoece 29

Lehman v. Lycoming County Children's

Services Agency, 458 U.S. 502

cee oe he Oh eb 08 O06 0 664668 on bee ee 31,32

Leonard v. Mitchell, 473 F.2d 709

(Bo a | ee eee 30,31

In Re Custody of N.M.O., 399 N.W.2d

700 (Minn. Ct. App. 1987)... .cccces 26

Prince v. Massachusetts, 321 U.S.

Bw Chee) 666664065 6 0b bb 0 Cee eh Kes 36,37

iv

Waliin v. Wallin, 290 Minn. 261, 187

oy a os | ran 29,30

Webb v. Webb, 451 U.S. 493 (1981).... 22,23

Weiler v. Lutz, 501 N.W.2d 667 (Minn.

Bes Mee SEOED Ces eeeeveescecocceees 29

CONSTITUTIONAL PROVISIONS AND STATUTES:

Vewe COMBE. OMe Bisvcccccccveces 26,34,39

U.S. Const. amend. XIV... cccccccccces 26

BO GeBscO. BOGe BAST ccccvveccvcccvsecs 2,21

Minn. Stat. Sec. 260, 015, subd.

ee FS ere eee eee 8

Minn. Stat. Sec. 518.003, subd. 3.... 35

RULES OF PROCEDURE:

BURTOMOS COOGEE Rule 10.1)... cccccccccces 2

Supreme Court Rule 14.1.(a).......... i

Supreme Court Rule 14.1.(h).... 2,20,21,23

aia

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 199 _

JAY JOHNSON,

Petitioner,

vs.

DODGE COUNTY

DEPARTMENT OF HUMAN SERVICES,

et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

BRIEF IN OPPOSITION

Respondent respectfully requests that

this Court deny the petition for writ of

certiorari which seeks review of the

Minnesota Supreme Court's order denying

petitioner's petition for review.

se a ll a

JURISDICTION

Petitioner claims this court has

jurisdiction to grant the requested writ of

certiorari to review the decision of the

Minnesota Supreme Court entered on September

30, 1993 pursuant to 28 U.S.C. 1257. As

will be discussed hereinafter, Petitioner

has not established jurisdiction as required

by Rule 10.1 and Rule 14.1.(h) of the Rules

of the Supreme Court of the United States.

STATEMENT OF THE CASE

A. Material Facts

Petitioner, Jay Johnson, is the natural

father of the child, H.J., the subject to

this proceeding. Petitioner met and married

Lucy Teberg in September, 1976. Prior to

the marriage, Petitioner was aware that she

had a history of mental illness with

previous hospitalization. Two children were

born of the marriage: J.J. born May 28,

1979, and H.J. born September 6, 1982.

2

(Petitioner's Appendix A-4, hereinafter

PA-4)

When first in Minnesota, the Johnsons

lived with another family, the Jacobsons,

for three turbulent and stressful months,

during which time the Jacobsons observed

punishment of the Johnson children by their

parents which constituted physical and

emotional abuse, withholding and restricting

the types and amounts of food, and bizarre

and strange behavior by Petitioner toward

his wife and children which led Mr. Jacobson

to ask the Johnsons to leave. During the

next six months, the stress level in the

Johnson home escalated. Members of the

Johnsons' church had grave concerns about

the safety of the children, as the evidence

of physical and emotional abuse became more

serious, observing nicks on the children's

noses, hearing screaming, seeing the

children hiding from their father, and

3

listening to the children reporting other

abuse. The Johnsons asked several members

of the church to care for their children.

Finally, in September, 1989, when the

stress, chaos and violence apparently

Overwhelmed them, the Johnsons placed their

two girls with Ron and Linda Christenson.

(PA-6,7)

In September of 1989, the Dodge County

Department of Human Services, hereinafter

referred to as "DCDHS", became involved with

the Johnson family, responding to several

reports of neglect and abuse. (PA-7) DCDHS

personnel interviewed J.J. and H.J. Both

children reported the abuse that they

experienced at the hands of their parents.

Specifically, H.J. reported, that: her mom

and dad were "fighting and arguing"; and hit

each other; hurt her by hitting her all over

her body with a closed fist for every little

reason; her dad spanked her two times a week

4

with her pants down using a closed fist;

that when she cried her dad pinned her down

on the floor and covered her mouth so that

she could not breathe; when she kicked him

he covered her mouth even more; her dad

almost killed J.J. once; he sat on J.J.'s

leg and almost broke it; if either child

tried to help the other one they both "got

it"; one time she and J.J. lived with

another family for about one year; they did

not get much to eat and she never ate

Supper; for breakfast or lunch she ate

fruits or vegetables, and hardly ever drank

milk; and, that when sick, she went to a

"different kind of doctor" and had either a

hot or cold foot bath. (PA 7-9)

DCDHS personnel also spoke privately

with the Christensons who reported that

Petitioner and Lucy Johnson were having

financial problems, creating a great deal of

stress between them; had "WWIII fights" over

5

everything, even when talking on the

telephone with J.J. and H.J.; Lucy Johnson

had been in a mental hospital for about one

year, so another family took care of J.J.

