In re S.G.

PAGE, Justice

(dissenting).

I respectfully dissent.

This case requires us to interpret Minnesota Statutes § 259.57 (2012). That statute provides, in relevant part:

In reviewing adoptive placement and in determining appropriate adoption, the court shall consider placement, consistent with the child’s best interests and in the following order, with (1) a relative or relatives of the child, or (2) an important friend with whom the child has resided or had significant contact.

Minn.Stat. § 259.57, subd. 2(c). A key provision of the statute is the requirement that the district court consider “placement” in the specified order of relatives first, and important friends second. The determination of whether a given placement is in the best interests of the child requires district courts to consider a variety of factors, including the child’s history, functioning, and behaviors; the child’s educational, developmental, medical, religious, and cultural needs; and the child’s interests, talents, and connection with a community or school. Minn.Stat. § 260C.212, subd. 2(b) (2012).

A. Statutory Interpretation

When interpreting a statute, our goal is to “ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2012). “We determine legislative intent primarily from the language of the statute itself.” Brayton v. Pawlenty, 781 N.W.2d 357, 363 (Minn.2010) (internal quotation marks omitted). If the statute is unambiguous, we apply the plain meaning of the statutory language. See Minn.Stat. § 645.16. Only if the statutory language is ambiguous may we look beyond the language of the statute to such things as the legislative history of the law. Id.

The central dispute in this case concerns the meaning of the statutory requirement that the district court consider placement “in the following order.” Under the *133court’s interpretation of this requirement, it is enough that the district court thinks about a relative’s petition with respect to each statutory best interest factor before considering a foster parent’s petition on that same factor. But there are several problems with this interpretation. First, the court’s interpretation ignores the express language of the statute, which requires that “placement” be considered in the specified order, not that the statutory best interest factors be considered in the specified order. The court’s interpretation conflates consideration of placement with consideration of the best interest factors. Second, there is no way to know with any certainty in what order the district court thought about competing petitions, which makes the district court’s decision very difficult to review.1 Third, and most importantly, the court’s interpretation allows the district court to evaluate and analyze competing adoption petitions from relatives and important friends side-by-side, and at the same time, thus rendering the Legislature’s use of the words “in the following order” effectively meaningless and superfluous.2 See Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (stating that we should, whenever possible, interpret a statute “to give effect to all of its provisions” and ensure that “no word, phrase, or sentence [is] deemed superfluous, void, or insignificant”); see also Minn.Stat. § 645.16. The Legislature’s command that competing petitions be considered in a specified order is incompatible with the court’s reading of the statute that allows an important friend’s petition to be effectively considered together with a relative’s petition. Thus, the court’s interpretation reads the words “in the following order” out of the statute.

In my view, there is only one way to read the statute to give effect to all of its language. When faced with multiple petitions for adoption, the district court must “consider placement” first with petitioners who are related to the child, and evaluate the relative’s petition using the statutory best interest factors of section 260C.212, subdivision 2(b). If such placement is “consistent with the child’s best interests,” then the district court must award placement to the relative.3 If the district court *134concludes that placement with a relative is not consistent with the child’s best interests, the court must then proceed to “consider placement” with the next statutory-category of potential adoptive parents: “important friends.” The competing petitions are not to be considered contemporaneously, or side-by-side. Rather, the relative’s petition is considered in its totality— and a decision is made on the petition— before consideration of the petition of an important friend. In other words, under my interpretation, the language of section 259.57, subdivision 2(c), imposes an order of priority between competing classes of petitioners. Such an interpretation gives substantive meaning to the requirement that the district court “consider placement” in a specified order.

Justice Paul Anderson’s concurrence contends that the statute’s use of the term “best interests” requires comparison between competing petitioners. But the concurrence overlooks the fact that the actual phrase used by the statute is that the court should consider placement “consistent with the child’s best interests.” The Legislature’s use of the words “consistent with” suggests that there may be cases when multiple placement options meet a child’s best interests and greatest needs. In other words, competing petitioners may both offer loving, supportive, and nurturing homes for the child. In those cases, I do not believe that the Legislature intended that relatives — who can meet the child’s needs and offer a loving home — be passed over merely because nonrelatives may be marginally “better” in some sense, such as being more affluent or better educated than the relative, or having spent more time with the child. The Legislature would not have intended to systematically disfavor relatives in such circumstances absent a specific finding that placement with the relative would be inconsistent with the best interests of the child. If the Legislature had intended for us to read the statute the way the concurrence suggests, there would have been no reason to require courts to consider placement in a particular order, and absolutely no reason to distinguish between relatives and others. The Legislature would have simply required consideration of “all petitions” in light of the child’s best interests.4

