This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-288

 

In the Matter of the Child of:

N.P., Parent.

 

Filed November 7, 2000

Affirmed

Peterson, Judge

 

Hennepin County District Court

File Nos. 125433/ J3-99-062206

 

 

William E. McGee, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Suite 200, Western Union Building, 317 Second Avenue South, Minneapolis, MN† 55401-0809 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, Sharon A. Lewis, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN† 55415 (for respondent)

 

††††††††††† Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D†††† O P I N I O N

PETERSON, Judge

††††††††††† This appeal is from an order terminating appellant motherís parental rights to two children.† We affirm.

FACTS

††††††††††† Appellant mother Nickena Peet is the mother of A.P., born September 23, 1996, and N.P., born September 15, 1998.† A.P. is a special-needs child diagnosed with a developmental disorder.† He has poor behavioral self-regulation and delayed motor, language, and cognitive functioning.† N.P. is a healthy girl who does not exhibit any special needs.†††††

††††††††††† Mother has an extensive criminal history and has spent much of the last decade in either jail or prison because of convictions for prostitution, theft, forgery, and using personal identification information.† At the time of N.P.ís birth, mother was incarcerated at the Minnesota Correctional Facility in Shakopee, and a C.H.I.P.S. petition was pending regarding A.P.† That petition was amended to include N.P.† At the request of the Mille Lacs Band of Chippewa Indians, A.P. and N.P. were placed in an Indian foster home.†

††††††††††† On December 4, 1998, with motherís agreement, the trial court found that A.P. and N.P. were in need of protection or services under Minn. Stat. ß 260.015 because, due to motherís incarceration, she was unable to parent the children or provide for A.P.ís special needs.† The court found that in view of motherís history of chemical dependency, criminal activity resulting in her current and past incarceration, and her negligent treatment of the children, the children would be seriously emotionally and/or physically harmed if they remained in motherís custody.† The trial court ordered custody of A.P. and N.P. transferred to respondent Hennepin County Department of Children and Family Services (the department).† It also ordered that an appropriate case plan be developed for mother and that there be no visitation until mother was out of prison and demonstrated a change in her lifestyle.

††††††††††† On March 25, 1999, the department presented a written case plan to mother.† Mother signed the case plan, which required that she: (1) abstain from the use of mood-altering chemicals and participate in a chemical dependency aftercare program; (2) abstain from gambling and participate in Gamblers Anonymous; (3) have regular contact with her social worker; (4) refrain from harassing the childrenís foster parents; (5) participate in visitation with her children; and (6) abide by the terms of her probation.†

††††††††††† Following her parole in April 1999, mother did not comply with her case plan.† She did not attempt to visit the children or inquire about their well being.† On one occasion, the department arranged for mother to meet with the children, but mother did not show up because she overslept.† Mother did not keep in regular contact with the department and on several occasions, the department attempted to contact mother but could not reach her.† On May 12, 1999, the department contacted motherís parole officer and learned that mother was in jail in Waukesha, Wisconsin.

††††††††††† On August 5, 1999, mother was served with a petition to terminate her parental rights, which alleged that (1) mother abandoned the children; (2) mother substantially, continuously, or repeatedly refused or neglected to comply with the parent and child relationship, and is palpably unfit to be a party to the parent-child relationship for the reasonably foreseeable future; (3) following a determination of the childrenís need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination; and (4) the children are neglected and in foster care.[1]†††

††††††††††† Because mother was incarcerated in Wisconsin and could not attend a trial, the department moved to proceed with the termination-of-parental-rights trial despite motherís absence.† The department argued that based on motherís history and lack of progress in following through with the case plan, the trial should proceed despite her absence.† The department contended that because an attorney had been appointed on motherís behalf, she could appear by and through her attorney.[2]† Motherís attorney opposed the motion and sought a continuance until mid-January 2000, when mother would likely be paroled.† The attorney contended that mother was expected to be paroled very soon.† The court allowed the trial to proceed, but kept the record open until December 2, 1999, to permit mother to present additional evidence, including a deposition.† The trial court also noted that it would not sign and issue findings until January 18, 2000, to give mother an opportunity to appear and present an argument if she were paroled as her attorney expected.

