This opinion will be unpublished and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 Welfare
of the Children of: N.J., Parent.
Filed October 16, 2001
Hennepin County District Court
File No. J7-98-60223
Leonardo Castro, Chief District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401-0809 (for appellant N.J.)
Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, #1200, Minneapolis, MN 55415 (for respondent Hennepin County and Department of Children and Family Services)
Lisa R. Pugh, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for guardian ad litem)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Harten, Judge.
Appellant voluntarily terminated her parental rights to her four oldest children with the understanding that, while no guarantees were made, respondent county would try to place the children with appellant’s mother. Upon learning that her mother would not be adopting the children, appellant filed a motion to rescind the voluntary termination of her parental rights. Appellant challenges the juvenile court’s denial of her motion to rescind her voluntary termination. We affirm.
In 1999, appellant N.J.’s four oldest children were adjudicated children in need of protection or services (CHIPS). The children have been in continuous out-of-home placement since March 8, 1999, and for periods of time before then. In July 1999, respondent Hennepin County Department of Children and Family Services filed a petition to terminate appellant’s parental rights. In November 1999, Volunteers of America of Illinois (VOA) completed a home study on appellant’s mother, Eva Matthews, to determine if she could be licensed as a foster parent. Under the section entitled “Attitudes Toward Role As Foster Parent,” the VOA home study report stated:
Mrs. Matthews discussed that she is not interested in keeping her grandchildren until they are 18. She is willing to foster the children until the birth mother is able to have them in her legal custody, but is not interested in permanent placement or adoption. Mrs. Matthews indicates that, “she will take it one day at a time.”
While generally positive, the VOA home study report concluded with the following “Assessment and Recommendations”:
Due to an unclear permanency goal for the children it is this worker’s recommendation that Mrs. Matthews be provided with clear expectations and time lines. She has verbally expressed disinterest in taking permanent custody. She is willing to foster the children while the birth mother takes steps necessary to retain custody of her children, therefore, Mrs. Matthews should not be considered for permanent placement.
On February 9, 2000, a juvenile court hearing was held on the termination of parental rights petition. Appellant was not present due to her hospitalization following the birth of her fifth child on February 8, 2000. Although Matthews was present, the transcript gives no indication that she testified. Counsel for respondent stated:
I should note for the record that although no promises have been made in this matter and no guarantees, the maternal grandmother, Eva Matthews, is a potential adoptive source for the four children that are referenced in the petition.
On February 25, 2000, appellant agreed on the record to voluntarily terminate her parental rights. After being questioned by her attorney, respondent’s attorney, and the juvenile court, appellant signed written affidavits of consent to terminate her parental rights to her oldest children. The affidavits appellant signed stated that she gave her consent for termination of her parental rights. The affidavits also stated:
That I understand that I will not have any enforceable right to visit or contact my child nor will I have the right to make any decisions concerning my child’s welfare.
* * * *
I believe my consent to terminate parental rights is for good cause and in my child’s best interests.
During this termination proceeding, appellant expressed her “hope” that the children would be adopted by Matthews but testified that she understood that the adoption could not be guaranteed. On April 10, 2000, the juvenile court issued an order terminating appellant’s parental rights.
In April 2000, an Interstate Compact Adoption Study (ICAS) of Matthews’ home was initiated. The ICAS report was completed in August 2000 and advised against adoptive placement with Matthews. The ICAS report raised various concerns, including Matthews’ ambivalence with respect to caring for her grandchildren, her potential use of physical discipline with the children, her denial of the children’s special needs, her lack of contact with the children for at least three years, and her unwillingness to work with service providers necessary for the children.
On February 15, 2001, appellant filed a motion to rescind the voluntary termination of parental rights, arguing that there was “a mistake to a material issue” with respect to the possible adoption by Matthews. On February 26, 2001, respondent filed a response memorandum with an affidavit by a social worker employed by respondent and assigned to this matter stating that she “spoke with [appellant] on 12/23/99 to tell her that her mother, Eva Matthews, had decided not to take the children and advised that she discuss this with her lawyer.”
On March 13, 2001, the juvenile court issued an order denying appellant’s motion to rescind. On April 10, 2001, the juvenile court issued findings of fact and a memorandum of law, indicating specifically that appellant “voluntarily terminated her parental rights based on informed consent and that there was no mistake of material fact.” This appeal followed.
D E C I S I O N
In general, a voluntary termination order may be rescinded only upon a showing of fraud, duress, or undue influence. In re K.T., 327 N.W.2d 13, 17-18 (Minn. 1982) (explaining that a change of mind or circumstances is insufficient); In re J.M.S., 268 N.W.2d 424, 428 (Minn. 1978). When a trial 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 M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990). As in all termination cases, our paramount concern is for the child’s best interests. See id. at 375.
In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).
This court gives deference to the juvenile court’s decision to terminate parental rights, but it will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.
In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998) (citation omitted).
Appellant alleges in her brief that the juvenile court’s factual findings were clearly erroneous. Appellant contends that the juvenile court erroneously analyzed her motion as one based on the contract law principle of mistake and that this “was not the basis for the motion and the court’s holding on the point is clearly erroneous.” But appellant moved the juvenile court for relief “because of a mistake to a material issue.” Appellant frames the issue as fraud for the first time on appeal. In its memorandum of law, the juvenile court addressed appellant’s arguments and gave reasons for denying appellant’s motion to rescind the voluntary termination of her parental rights.