In support of its conclusion that the district court may properly consider the petition of an important friend at the same time it is considering a relative’s petition, the court makes much of the fact that the previous version of the statute used the word “preference,” and the present version of the statute does not. At the outset, I note that consideration of the “former law” is inappropriate unless the court first determines the present law is ambiguous, which it is not. Minn.Stat. § 645.16. But even if it were appropriate to consider the former version of section 259.57, the former law’s reference to a “preference” does not support the court’s reading. A “preference” means that the district court should consider each and every adoption petition, but give some extra weight to the preferred class of petitioners. See In re Adoption of C.H., 554 N.W.2d 737, 742 *135(Minn.1996) (a preference is one factor to be considered and may be overcome by a sufficient showing). I agree with the court that the change in the statutory language indicates that district courts may no longer apply a “preference” for relatives. But the current statutory language does not impose a preference. Rather, as previously noted, the statute imposes an order of priority. A “priority” is defined as “something requiring or meriting attention prior to competing alternatives.” Webster’s Third New International Dictionary Unabridged 1804 (3d ed.2002) (emphasis added). Thus, with the 1997 change in the statute, the district court no longer considers all petitions at once, giving certain petitions extra weight, but considers certain categories of petitions before other competing petitions. No class of petitioners is preferred. Instead, the district court must “consider[] placement,” one class of petitioners at a time, in the Legislature’s specific and defined order of priority.

Moreover, the court’s review of the former law is superficial. The legislative history surrounding the 1997 amendments to the statute confirms my reading of the plain and unambiguous language of section 259.57. In August 1996, Congress enacted a law prohibiting states from denying a person the opportunity to become an adoptive parent or a foster parent, or delaying or denying the placement of a child, “on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved.” Pub.L. No. 101-188, 1808, 110 Stat. 1755, 1903-01 (1996). The law provided for significant penalties in the form of funding cuts for states that failed to comply with its provisions. See id.

In response to this federal directive, a bill was introduced on January 27, 1997, to amend the Minnesota adoption and foster care statutes. The bill proposed to remove language that allowed for the consideration of race, color, or national origin in determining a child’s adoptive or foster placement. See H.F. 209, 1997 Minn. Leg., 80th Sess. (Jan. 27, 1997) (as introduced), available at https://www.revisor. mn.gov/bin/bldbill.php?bill=H0209.0& session=ls80. With respect to section 259.57, the bill proposed to remove the provisions that stated a “preference” for placement of the child with a relative or with an individual with “the same racial or ethnic heritage as the child” if placement with relatives would be detrimental or was not possible. See id., § 10. Instead, the bill amended section 259.57, subdivision 2(c), to read as follows:

The authorized child-placing agency shall, consistent with the child’s best interests, consider placement with a relative or relatives of the child, or, if a relative is not available, an important friend with whom the child has resided or had significant contact.

Id. (emphasis added). Thus, as introduced, the bill’s language required courts to consider placement, consistent with the child’s best interests, with a relative or relatives. Only if a relative was “not available” was placement with an important friend permitted.

After the bill was introduced, the House Committee on Health and Human Services held a hearing to elicit testimony on the proposed amendments. A representative from the Minnesota Department of Human Services (MDHS) testified that the “issue of relative preference was the single most important issue” in the Department’s discussions in the months leading up to the introduction of the bill. Hearing on H.F. 209 Before the H. Comm, on Health and Human Sews., 1997 Minn. Leg., 80th Sess. (1997) (testimony of Erin Sullivan Sutton, MDHS representative) (recording *136on file with the Minnesota Historical Society). The MDHS representative further stated that “the bill maintains the Department at least ... consider placement ... first with a relative and secondly with important friends.” Id. (emphasis added).

The Committee subsequently adopted proposed changes to the original language that, without objection from the bill’s authors, simplified the bill’s language. This simplified language was included in the final version of the bill that was enacted by the Legislature. In the end, all five authors of the original bill voted to pass the bill as amended by the Committee.

As the legislative history confirms, the 1997 amendments were not intended to diminish the statutory emphasis on placing children with relatives. The authors of the amendments were no doubt concerned that eliminating race as a consideration in adoptive and foster care placements might have the unintended effect of decreasing the likelihood that children from racial minorities would be adopted by relatives. One way to mitigate these potential negative effects was to strengthen the statutory emphasis on placement with relatives by requiring that placement with relatives be considered before placement with others. By amending section 259.57, subdivision 2(c), to provide for an order of priority in favor of relatives, that is exactly what the Legislature did.