††††††††††† On November 10, 1999, the trial court heard testimony from three witnesses from the department, including: (1) John Webb, Child Protection Social Worker; (2) Richard Johnson, Permanency Social Worker; and (3) Debra Wenlund-Glaser, Child Services Social Worker.† These witnesses testified that it was in the childrenís best interests to have motherís parental rights terminated.† The trial court admitted 22 exhibits, 15 of which related to mother, by stipulation and without objection.† Following the hearing, the record was left open until December 2, 1999.† Mother presented no additional evidence.† The trial court asked motherís attorney to provide a written closing argument, but the attorney did not do so.† The trial court did not sign an order until January 19, 2000, to permit an appearance by mother.† Mother did not request a hearing.[3]

††††††††††† In a January 19, 2000, order, the trial court terminated motherís parental rights.[4]† The trial court concluded that there was clear and convincing evidence that: (1) mother has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon her by the parent-child relationship; (2) mother is palpably unfit to be a party to the parent and child relationship; (3) following a determination of the childrenís need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination; (4) the children were neglected and in foster care; and (5) it is in the best interests of the children that motherís parental rights be terminated.††††††††††

D E C I S I O N

††††††††††† Parental rights are terminated only for grave and weighty reasons. †The standard of review is, therefore, well defined.† The appellate court must determine whether the trial courtís findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.† The childís best interests, however, remain the paramount consideration in every termination case.

 

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citations omitted).†

††††††††††† The juvenile court may terminate rights of a parent to a child only for grounds expressly provided in Minn. Stat. ß 260.221 (1998) and consistent with the paramount consideration of the childís best interests.† Minn. Stat. ß 260.221, subd. 4 (1998).† In an action to terminate parental rights, the county must prove by clear and convincing evidence that one or more grounds exist for termination.† In re Welfare of C.K., 426 N.W.2d† 842, 847 (Minn. 1988).†

1.†††††††† Mother argues that the juvenile court abused its discretion by permitting the trial to proceed when she was absent due to imprisonment.† Mother contends that proceeding in her absence deprived her of due process of law when a short continuance would have permitted her to participate in the trial and assist in her defense and would not have so adversely affected the childrenís interests as to outweigh her right to be present at trial.†

††††††††††† This court will not reverse the district courtís decision concerning a continuance absent an abuse of discretion.† Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).† Due process does not compel the physical attendance of a parent at termination proceedings.† In re Welfare of A.Y.-J., 558 N.W.2d 757, 759 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).† ďIt is settled that the nature of due process is flexibility.† The amount of process due varies with the circumstances of the case.Ē††† In re Welfare of HGB, 306 N.W.2d 821, 825 (Minn. 1981).† ďThus, the determination of what process is due involves a balancing of the interests involved in the specific case under consideration.Ē †Id.†

††††††††††††††††† By balancing it is not meant that the interests of parent and child are weighed equally.† Instead, it is meant that both the interests of the parent and the child are considered along with the circumstances of the particular case in an effort to determine which of these interests is to predominate.† Balancing, therefore, is an active process of determining the weight of two potentially opposing interests rather than a static attribution of an equal weight to each interest.

 

Id. at 826.†

 

††††††††††† Mother contends that the juvenile court abused its discretion by denying a continuance because the termination petition was filed only 100 days before the courtís decision to proceed in her absence; she expected to be paroled before the May 2000 expiration of her sentence, only six months after the trial date; and the children were only three and one at the time of trial.† Mother contends that under these circumstances, nothing in the case law required the court to grant the departmentís motion to proceed in her absence.

