IN COURT OF APPEALS
In the Matter of the Welfare of the Child of:
T.D., a/k/a T.B., Parent.
Affirmed; motion granted
Hennepin County District Court
File No. 27-JV-06-6928
Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant T.D.)
Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)
Bruce Jones, Lianne C. Knych, Faegre & Benson, LLP, 2200
Wells Fargo Center, 90
Considered and decided by Ross, Presiding Judge; Toussaint, Chief Judge; and Klaphake, Judge.
I. To overcome the presumption of palpable unfitness in a termination-of-parental-rights proceeding, the parent must introduce evidence that would permit a factfinder to find parental fitness.
II. The fact that a party appeals the termination of parental rights does not create an exception to allow this court to consider material on appeal that is outside the record.
terminated T.D.’s parental rights to her fifth child after finding that she
failed to rebut the presumption of parental unfitness that arose when she
involuntarily transferred custody of her fourth child and that four other
statutory grounds supported termination.
T.D. challenges the termination, arguing that the district court erred
by taking judicial notice of the involuntary-transfer order and that she
overcame the presumption of unfitness.
We hold that the district court properly relied on the
involuntary-transfer order and that T.D. did not introduce sufficient evidence
to overcome the presumption. Because the
record establishes a statutory ground for termination of parental rights, we
affirm the district court. Because T.D.
submitted material outside the record on appeal and
T.D.’s history with child-protection services spans nearly fifteen years and crosses four counties. This appeal arises from the termination of parental rights to her fifth child.
T.D. first gave birth in 1993.
In October 2005 T.D. gave birth to her fifth child, a girl, who
is the subject of this appeal. Five days
later, the Hennepin County Human Services and Public Health Department filed a
petition to terminate T.D.’s parental rights or transfer custody of her infant daughter. T.D.
began working on a case plan that became court-ordered in February 2006 when
the district court found her daughter to be in need of protection or
services. The case plan required T.D. to
follow the recommendations of a parenting assessment and psychological
evaluation she had already completed, to participate in individual therapy, and
to maintain safe and suitable housing.
In May 2006, the department filed a new petition to terminate T.D.’s
parental rights. The department alleged
four statutory grounds for termination. It
also moved the district court to take judicial notice of the Dakota and
During the hearing on the department’s permanency petition, the district court heard testimony from T.D.’s parenting instructor, a child-protection social worker, and the guardian ad litem. Each testified that termination of parental rights is in the child’s best interests. They acknowledged T.D.’s strong attendance record for her case-plan appointments and recognized that she had made improvements. But they noted that, despite six months of twice-weekly parenting classes, four months of weekly in-home parenting instruction, and having had four other children, T.D. continued to struggle with basic parenting skills and was generally unreceptive to advice. The court also heard testimony from Seymour Gross, a clinical psychologist retained by the public defender’s office to conduct a second psychological evaluation. Dr. Gross testified that many of T.D.’s perceived limitations are the product of hearing loss and that individual and group therapy would likely benefit her. The department noted that most of his recommended services were already in place.
In August 2006, the district court terminated T.D.’s parental
rights. The court took judicial notice
of the three requested orders, and it found that, based on the February 2005
involuntary transfer of custody of her fourth son, she was presumed palpably
unfit. The court found that she had
failed to rebut this presumption, and it held that the record supported terminating
T.D.’s rights on five statutory grounds.
It denied T.D.’s motion for a new trial.
T.D. appeals, challenging the district court’s decision to take judicial
notice of, and rely on, the
I. Did the district court err by taking judicial notice of another county’s order involuntarily transferring custody of another child of the parent?
II. Does the record support the district court’s decision to terminate the mother’s parental rights?
III. Should an appellate court consider submissions that are outside the district court record in an appeal from the termination of parental rights?
T.D. challenges the district court’s taking judicial notice of
the February 2005
T.D. raised her challenge too late. The department moved for judicial notice more than one month before the hearing. T.D. did not contest the motion until she sought a new trial. We will not consider matters not presented to the district court, and a party may not raise an issue for the first time in a new-trial motion. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate court will not consider matters not argued and considered by district court); Ellingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 405 (Minn. App. 1987) (stating that party may not first raise issue in new-trial motion), review denied (Minn. Nov. 13, 1987). We therefore find this issue waived on appeal.
T.D. next challenges the bases for the district
court’s decision to terminate her parental rights. A district court may involuntarily terminate
parental rights when clear and convincing evidence supports a statutory basis
for termination. Minn. R. Juv. Prot. P.
39.04, subd. 1; see also Minn. Stat.
§ 260C.301, subd. 1(b) (2006) (listing grounds for involuntary termination of
parental rights); In re Welfare of the
Children of R.W., 678 N.W.2d 49, 55 (
One basis for terminating parental rights is
palpable unfitness by the parent to be a party to the parent-child
relationship. Minn. Stat. § 260C.301,
subd. 1(b)(4). When a parent’s custodial
rights to a different child were involuntarily transferred, the parent is
presumed palpably unfit.
A parent must rebut a presumption of
unfitness. In re Welfare of D.L.R.D., 656 N.W.2d 247, 250–51 (
Because we conclude that T.D. did not present sufficient evidence to support a finding of parental fitness, we agree with the district court that she did not rebut the presumption of unfitness. T.D. complied with her case plan in terms of attending appointments, but the service providers testified that she had failed to demonstrate significant or commensurate progress in her parenting skills. Even after many months of parenting classes and in-home instruction, service providers had to repeatedly remind her how to prepare a bottle and care for her daughter after feeding her. They explained that T.D. struggles to read her daughter’s cues and react appropriately. T.D. also struggles to multitask, and supervisors have observed her child fall or nearly fall because T.D. did not pay attention to her or physically support her appropriately. Although T.D. could state the phases of child development, testifying observers doubted that she can adjust to these phases in practice. The guardian noted that T.D. has difficulty learning basic skills, and her daughter’s needs are changing faster than T.D. can keep pace. The guardian acknowledged that some of the cited events might not warrant as much serious concern in isolation, but she explained that the repetition and combination of concerns put T.D.’s daughter at risk.