and H.J.; when the children saw their

father, they hid on the floor of the car,

sucked their thumbs, and curled up ina

fetal position; H.J. wore diapers to bed

because she wet her pants every night; and

that J.J. had gained eight pounds since she

Started staying at their home two weeks

before. (PA-9)

The social worker who handled the case

reported that the children were at

intermediate or high levels of risk and that

intervention was necessary because of

excessive physical punishment, inappropriate

nourishment, placement of the children

outside of the home, marital stress and

discord, possible mental illness of one or

both parents, and frequent moves. A

6

voluntary placement agreement was signed by

Petitioner and Lucy Johnson on September 22,

1989, and a protective service plan was

prepared on October 9, 1989. Placement

continued with the Christensons until they

expressed reluctance to continue to care for

the Johnson children. (PA-10) On October

13, 1989, the children were placed in foster

care with the Respondents, Mark Dulaney and

Diane Dulaney, (hereinafter Dulaneys).

Petitioner was notified of the foster

placement. Petitioner left the state of

Minnesota at that time (PA-11), and, except

for the month of February, 1990 (PA-147),

and his attendance at some court hearings,

did not return to Minnesota until July 7,

1991. (PA-28).

The Petitioner and Lucy Johnson were

Seventh Day Adventists. DCDHS and the

Dulaneys made efforts to learn about, comply

with, and accede to, various Seventh Day

7

Adventist dietary, educational, and other

religious practices, including vegetarian

meals, J.J.'s continued attendance at a

Seventh Day Adventist school, and attendance

of the children at Sabbath services on

Saturdays. (PA-1l, 12)

On November 9, 1989, a Child in Need of

Protective Services Petition (hereinafter

CHIPS) was filed against both parents.

(PA-13) Lucy Johnson admitted the

petition's allegations at a hearing on

November 15, 1989. Ata hearing on February

15, 1990, Petitioner admitted two of the

petition's three allegations, which set

forth Minnesota Statutes Section 260.015,

Subd. 2a(2) and (8). He admitted spanking

the children with a wooden spoon, and on at

least one occasion, breaking the spoon while

doing so. He also admitted covering the

children's noses and mouths with his hand

asiaineineeieiatineeeeneeie

while spanking them so they could not breath

Or cry. (PA-14).

After finding the children in need of

protective services following the

Petitioner's and Lucy Johnson's admissions,

the court ordered continued foster

placement, evaluations of the parents and

children and supervised visitation. The

children and parents were evaluated and

specific counseling and treatment were

recommended for both.

A dispositional hearing was held on

April 23, 1990, at which Petitioner was

ordered to participate in individual and

group therapy for parents who had abused

their children and attend parenting classes.

———

The court also ordered the transfer of J.J.

to public school; procedures for H.J. to

have surgery, if necessary, because

Petitioner opposed those requests; and that

the children continue counseling. (PA-18,

19)

Following the hearing, Petitioner

returned to Hawaii and began attending

parenting classes and individual therapy

through the "Alternatives to Violence"

program. (PA-19) Court reports from June

through November, 1990, indicated that

Petitioner was making no progress in the

program and counseling. In December, 1990,

Petitioner discontinued participation in the

program and counseling citing "religious

differences." (PA-19-22)

Based on the reports of no progress by

Petitioner in his counseling, the court at

review hearings in July and October, 1990,

continued the terms of the previous orders,

specifically finding as to Petitioner that

"even though he was attending counseling, he

had yet to deal with the issues of abuse"

10

and "the girls had a strained relationship

with their father." (PA-20-22)

During the first six months that the

children were residing with the Dulaneys,

Lucy Johnson separated from the Petitioner.

After Lucy Johnson separated from

Petitioner, she changed her dietary habits,

began to eat previously restricted foods,

and introduced those foods to H.J. and J.J.

during visitations. (PA-16) In October,

1990, Lucy Johnson commenced a dissolution

proceeding and requested custody of J.J. and

H.J. (PA-22)

In February, 1991, the children visited

Petitioner in Hawaii with Respondent, Diane

Dulaney, supervising the visit. During the

visit, Petitioner called DCDHS requesting

that the children be allowed to remain with

him in Hawaii. DCDHS refused to allow them

to stay, but assured Petitioner that when

back in Minnesota, an assessment would be

ll

done on the current situation and what was

best for the children. (PA-24, 25) Upon

their return to Minnesota, the children told

their therapist, Marcia Guertin, the

guardian ad litem, social workers, and the

Dulaneys that they had enjoyed Hawaii, but

did not want to live there with their

father. (PA-26)

Despite requests to Hawaiian Child

Protective Services and Petitioner's

counselor, Reverend Roberts, for reports on

Petitioner, no written reports were received

before the next scheduled review hearing on

April 17, 1991. (PA-26, 27). The Dodge

County social worker spoke with Reverend

Roberts by telephone prior to the hearing.

