author: DORIS O. HUSPENI, Judge.

text:
    In re the Matter of Patricia Lynn SHARP, Appellant, v. Terry Lee BILBRO, Respondent.
    No. C6-00-38.
    Court of Appeals of Minnesota.
    July 18, 2000.
    Review Denied Sept. 26, 2000.

      Tammy Lynn Merkins, Westrick & McDowall-Nix, P.L.L.P., St. Paul, for appellant.
    Kathryn A. Engman, Nordaune & Fries-en, St. Louis Park, for respondent.

      Candace Joy Barr, Niemi & Barr, Minneapolis, Guardian ad Litem.
    Considered and decided by TOUSSAINT, Chief Judge, PETERSON, Judge, and HUSPENI, Judge.
   OPINION

DORIS O. HUSPENI, Judge.

Appellant Patricia Sharp was granted physical custody of the parties’ child in a stipulated paternity judgment. Later, respondent Terry Bilbro sought custody and sanctions, alleging Sharp interfered with his visitation and falsely claimed he had abused the child. The district court granted both of Bilbro’s requests. Sharp appeals, alleging the record does not support modifying custody or the award to Bilbro of attorney fees. Because our .review of the record discloses support both for the modification of custody and award of attorney fees, we affirm.

FACTS

A stipulated order adjudicated Bilbro to be the father of Sharp’s child and granted Sharp custody, subject to visitation by Bil-bro. Subsequently, Bilbro sought, among other things, custody of the child and sanctions against Sharp. The evidentiary hearing on Bilbro’s motion occurred over an 11-month period, during which the district court granted Bilbro physical custody pending final resolution of the dispute. Ultimately, the district court granted Bil-bro sole legal and physical custody of the child and awarded $10,000 in attorney fees against Sharp. The parties’ acrimonious relationship has produced, in addition to this paternity proceeding, various harassment, domestic abuse, and criminal proceedings, including a criminal proceeding in which Sharp pleaded guilty to making false allegations of abuse.

ANALYSIS

I.

Sharp challenges the award to Bilbro of physical custody during the hearing. After an initial paternity determination, subsequent custody-related motions are determined under Minn.Stat. § 257.541 (1998). Minn.Stat. § 257.66, subd. 3 (Supp.1999). Under Minnesota law, where a recognition of paternity has not been executed, a father may seek custody under Minn.Stat. § 518.156 (1998). Minn.Stat. § 257.541, subd. 2(b). Here, because a recognition of paternity was not executed, a proceeding under Minn.Stat. § 518.156 was proper. Under Minn.Stat. § 518.156, subd. 1(a)(2), a parent may seek custody by filing a custody petition. In custody proceedings, the district court may award temporary custody pending a final disposition of the question. Minn.Stat. § 518.131, subd. 1(a) (1998). Here, because the district court initially granted Bilbro custody pending resolution of his motion for custody, that grant was a temporary one.

Because the district court ultimately granted Bilbro permanent custody, it is unclear how this court can grant Sharp relief from the temporary order. Generally, if an appellate court cannot grant relief, the relevant part of the appeal is moot. See, e.g., In re Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn.1984) (stating if, during appeal, event occurs making decision on merits unnecessary or award of effective relief impossible, appeal “will be dismissed as moot”). An exception to this general rule applies if the issue is capable of repetition yet evading review. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). Here, the reasons for the district court’s grant of temporary custody were based on the facts and circumstances of this case. Therefore, the grant of temporary custody to Bilbro does not present an issue fitting the exception to the general rule regarding mootness, and we decline to address the issue of temporary custody.

II.

Regarding the final custody determination, we will not reverse a district court’s custody-modification ruling absent an abuse of discretion. Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn.1999). On appeal, we view the record in the light most favorable to the district court’s findings. Id. Generally, custody may be modified if the moving party shows, among other things, substantially changed circumstances and that a child’s current environment endangers the child. See Minn.Stat. § 518.18(d) (1998) (listing requirements for custody modification). A denial or interference with visitation is not controlling in a custody-modification proceeding, but such events are to be considered along with the custody-modification standard set out in Minn.Stat. § 518.18 (1998) and associated caselaw. Grein v. Grein, 364 N.W.2d 383, 386 (Minn.1985); see Minn. Stat. § 518.175, subd. 6(e) (1998) (stating proof of unwarranted denial of or interference with visitation “may be sufficient cause for reversal of custody”). Here, Sharp alleges Bilbro showed neither changed circumstances nor endangerment.

What constitutes changed circumstances for custody-modification purposes is “determined on a case-by-case basis.” Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn.App.1990) (citations omitted). Sharp alleges that Bilbro has not shown changed circumstances because she interfered with Bilbro’s visitation before he stipulated to placing physical custody with her. Cf. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn.App.1989) (stating “[t]he change of circumstances must be a real change and not a continuation of ongoing problems”), review denied (Minn. June 21, 1989). Sharp’s argument is disingenuous, and we decline to endorse a position that would encourage custodial parents to interfere or to continue to interfere with visitation in an attempt to prevail in a later custody dispute.

The existence of endangerment must be determined “on the particular facts of each case.” Lilleboe, 453 N.W.2d at 724. While “[t]he concept of ‘endangerment’ is unusually imprecise!,] * * * in the context of child custody, the legislature likely intended to demand a showing of a significant degree of danger.” Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App.1991). Sharp alleges Bilbro failed to show “any endangerment — much less the high level of endangerment mandated by the legislature^]” We disagree. Sharp’s own psychological expert testified that (a) if aspects of Sharp’s conduct are as alleged in this file, “[she] will cause emotional psychological damage to her child” (emphasis added);. (b) if Sharp did not undergo the therapy the expert suggested, “based on her past history and based on the diagnostic workup I did, [Sharp] would pose emotional damage to her child”; (c) Sharp’s perceptions of reality may interfere with her ability to parent, and, without treatment, Sharp may lack the ability to “check” her behavior; (d) Sharp’s personality disorder was something the expert “clearly [was] not trying to say [was] a lightweight problem”; (e) his analysis of Sharp was based on his assumption that Sharp did not falsify her reports of abuse, and that if she did, in fact, falsify those reports, it would strengthen the concern he had about the severity of her personality disorder; (f) if Sharp falsified abuse reports and subjected the child to intrusive exams, he would have concern about the child’s safety; and (g) the subjecting of the child to unnecessary, sexual-abuse exams “would certainly” be a threat to the child. Viewing this testimony in the light most favorable to the district court’s findings that leaving custody with Sharp would endanger the child, and noting that the child has undergone not one, but two, abuse-related physical examinations, we conclude that the record supports the district court’s finding of endangerment. See Minn. R. Civ. P. 52.01 (stating findings of fact will not be altered unless clearly erroneous).

III.

Minnesota law allows the award of “reasonable attorney’s fees and costs” against a party who is found to have “wrongfully failed' to comply with a visitation order” but does not articulate a standard for awarding those fees. Minn.Stat. § 518.175, subd. 6(c)(3) (1998). This district court awarded Bilbro attorney fees under this provision by functionally applying the standard for conduct-based attorney fee awards under Minn.Stat. § 518.14, subd. 1 (1998). Use of that standard is consistent with the language in Minn.Stat. §' 518.14, subd. 1, which provides that the statute is applicable “at any point * * * including a [custody] modification proceeding under [Minn.Stat. § ] 518.18.” Thus, while Minn.Stat. § 518.176, subd. 6(c)(3), states fees may be recovered, we hold that the standard for evaluating such a request is that used for evaluating requests for 'conduct-based attorney fees under. Minn. Stat. § 518.14 (1998) and associated case-law. Cf. Minn.Stat. § 518.64, subd. 2(g) (Supp.1999) (explicitly adopting Minn.Stat. § 518.14 standard to govern attorney fees awards in proceedings to modify maintenance and support).