The service providers also expressed concerns about T.D.’s ability to manage inevitable stress. T.D. becomes frustrated and angry easily, often leaving the room. The guardian noted that T.D.’s daughter is too young to be left alone. The court allowed T.D. to have unsupervised visits in June 2006. Of the three visits, a child-services worker cancelled one because of his concerns about T.D.’s agitated behavior.
T.D. was living in a homeless shelter when her daughter was born, but moved into an apartment in November 2005. Service providers have stressed from the outset that T.D. needs a strong support network to become a successful parent. The parenting assessment recommended that T.D. be surrounded “with as many effective supports as possible. A semi-supervised setting . . . where a [social worker] is available may be a possibility.” T.D. declined an open spot in a supportive-housing center early in her case plan and was adamant about remaining in her apartment, although the record is unclear as to the gravity with which the county presented this option to her. Her parenting instructor explained that a supportive-living environment would enable her to receive feedback 24 hours a day and provide the necessary parenting support. ButT.D. has few supportive individuals. When she filled out a form asking who she would trust with her daughter, T.D. wrote, “not at this time.” She reported having one friendship, but has represented to service providers that she has no friends.
T.D. indicated that in an emergency she would call her mother or her daughter’s current foster parent. But her mother lives more than one hour away and they have a strained relationship, and the foster mother lives twenty to thirty minutes away and does not drive. The record supports the court’s finding that T.D. will be unable to be a full-time parent to her daughter on her own within the reasonably foreseeable future.
T.D. did not testify and presented only Dr. Gross’s testimony and
his psychological evaluation. Dr. Gross
commented on T.D.’s emotional responses and frustration when she faced critical
parenting feedback. Although Dr. Gross suggested
that the service providers should adapt to T.D.’s learning style more when offering
their feedback, he admitted that a child will not communicate only in ways that
do not frustrate her mother. T.D. argues
on appeal that the district court undervalued Dr. Gross’s testimony and overvalued
T.D.’s first psychological evaluation. We
defer to the district court’s determinations of witness credibility and the
weight to be given to the evidence. In re Welfare of L.A.F., 554 N.W.2d 393,
The district court’s findings are rooted in the observations and testimony of providers who worked with and observed T.D. for many months. Although the record demonstrates that T.D. made progress, she failed to rebut the presumption of palpable unfitness by putting forth evidence that could establish parental fitness. While a different factfinder may have weighed the evidence differently, based on its supported findings the district court did not err by terminating T.D.’s parental rights on this statutory ground.
In addition to palpable unfitness, the department alleged three
other grounds for terminating T.D.’s parental rights. See
Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (7) (stating grounds for terminating
parental rights). Although the district court found that clear
and convincing evidence supported the additional grounds, the court also found
that T.D.’s daughter is neglected and in foster care, relying on subdivision
1(b)(8) of section 260C.301. But a court may not terminate parental
rights on a ground that is not stated in a petition to terminate rights. See Minn.
R. Juv. Prot. P. 39.05, subd. 3(a) (stating that court may terminate parental
rights after concluding that “the statutory grounds set forth in the petition
are proved”); In re Staat, 287 Minn.
501, 505, 178 N.W.2d 709, 712 (1970) (rejecting one of district court’s grounds
for termination of parental rights in part because district court relied on
ground not alleged in petition). A parent
must have notice of a claim and an opportunity to oppose it. See
Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (
The record also supports the district court’s findings on reasonable efforts and the best interests of the child. The department provided T.D. with twice-weekly parenting courses, weekly in-home parenting instruction, and supervised and unsupervised visits with her child. The department also referred T.D. to anger-management classes, which she completed, and offered her a position in a supportive-housing environment, which she declined. The child-protection social worker testified that the department did not make a referral for individual therapy because the first psychological assessment suggested it would not benefit T.D.
T.D. contends that the department “rushed to trial.” But the permanency hearing occurred after her daughter had been in an out-of-home placement for nearly her entire life, about nine months. When a child under eight years is placed outside the home, a permanency hearing to assess progress generally should be held within six months of the placement. Minn. Stat. § 260C.201, subd. 11a (2006). The court recognized T.D.’s love for her daughter and her progress, but it noted that even Dr. Gross did not suggest a timeline within which T.D. could successfully parent her child. The record supports the district court’s finding that termination of parental rights was in the child’s best interests.
T.D. attached to her reply brief a March 2007 letter from Dr. Gross to update the court on T.D.’s progress. The guardian has moved to strike the attachment and references to the document within the brief. The motion is well founded.
The record on appeal consists of “[t]he
papers filed in the trial court, the exhibits, and the transcript of the
T.D. relies on two cases to support her
contention that we may consider matters outside the record in a termination-of-parental-rights
appeal. Neither case supports her
assertion. In one case, the supreme
court acknowledged that its decision to vacate a termination of parental rights
was “admittedly influenced by the disclosures that [the mother was] presently
caring for her second child and that the proposed plan for [the child in need
of protection or services’s] placement ha[d] been ineffective, facts not
available to the juvenile court.” In re Welfare of Chosa, 290 N.W.2d 766,
Contrary to T.D.’s representations, Chosa and B.W. do not create an exception to the general principle that this court will not consider matters outside the district court record. Because the letter is not properly before the court, we grant the guardian’s motion to strike the letter and references to it in T.D.’s reply brief.
D E C I S I O N
The district court
properly took judicial notice of the
Affirmed; motion granted.