Reverend Roberts indicated Petitioner was

not ready to parent his children, and that

he would not be ready until he took

ownership for their situation, and let

others provide input and guidance in his

12

life. Therefore, the court again continued

the terms of the previous court orders with

Reverend Roberts as Petitioner's new

counselor and requested progress reports for

the next review hearing. (PA-27)

The decree of dissolution of Lucy

Johnson and Petitioner's marriage was signed

by Judge Roger S. Plunkett on July 3, 1991

with Judgment entered on July 8, 1991.

(PA-28) On July 6, 1991, a car accident

occurred killing Lucy Johnson and J.J. H.J.

sustained a closed head injury, cuts,

bruises, and a broken right leg requiring

Surgery. (PA-28) Petitioner returned from

Hawaii on July 7, and stated that he would

be taking H.J. back to Hawaii to live with

him when she was released from the hospital.

(PA-28, 29) DCDHS set up daily visits for

Petitioner with H.J., but H.J. resisted or

refused to visit with her father. (PA-30)

H.J. exhibited further oppositional and

13

self-destructive behavior, and was extremely

afraid she would have to leave the Dulaneys.

(PA-42) By letter dated July 15, 1991,

Marcia Guertin, strongly recommended

continued placement with the Dulaneys

because of H.J.'s intense psychological bond

with them, stating that to sever the

relationship then would be detrimental to

H.J.'s emotional well being and her

integration and healing from the deaths of

her mother and sister. (PA-30) In an

August 19, 1991 Order, the court denied

Petitioner's requested dismissal of the

CHIPS Petition and that H.J. be allowed to

return to Hawaii with him and ordered DCDHS

to set up a reasonable and liberal

visitation plan with a thirty (30) day

review, indicating that the court was

considering transferring jurisdiction to

Hawaii to facilitate reunification of H.J.

with her father. (PA-33) On August 19,

14

1991, the Dulaneys commenced a custody

proceeding to obtain legal and physical

custody of H.J. (PA-35)

Visitation continued to be a problem.

DCDHS set up extensive visitation

Opportunities, but H.J. continued to resist

or refuse visitation. (PA-33) The guardian

ad litem, social workers, H.J.'s therapist,

and the Dulaneys discussed and encouraged

visitation, making multiple attempts to

modify and change the visits so that H.J.

would go. (PA-33, 34)

By Order of the trial court dated

September 12, 1991, the CHIPS and custody

cases were consolidated and the court

ordered a home study and joint counseling

for Petitioner and H.J. (PA-36) Petitioner

and H.J. commenced joint counseling with

Marcia Guertin on October 9, 1991. Nine one

hour sessions of joint counseling did not

improve the relationship between Petitioner

15

and H.J. Petitioner continued to be unable

to empathize with H.J., refused to accept

and/or understand H.J.'s attachment to the

Dulaneys, or reflect back on what H.J. was

thinking or feeling. (PA-36, 37)

Visitation deteriorated further in the

fall and winter of 1991 with H.J. refusing

Over one-half of the visits. H.J.'s

behavior regressed with increased acting

out, and a resumption of bedwetting after

each visit or joint counseling session.

Finally it was recommended that H.J. go to

respite care on court ordered visitation

weekends if she refused to visit with

Petitioner, but she still continued to

refuse some scheduled visits. H.J.'s last

visit with Petitioner prior to the

commencement of the trial occurred on the

weekend of February 15, 1992. H.J. reported

Petitioner again used physical force when

she did not obey his whim. (PA-37-39)

16

The court held a full hearing (referred

to as the "trial" herein) which lasted

sixteen (16) days. At the trial Ms. Guertin

testified that Petitioner was not a fit or

suitable parent, because of his past

behavior, personality characteristics, and

inability to empathize with H.J. Ms.

Guertin concluded that it would actually be

detrimental to place H.J. in her father's

care, and that extraordinary circumstances

existed which required the placement of H.J.

with a third party non-biological parent.

(PA-44-47) Ms. Guertin (PA-46), Dr. William

Friedrich (PA-57), who did psychological and

parenting evaluations on all parties, this

respondent (PA-70), three Dodge County

social workers (PA-710), and H.J.'s maternal

grandfather (PA-95), all testified in

support of the Dulaneys request to be

granted custody of H.J. The court made

lengthy and very specific findings of fact,

17

© aol

prepared a detailed memorandum of law, and

concluded that Petitioner was not a fit or

Suitable parent, as contemplated by

Minnesota law, to have custody of his

remaining minor daughter, H.J., and that it

was in H.J.'s best interest that permanent

legal and physical custody be granted to the

Dulaneys, subject to reasonable and liberal

visitation of Petitioner under such

supervision and at such times as deemed

appropriate by DCDHS upon consultation with

the Dulaneys. The CHIPS proceeding was

dismissed, and Petitioner's child support

obligation was reaffirmed with the exact

amount reserved for later determination.