In this case, the district court believed that the grandparents “love the children” and are capable of meeting both their physical and medical needs, even in light of the children’s “current functioning and behaviors.” Nevertheless, the district court was concerned about the grandparents’ “ability to recognize the children’s need for services and seek out additional services if necessary” and, as a result, awarded placement with the foster parents. It did so without explicitly concluding, one way or the other, that placement with the grandparents was inconsistent with the best interests of the children. I would hold that the district court erred in considering placement with the foster parents absent such a finding because the district court did not finish “considering] placement” with the grandparents until it determined whether placement with the grandparents was, or was not, consistent with the best interests of the children. Accordingly, I would vacate the district court’s order and remand5 for a determination of whether placement with D.D. and L.D. is consistent with the children’s best interests before proceeding to consider placement with S.G. and L.G.6

*137 B. Factors Considered by the District Court

After reviewing the record in detail, I am also troubled by certain findings and conclusions upon which the district court relied in granting placement with S.G. and L.G. First, the district court’s concern that D.D. and L.D. would not adequately attend to P.U.K. and D.F.K.’s special needs was central to its decision placing the children with the foster parents. The district court stated that D.D. was “unable to identify any of the [children’s] special needs except for [P.U.K’s] difficulty sleeping,” which, according to the court, suggested that D.D. and L.D. “do not acknowledge that the girls already have special needs.” It is not clear to me, however, on the record before us that the children’s needs are meaningfully different from the diverse array of needs that normally accompany children of their respective ages.

The extent of the children’s “special needs” as described in the record are as follows. P.U.K. is three years old; is “feisty” and “high-spirited”; makes good eye contact; and is loving, affectionate, and gentle. She is sensitive, and often gets tense, irritable, and weepy in response to stimulation or pain. She has difficulty sleeping and is afraid of the dark. She does not “do well” with changes or surprises. Although she is slow to reach milestones, she is currently “on track.”

D.F.K. is two years old. She is “very smiley,” makes good eye contact, and usually sleeps through the night. She has a lot of “stranger anxiety” and does not like loud noises or a lot of commotion. She likes attention and being held. Although she is two to three months behind “where she should be developmentally,” the delays are not significant enough for her to qualify for special services through the school district.

In my experience, the social and emotional characteristics of P.U.K. and D.F.K. are hardly uncommon for children of their respective ages. Certainly, many parents deal with three-year-olds who are sensitive, who cry in response to over-stimulation or pain, and who have problems sleeping. Likewise, it is not extraordinary for a two-year-old to be attached to caregivers, sensitive to loud noises, and to like being held. Information on developmental milestones published by the Centers for Disease Control and Prevention would seem to support my experience. See Ctrs. for Disease Control & Prevention, Important Milestones: Your Child at Three Years, http://www.cdc.gov/ncbddd/actearly/ milestones/milestones-3yr.html (last visited Jan. 22, 2013) (describing social and emotional milestones for a three-year-old, which include showing affection for friends without prompting, displaying a wide range of emotions, and getting upset with changes in routine); Ctrs. for Disease Control & Prevention, Important Milestones: Your Child at Two Years, http:// www.cdc.gov/ncbddd/actearly/milestones/ milestones-2yr.html (last visited Jan. 22, 2013) (describing social and emotional milestones for a two-year-old, which include showing defiant behavior and getting “excited” when around other children). It is true that the district court considered the testimony of an expert witness, Dr. Sandra Hewitt, as well as the children’s pediatrician, Dr. Daniel Noonan, both of whom recommended that the children remain with the foster parents. However, the record is silent as to any testing performed or specific diagnoses reached by these professionals. The record does indicate that both children were referred to an early childhood education program for testing, but D.F.K. did not qualify for services and P.U.K is “currently on track” with her developmental milestones.

*138P.U.K. and D.F.K. may in fact have diagnosable special needs. I simply do not see how that conclusion can be reached on the record before us. Therefore, I question how the district court could fault D.D. and L.D. for not “recognizing] the children’s need for services” and being able to “identify any of the [children’s] special needs except for [P.U.K.’s] difficulty sleeping.” Moreover, such conclusions are further undermined by the fact that D.D. and L.D. live in Mississippi and are rarely able to spend time with the children, which would understandably account for a less-detailed knowledge of the needs that are unique to the children.