The juvenile court may upon petition, terminate all rights of a parent to a child * * * with the written consent of a parent who for good cause desires to terminate parental rights.
Minn. Stat. § 260C.301, subd. 1(a) (2000). On February 25, 2000, appellant appeared with counsel, orally consented to a voluntary termination of her parental rights, and executed a written consent on the record.
In appellant’s “nonconforming reply letter-brief,” she claims that “had she been told the contents of the VOA study in February of 2000, she would not have consented to the voluntary termination.” Respondent argues that the VOA study “provides no basis for either a mistake of material fact nor for a showing of fraud requiring relief.” The VOA study was conducted for the purpose of foster care licensing for a proposed temporary placement of the children with Matthews; it was not conducted for the purpose of potential adoption.
The juvenile court stated in its memorandum of law that “the 1999 VOA recommendation did not preclude Ms. Matthews from further consideration,” rather, “the VOA study generally looked favorably upon Ms. Matthews * * * .” The primary concern expressed by the VOA study was Matthews’ expressed disinterest in becoming the permanent caregiver for her four grandchildren. In a sworn affidavit, a social worker stated that she informed appellant on December 23, 1999, that Matthews “had decided not to take the children.” Thus, the record indicates that appellant was informed of the only relevant negative information contained in the VOA study.
Matthews subsequently traveled from Illinois to Minnesota to appear in court for the February 9, 2000, hearing. The record does not support the juvenile court’s finding that Matthews testified, but it does indicate that Matthews spoke with counsel for appellant and case workers for respondent expressing her willingness and desire to adopt her grandchildren. The juvenile court concluded that
having eliminated the primary or exclusive reason for disfavoring placement with Ms. Matthews in the 1999 VOA study, there was no mistake of fact, mutual or otherwise, because placement with Ms. Matthews was a possibility. Even assuming there was some mistake, it would have been immaterial given Ms. Matthews’ newly expressed and unequivocal willingness to care permanently for her four grandchildren during the voluntary termination proceeding.
The ICAS of Matthews’ home was commenced in April 2000, after the voluntary termination of appellant’s parental rights. The ICAS report, while mentioning Matthews’ ambivalence with respect to caring for her grandchildren, described a host of additional concerns about the prospective placement. These additional concerns included issues of previously undisclosed alleged abuse in Matthews’ home, her potential use of physical discipline with her grandchildren, her denial of her grandchildren’s special needs, her lack of contact with her grandchildren for at least three years, and her unwillingness to work with service providers necessary for her grandchildren. For all of these reasons, the ICAS report concluded that “we cannot recommend Eva Matthews for the adoptive placement” of the children.
The record supports that there was no guarantee Matthews would be permitted to adopt the children and that appellant understood this. The following exchanges took place during the February 25, 2000, termination hearing:
The Court: So, in essence, then – I just want to make sure this component is clear in everyone’s mind – while there’s no strict promise that the kids will be able to be adopted in Chicago, I do have an agreement from the Department and the Department in the past has shown efforts that they’re going to follow up on using reasonable efforts to effectuate the transfer – or the adoption of the kids by the grandmother in Chicago. I just want to – I use too many words, but you understand what I just was trying to–
* * * *
Appellant’s Attorney: And is it your wish today to voluntarily terminate your parental rights of these four children?
Appellant’s Attorney: And you understand what that entails?
Appellant’s Attorney: You understand that if you terminate your parental rights, you no longer have any rights to your children?
The following exchange then took place between appellant and counsel for respondent:
Respondent: Ms. Jones, just very briefly, and—and your attorney has – has touched on this. Just a couple of questions for you. Do you – Mr. Morant asked you if it is your hope that your mother adopts the children, and you said correct; is that right?
Respondent: That is your hope now. You understand we can’t guarantee that? Do you understand that?
Respondent: All right. But we have represented, though, the Department will use their best efforts to make sure that that happens. Do you understand that?
Respondent: And do you understand that when you voluntarily TPR, your rights are done –
Respondent: -- with regard to those children?
The juvenile court found that appellant “voluntarily terminated her parental rights based on informed consent and that there was no mistake of material fact.” The juvenile court found that rescinding the voluntary termination of parental rights would be contrary to the children’s best interests and would “contravene the policies underlying the child protection laws.”
Other than the juvenile court’s finding that Matthews testified in court, the juvenile court’s findings are supported by substantial evidence and are not clearly erroneous. Accordingly, we affirm the juvenile court’s denial of appellant’s motion to rescind the voluntary termination of her parental rights.
 Appellant requests that we remand for an evidentiary hearing on her fraud claim. However, because appellant failed to allege fraud and to request an evidentiary hearing in the juvenile court, this argument has been waived. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (quotation omitted)). Even though parental rights termination cases involve weighty issues, the same appellate standards apply.
The gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument in this case, especially in light of Hobbs’ consent to termination in the trial court, on the record, and with assistance of counsel. * * * Cf. In re C.L.L., 310 N.W.2d 555, 557 (Minn. 1981) (refusing to consider important constitutional challenges to an involuntary termination order because the arguments were not raised in the trial court).
In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997).