(PA-102)

By order dated November 3, 1992 the

court denied Petitioner's requests that

future visitation be unsupervised, DCDHS

prepare a reunification plan, and that

specific summer visitation be set for H.J.

18

with her grandparents in Hawaii.

(PA-139-140)

Petitioner appealed the trial court's

decision to the Minnesota Court of Appeals,

which affirmed the decision in an

unpublished opinion dated July 16, 1993.

The appellate court found that the trial

court did not abuse its discretion in

refusing to transfer jurisdiction to Hawaii,

in failing to dismiss the CHIPS Petition

prior to trial on Petitioner's allegation

that DCDHS did not comply with state

provisions regarding administrative review,

and finding that the periodic court reviews

substituted for administrative review

required in involuntary foster placements.

Further, the court found that Petitioner was

precluded from contesting the propriety of

the placement on ethnic heritage grounds due

to his failure to appeal the disposition

order, that the trial court did not abuse

19

od Me

its discretion in consolidating the custody

and CHIPS proceedings, and that there was no

error in the findings that Petitioner was

unfit and that it was in the best interests

of H.J. for custody to be granted to

Respondents Dulaneys. (PA-148-154).

Further review was denied by the Minnesota

Supreme Court by Order dated September 30,

1993. (PA-155)

B. Petitioner's Failure to Raise The

Federal Questions In the State Courts

Petitioner has failed to comply with

the requirements of Rule 14.1.(h) of the

Rules of the Supreme Court of the United

States. Rule 14.1.(h) states:

"(h) If review of a judgment of a

state court is sought, the statement

of the case shall also specify

the stage in the proceedings, both in

the court of first instance and in

the appellate courts, at which the

federal questions sought to be

reviewed were raised; the method or

manner of raising them and the

way in which they were passed upon by

those courts; and such pertinent

20

quotation of specific portions of

the record or summary thereof, with

specific reference to the places in

the record where the matter

appears... as will show that the

federal question was timely and

properly raised so as to give this

Court jurisdiction to review the

judgment on a writ of certiorari..."

Petitioner does not specify the stage in

the proceedings, either at the trial

court, Minnesota Court of Appeals, or the

Minnesota Supreme Court, at which he

raised the federal questions he now asks

this Court to review. There is no

reference to the method or manner of

raising them or to the way in which they

were passed upon by those courts, nor does

Petitioner quote or make specific

reference to the places in the record

where the matter appears. Petitioner has

totally failed to comply with the

requirement of the rule.

In referring to 28 U.S.C., Section

1257 (the statute which Petitioner claims

21

provides jurisdiction here) this Court in

Webb v. Webb, 451 U.S. 493 (1981) stated:

"That statute requires that in the

state courts Petitioners have

"specially set up or claimed under

the Constitution... of... the United

States' that right which she now

seeks to have this court enforce...

This Court has frequently stated that

when the highest state court has

failed to pass upon a federal

question, it will be assumed that the

omission was due to want of proper

presentation in the state courts,

unless the aggrieved party in this

Court can affirmatively show the

contrary...

"It is a long-settled rule that

the jurisdiction of this Court to

re-examine the final judgment of a

state court can arise only if the

22

record as a whole shows either

4 expressly or by clear implication

that the federal claim was adequately

presented in the state system." Id.

at 495-6.

Not only did Petitioner fail to

comply with the technical requirements of

Rule 14.1.(h), but he totally failed to

present the federal questions he attempts

to raise here at any stage of the state

court proceedings in Minnesota. For

convenient reference, Respondent has set

forth in her appendix (hereinafter "RA-")

to this brief the pertinent portion of

Petitioner's brief to the Minnesota Court

of Appeals wherein he set forth the legal

issues he then raised. (RA-1-3) Also

included in the appendix is Petitioner's

entire (except the appendix) Petition to

the Minnesota Supreme Court for review of

the decision of the Minnesota Court of

23

,

5

i

y]

aa engcalien

Appeals. (RA-4-10) These documents

conclusively show that these issues were

not raised in the Minnesota courts.

This Court is without jurisdiction to

address federal questions not raised in

the state courts. The petition for writ

of certiorari should be denied on this

basis alone, and no further review by this

Court should be required.

REASONS FOR DENYING WRIT

As noted, Petitioner did not raise

the federal questions he now seeks to have

this Court review at any stage of the

state court proceedings. Nevertheless,

Respondent will address the first three

issues in the order that they were

presented by Petitioner. This Respondent

is not involved in the fourth issue.

1. Petitioner's due process rights

were not violated by the consolidation of

the CHIPS and custody proceeding.

24

Petitioner misstates the facts in his

framing of this issue. The trial court in

its September 27, 1991 order provided:

"1. That the Custody Petition of

Dulaneys (file no. F3-91-371) and the

CHIPS proceeding in the matter of the

welfare of H.J. (file no.

J2-89-50162) may be and hereby are

consolidated for future proceedings.