Conduct-based fee awards are discretionary with the district court. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn.App.1992). We reject Sharp’s argument that the fee award is an abuse of discretion because she lacks the ability to pay.-it and because there is a significant disparity in the parties’ incomes. Conduct-based ’ fee awards may be awarded regardless of a party’s ability to pay the award. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn.App.1991) (stating conduct-based fee awards under Minn. Stat. § 518.14 may be made “regardless of the relative financial resources of the parties”). Sharp also alleges that the fee award could only be based on “things that are part of the court proceedings.” We disagree. The statute allows fees to be awarded if a party has “wrongfully failed to comply with a visitation orderf.]” • Minn. Stat. § 518.175, subd. 6(c). Failure to comply with a visitation order is not something that occurs as part of court proceedings. Also, we cannot say that Bilbro’s allegedly “unorthodox” manner of presenting his case precludes him from recovering fees. The multiple presentations of some of Bilbro’s witnesses would have been unnecessary if the evidentiary hearing had not been spread out over 11 months due to, among other things, intervening abuse investigations and other delays attributable (directly or indirectly) to Sharp.

Lastly, Sharp alleges the district court failed to consider mitigating circumstances when awarding -attorney fees. Again, we disagree. The district court issued a 28-page order after a five-day hearing and was well informed regarding these proceedings and parties. To the extent Sharp alleges the district court failed to consider the fact that she let Bilbro make up missed visitations, she ignores the fact that those visitations would not have been missed if she had abided by the visitation schedule. Sharp also notes that Bilbro was deprived of visitation by the conduct of the guardian ad litem. These circumstances, however, do not address the fact that Sharp pleaded guilty to making a false allegation of abuse. Nor do they justify what the district court found to be Sharp’s bad-faith conduct in making other allegations of abuse and trying to subvert the father-child relationship. Given the extreme nature of Sharp’s conduct and the breadth of the district court’s discretion in awarding conduct-based attorney fees, we cannot say that, on this record, the district court’s fee award is an abuse of its broad discretion.

DECISION

Because this court cannot grant Sharp effective relief from the district court’s grant of temporary custody, we decline to address that grant. We affirm the merits of the district court’s custody-modification ruling because the record supports the district court’s modification of custody. We also affirm the district court’s award to Bilbro, under Minn.Stat. § 518.175, subd. 6(c)(3) (1998), of attorney fees because the award comports with the standard for awarding conduct-based attorney fees set out in Minn.Stat. § 518.14, subd. 1 (1998), and associated caselaw.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

      . Because we decline to address the issue of temporary custody on the grounds that we cannot grant effective relief, we do not address the question of whether a temporary custody order is, in fact, appealable. See Rigwald v. Rigwald, 423 N.W.2d 701, 705 (Minn.App.1988) (referring to "unappealable temporary relief orders”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2000 SD 94
    In the Matter of A.S., Alleged Abused/Neglected Child.
    No. 21349.
    Supreme Court of South Dakota.
    Considered on Briefs July 13, 2000.
    Decided July 19, 2000.

      Mark W. Barnett, Attorney General, Joan P. Baker, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Nichole A. Carper, Minnehaha County Public Defender, Sioux Falls, South Dakota, Attorney for appellant Mother.
   PER CURIAM.

[¶ 1.] Mother appeals the trial court order terminating her parental rights to two and one-half-year-old daughter, A.S. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On February 6, 1997, Mother and Father were involved in the commission of a robbery in Sioux Falls. Four-month old son, C.S., was waiting with Mother in their vehicle while the crime was being committed. He was dressed in a soiled t-shirt and diaper, both of which were too small for him. Upon his parents’ arrest, he was taken to Children’s Inn and subsequently placed in his paternal grandparents’ custody in Minnesota.

[¶ 3.] In April 1997, Father began serving a twenty-year sentence at the state penitentiary in Sioux Falls for robbery in the first degree. Charges of commission of a felony while armed and habitual offender were dismissed. In July 1997, Mother began serving a four-year sentence in the Springfield women’s prison for accessory after the fact; a robbery charge was dismissed. Daughter A.S. was born October 1, 1997 while Mother was in prison. From her birth until April 1998, A.S.’s paternal grandparents cared for her and C.S.

[¶ 4.] Mother was released on parole in March 1998 and cared for A.S. from April to August 1998. In June 1998, her parole officer made a referral to the Department of Social Services (DSS) based on conditions she observed in the home. Both children were then living with Mother in a one-bedroom garage that had been converted into an apartment. Four other adults and one child lived with them. The parole officer noted the home was infested with flies and that flies were observed in open food and an open can of baby formula. The home was “absolutely filthy” with windows boarded shut and no ventilation within. The report indicated A.S. had a very flat affect, showing no emotion or reaction to anything and also noted Mother’s history of drug and alcohol use. DSS noted that Mother was on a waiting list for housing and wrote to the parole officer indicating its determination, after review of the referral, that no cause for further investigation had been established.

[¶ 5.] By August, the paternal grandparents had separated. Grandfather moved to California and Mother allowed C.S. to accompany him. On August 31, 1998, Mother was stopped at 3:30 a.m. driving a stolen vehicle in Sioux Falls. A.S. was in the vehicle with her. Mother claimed she was unaware the vehicle was stolen and gave false identification to the officer. She was brought into custody on the impersonation charge and returned to prison on the parole violation, this time housed in the women’s prison in Pierre. A.S. was placed in emergency foster care as no family member was available to care for her. Mother stipulated that A.S. was a neglected child due to her incarceration. Foster placement continued.

[¶ 6.] Mother was denied parole in June 1999. She was parole eligible in February 2000 but the record does not indicate whether she was successful in this bid for parole. She is scheduled for release June 18, 2001. Father’s first parole date is February 6, 2007.

[¶ 7.] A.S. was ten months old when placed in foster care and, at the date of the dispositional hearing, had been in foster care for fourteen months. DSS workers took A.S. from her foster home in the Sioux Falls area to visit her Mother in prison in Pierre seven times. DSS workers noted that Mother played well with A.S. but did not talk much to her. A.S. did not seem to recognize her Mother.

[¶ 8.] A dispositional hearing was held October 22, 1999. At that time, A.S. was two years old. The trial court found neither parent presently able to care for the child and that there was little likelihood these deficiencies would be remedied in the near future. The court terminated parental rights of Mother and Father to A.S. Mother appeals, raising four issues that are consolidated into two for purposes of our discussion.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether the trial court erred in ruling that ICWA did not apply and further erred in not granting Mother’s request for delay of the proceedings.

