In Re the Welfare of H.K.

CRIPPEN, Judge,

dissenting.

Appellant is entitled to a further eviden-tiary hearing because (1) the trial court’s findings do not support its conclusions for termination of appellant’s parental rights and (2) there is a fundamental gap in the evidence needed to terminate the legal basis for appellant’s future contacts with her six-year-old daughter.

1. Necessary findings

Since initiated in December 1988, the nature of these proceedings has been misstated. Reflecting the evidence and the focus of the parties (except for counsel representing the child, whose observations appear below), the trial court’s findings deal exclusively with the question of whether appellant R.S. can provide custodial care for her daughter. As the majority capably reports, there is ample evidence that appellant has been and remains unfit to provide helpful custodial care. There remains, however, another critical consideration. The child is presently receiving custodial care from her father, and the essential consequence of these proceedings is to terminate the right for visitation contacts by the child’s mother. The essence of these proceedings is to eliminate the obstacle to a step-parent adoption.

Termination proceedings as a prelude to step-parent adoption have been frequently *534considered by the Minnesota Supreme Court, but that court has not had occasion to review the issue since 1979. See In Re Petition of Linehan, 280 N.W.2d 29 (Minn.1979) (affirming refusal of trial court to terminate parental rights of father who evidently had not seen 13 year old son for nearly eight years and who had failed to make child support payments during that same span of time; court reviewed prior decisions on termination of visitation contacts). The language of statutory provisions on termination of parental rights, Minn.Stat. §§ 260.221-260.245 (1988), deal generally with the parent-child relationship and make no special reference to visitation contacts by a noncustodial parent. Such was also the case when Linehan was decided.

Nevertheless, Linehan and its predecessor decisions make it apparent that the courts address a different issue when dealing with termination of visitation contacts; it is evident that termination of visitation contacts by a noncustodial parent is not to be premised solely on a finding that this parent could not provide adequate custodial care. This analysis of the law is corroborated by a 1978 legislative enactment not discussed in Linehan. As a matter of law, a noncustodial parent is to enjoy visitation contact unless the court finds, after a hearing, that "visitation is likely to endanger the child’s physical or emotional health or impair the child’s emotional development * * Minn.Stat. § 518.175, subd. 1 (Supp.1988). See 1978 Minn. Laws ch. 772, § 40; see also Minn.Stat. § 257.541, subd. 2 (1988) (for child of unmarried parents, parental rights are determined under sections 518.17 and 518.175). There is no authority establishing that the standard under section 518.175 can be circumvented by proving that the noncustodial parent is unfit for custodial care.

In January 1989, shortly after these proceedings began, appellant was refused visitation with the child because of a social worker’s concern that this might interfere with visitation contacts which had begun between the child and her father. Eight months later, on September 1, 1989, the trial court issued its termination order. It is undisputed by the parties that custody of the child was placed with her father shortly after the proceedings were concluded. Thus, there is no design for adoption other than might occur in favor of the step-parent. Under these circumstances, the trial court must address the question whether appellant is unfit for future visitation contact.

As already indicated, the trial court’s findings do not state the advantages or disadvantages of future visitation between appellant and her daughter. In its findings on unfitness, the court expressly observed that appellant’s circumstances render her “unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental and emotional needs of the child.” The findings are legally inadequate and the proceedings should be remanded.

2. Evidence

It is impermissible on our part to make findings of fact omitted by the trial court. Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn.1986). In addition, limiting the trial court’s prerogative as well as our own, the record here is inadequate to support a finding on the issue of prospective visitation contact. Thus, upon remand the record should be opened to permit presentation of evidence on the essential issue of future visitation contacts.

It is germane, of course, that appellant is unfit for custodial care. In addition, an expert witness indicated that the child was adversely affected by visits in 1987. Notwithstanding this evidence, the present record permits only speculation regarding the need to forever terminate the right of the mother to claim any variety of contact with the child.

It is also significant that appellant had no visitation with the child after February 1988. (For the period after visitation was denied in January 1989, it is difficult to determine whether the absence of appellant’s contacts is attributable to appellant’s neglect or to her good faith acceptance of the will of her social worker.) The expert witness observed that the child’s bond with her mother had largely deteriorated. Here again, something other than speculation is needed to determine whether appellant’s conduct translates into a showing of pro*535longed and indeterminant disadvantages in all forms of visitation conduct, including supervised visitation. See In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn.1980) (“it must appear that the present conditions of neglect will continue for a prolonged, indeterminate period”).

In sum, the gap in this record is reflected in the appellate argument of counsel for the child:

If the relationship with the father continues to thrive and the child continues to live with him, there is little or no reason the mother’s parental rights have to be terminated. Very possibly in the future if the mother eliminates the chemical dependency and source of abuse from her life, she may begin to develop a relationship with this child. Even though this may not happen for years there is little reason to preclude that at this time. The child’s relationship with her father should develop independent of whether the mother’s rights are terminated or not.

Brief of Counsel for Respondent H.K. at 3.

Because the law does not permit us to affirm on the present record, I respectfully dissent.