Second, I am concerned that the district court placed undue emphasis on the fact that the children have remained with the foster parents since birth. In rendering its decision, the district court discusses at length the attachment that the children have to S.G. and L.G., emphasizing that the children “are currently in a home where all of their needs are being met” and that they have formed “secure and healthy attachment^].” I do not disagree that these facts are relevant to a placement analysis pursuant to Minn.Stat. § 259.57, subd. 2(c). However, if, as the court suggests, Minn.Stat. § 259.57, subd. 2(c), does not provide any preference for parties seeking to adopt, district courts should be careful not give too much weight to the presence of children with foster parents because such a practice will result in a de facto preference. I fear that the district court’s decision in this case did exactly that.

Finally, I am troubled by the guardian ad litem’s “impression” that, because D.D. refers to the children as “her blood,” she somehow “thinks of the children as possessions.” Although the degree to which the district court relied on this impression in awarding custody to the foster parents is unclear, I make particular note of this finding in the record because I believe it is rooted in a deep cultural misunderstanding. In my view, D.D.’s reference to the children as “her blood” emphasizes not that the children are her possessions, but that, as blood relatives, they share a bond that exceeds all others. D.D.’s words appear to do nothing more than reflect her desire to take responsibility and care for the children because of the familial bonds that she has with them. Viewed in this light, although it may have been sincere, the guardian ad litem’s impression was misguided. Accordingly, the district court should not have given the guardian ad litem’s impression any weight in making its decision.

For the reasons discussed above, I would vacate the district court’s adoptive placement order and remand to the district court to consider the petition of D.D. and L.D. in the order of priority required by MinmStat. § 259.57, subd. 2(c).

. Typically, the only evidence an appellate court will have of the district court’s order of consideration of competing petitions is the written decision. Thus, in order to survive appellate scrutiny under the court’s interpretation of section 259.57, subdivision 2(c), die district court must merely arrange the written decision to place its discussion of the relatives’ petition first on each statutory best interest factor. In other words, the court's interpretation of the statute ignores the substance of the district court's analysis, and makes the form and structure of the written decision the ultimate consideration. In addition to elevating form over substance, the court’s interpretation may also implicate separation-of-powers concerns, as it is unclear to what extent the Legislature has authority to dictate how courts organize and structure their written decisions.

. The court contends that ”[t]he consideration requirement is not meaningless ... because if both the relative and nonrelative petitioners are equally qualified to adopt and the best interests analysis renders an equivalent result as to each party, the relative would benefit from being considered first and'could proceed with the adoption." It appears that the court is saying that, in the case of a tie, the order-of-consideration provision requires the district court to award a tiebreaker to the relatives. But this conclusion has absolutely no foundation in the statutory language, which does not mention "ties” or situations in which parties are "equally qualified.” Interestingly, the court's interpretation reinstates a "preference” in favor of relatives that the court acknowledges the statute no longer allows.

.Although not at issue here, if more than one relative is petitioning for adoption, the court may consider them all together, and must award placement (assuming that placement with at least one of the relatives is in the *134child's best interests) to the relative placement that would be most consistent with the child’s best interests.

. As for the concurrence’s analogy to looking both ways before crossing the street, it is enough to say that the Legislature was not providing instructions on how to cross the street in amending Minn.Stat. § 259.57, subd. 2(c). It was, however, recognizing the important and powerful role that family plays in human relationships and the development of the human species. In requiring that a relative's petition be considered first, the Legislature sought to protect the family bond to the extent that it was not inconsistent with the child’s best interests.

. The Supreme Court of the United States has held that it is an "elementary” rule of appellate review that, when a district court’s findings are insufficient — or when the district court has failed to make a finding — "because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings.” Pullman-Standard v. Swint, 456 U.S. 273, 291-92, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). Here, the district court failed to find that placement with the grandparents was inconsistent with the children's best interests. Because "[Qactfinding is the basic responsibility of district courts, rather than appellate courts,” id. at 291, 102 S.Ct. 1781, we cannot and should not speculate as to what the district court would have found had it correctly applied the law.

. Even under the court’s interpretation of Minn.Stat. § 259.57, subd. 2(c), I would conclude that the district court abused its discretion. The court concludes that subdivision 2(c) requires the district court to "think carefully and form an opinion about the grandparents' petition before considering the petition of the foster parents." But the district court analyzed aspects of each petition in an alternating fashion throughout its order, which directly contravenes the court’s interpretation of subdivision 2(c).