[¶ 10.] Mother claims the trial court erred in concluding the Indian Child Welfare Act (ICWA) did not apply in this case. A.S. is of Native American and Asian descent. ICWA applies to termination proceedings where the. Indian child is “any unmarried person who is under age eighteen and is either (a) a member of an Indian Tribe or (b) [ ] eligible for membership in an Indian Tribe and is the biological child of a member of an Indian Tribe.” 25 U.S.C. § 1903(1)(ii) and (4); In re M.C., 504 N.W.2d 598, 600 (S.D.1993).

[¶ 11.] The record shows A.S. is not an enrolled member of the tribe. Mother testified she believes she hersélf may be enrolled because she received funding from the tribe at one time. This is not evidence of enrollment. There was no evidence of enrollment forthcoming from the tribe and no additional evidence of enrollment was produced. The trial court found A.S. was not enrolled or eligible for enrollment and concluded that ICWA did not apply to these proceedings

[¶ 12.] Before a trial court applies the higher standard of proof required under ICWA, “some evidence must show that the. child is an Indian and that [ ] ICWA applies. [] TCWA.requires an initial determination by the trial court that the children are Indian children.’ ” In re B.R.B., 381 N.W.2d 283, 284 (S.D.1986)(quoting In re K.A.B.E., 325 N.W.2d 840, 842 (S.D.1982)). In B.R.B., the evidence was unclear whether Mother and child were enrolled tribal members or eligible for enrollment in the Cheyenne River Sioux Tribe. The tribe had declined jurisdiction without indicating eligibility or enrollment status of Mother or child. We held the trial court did not err in not applying ICWA. Id.

[¶ 13.] “It is incumbent upon the party asserting applicability of ICWA to prove the child meets the criteria under ICWA.” In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct.App.1998); In re A.M., 235 Neb. 506, 455 N.W.2d 572, 573 (1990). In the present case, Mother failed to come forward with such proof and the evidence supports the trial court’s finding that A.S. is not an “Indian child” as defined under 25 U.S.C. § 1903(4). The court did not err in not applying ICWA.

[¶ 14.] As a separate issue, Mother claims the trial erred in denying her request for a delay to allow the tribe additional time to become involved. We hold that ICWA does not apply to these proceedings, therefore, there was no requirement the court delay them to give the tribe more time to act. However, the relevant facts involving notice to the tribe are set forth below.

[¶ 15.] A.S. was taken into DSS custody August 31, 1998. DSS contacted the Oglala Sioux Tribe on September 15, 1998, September 18, 1998, May 20, 1999 and September 23, 1999 regarding her custody and the tribe’s involvement with this case. DSS received no response despite the fact that its letters and notices of hearings were sent certified and signed receipts were returned by the tribe. DSS made telephone contact with the tribe September 17, 1999 and was informed the tribe would make a motion to intervene or accept jurisdiction. At that time, DSS informed the tribe it would recommend termination of parental rights as Mother was not granted parole in June. DSS sent the tribe copies of court documents to date and informed the tribe of the scheduled dispositional hearing.

[¶ 16.] DSS made telephone contact again October 20, 1999, two days before the dispositional hearing, and was informed the tribe would not be involved. However, at the hearing, Mother’s attorney informed the court that A.S.’s attorney had been in contact with the tribal attorney who indicated he would fax “some sort of paperwork” to the court the day before the hearing to accept jurisdiction or “at the very least” intervene. The trial court noted, at ten minutes into the dispositional hearing, the tribe had done neither and that nothing had been received by the court.

[¶ 17.] As noted, ICWA does not apply in this case. Even so, the facts show that the tribe received sufficient notice under the Act, 25 U.S.C. § 1912(a). The trial court did not err in declining to grant a continuance in these proceedings.

[¶ 18.] 2. Whether the trial court erred in finding that termination was the least restrictive alternative and in the best interests of A.S.

[¶ 19.] Parental rights may be terminated if it is in the best interests of the child and is also the least restrictive alternative available. SDCL 26-8A-26. The best interests of the child are viewed from the child’s, not the parents’, perspective. In re E.D.J., 499 N.W.2d 130, 135 (S.D.1993). Our standard of review is “whether the trial court’s ultimate finding — that clear and convincing evidence indicated termination was the least restrictive alternative commensurate with the child’s best interests — was clearly erroneous.” In re J.Y., 502 N.W.2d 860, 862 (S.D.1993); In re A.H., 421 N.W.2d 71 (S.D.1988)

[¶ 20.] At the time of the disposi-tional hearing, A.S. was two years old. She had lived with Mother only four months of her life, from age six months to ten months. Every other month, weather and schedule dependent, for a total of seven visits, the DSS worker drove A.S. the four hours to visit with Mother in prison for one and one-half to two hours. DSS testified that there was no discernable bond between the two during these visits and that A.S. reacted to Mother as she would a stranger. Mother was able to engage A.S. in play, but initiated minimal verbal contact with her daughter. The foster mother reported A.S. is cheerful and easy to care for. DSS testified that A.S. had formed a significant attachment with her foster mother, but this family was not available as an adoptive placement.

[¶ 21.] ‘When it comes to something as important as the welfare of young children, promises of the parents to conform to the standard , of care for their children which is expected in our society do not carry as much weight as their past actions of not properly caring for the children.’ ” E.D.J., 499 N.W.2d at 137 (quoting In re J.M.V.D., 285 N.W.2d 853, 855 (S.D.1979)). Mother had an opportunity to parent A.S. when she was released on parole in March 1998. Within a few short months, she violated the rules of her release, putting her child’s welfare in jeopardy and leaving her once again without a parent. The referral to DSS by her parole officer included in the record shows she also put her children at risk in their home environment, although DSS concluded the conditions did not warrant investigation.

[¶ 22.] Mother urged the trial court to consider her next parole eligibility date, however, the court chose not to speculate on her chances for parole and looked instead to the June 18, 2001 date when Mother is scheduled for release from prison. DSS testimony indicated that even after Mother’s release, A.S. should not be returned to her until, at a minimum, she had secured adequate housing and had a successful transitional visitation period.

[¶ 23.] Parents’ incarceration limits DSS in its attempts to rehabilitate the family. In re T.H., 396 N.W.2d 145, 151 (S.D.1986). DSS determined Father was not a placement resource for A.S. as he was serving a twenty-year sentence and had been incarcerated since before A.S.’s birth. Mother’s transfer to prison in Pierre limited visits with her child and many were postponed and rescheduled due to inclement weather and the DSS worker’s schedule. She was encouraged to complete parenting classes while in prison and did so. However, when she was not granted parole in June 1999, DSS concluded it would recommend termination so a permanent home could be located for A.S.

[¶ 24.] Mother’s own testimony shows her to be a model prisoner (no one from the prison testified on this subject). However, the facts remain that the trial court had to assume that A.S. would be without her Mother until June .2001 and some time thereafter while Mother found housing and continued visitation. The trial court determined that was too long for A.S. to be kept waiting for a permanent home and stability. We have previously noted:

Children are not static objects. They grow and develop, and their proper growth and development require more than day-to-day satisfaction of their physical needs. Their growth and development also require day-to-day satisfaction of their emotional needs, and a primary emotional need is for permanence and stability.... A child’s need for permanence and stability, like his or her other.needs, cannot be postponed. It must be provided early.

In re Baby Boy K, 1996 SD 33, ¶ 43, 546 N.W.2d 86, 97 (citation omitted).