(Emphasis added)

2. That an evidentiary hearing on

the Petition of Custody of Dulaneys

may be and hereby is granted, and the

matter shall be expedited." (RA-36)

There was no intervention, but simply a

consolidation of a custody and child

protection (CHIPS) proceeding for hearing.

Petitioner has not presented a

justiciable federal question. He makes

reference to the Constitution and his

rights, but fails to establish how his

25

First or Fourteenth Amendment rights have

been violated. As the record amply

demonstrates, the courts in Minnesota

afforded Petitioner a full measure of due

process in both the CHIPS action initially

and later in the trial on the custody

petition that was consolidated with the

CHIPS case, which was then being reviewed

by the court following its initial

disposition.

The trial court, as later affirmed on

appeal, was following established

Minnesota procedure in consolidating both

matters. Both matters had as their

primary consideration the determination

of, and protection of, the best interests

of the child, H.J. Best interest of the

child is the overriding consideration even

in disputes between natural parents and a

third person. In Re Custody of N.M.O.,

399 N.W.2d 700, 703 (Minn. Ct. App. 1987).

26

Proceedings for permanent custody, such as

Dulaneys' action here, may be maintained

concurrently with a neglect and dependency

(now CHIPS) proceeding. In Re the Custody

of E.A.Q.D., 405 N.W.2d 262, 264 (Minn.

Ct. App. 1987). In E.A.Q.D., the court

determined that "the best interest of the

child will best be served by the joinder

of the contested issues in one court at

one time." Id. at 265. A later Minnesota

Supreme Court case, Durkin v. Hinick, 442

N.W.2d 148 (Minn. 1989), noted that "the

guiding principal in all custody cases is

the best interest of the child," in

reaching its conclusion that a dependency

and neglect petition would properly be

consolidated with a petition for custody

by a third party. Petitioner cites the

more recent case, In the Matter of the

Welfare of J.L.U., 450 N.W.2d 642 (Minn.

Ct. App. 1990). In that case the court

27

noted that in appropriate cases, juvenile

protection cases may be maintained

concurrently with custody proceedings.

The court stated:

"Where concurrent juvenile protection

and custody proceedings are pending,

consolidation may be appropriate, and

the facts of a particular case may

justify the dismissal of juvenile

protection proceedings, where an

award of permanent custody will

alleviate the temporary risk to the

children." Id. at 644.

That is exactly what happened here. While

Petitioner cited this case and quoted some

language from it, he neglected to advise

the court of the above language and the

legal conclusion that consolidation is

appropriate.

For some time Minnesota has permitted

third parties to institute proceedings for

28

custody against natural parents with

determinations based upon the welfare and

best interest of the child. Jaroszewski

v. Prestige, 249 Minn. 80, 81 N.W.2d 705

(1957). This right of third parties has

been determined to include the right of

foster parents to intervene in proceedings

concerning their foster children, Weiler

v. Lutz, 501 N.W.2d 667 (Minn. Ct. App.

1993), and even in such significant

matters as termination of parental rights

cases. In the Matter of the Welfare of

C.J., 481 N.W.2d 861 (Minn. Ct. App.

1992). In Wallin v. Wallin, 290 Minn.

261, 187 N.W.2d 627 (1971), the Minnesota

Supreme Court discussed the test to be

applied in such cases:

"Thus, it would seem to be a

fundamental rule of law that, all

things being equal, as against a

third person, a natural mother would

29

a

be entitled as a matter of law to

custody of her minor child unless

there has been established on the

mother's part neglect, abandonment,

incapacity, moral delinquency,

instability of character, or

inability to furnish the child with

needed care, ...; or unless it has

been established that such custody

otherwise would not be in the best

welfare and interest of the child."

Id. at 630.

These third party actions, like this

case, concern the welfare and custody of a

child. The fact that a foster parent is

involved in this case does not give rise

to a federal question concerning

Petitioner's constitutional rights as a

natural parent. As stated in Leonard v.

Mitchell, 473 F.2d 709 (2nd Cir. 1973):

"for it is beyond dispute that the

30

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State has a substantial range of

authority to protect the welfare of

children... This power extends to

the determination of parental custody

and visitation rights." Id. at 713.

Petitioner, in the guise of alleged

federal questions, is asking this Court to

involve itself in a custody dispute. In

Lehman v. Lycoming County Children's

Services Agency, 458 U.S. 502 (1982), this

Court stated:

“the State's interest in finality is

unusually strong in child-custody

disputes... It is undisputed that

children require secure, stable,

long-term, continuous relationships

with their parents or foster parents.

There is little that can be as

detrimental to a child's sound

development as uncertainty over

whether he is to remain in his

31

a

current 'home', under the care of his

parents or foster parents, especially

when such uncertainty is prolonged.

Extended uncertainty would be

inevitable in many cases if federal

courts had jurisdiction to relitigate

State custody decisions." Id. at

513-514.