††††††††††† Motherís argument misconstrues our standard of review.† We do not determine whether the juvenile court was required to proceed in her absence but rather whether it abused its discretion by doing so.† We conclude that it did not.†

††††††††††† Although there had not been extensive delays in this proceeding and A.P. and N.P. were 3 years old and 1 year old, respectively, at the time of trial, they had already been out of a permanent home for more than a year.† There was evidence that because of his special needs, A.P. was in particular need of a consistent and reliable environment.† More importantly, when the trial court allowed the termination proceeding to proceed in motherís absence, it took steps to ensure that she was able to present her case.† Counsel represented mother during the trial.† Also, the court held the record open for three weeks after the trial to permit mother to present evidence and delayed signing an order for six weeks after trial to afford mother an opportunity to personally appear if she was paroled.† Mother has not explained why these measures were not adequate to protect her interests or why she did not use these procedures to present her case.† Given the juvenile courtís obligation to balance motherís interests and the childrenís interests, it did not abuse its discretion by proceeding with the trial instead of granting a continuance.†††††††

2.†††††††† Mother argues that the juvenile court erred to the extent that it terminated her parental rights because of her imprisonment.

††††††††††† †A parentís incarceration alone is not enough to warrant termination of parental rights, but the court may consider that fact with other evidence in support of the petition for termination. A.Y.-J., 558 N.W.2d at 761.† There is no basis to conclude that the juvenile court terminated motherís parental rights based solely on her incarceration.† The courtís findings address events that occurred while mother was not incarcerated, and it is apparent that the court considered her incarceration in conjunction with other evidence that supported termination.

3.†††††††† Mother argues that the juvenile court erroneously permitted the department to prove the termination petition with inadmissible evidence and opinion and that the court deprived her of her due process rights by indicating before trial how it would likely rule.† The department argues that motherís failure to raise these issues before the trial court precludes appellate review.

††††††††††† Generally, to preserve issues arising during the course of a trial for appellate review, counsel must make timely objections and move for a new trial.† In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990), see also Minn. R. Evid. 103 (generally, timely objection or motion to strike required to preserve evidentiary issue for review).† Failure to do so precludes review.† Gonzalez, 456 N.W.2d at 727.; see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will address only issues presented to and considered by district court in deciding matter); Doan v. Medtronic, Inc., 560 N.W.2d 100, 107 (Minn. App. 1997) (appellate court will not review trial courtís failure to appoint interpreter sua sponte during trial when complaining party did not raise issue during trial or in posttrial motion), review denied (Minn. May 14, 1997).

††††††††††† In In re Welfare of S.R.A., 527 N.W.2d 835 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995) this court considered a parentís challenge to the trial courtís denial of a motion to suppress statements made by a child, even though the parent failed to move for a new trial.† In S.R.A., this court stated:

Given the finality of termination, we grant discretionary review in ďthe interests of justiceĒ and consider the evidentiary issues raised on a direct appeal from a termination order even though the parent has failed to move for a new trial.†

 

Id. at 837.

††††††††††† But this case is distinguishable from S.R.A.† In S.R.A., the parent did not move for a new trial, but did move in the trial court to suppress the evidence and obtained a ruling by the trial court.† Here, mother not only failed to move for a new trial, she also failed to challenge in the trial court the procedures that she argues on appeal were improper.† In In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997), the supreme court held that the gravity of termination proceeds in general was not a sufficient reason to abandon the established rules that an issue raised for the first time on appeal, was waived under Thiele v. Stich, 425 N.W.2d at 582.† See also In re Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982) (issue not raised in trial court precluded from review).

††††††††††† Because motherís attorney failed to challenge in the trial court the procedures that mother argues on appeal were improper, mother may not raise these issues for the first time on appeal.† See Thiele, 425 N.W.2d at 582 (appellate court will address only issues presented to and considered by district court in deciding matter).††

††††††††††† Affirmed.



[1]The petition also sought termination of the presumed fatherís parental rights.

[2] The department also asked to proceed by default as to the presumed father.

[3] It is not clear from the record when mother was released from prison.

[4] The trial court also terminated the presumed fatherís parental rights.