[¶ 25.] The court did not err in refusing to make A.S. wait another year arid eight months after the dispositional hearing until Mother’s release from prison and then wait another indefinite period of time in hopes that Mother would become a suitable placement for her daughter. Termination of Mother’s parental rights so that A.S. could be placed in a permanent home now was the least restrictive alternative and in the best interests of the child.

[¶ 26.] Affirmed.

[¶ 27.] MILLER, Chief Justice, and SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.


author: NEUMAN, Justice.

text:
    Charles L. BROWN, Sr., Appellant, v. STAR SEEDS, INC. and EMC Insurance Companies, Appellees.
    No. 98-1648.
    Supreme Court of Iowa.
    July 6, 2000.
    Charles T. Patterson and Sara J. Kuehl of Heidman, Redmond, Fredregill, Patterson, Plaza & Dykstra, Sioux City, for appellant.
    Michael L. Mock and D. Brian Scieszin-ski of Bradshaw, Fowler, Proctor & Fair-grave, P.C., Des Moines, for appellees.
   NEUMAN, Justice.

The question is whether the phrase “all occupations” in Iowa Code section 85.36(9) (1993) means “all occupations” when it comes to calculating the wage base for a seasonal employee who is permanently partially disabled as the result of a work-related injury. We conclude that the words of the statute mean what they say. We therefore reverse a contrary conclusion reached by the industrial commissioner and affirmed by the district court.

The facts, are largely undisputed. On September 14, 1993, elaimantyappellant Charles L. Brown, Sr., sustained severe and permanent injuries when his right hand became entangled in the stalk ejector rolls of the seed corn husker he was operating for appellee, Star Seeds, Inc. Brown’s work for Star Seeds was strictly seasonal. It is customary for hybrid seed corn to be harvested during an intense two-week period in September while the stalks are still green and wet, before the first frost. Fifteen-hour work days are the norm. In the three days preceding his injury, Brown had worked a total of forty-one hours.. He was paid at the rate of ten dollars per hour.

Brown’s principal occupation was farming. Prior to his injury, Brown farmed 1500 acres on a crop-share basis and raised livestock near Onawa, Iowa. He was a contract grower for Star Seeds, Inc. By all accounts, he was industrious, hardworking, and highly respected in the farming community. If was precisely because of these qualities that Star Seeds hired him seasonally to operate one of their three Uni-System corn harvesters for roughly two weeks.

As a result of the accident, Brown’s right hand and part of his right forearm were surgically amputated. He has suffered both temporary and permanent disability. Brown was fifty-one years old at the time of the accident. The parties stipulated a sixty-percent loss of earning capacity, calculated as an industrial disability to the body as a whole.

The controversy before us centers on the average weekly earnings attributable to Brown for purposes of calculating his workers’ compensation benefits. The statute in effect at the time of Brown’s injury, Iowa Code section 85.36(9), governs the calculation. It states:

In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the weekly earnings shall be taken to be one-fiftieth of the total earnings which the employee has earned from all occupations during the twelve calendar months immediately preceding the injury.

Iowa Code § 85.36(9). Based on this statutory formula, Star Seeds used Brown’s earnings as a farmer, plus his seasonal wages, to arrive at a weekly benefit of $534.46. It paid temporary total disability benefits at this rate, as well as permanent partial disability benefits, until issuance of the deputy industrial commissioner’s ruling.

The deputy reduced Brown’s weekly benefit dramatically. His ruling, affirmed on appeal to the industrial commissioner, rested exclusively on an intervening decision by the Iowa Court of Appeals, Hartman v. Clarke County Homemakers, 520 N.W.2d 323 (Iowa App.1994). Hartman involved a companion statute, section 85.36(10), that governs the calculation of weekly benefits for part-time employees. The statute states:

If an employee earns either no wages or less than the usual weekly earnings of the regular full-time adult laborer in the line of industry in which the employee is injured in that locality, the weekly earnings shall be one-fiftieth of the total earnings which the employee has earned from all employment during the twelve calendar months immediately preceding the injury.

Iowa Code § 85.36(10). Based on references in the statute to employer-employee relationships, the Hartman court determined that wages earned by the claimant as an independent contractor must be excluded from the weekly benefits calculation. Id. at 327-28.

The deputy industrial commissioner concluded that the rationale underlying the Hartman decision applied with equal force to Brown’s situation. The record revealed that Brown’s earnings in the preceding twelve months, excluding his earnings as a self-employed farmer, totaled $1509. Applying section 85.36(9)’s formula to this sum, the deputy felt compelled to enter what he described as “a patently inadequate compensation rate” of $27.70 per week. From a final decision by the industrial commissioner upholding the award, affirmed on judicial review by the district court, Brown now appeals.

I. Scope of Review.

Our review is at law, not de novo. See Iowa Erosion Control, Inc. v. Sanchez, 599 N.W.2d 711, 713 (Iowa 1999). Where, as here, the dispute centers on a difference of opinion over the interpretation of controlling workers’ compensation statutes, “we defer to the expertise of the agency but reserve for this court the final interpretation and construction of pertinent statutes.” Id. (quoting Second Injury Fund v. Braden, 459 N.W.2d 467, 468 (Iowa 1990)).

II. Issue on Appeal.

Brown argues on appeal, as he did in district court, that the reference in section 85.36(9) to earnings from “all occupations” distinguishes the benefit calculation for seasonal employees from the one called for in section 85.36(10) and applied in Hartman. Star Seeds counters that this is a distinction without a difference. It stresses that the Hartman court relied not only on the “all employment” language of section 85.36(10) but on “predicate language in section 85.36 which defines weekly earnings in terms of earnings from an employer, thereby excluding earnings as an independent contractor. Hartman, 520 N.W.2d at 328. Because the predicate language applies to all subsections, Star Seeds argues, “all occupations” in section 85.36(9) necessarily embraces only earnings from employer-employee relationships.

Several fundamental principles guide our assessment of the parties’ competing arguments. When the words of a statute are clear, we are obliged to enforce them as written. Darrow v. Quaker Oats Co., 570 N.W.2d 649, 651 (Iowa 1997). Only in case of ambiguity do we resort to well-established rules of statutory construction. City of West Branch v. Miller, 546 N.W.2d 598, 602 (Iowa 1996). Assuming for the sake of argument that it is unclear whether total earnings from “all occupations” includes self-employment earnings, two rules of construction are arguably pertinent here. First, statutory words must be given their ordinary meaning unless a contrary intent is apparent or doing so would lead to injustice, absurdity or contradiction between statutes. Lauhoff Grain Co. v. McIntosh, 395 N.W.2d 834, 839 (Iowa 1986). Second, although identical statutory terms should be applied consistently within a statutory scheme, omission of the same term in a similar statute signifies a different legislative intent. Farmers Coop. Co. v. DeCoster, 528 N.W.2d 536, 539 (Iowa 1995).

The Hartman court recognized these maxims, paying particular attention to the repeated use of the words employee and employment in section 85.36(10) as signaling a legislative intent to exclude from the calculation any earnings gained through self-employment. See Hartman, 520 N.W.2d at 328 (“Self-employed workers are not employees of themselves and cannot be both employers and employees.”). The statute we are examining, however, is significantly different. The benefit calculation under section 85.36(9) is not couched in terms of wages or employment. Instead the legislature chose the distinctly broader concept of “total earnings ... from all occupations.” And although the introductory language of section 85.36 emphasized in Hartman grounds the basis of compensation in terms of weekly earnings from employment, we ascribe less significance to those words than the Hartman court did. We believe the predicate language merely reinforces the general rule that there can be no claim for workers’ compensation benefits unless the claimant was engaged in covered employment at the time of injury. But the basis of compensation — including the “weekly earnings” phrase that Star Seeds seeks to apply consistently — is in fact redefined in each subpart of section 85.36. Significantly, subsection (9), governing “occupations which are exclusively seasonal,” imposes no employment-based limitation.

