This opinion will be unpublished and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

C6-01-1832

 

In the Matter of the Welfare of the Children of J. N.

 

Filed June 18, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Hennepin County District Court

File No. J10074605

 

 

Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Suite 200, Western Union Building, 317 Second Avenue South, Minneapolis, MN 55401 (for appellant mother)

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487; Michelle A. Hatcher, Assistant Hennepin County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County)

 

Gerald M. Chester, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for guardian-ad-litem)

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

            On appeal from a termination of parental rights, appellant-mother argues that the district court (a) violated her due-process rights by not providing a formal evidentiary hearing; and (b) erred in concluding that she failed to comply with the conditions of the stay.  Because the district court provided appellant with an evidentiary hearing, and because the record supports the court’s conclusion that appellant failed to comply with the stay conditions, we affirm.

FACTS

 

            Appellant J.N. and father A.N. are the parents of three boys: A.N., age 13; J.N., age 10; and R.N., age 6.  In May 2000, Hennepin County Children, Family and Adult Service Department (Department) filed a petition alleging that the children were in need of protection or services.  The grounds for the petition included (a) father’s physical abuse of A.N.; (b) R.N.’s diagnosis with failure to thrive at the age of six months because of malnutrition; (c) a chaotic and unsanitary living environment resulting from domestic violence and chemical abuse by the adults; (d) the parents’ failure to attend to their children’s medical needs; (e) appellant’s failure to attend to her mental-health issues; and (f) A.N.’s poor school attendance.[1] 

In May 2000, the district court signed an emergency protective care order and placed the children in foster care.  In August, the court determined that the children were in need of protection or services and ordered a case plan for reunification.  In December, the Department petitioned for termination of appellant’s and father’s parental rights, claiming that they were unwilling to meet their parental duties and unable to correct the conditions that led to their children’s out-of-home placement. 

In May 2001, father voluntarily relinquished his parental rights to the three children.  Appellant and the Department agreed to have the matter submitted to the court on stipulated facts based on 22 exhibits and all documents contained in the court file.  The parties recommended that, if the court terminated appellant’s parental rights, the termination order would be stayed for 90 days.  Appellant agreed that the stayed order would be conditioned on her compliance with the following eight conditions:

(1)                           Appellant would obtain safe and appropriate housing and provide proof of her housing search.

(2)                           Appellant would attend the parent education program at Ruben Lindh three times a week with no absences, other than illness confirmed by a doctor’s note.

(3)                           Appellant would attend weekly family therapy sessions with no absences.

(4)                           Appellant would visit with children weekly with extended day passes and possible overnights if housing is secured and if there is increased supervision.

(5)                           If recommended by her therapist, appellant would attend individual therapy.

(6)                           Appellant would attend R.N.’s speech therapy twice a week.

(7)                           Appellant would move all personal items from her mother-in-law’s home.

(8)                           Appellant would have no contact with [the children’s father].[2]

 

The court reiterated the conditions, clarified that the no-absence policy applied to all conditions, and informed appellant that this was her “last chance,” and if she failed to meet any of the conditions, the stay would be lifted and the termination would be entered. 

            On June 4, 2001, the court terminated appellant’s parental rights because appellant did not comply with the case plan.  Specifically, she failed to (a) obtain and maintain safe housing; (b) attend family therapy sessions with the children; and (c) work actively with housing coordinators.  The court concluded that there was clear and convincing evidence that appellant’s parental rights should be terminated because she refused to comply with her parental duties, that she failed to correct the conditions leading to the determination that her children were in need of protection or services, and that termination was in the children’s best interest.  The court stayed entry of the order for 90 days.

            Prior to the August 28, 2001, stay-review hearing, the Department provided the court and all parties with copies of appellant’s progress reports.[3]  The progress reports indicated that appellant had obtained suitable housing but that she failed to comply with the other conditions of the stay.  At the review hearing, the Department asked for the stay to be lifted because of appellant’s failure to comply with the conditions and expressed a concern that appellant’s nephew, who allegedly sexually abused the children, was living with appellant.  Appellant requested reunification and responded to the progress report’s allegations by arguing that she missed appointments because she lacked transportation and because she had scheduling conflicts.  Appellant made an oral argument but did not present any evidence to the court. 