The court here had established the

Petitioner's incapacity by virtue of its

initial CHIPS findings and subsequent

review hearings, and thereafter, at the

trial on Dulaneys' request for custody of

H.J., determined that Petitioner was an

unfit parent, and that it was in H.J.'s

best interest to be in Dulaneys' custody.

There is no argument set forth by

Petitioner justifying this Court's

prolonging the uncertainty of H.J.'s

custody by granting the writ of

certiorari. The mere fact that states

32

—

differ on the role that foster parents can

take in custody matters does not create a

justiciable federal due process or equal

protection issue.

2. Petitioner's due process and

equal protection rights as a biological

father were not violated.

Essentially, Petitioner argues that

he was denied procedural due process.

While Petitioner discusses due process, he

completely fails to set forth any equal

protection arguments, other than the mere

inclusion of that claim in the framing of

his issue. |

As concerns Petitioner's due process

allegations, DCDHS did consider the

Johnson family's religious beliefs in

making the foster care placement. Court

reviews properly substituted for the

administrative review. There was no

"qualified admission" to the CHIPS

an

a

petition. Petitioner admitted two of the

three statutory grounds alleged. The

court found no discrimination against

petitioner, and none occurred.

Consequently, there was no lack of due

process, and no violation of Petitioner's

due process rights.

3. Petitioner's First Amendment

rights to freely exercise his religious

beliefs were not violated.

Petitioner has attempted throughout

this case to assert his religious beliefs,

his right to hold those beliefs, and his

right to exercise those beliefs freely as

a basis for insisting on the return of his

daughter, H.J., to his custody. This

assertion had as its purpose the goal of

derailing the trial court's inquiry and

proper focus upon H.J.'s welfare and the

protection of her best interest.

34

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There is no dispute with the fact

that with parental custody comes the

ability to make decisions about a child's

religious upbringing. Minnesota Statutes

Section 518.003 Subd. 3 states: "(a)

"Legal custody" means the right to

determine the child's upbringing,

including education, health care, and

religious training." In Minnesota there

is a presumption that a natural parent is

a fit and suitable person to be entrusted

with the care of his child and that,

Ordinarily, it is in the best interest of

the child to be in the custody of his

natural parent. In re Welfare of Clausen,

289 N.W.2d 153, 155 (Minn. 1980).

However, "if the evidence as a whole

clearly demonstrates that the best

interest of the child demands a different

disposition, the best interest of the

child must prevail." In the Matter of the

35

Welfare of C.K., 426 N.W.2d 842, 847

(Minn. 1988). Thus parental rights,

including rights to make religious

decisions about one's children, are not

absolute, as petitioner seems to be

contending.

This court has long held, in

oft-quoted language, that:

"the family itself is not beyond

regulation in the public interest, as

against a claim of religious liberty.

Reynolds v. United States, 98 U.S.

145, 25 L.Ed. 244; Davis v. Beason,

133 U.S. 333, 10 S. Ct. 299, 33 L.Ed.

637. And neither rights of religion

nor rights of parenthood are beyond

limitation... The state as parens

patriae may restrict the parents

control... Its authority is not

nullified merely because the parent

grounds his claim to control the

36

child's course of conduct on religion

Or conscience... It is sufficient to

show what indeed appellant hardly

disputes, that the state has a wide

range of power for limiting parental

freedom and authority in things

affecting the child's welfare; and

that this includes, to some extent,

matters of conscience and religious

convictions."

Prince v. Massachusetts, 321 U.S. 158,

166, 7 (1944).

In this case the state took action

through its CHIPS proceeding to provide

immediate protection for H.J. in order to

ensure that she would no longer be

subjected to physical and emotional abuse,

and to ensure that she would be provided

with adequate nutrition. Rather than

remain in Minnesota to work on reunifying

with his children, Petitioner left the

37

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state, and returned only for short periods

of time when some of the court hearings

were held. Petitioner did not comply with

the court's CHIPS orders regarding his

counseling obligations. During this same

period of time, his now deceased ex-wife,

remained in Minnesota and worked towards

reunification. Petitioner returned to

Minnesota only after the tragic deaths of

his ex-wife and his older daughter. Given

Petitioner's failure to rehabilitate

himself and the continued deterioration of

his relationship with H.J., even after his

return, H.J. would have been left without

appropriate permanent custodial care had

the Dulaneys not sought to provide that

care by seeking to be awarded custody of

her. It is apparent from a review of the

extensive trial court findings and the

decisions of the appellate courts in

Minnesota that none of Petitioner's

38

:

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:

protestations at trial, nor the issues he

raised on appeal, changed the conclusion

that he was not fit to parent H.J.

Petitioner's assertion that his First

Amendment constitutional rights have been

violated does not justify a different

conclusion.

CONCLUSION

Petitioner did not raise the federal

questions here presented in the Minnesota

courts, nor has he complied with the rules

of this Court requiring a specification of

the stage at the state court proceedings

where these questions were raised.