We believe our application of the plain language of section 85.36(9) comports with the primary purpose of workers’ compensation — “to benefit workers and their dependents insofar as the statute permits.” Lauhoff Grain, 395 N.W.2d at 839. Including non-covered concurrent employment in the benefit calculation for an injured worker is compatible with this purpose. Hartman, 520 N.W.2d at 328. The goal is to accurately estimate a claimant’s earning capacity and provide a level of compensation bearing a proper relationship to it. Id. (citing Arthur Larson, Workmen’s Compensation Law § 60.32 (1993)). Given the goal of replacing what an injured employee would have earned but for the injury, it would be unjust and inconsistent to view in isolation a disability suffered in the course of covered employment. A seasonal employee who is permanently partially disabled, not only from seasonal employment but from concurrent full-time employment, will not be fully compensated unless the earnings from “all occupations” is considered.

As an alternative reason to uphold the commissioner’s and district court’s ruling, Star Seeds points out that Brown paid no workers’ compensation insurance premiums to cover the loss sustained to his earning capacity as a self-employed farmer. It therefore argues he has no basis for complaint if those earnings are excluded from the section 85.36(9) calculation. What the argument fails to recognize is that Brown was injured, not while self-employed, but while engaged in covered, seasonal employment. That injury has reduced his earning capacity by sixty percent, even though his seasonal employment represented only a fraction of his earnings. It would be exceedingly unfair to the worker to read into section 85.36(9) a concurrent employment exception that does not exist. One noted commentator puts the insurance issue this way:

[Fjairness to the employee and fairness to the employer-carrier are not symmetrical, and cannot be judged by the same standards. To this one employee, this one loss is everything — he or she has nothing against which to offset it. To the employer, and even more to the carrier, this is just one case among many. The rule operates impartially in both directions. Today this employer-carrier may be saddled with a slight extra cost; tomorrow the positions may be reversed, and the employer-carrier will be completely relieved of the cost of an injury to one of its employees in a concurrent-employment situation, when it happens to be the other employment in which the injury occurs. This is the essence of the concept of spreading the risk in a system like workers’ compensation.

5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 93.03(1)(c), at 93-57 to 93-58 (2000) (footnote omitted); see Brodeur v. NMC Homecare, 654 A.2d 443, 446 (Me.1995) (“The fact that Brodeur’s concurrent employment may or may not be covered by the Act has no bearing whatsoever on whether she is capable -of earning that income.”).

In summary, we aré compelled — as was the Hartman court — to apply the pertinent statute according to its terms. Iowa Code section 85.36(9) defines weekly earnings as one-fiftieth of “the total earnings which the employee has earned from all occupations during the twelve calendar months immediately preceding the injury.” We therefore reverse the judgment of the district court and remand to the agency for a re-calculation of the benefits to which Brown is entitled in accordance with the statute.

REVERSED AND REMANDED.

All justices concur except CARTER and TERNUS, JJ., who take no part.

      . Subsection (9) has subsequently been repealed. See 1995 Iowa Acts ch. 140, § 1. Unless otherwise indicated, all statutory references in this opinion are to the 1993 Code.


author: VOGEL, Judge.

text:
    STATE of Iowa, Appellee, v. Anthony Dean RIVERA, Appellant.
    No. 99-0372.
    Court of Appeals of Iowa.
    March 29, 2000.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Jamie Bowers, Assistant County Attorney, for appellee.
    Considered by SACKETT, C.J., and VOGEL and HECHT, JJ.
   VOGEL, Judge.

On appeal from his conviction for manufacturing a controlled substance, Rivera contends the court erred in determining there was sufficient evidence to prove he possessed more than five grams of methamphetamine. Rivera concedes the methamphetamine seized from his home was part of the manufacturing process but was 'suspended in a liquid that was not usable or ingestible. Because we find the gram weight under the statute includes the weight of any mixture containing a detectable amount of methamphetamine, there was substantial evidence to support the conviction.

Background facts. Anthony Rivera was stopped for driving a vehicle without a front license plate. He consented to a search of his person which produced drug paraphernalia consistent with methamphetamine use, including a folding knife, stripped lithium batteries, coffee filters, cigarette lighters and a glass straw. Several similar items were observed in the vehicle. Rivera was arrested for driving without a valid driver’s license. An inventory search of the car produced more drug related articles. Subsequently, a search warrant was obtained for Rivera’s residence. The search revealed what police believed to be a methamphetamine laboratory. The methamphetamine lab team was called in to complete the search and seizure.

Rivera was tried to the court on two counts, consisting of conspiracy to manufacture and/or deliver a controlled substance, methamphetamine, in an amount over five grams and manufacturing a controlled substance, methamphetamine, in an amount over five grams in violation of Iowa Code section 124.401(1)(b)(7) (1997). He was convicted of the manufacturing charge, a class “B” felony, and was sentenced to incarceration for an indeterminate term of twenty-five years.

Scope of review. Interpretation of a statute is a legal question. Therefore, our review is at law. Iowa R.App.P. 4; see State v. Blakley, 534 N.W.2d 645, 647 (Iowa 1995). A verdict will be upheld where there is substantial evidence to support the charge. State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984). Substantial evidence means such evidence as could convince a rational trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt. Id. The evidence is viewed in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the record. State v. Blair, 347 N.W.2d 416, 418-19 (Iowa 1984).

Substantial evidence of the weight of the methamphetamine. The items seized from Rivera’s home included a one-gallon glass jar approximately one quarter full of a clear liquid. After a sample was taken from the jar, the hazardous contents were disposed of by the methamphetamine lab team. The sample analysis revealed a mixture containing d-methamphetamine and d-pseudoephed-rine. The court determined that the liquid in the jar weighed over five grams. Rivera contends the record must contain substantial evidence that the methamphetamine, as a finished product, exceeds five grams.

While Rivera admits the liquid seized was part of the manufacturing process, he contends the statute does not allow for the weight of the liquid containing suspended methamphetamine to be considered in satisfying the minimum five gram weight because the methamphetamine itself is not in its final stage and ready for consumption. According to the State, the statute is not so narrow. It reads as follows:

More than five grams but not more than five kilograms of methamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine, or any compound, mixture, or preparation which contains any quantity or detectable amount of methamphetamine, its salts, isomers, or salts of isomers, or analogs of methamphetamine.

Iowa Code section 124.401(1)(b)(7) (1997) (emphasis added). While this issue has been broached in other cases, it has yet to be decided in Iowa. See State v. Maghee, 573 N.W.2d 1, 13 (Iowa 1997); see also State v. Casady, 597 N.W.2d 801, 808 (Iowa 1999).

