This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Children of A. K., Parent.
Hennepin County District Court
File No. J099068044
Leonardo Castro, Chief Fourth District Public Defender, Renee Bergeron, Jennifer Mrachek, Peter Gorman, Assistant Public Defenders, 317 Second Avenue South, #200, Minneapolis, MN 55401 (for appellant mother)
Amy Klobuchar, Hennepin County Attorney, Cory A. Carlson, Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Children and Family Services Department)
Stephen M. Goldfarb, Goldfarb & Associates, P.A., 4600 West 29th Street, St. Louis Park, MN 55416 (for guardian ad litem)
Considered and decided by Kalitowski, Presiding Judge, Peterson, Judge, and Lindberg, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant A.K. challenges the termination of her parental rights to her children, Z.K., A.P., X.P. and A.P., contending the district court improperly (1) terminated her parental rights without clear and convincing evidence at the time of trial that she refused to abide by the parent-child relationship, was palpably unfit, failed to correct conditions leading to the children’s out-of-home placement, and neglected her children in foster care; (2) found that termination was in the best interests of the children; (3) adopted verbatim the county’s proposed findings of fact and conclusions of law; and (4) terminated her parental rights absent a voluntary and intelligent waiver on the record by appellant of her right to a formal, adjudicatory trial. We affirm.
When a [district] court’s findings in a termination case are challenged, appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.
In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted). This court closely inquires into the sufficiency of evidence to determine whether it is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).
The legislature has established nine criteria that support termination of parental rights. Minn. Stat. § 260C.301, subd. 1(b) (2000). While only one criterion needs to be proven to support termination, the “paramount consideration” in every termination case is the child’s best interests. Id., subds. 1(b), 7 (2000). The party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). And a district court must make clear and specific findings that conform to the statutory requirements. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).
Among other grounds, a district court may terminate parental rights when: (1) a “parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship,” Minn. Stat. § 260C.301, subd. 1(b)(2) (2000); (2) a pattern of conduct or certain conditions “renders [a] parent unable, for the reasonably foreseeable future, to care appropriately for the [children’s] ongoing physical, mental, or emotional needs,” Id., subd. 1(b)(4) (2000); (3) a parent has failed to correct conditions that led to the children’s placement outside the home as evidenced by “a showing that the parent [has] not substantially complied with” the case plan despite reasonable efforts by the county, Id., subd. 1(b)(5)(iii) (2000); or (4) as a result of the parent’s failure to change the circumstances the children are “neglected and in foster care,” Id., subd. 1(b)(8) (2000). Here, the district court found that all four of these grounds for termination existed. Appellant contends that these findings are not supported by clear and convincing evidence. We disagree.
Appellant first contends that the district court’s findings were not contemporaneous. She argues that evidence of her eight-year history of involvement with the county, maltreatment determinations, and past behaviors are irrelevant. We disagree. While the court must consider the parent’s present ability to care for the child, see Chosa, 290 N.W.2d at 769 (requiring contemporaneous findings), there is no authority for the proposition that this renders the parent’s past conduct irrelevant. To the contrary, statutory factors explicitly require the court to examine past conduct. See Minn. Stat. § 260C.301, subd. 1(b)(4) (court considers duration and nature of pattern of conduct or conditions). Moreover, while the evidence must address the conditions that exist at the time of the hearing, the district court may also make a prediction about a parent’s future ability to care for his or her child. See In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996).
The district court found that appellant’s own history of childhood abuse complicates her ability to effectively utilize support services. Evidence in the record supports the finding that, as a result, she mistrusts support services. In addition, testing revealed that appellant has a “chronic personality pattern, which does not easily respond to intervention.” This is also supported by evidence in the record of appellant’s numerous prior interventions by the county, maltreatment determinations, and her failure to make lasting changes.
Appellant contends the evidence establishes that she complied with her case plan by having a psychological evaluation, attending counseling, and maintaining frequent, positive visits with her children, even when one child was placed in a residential facility in another state. But when crediting a parent’s current circumstances, reviewing courts have looked for significant progress in fulfilling the requirements of an assigned case plan. See In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999). A showing of merely some progress is insufficient. See In re Welfare of B.M., 383 N.W.2d 704, 708 (Minn. App. 1986), review denied (Minn. May 22, 1986). While appellant obtained housing and a job, and regularly has positive visits with her children, that was only part of her case plan. The record also contains evidence that despite extensive efforts by the county, appellant had not made significant progress and, thus, had not substantially complied with her case plan. For example, a crucial part of appellant’s case plan was that she address her own psychological needs and how her behavior has negatively affected her children. The case plan required appellant to attend day treatment and counseling. But evidence in the record indicates that near the time of the termination hearing, appellant did not attend her day-treatment program for two weeks and missed a counseling session with her psychologist. Even appellant’s psychologist, who did not concur that appellant was palpably unfit, acknowledged that appellant still required significant support and therapy.
All of appellant’s children have significant special needs, and the evidence demonstrates that they require a stable, consistent environment. The evaluations and reports concerning appellant describe a woman who needs considerable assistance in order to care for the substantial needs of her four children. Her counseling and day treatment were an important part of appellant’s case plan for reunification. Thus her refusal, near the time of the proceedings, to actively participate in counseling provides sufficient evidence to support the district court’s findings.