Petitioner does not now spell out any

federally justiciable questions before

this Court. The petition for writ of

certiorari should be denied.

se ap red game

January 27, 1994

Respectfully submitted,

Kimball G. Orwoll

Counsel of Record

Suite 11

400 South Broadway

Rochester, MN 55904

(507) 281-0077

Gregg S. K. Orwoll

9th Floor Siebens Bldg.

200 First Street SW

Rochester, MN 55905

(507) 284-2659

Attorneys for Respondent

Guardian Ad Litem, Gail D. Baker

40

§

2

4

3

3

[Legal issues set forth in Petitioner's

brief to the Minnesota Court of Appeals]

e

LEGAL ISSUES

Did the Court err in: failing to

dismiss the CHIPS Petition before

trial based upon the failure of Dodge

County to comply with applicable

Statutes and regulations; failing to

refer the entire proceedings prior to

trial to Maui County, the jurisdiction

of the Minor's sole surviving parent;

permitting the custody petition of the

foster parents to be heard jointly

with the CHIPS proceeding; failing to

limit testimony to issues involving

the CHIPS proceeding and family

placement with Appellant, precluding

evidence relating to Respondents’

custody Motion; failing to make

Findings as required in a CHIPS

proceeding under Minn. Stat. 260.191,

subd. 1; and granting the foster

parents custody despite an

insufficient showing of evidence to

overcome the father's natural

custodial preference. In post-trial

motions, did the trial Court err in:

denying Appellant's Motion to modify

the requirement that visitation be

Supervised, and failing to compel

Dodge County Human Services to provide

Appellant with a plan for

reunification with his daughter H.J.?

Trial Court held: In the negative.

Did the Court err in: denying the

intervention request by H.J.'s

paternal grandparents seeking her

RA-1

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III.

IV.

VI.

custody; and in post-trial motions,

declining to establish their

visitation schedule.

Trial Court held: In the negative.

Did the Court err in permitting into

evidence remote in time, consisting of

hearsay testimony by Appellant's

deceased wife Lucy, deceased daughter

Joyfull, and surviving daughter H.J.,

without advance notice under Minn.

Stat. 595.02, subd. 3 and 260.156 of

any intent to present hearsay evidence

by such witnesses?

Trial Court held: In the negative.

Did the Court err in appointing the

“CHIPS" Guardian as Guardian Ad Litem

in the custody case, despite an

obvious adversarial relationship

demonstrated in the CHIPS proceeding

and initial appointment as Trustee in

the related wrongful death matter?

Trial Court held: In the negative.

Did the trial Court err in ordering

withdrawal of the appointment of

Appellant's counsel for "all

post-trial proceedings" in the trial

Court?

Trial Court held: In the negative.

Did the trial Court err in: vacating

the appointment of Appellant, natural

father of sole surviving child H.J.,

as trustee in a wrongful death action,

and appointing in his stead foster

RA-2

parent~-Respondent Mark Dulaney, and

vacating sua sponte its Order filed

December 17, 1992 which had not been

appealed, and for which the time for

appeal had expired?

Trial Court held: In the negative.

[Petitioner's Petition the Minnesota Supreme

Court for review of the Decision of the

Minnesota Court of Appeals]

STATE OF MINNESOTA

IN SUPREME COURT

In Re the Custody of: PETITION FOR REVIEW

OF DECISION OF

Redes COURT OF APPEALS

a Minor,

APPELLATE COURT

nanan ---------------- CASE NUMBERS:

In the Matter of the C4-92-2288

Appointment of a C1-93-508

Trustee for the next- C3-393~-509

of-kin of Lucy Kathleen

Johnson and Joyfull DATE OF FILING OF

Johnson, COURT OF APPEALS

DECISION:

Decedents. August 3, 1993

H.J., Ward.

TO: The Supreme Court of the State of

Minnesota:

The Petitioner, Jay Johnson, requests

Supreme Court review of the above-entitled

“—

decision of the Court of Appeals upon the

following grounds:

Statement of legal issues and their

resolution by the Court of Appeals.

I.

Did the Court err in: failing to

dismiss the CHIPS Petition before

trial based upon the failure of Dodge

County to comply with applicable

Statutes and regulations; failing to

refer the entire proceedings prior to

trial to Maui County, the jurisdiction

of the Minor's sole surviving parent;

permitting the custody petition of the

foster parents to be heard jointly

with the CHIPS proceeding; failing to

limit testimony to issues involving

the CHIPS proceeding and family

placement with Appellant, precluding

evidence relating to Respondents’

custody Motion; failing to make

Findings as required in a CHIPS

proceeding under Minn. Stat. 260.191,

subd. 1; and granting the foster

parents custody despite an

insufficient showing of evidence to

overcome the father's natural

custodial preference. In post-trial

motions, did the trial Court err in:

denying Appellant's Motion to modify

the requirement that visitation be

supervised, and failing to compel

Dodge County Human Services to provide

Appellant with a plan for

reunification with his daughter H.J.?

Trial Court held: In the negative.

RA-5

Il.

III.

IV.

VI.