Rivera argues that the “quantity or detectable amount of methamphetamine must be the finished product. He compares this provision to other code sections, admitting the purpose of those sections is to avoid having to extract pure forms of narcotics from the filler products used to increase the quantities available for sale. See Maghee, 573 N.W.2d at 13. By contrast, the liquid seized from his home was still in the manufacturing stage, and he argues, a successful manufacturer would discard most of the liquid once the marketable product had crystallized and been extracted. So, to weigh the liquid still in the manufacturing stage greatly exaggerates the quantity of finished product, skewing the gram weight and associated penalties. A producer with a large quantity of liquid containing a small amount of methamphetamine could be punished more severely than a producer, with a larger amount of finished or marketable product, who had discarded the processing liquid. There is some logic in this reasoning. By comparison, a similar federal statute has specifically addressed this issue by requiring a greater gram weight of a mixture containing methamphetamine than consumable methamphetamine. 21 U.S.C. sections 841(b)(1)(B)(viii). The Iowa legislature, however, has not elected to separately speak to this issue.

The State argues the plain meaning of the statute allows for the whole amount of the liquid contained in the glass jar to be used in computing the statutory gram weight. In support of that position, the State points to the state criminologist’s report concluding that it was not possible to estimate the yield of the manufacturing operation from the sample provided. Indeed, her report seems to indicate the liquid seized was in a post manufacturing stage.

The statute specifically states the amount must be five grains or more of “methamphetamine ...' or any compound, mixture, or preparation which contains any quantity or detectable amount of methamphetamine .... ” Iowa Code section 124.401(1)(b)(7) (1997). It does not specify any particular stage' of the manufacturing or post-manufacturing process, nor does it indicate an expected yield must be estimated or a pure form must be extracted in order to weigh the narcotic. Although the federal statute seems to require an estimated yield of methamphetamine before sentencing can be entered, the Iowa statute does not require this step as a methamphetamine mixture is prohibited at the same gram weight as completed' methamphetamine. See United States v. Jennings, 83 F.3d 145, 149 (6th Cir.1996); see also United States v. August, 86 F.3d 151, 155 (9th Cir.1996). The State contends the legislature specifically worded the statute as it is written because the intent was to proscribe the possession of not just the finished product, but all stages of the manufacturing process. Iowa Code section 124.401(1)(b)(7) (1997). Hence the use of the words “any quantity or detectable amount.”

When applying principles of statutory construction, we must use the common or ordinary meaning if the legislature has not provided a definition of the terms used. State v. Romeo, 542 N.W.2d 543, 548 (Iowa 1996). The court cannot read into a statute something that the legislature did not make apparent by the language. State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999).

We find the statute is plain on its face and does include any compound or mixture which contains any quantity or detectable amount of methamphetamine. Despite Rivera’s arguments to the contrary, the plain meaning of the statute clfearly includes methamphetamine in a less-than-finished state. The statutory weight was, therefore, satisfied by including the weight of the liquid seized as it contained a detectable amount of methamphetamine.

Rivera next argues the weight of the liquid was never accurately measured but was based solely on conjecture. The record includes the testimony , of several witnesses .stating the gallon size jar was one quarter full of the liquid which, proven by a sample analysis, contained a methamphetamine mixture in liquid form. This testimony was corroborated by a photograph of the jar which clearly portrayed the amount of liquid it contained. The testimony also provided that the amount of liquid contained in the jar was in excess of the 10.7 ounce can of ether which was also seized. The record further shows that the 10.7 ounce can contained 303 grams of ether. Therefore, the court had substantial evidence to- draw an inference that the liquid containing the methamphetamine weighed more than five grams as required by the statute.

Rivera also raises a spoliation issue in his brief as to the glass jar and the discarded liquid contents. As a rule, a defendant must preserve error by making an objection at the earliest opportunity after the grounds for the objection become apparent. State v. Johnson, 476 N.W.2d 330, 333 (Iowa 1991). Rivera did not object when this evidence was established at trial. He raises this issue for the first time on appeal. See State v. Pardock, 215 N.W.2d 344, 347 (Iowa 1974). Therefore, he has not preserved error for this issue to allow review by this court.

Having considered all issues properly before us on appeal, we hereby affirm the conviction.

AFFIRMED.

      . This form of methamphetamine was not challenged on appeal. See State v. Casady, 597 N.W.2d 801, 808 (Iowa 1999) (the trial court did not err by taking judicial notice of this form of methamphetamine).

      . Iowa Code sections 124.401(1)(b)(1), (3), and (4).

      . This code section states, "5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers.”


author: BLATZ, Chief Justice.

text:
    In the Matter of the WELFARE OF G.L.H., G.E.H., Jr.
    No. C8-99-1345.
    Supreme Court of Minnesota.
    July 20, 2000.
    Susan Gaertner, Ramsey County Atty., Gwen Werner, Asst. Ramsey County Atty., Kelli Duehning, Certified Student Atty., St. Paul, for appellant.
    Lochlan T. Stuart, St. Paul, for respondent.

      Karen Garvin, St. Paul, Guardian Ad Litem.
    Kenneth A. Malvey, Asst. Dakota County Atty., Hastings, for amicus curiae Minn. County Attys. Assn.
   OPINION

BLATZ, Chief Justice.

Respondent dismissed her court-appointed counsel on the day of her termination of parental rights (TPR) trial, and argues that her decision to do so did not constitute a voluntary and intelligent waiver of her statutory right to counsel. Because we conclude that determining the validity of a parent’s waiver of counsel does not require application of the waiver procedure in the Minnesota Rules of Criminal Procedure, and can be determined by examining the circumstances surrounding the case, we hold that the district court did not abuse its discretion by not applying the criminal rule’s waiver procedure. Further, we hold that the circumstances surrounding respondent’s case demonstrate that her waiver was valid.

Respondent Tasha Patrice Jackson’s two children, G.L.H., now twelve years old, and G.E.H., Jr., now ten years old, were adjudicated Children in need of Protection or Services (CHIPS) as to respondent in October 1997, and placed in foster care. Pri- or to the CHIPS adjudication, respondent’s mother had brought the children to Children’s Hospital in St. Paul, informing child protection services that respondent had been missing for a week, and that respondent was using cocaine.

In November 1997, the juvenile court approved a case plan outlining appropriate and available services to be offered to the family. At that time, respondent was on probation for a second-degree assault conviction involving a knife. In November 1998, a probation revocation hearing was held concerning respondent’s testing positive for use of cocaine and failing to submit to additional drug testing. After completion of a psychological evaluation of respondent in December 1998, the district court revoked respondent’s probation and she was sent to the Minnesota Correctional Facility — Shákopee to serve her 42-month executed sentence for assault.

During the time between the CHIPS adjudication and the revocation of respondent’s probation, respondent’s social worker from the Ramsey County Community Human Services Department (RCCHSD) repeatedly attempted to reunite respondent and her children, but to no avail. The social worker finally concluded in September 1998 that even a trial home placement would not work after respondent failed on numerous occasions to pick up her children so that they might resume living with her and begin school. Efforts to reunite respondent with her children therefore ceased. On November 2, 1998, RCCHSD filed a TPR petition. A month later, respondent’s 42-month sentence was executed.

Immediately before respondent’s TPR trial commenced on February 1, 1999, respondent “fired” the Assistant Ramsey County Public Defender who had represented her for the previous one and one-half years. The. court repeatedly asked respondent if she was certain about firing her attorney and she responded affirmatively. At one point, respondent stated that she wanted to employ her children’s father’s attorney, and was informed by the court that this would create a conflict of interest. Subsequently,, she stated that the Assistant State Public Defender representing her on her assault appeal could also represent her at the TPR trial.