Moreover, the evidence demonstrates that appellant tends to blame the children for their negative behaviors and problems associated with the situation rather than acknowledging her responsibility as the parent. After the children were removed from the home, appellant blamed the deplorable conditions of the home on the children. And closer to the time of the termination proceedings, she told the three younger children that the eldest child’s abuse allegations were lies and would result in the family being separated. Thus, the record supports the conclusion that appellant has failed to make significant progress, especially in light of the significant needs of appellant’s children. Even appellant’s psychologist noted in an April 2000 report that appellant’s progress was “satisfactory.” That appellant’s progress was “satisfactory” does not establish the significant progress required to show that she will, in the foreseeable future, be able to care for her four special-needs children.
Based on the substantial evidence of appellant’s history and conduct just prior to the termination proceedings, the district court’s conclusion about appellant’s future ability to be a stable parent for the four special-needs children properly addressed the statutory criteria and was not clearly erroneous. We thus conclude the evidence was sufficient to support the district court’s termination based on the findings that appellant refused to abide by the parent-child relationship, was palpably unfit, failed to correct conditions leading to the children’s out-of-home placement, and that appellant’s children were neglected and in foster care.
Appellant also contends that there is not sufficient evidence to support the finding that termination is in the children’s best interests. We disagree. In determining whether termination of parental rights is appropriate, the children’s best interests are the paramount consideration. Minn. Stat. § 260C.301, subd. 7. The court must consider “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship;” and (3) any competing interests that the child may have such as a need for a stable environment or permanency. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (citation omitted).
The evaluations of the children explain in detail that all the children require a consistent, stable environment. We disagree with appellant’s contention that the district court improperly focused on the children’s significant mental-health needs rather than on her ability to parent. In order to determine the best interests of the children, the district court needed to make findings about the children’s needs and appellant’s ability to meet those significant needs. Moreover, although appellant is not responsible for the children’s hyperactivity disorders, the children also suffer from attachment disorders, which, according to the mental-health professionals, are the direct result of the unstable environment appellant provided.
Additionally, the evidence does not support appellant’s contention that the hyperactivity disorders were only diagnosed after the children were removed from their home, and that following medication, their behaviors improved. Further, evidence in the record details appellant’s inability to consistently provide medication to the third-eldest child for his hyperactivity.
The district court also found that appellant “has taken no responsibility for the abuse her children have suffered at her hands and the hands of others.” While appellant contends that she never physically harmed her children, evidence in the record supports the district court’s finding. First, in 1992 and 1993, appellant’s boyfriend, the three youngest children’s father, physically abused one child, and findings of maltreatment were made. In 1998, a finding of maltreatment was made after appellant threatened to kill herself and the children, and then threw a sucker at one child that resulted in a bloody nose. In 1996, the children were removed from the home for exposure to injurious conditions and again, a finding of maltreatment was made. The maltreatment finding in 1998 contradicts appellant’s assertion of no abuse, as do the other findings of abuse that occurred while the children were under appellant’s care.
The district court appropriately focused on the negative behaviors and significant needs of the children because the evidence indicated that these problems were in part caused by appellant’s inconsistent parenting. Moreover, there is considerable evidence in the record that shows the children need a consistent, stable, nurturing environment that appellant cannot provide at this time or at any time in the reasonably foreseeable future. Therefore, we conclude that the district court’s finding that termination was in the best interests of the children is supported by the evidence and is not clearly erroneous.
Appellant argues that the district court erred as a matter of law by adopting verbatim respondent county’s proposed findings of fact, conclusions of law, and order. We have rejected this argument in the past:
Although federal courts have firmly disapproved of this practice, no decision to our knowledge has held that verbatim adoption of a party’s proposed findings and conclusions is reversible error per se. Rather, the “clearly erroneous” standard remains the proper standard of review.
Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn. App. 1987), review denied (Minn. Aug. 19, 1987).
We have cautioned that “wholesale adoption of one party’s findings and conclusions raises the question of whether the trial court independently evaluated each party’s testimony and evidence.” Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993). But notwithstanding our preference that district courts independently formulate findings of fact and conclusions of law, based on our review of these proceedings, including all the evidence in the record supporting termination, we cannot conclude that the district court failed to evaluate the evidence independently.
Finally, the day of oral argument, appellant submitted a memorandum to this court arguing for the first time that the district court improperly terminated appellant’s parental rights without obtaining a waiver on the record of her right to a “formal adjudicatory trial.” This issue was not raised at trial. It was not raised in posttrial motions. And it was not raised in any formal briefing to this court. Because of the grave importance of the termination of parental rights, we took the extraordinary action of allowing appellant to submit an informal supplemental letter brief regarding this new issue.
Having reviewed appellant’s argument, we conclude that appellant has failed to present substantial evidence indicating that this issue should be addressed in the interests of justice. Therefore, we conclude this issue is not properly before us. See In Re Welfare of D.D.G., 558 N.W.2d 481, 486 (Minn. 1997) (stating “gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument”). Moreover, appellant has cited no law to support her position that despite her opportunity to cross-examine two witnesses and to present documentary evidence and closing argument to the district court, she was denied due process because there was not a formal waiver of a full adjudicatory trial on the record.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.