Did the Court err in: denying the

intervention request by H.J.'s

paternal grandparents seeking her

Custody; and in post-trial motions,

declining to establish their

visitation schedule.

Trial Court held: In the negative.

Did the Court err in permitting into

evidence remote in time, consisting of

hearsay testimony by Appellant's

deceased wife Lucy, deceased daughter

Joyfull, and surviving daughter H.J.,

without advance notice under Minn.

Stat. 595.02, subd. 3 and 260.156 of

any intent to present hearsay evidence

by such witnesses?

Trial Court held: In the negative.

Did the Court err in appointing the

"CHIPS" Guardian as Guardian Ad Litem

in the custody case, despite an

obvious adversarial relationship

demonstrated in the CHIPS proceeding

and initial appointment as Trustee in

the related wrongful death matter?

Trial Court held: In the negative.

Did the trial Court err in ordering

withdrawal of the appointment of

Appellant's counsel for "all

post-trial proceedings" in the trial

Court?

Trial Court held: In the negative.

Did the trial Court err in: vacating

the appointment of Appellant, natural

RA-6

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father of sole Surviving child H.J.,

as trustee in a wrongful death action,

and appointing in his stead foster

parent-Respondent Mark Dulaney, and

vacating sua sponte its Order filed

December 17, 1992 which had not been

appealed, and for which the time for

appeal had expired?

Trial Court held: In the negative.

2. Statement of the criteria of the

rule relied upon to support the petition.

Supreme Court review of this matter is

essential to correct an unjust decision

which effectively transformed a minimal

CHIPS Petition into a termination of

parental rights case. A decision by the

Supreme Court will help develop, clarify,

and harmonize the law in CHIPS proceedings.

This case calls for the application of a new

principle which precludes hearing or joinder

of third party child custody petitions until

commencement of termination of parental

rights proceedings. Resolution of the

question presented has statewide impact, and

RA-7

is likely to recur unless resolved by this

Court.

3. Statement of the case.

Petitioner is the natural father of a

10-year-old H.J., sole family survivor of

the fatal car crash which killed

Petitioner's former wife and 12-year-old

daughter, Joyfull, on July 6, 1991.

A "CHIPS" proceeding was commenced

against Petitioner and his wife on November

9, 1989, resulting in his qualified

admission to a portion of the allegations.

Petitioner thereafter returned to his native

State of Hawaii to comply with Social

Services' requests and prepare his home for

reunification with the children. In

February, 1991, both children returned to

Hawaii for a visit and desired to remain

there for reunification with their father.

Respondent Dodge County refused their

request, despite the initial urging by

RA-8

Respondent foster parent Diane Dulaney that

such was in the best interest of the

children.

Thereafter, the tragic accident in

July, 1991 took the lives of Petitioner's

former wife and their minor child, Joyfull.

Petitioner immediately came back from Hawaii

to Minnesota, seeking return of H.J.'s

custody to him in Hawaii. Despite the

Court's declared intent to reunite father

and daughter, and to refer the case to Maui

County for any further necessary

proceedings, the Court permitted the foster

parents to intervene with a Petition for

permanent custody, which Petition was

ultimately granted after 16 days of trial.

4. <A brief argument in support of

petition.

This case initially arose out of the

voluntary placement of Petitioner's

daughters as Petitioner and his

RA-9

schizophrenic wife were having difficulties

in their marriage. After voluntary

placement, a CHIPS Petition was brought

against both Petitioner and his now deceased

wife. Minimal concerns were raised

concerning Petitioner, with the serious

concern focusing on his wife's manic

depressive behavior.

The trial court stated that it could

not "find that Human Services...had a plan

to reunite the children with their father,

Jay Johnson, and made little, if any effort

in that direction... (A.125)", and also that

Petitioner "has in essence followed the

court Orders in this case (A. 192). The

Court by pretrial Order had determined that

this case was appropriate to transfer to

Hawaii. The County Attorney also

recommended that disposition, both before

and after all trial proceedings were

concluded, However, after hearing all the

RA-10

trial testimony, Petitioner's sole surviving

daughter was removed permanently from his

custody.

The underlying reason for denying

Petitioner custody of his own child was that

a lengthy time of over two years had passed

between his initial voluntary placement and

the dispositional hearing. However, the

cause of this delay included both the Human

Services’ Department failure to make

reasonable efforts to reunite Petitioner

with his daughter, and also the third party

foster parents' petition for custody.

This case confirms the need for

application of a new Statewide policy,

preventing foster parents from intervening

in CHIPS proceedings to wrongfully remove

children from their natural parents.

Resolution of this issue has potential

statewide impact. Unless this question is

now resolved, it is likely to recur with

RA-11

continuing inconsistent and unjust results.

For these reasons, Petitioner seeks an order

granting review of the decision of the Court

of Appeals.

DATED: August 31, 1993

Brian J. Peterson

Atty. Reg. No. 85625

7101 Northland Circle, #102

Minneapolis, MN 55428

(612) 537-5585

ATTORNEY FOR PETITIONER