At the direction of the court, the prosecutor contacted respondent’s state public defender, who told the prosecutor that “It makes me very angry that [respondent said that I would represent her], because I had told her time and time again that I am not representing her on the' termination case and will not be representing her.” Both the state and the court then asked respondent if she was certain that she did not want the county public defender as standby counsel, to which she responded, “Correct.” Immediately thereafter, the court commenced the TPR trial.

On the first afternoon of the trial, one witness was called, who gave partial testimony. The trial was then continued for a week so that respondent could contact wit-nessfes on her behalf. The court subpoenaed respondent’s witnesses for her. After the trial, in its Conclusions of Law filed February 25, 1999, the court concluded upon multiple statutory bases that it was in the best interests of respondent’s children that respondent’s parental’rights be terminated.

A divided court of appeals panel reversed the district court without remanding for a new trial. See In re G.L.H., G.E.H., Jr., 604 N.W.2d 97, 102 (Minn.App.1999). In its opinion, the court stated that the statutory right to counsel possessed by parents in TPR proceedings is analogous to the constitutional right to counsel possessed by criminal defendants. See id. at 100. Accordingly, the court applied a modified version of the waiver procedure as defined in Minn. R.Crim. P. 5.02, subd. 1(4), to the record. See id. The court of appeals determined that in order for respondent’s waiver of counsel to be voluntary and intelligent, the district court was required to advise respondent as to (a) the nature of the charges; (b) the possible consequences of waiver; (c) the advantages and disadvantages of counsel in TPR proceedings; and (d) other “essential facts,” including the need to define “standby counsel” to respondent. See id. at 100-01. Because the district court did not apply this procedure to determine if respondent’s waiver was voluntary and intelligent, the court of appeals held that the district court abused its discretion. See id. at 101-02. RCCHSD then petitioned to this court for further review.

I.

Minnesota Statutes set forth a statutory right to counsel for parents and children in juvenile proceedings. See Minn.Stat. § 260.155, subd. 2 (1998) (now codified, as amended, at section 260B.163, subd. 4 (Supp.1999)). Statutory interpretation is a question of law which we review de novol See Kornberg v. Kornberg, 542 N.W.2d 379, 384 (Minn.1996). The statute provides in pertinent part that “[t]he child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.” Minn.Stat. § 260.155, subd. 2. The Rules of Juvenile Procedure in effect on the date of the TPR hearing also recognize that children and parents in juvenile proceedings have a statutory right to counsel. See Minn. R. Juv. P. 40.01, subd. 1 (1999).

In addition to creating the right to counsel, the legislature has enacted procedures for children to waive their right to counsel. Minnesota Statutes § 260.155, subd. 8(b) (1998) (now codified at section 260B.163, subd. 10(b) (Supp.1999)), provides that:

Waiver of a child’s right to be represented by counsel provided under the juvenile court rules must be an express waiver voluntarily and intelligently made by the child after the child has been fully and effectively informed of the right being waived. In determining whether a child has voluntarily and intelligently waived the right to counsel, the court shall look to the totality of the circumstances which includes but is not limited to the child’s age, maturity, intelligence, education, experience, and ability to comprehend, and the presence and competence of the child’s parents, guardian, or guardian ad litem. If the court accepts the child’s waiver, it shall state on the record the findings and conclusions that form the basis for its decision to accept the waiver.

The 1999 Juvenile Rules of Procedure also contain a provision addressing waiver which is set forth in Rule 50.01, subds. 1, 2:

1. A person entitled to counsel pursuant to Rule 40 and to any- other right pursuant to these rules may waive the right to counsel and any .other right only if the waiver is voluntarily and intelligently made. * * *
2. A waiver of counsel or any other right shall be on the record.

While both the statute and the rule address waiver of the right to counsel, they differ in several important respects. First, the statute, by its terms, applies only to a child’s waiver of counsel. See Minn.Stat. § 260.155, subd. 8(b). As to other persons, the statute is silent in regard to the procedure to waive counsel. See id. In contrast, the rule recognizes that the right to waive counsel applies to any person entitled to counsel in juvenile proceedings. See Minn. R. Juv. P. 50.01, subds. 1, 2 (1999). Finally, unlike the statute’s specific guidance to courts on how to determine if a child’s waiver is voluntary and intelligent, the rule simply requires that a person’s waiver of counsel in a juvenile proceeding must be “voluntarily and intelligently made.” See Minn.Stat. § 260.155, subd. 8(b); Minn. R. Juv, P. 50.01, subd. 1 (1999).

Like the juvenile statute and rule, the modified Rule of Criminal Procedure applied by the court of appeals also requires waivers of counsel to be “voluntary and intelligent.” See Minn. R.Crim. P. 5.02, subd. 1(4). However, unlike the rule at issue, the criminal rule goes on to outline a specific waiver procedure. See id. Minnesota Rule of Criminal Procedure 5.02, subd. 1(4), provides:

If a defendant appearing without counsel charged with a felony or gross misdemeanor does not request counsel and wishes to represent himself or herself, the court shall ensure that a voluntary and intelligent written waiver of the right to counsel is entered in the record. * * * Prior to accepting any waiver, the trial court shall advise the defendant of the following: the nature of the charges, the statutory offenses included within the charges, the range of allowable punishments, that there may be defenses, that there may be mitigating circumstances, and all other facts essential to a broad understanding of the consequences of the waiver of the right to counsel, including the advantages and disadvantages of the decision to waive counsel. The court may appoint the public defender for the limited purpose of advising and consulting with the defendant as to the waiver.

Here, in concluding that the district court abused its discretion in allowing respondent to proceed pro se, the court of appeals applied a modified version of this criminal rule waiver procedure to the record. See G.L.H., 604 N.W.2d at 101-02. However, because the court of appeals’ opinion provides no reasoning for its conclusion that the criminal rule of procedure and juvenile rule of procedure are analogous, we address respondent’s argument that attempts to justify this analogy. Respondent claims that the Rules of Juvenile Procedure were established in accordance with the Rules of Criminal Procedure. Respondent asserts that this is evidenced by the fact that the enabling statute for the Rules of Juvenile Procedure, Minn. Stat. § 480.0595 (1998), references the enabling statute for the Rules of Criminal Procedure, Minn.Stat. § 480.059 (1998). On this basis, respondent argues that the court of appeals was correct in analogizing between the statutory right to counsel provided parents in TPR proceedings and a criminal defendant’s constitutional right to counsel.

Respondent’s contention is unavailing, however, because the reference relied on by respondent merely instructs this court to create and promulgate the Rules of Juvenile Procedure as the legislature had previously instructed the court to create and promulgate the Rules of Criminal Procedure. Compare Minn.Stat. § 480.0595 and § 480.059. Section 480.059, which is referenced in the" enabling statute for the Rules of Juvenile Procedure, states' that this court is to adopt rules of criminal procedure and states that the rules are not to enlarge or modify the substantive rights of any person. See Minn.Stat. § 480.059. In addition, section 480.059 establishes the makeup of the drafting committee, the distribution of the proposed rules, and how they are to be promulgated. See Minn. Stat. § 480.059, subds. 2, 4, 6. The statute is silent as to any substantive correlation between the juvenile and criminal rules.