            The next day appellant’s attorney wrote to the judge, explaining that appellant believed that the Department was going to recommend reunification with A.N. and J.N at the review hearing and that she would be given more time to demonstrate her parenting abilities with respect to R.N.  Appellant attached to the letter a motion for reunification with her children, explaining in detail the progress report’s allegations.  The judge gave appellant an additional two weeks to supplement the record, but she did not do so.  Finding that appellant failed to comply with the conditions of the stay, the court lifted the stay and terminated appellant’s parental rights.  This appeal followed.

D E C I S I O N

 

I.

 

            Appellant argues that the district court violated her due-process rights by lifting its stayed order to terminate her parental rights without a formal evidentiary hearing.  Parents have a fundamental and substantial right to the custody of their children.  In re Welfare of HGB, 306 N.W.2d 821, 825 (Minn. 1981).  The applicable due-process standard for juvenile proceedings is fundamental fairness.  McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S. Ct. 1976, 1985 (1971).  To achieve fundamental fairness, there must be an opportunity for an adversarial hearing.  Id.  Due process requires reasonable notice, a meaningful opportunity for a timely hearing, the right to be represented by an attorney, and the opportunity to present evidence.  Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  Minnesota statutes also provide that a minor’s parent is entitled to “be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.”  Minn. Stat. § 260C.163, subd. 8 (2000).  Because of the magnitude of terminating parental rights, strict adherence to due process is imperative.  See Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981) (stating that parents have a “commanding” interest in the care and custody of their children and in the accuracy of the decision terminating their parental rights). 

            Respondent argues that appellant waived her due-process claim by failing to raise it below.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because appellant did not preserve her due-process claim below it is not properly raised on appeal.  But we observe that appellant received sufficient notice of the review hearing and a meaningful adversarial hearing.  Even though appellant argues that she did not have notice that the Department was going to request revocation of the stay at the review hearing, it is undisputed that she had notice of the date and the nature of the hearing.  See CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 563 (Minn. App. 2001) (providing that receipt of notice of a hearing is sufficient to satisfy the reasonable notice requirement of due process), review denied (Minn. Nov. 13, 2001).  The record demonstrates that appellant received notice of the review hearing from at least four sources and notice that if she failed to comply with any of the eight stay conditions her parental rights would be terminated.  First, the parties agreed in May 2001 that, if the court terminated appellant’s rights, they would recommend to the judge that the order be stayed.  Appellant then would have 90 days to comply with the conditions of the stay and at the end of the 90 days the parties would have a review hearing.  Second, the judge told appellant that, if he decided to terminate her parental rights, he would give her 90 days as “yet another chance to demonstrate” her ability to be a parent and strictly comply with the conditions.  The judge specifically told appellant that if she failed “in meeting any of those conditions, then the stay will be lifted and the termination will be entered.”  Third, the court gave appellant a hearing notice, which she signed, that the review hearing would be held on August 21, 2001.  And fourth, the court’s June 4, 2001, order states that a review hearing will be held on August 21, 2001. 

            Appellant also contends that she was denied a meaningful adversarial hearing because there was no sworn testimony.  We observe that appellant was given an opportunity to present evidence at the hearing, but failed to do so.  It is unclear why appellant did not present evidence.  At oral argument, appellant argued that she believed the Department was going to recommend reunification, and therefore she was not prepared to present any evidence to refute a revocation of the stay.  Appellant, however, does not explain why the Department would recommend reunification when she was aware of her failure to comply with all of the required stay conditions.  Although appellant did not request an opportunity to present evidence at the hearing, she did so by letter and by motion for reunification.  The court responded to the letter giving her an additional two weeks to supplement the record.  Other than her attached motion and memorandum challenging the allegations made in the progress reports, appellant did not provide the court with any additional evidence.

            Furthermore, appellant argues that she was denied an adversarial hearing because the Department did not formally introduce the progress reports as evidence.  We observe that appellant failed to object to the progress reports at the evidentiary hearing and that she failed to show any prejudice by the admission of these reports, considering the court reviewed both the progress reports and her oral and written arguments challenging the allegations contained in the reports.  See Gruenhagen v. Larson, 310 Minn. 454, 457-58, 246 N.W.2d 565, 568 (1976) (stating that a party cannot challenge the admissibility of evidence for the first time on appeal); see also Minn. R. Civ. P. 61 (stating that any error in the proceeding that does not affect the substantial rights of the parties must be disregarded as harmless error).

II.