Ah analogy between waiver of the right to counsel in TPR proceedings and in criminal proceedings fails to, reeog-nize that the creation of a statutory right, while deserving of protection, is not necessarily the equivalent of a constitutional right. See Libretti v. United States, 516 U.S. 29, 48-49, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). Further, the United States Supreme Court has noted that its precedents establish a “presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153 (1981) (citing Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); In re Gault, 387 U.S. 1, 87 S.Ct. 1428 (1967); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Unlike criminal proceedings, TPR proceedings cannot deprive the parent of her physical liberty.

The rule of criminal procedure cited and relied upon by the court of appeals in its opinion is a codification of our opinion in State v. Camacho, 561 N.W.2d 160 (Minn.1997). In Camacho, we addressed the waiver procedure required to assure that a criminal defendant’s waiver of his constitutional right to counsel is knowing, voluntary, and intelligent. See id. at 173. The waiver procedure we outlined in Camacho was based on our interpretation of United States Supreme Court precedent recognizing the constitutional right to self-representation and the constitutional right to counsel in criminal cases. See Camacho, 561 N.W.2d at 170-73; (citing Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Zerbst held that

[s]ince the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty. * * * If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.

Zerbst, 304 U.S. at 467-68, 58 S.Ct. 1019. In Godinez the U.S. Supreme Court further articulated the standard for waiver of the constitutional right to counsel in criminal cases:

In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. In this sense, there is a “heightened” standard for pleading guilty and for waiving the right to counsel * * ⅜.

Godinez, 509 U.S. at 400-01, 113 S.Ct. 2680 (citations omitted). It is clear from these cases that waiver of the constitutional right to counsel in criminal cases, where an individual’s personal liberty is at stake, requires a heightened degree of caution in waiver procedure. We recognized this in Camacho and outlined the necessary waiver procedure accordingly.

Further, even in the context of a criminal defendant’s waiver of his constitutional right to counsel, we have held waivers valid even though the district court failed to follow a particular procedure. See State v. Worthy, 583 N.W.2d 270, 275-76 (Minn.1998); State v. Brodie, 532 N.W.2d 557, 557 (Minn.1995). In doing so, we have considered “‘the particular facts and circumstances surrounding [a] case, including the background, experience, and conduct of the accused.’ ” Worthy, 583 N.W.2d at 275-76 (quoting Zerbst, 304 U.S. at 464, 58 S.Ct. 1019); see Brodie, 532 N.W.2d at 557 (Minn.1995). While Brodie preceded Camacho and the adoption of Minn. R.Crim. P. 5.02, subd. 1(4), it occurred after the United States Supreme Court decided Zerbst and Godinez, and Worthy was decided subsequent to Camacho.

Based on the inherent and historical differences between constitutional and statutory rights, and case precedent relating to each, we conclude that the determination of a parent’s valid waiver of the statutory right to counsel in TPR proceedings does not necessitate the application of the procedure set forth in Minn. R.Crim. P. 5.02, subd. 1(4). We therefore hold that the district court did not abuse its discretion by not applying the waiver of counsel procedures of the criminal rule. In addition, we are guided by our holdings in Worthy and Brodie, and hold that the determination of whether a parent’s waiver of counsel in a TPR proceeding is voluntary and intelligent can be based on the surrounding circumstances of the case.

n.

Having determined that the validity of a parent’s waiver of her statutory right to counsel in TPR proceedings can be determined by examining the surrounding circumstances of the case, we now examine the record to determine whether respondent’s waiver was voluntary and intelligent. We will overturn a district’s court’s finding of a valid waiver of the right to counsel only if that finding is clearly erroneous. Cf. Worthy, 583 N.W.2d at 276 (applying the clearly erroneous standard for appellate review of a district court’s finding of valid waiver in a criminal proceeding).

Although this case involves a statutory right to counsel in a civil matter, the circumstances surrounding respondent’s case are similar to those in Brodie. 532 N.W.2d at 557. In Brodie, the defendant “fired” his public defender and then appealed his conviction, arguing that his waiver of counsel was not knowing and intelligent. See id. This court rejected the defendant’s argument, stating that

[t]his is not a case in which the record is silent on whether defendant knowingly and voluntarily waived his right to counsel. Defendant was in fact given counsel and he then “fired” counsel-. The record is clear that defendant knew that he did not have a right to a different public defender but would have to represent himself if he did not accept the services of the public defender.

Id. Like the defendant in Brodie, here respondent was appointed counsel and “fired” him on the morning of her TPR trial. The district court repeatedly asked respondent if she was certain she wanted to dismiss her counsel and represent herself, and she repeatedly stated that she did.

In addition, respondent had the benefit of counsel for one and one-half years before firing him. In Worthy, we found the co-defendants’ waiver of counsel valid even though they were represented by counsel for only one and one-half months before the date of trial. See Worthy, 583 N.W.2d at 276. Also, similar to the co-defendants in Worthy, respondent had previous experience in the criminal justice system, and had been represented at six prior hearings in juvenile court. Finally, like the Worthy co-defendants, respondent was informed that if she fired her attorney she would have to proceed pro se and cross-examine her own witnesses. See id.

The questions respondent asked during her examination of witnesses provide further evidence of her awareness of the nature and consequences of the TPR trial. Moreover, respondent’s express statements to the court indicate that she was aware that neglect and drug abuse were the grounds for the petition to terminate her parental rights and that the loss of her parental rights was the possible consequence of the TPR trial. '

Accordingly, we hold that the district court’s determination that respondent waived her statutory right to counsel is supported by the record. The circumstances surrounding her waiver demonstrate that it was voluntary and intelligent, and therefore valid.

Reversed.

      . There had been two previous probation revocation hearings: July 21, 1997 and June 8, 1998, both prior to when the CHIPS petition was filed.

      . We note that the United States Supreme Court held in Lassiter v. Department of Social Services, 452 U.S. 18, 31-32, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), that there is no presumptive due process right to counsel for indigent parents in TPR proceedings. However, Minnesota has provided parents a statutory right to counsel. See Minn.Stat. § 260.155, subd. 2 (1998).

      . Minnesota Rule of Juvenile Procedure 40.01, subd. 1 (1999), provides in pertinent part: "The parent(s) and guardian of the child have the right to be represented by an attorney who shall act as their counsel.”

      . We note that the juvenile rules have been amended since this case was appealed, and no longer include the language contained in Minn. R. Juv. P. 50.01 (1999). See Order of Dec. 20, 1999, No. C4-97-1693 (effective January 1, 2000); Order of Dec. 29, 1999, No. C4-97-1693 (changing effective date to March 1, 2000). . . .

      . Respondent’s reliance on the authors’ comments in the first edition of the Juvenile Law and Practice volumes is also misplaced. Commentary is nonbinding. See First Constr. Co. v. Tri-South Mortgage Investors, 308 N.W.2d 298, 300 (Minn.1981). Moreover, the majority of comments cited by respondent are parallels drawn by the authors between children’s rights in delinquency proceedings and adults’ rights in criminal proceedings. See, e.g., John O. Sonsteng & Robert Scott, Minnesota Practice — Juvenile Law and Practice, § 4.01, at 49 (1985). Like criminal defendants, juveniles in delinquency proceedings have a constitutional right to counsel. See In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).