            Appellant contends that the district court erred in concluding that she failed to comply with the conditions of the stay.  In reviewing termination of parental rights, appellate courts determine whether the record contains substantial evidence to support the district court’s decision, given that the burden of proof in the district court is clear and convincing evidence.  In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996); Minn. R. Juv. P. 59.05.  This court will not overturn the district court’s findings in a termination of parental rights case unless they are clearly erroneous.  In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).  The court found that, despite ample opportunity and abundant services, appellant failed to comply with the eight stay conditions with the exception of obtaining suitable housing.  The court expressed its continued concern with appellant’s inability to supervise her children, attend to their medical needs, and insulate them from their father.  Because appellant had not addressed these concerns during the 90 days, the court lifted the stay and terminated appellant’s parental rights to her three children.

Appellant argues that the court imposed unrealistic conditions on her and that she did her best to comply with the conditions of the stay.  But appellant and the Department created these conditions, not the court.  Furthermore, the court instructed appellant in May 2001 that this was her last chance, that she must strictly comply with every condition, and that if she failed to meet any of those conditions the stay would be lifted. 

Now, because we’re giving you this extraordinary additional time, the conditions are going to be very strict.  And if you fail in meeting any of those conditions, then the stay will be lifted and the termination will be entered.

* * *

[W]hen we say this is your last chance, this is the last, last chance.  And I hope you appreciate that.

 

The court’s statements made appellant aware that she was not required to “do her best” but that she was required to meet every condition without any excuses. 

            Appellant also argues that the Department did not make reasonable efforts to help her comply with the conditions.

To measure the adequacy of services, it is necessary to learn whether the services go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help to see that all things are done that might conceivably improve the circumstances of the parent and the relationship of the parent with the child. 

 

In re Welfare of J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).  Appellant specifically argues that the Department did not help her obtain transportation to the therapy and parenting sessions and did not help alleviate scheduling conflicts.  Appellant alleges that the Department’s “Dial-A-Ride” service stopped working and that she was told to use taxi vouchers.  The record shows that the Department provided her with taxi vouchers, and appellant does not explain why she could not use them to attend parenting and therapy sessions.  Appellant also alleges that the social worker was nonresponsive when appellant asked to reschedule appointments because of work conflicts.  The record, however, demonstrates that appellant was difficult to deal with and refused to rearrange her work schedule to meet her required sessions and visitations.  Furthermore, the court found that she was more attentive to her work schedule than to her children. 

Appellant does not specify which of her numerous violations were related to transportation problems or scheduling conflicts.  Nor does she point to any evidence in the record to corroborate her allegations that transportation and scheduling conflicts were the sole reasons she failed to comply with the eight conditions.  Although the progress reports indicate that appellant missed some parenting classes because of job and therapy conflicts, they also indicate that she missed one meeting because she overslept and missed several visitations because of personal commitments.  The court had specifically warned appellant that she had to comply with a strict no-absence policy.  Appellant has not shown that the court clearly erred in finding that the Department provided her with abundant services to assist her in complying with the conditions.

The record also demonstrates that appellant repeatedly violated the stay conditions including her failure (1) to attend an all-day outing with R.N.; (2) to maintain consistent overnight visits with R.N. because she could not keep him safe; (3) to attend all scheduled visitations; (4) to supervise her children adequately; and (5) to keep the children away from their father.  Furthermore, the court questioned appellant’s ability to supervise her children during visitations because she allowed J.N. to walk by himself two miles to her work, she failed to ensure that her children took their medication, and she allowed A.N. to walk on the freeway where he was picked up by police.  

            While we recognize the magnitude of terminating parental rights, appellant was given sufficient opportunity to address the court’s concerns regarding her ability to parent her children.  The court did not provide appellant with one last chance to do her best; the court gave her one last opportunity to comply strictly with the conditions of the stay.  There is clear and convincing evidence in the record to support the district court’s finding that appellant failed to comply with the stay conditions.

            Affirmed.



[1] The Department’s petition was not the first time appellant’s family required child protection services.  In November 1993, J.N. was diagnosed with failure to thrive, and the children were briefly taken out of the home.  In July 1996, A.N. and J.N. were left unsupervised.  In May 1998, appellant was transported to a crisis center due to suicidal ideation.  And in October 1998, domestic violence erupted in the house between father and his brother; child protection services worked with the family until July 1999 when the brother moved out of the house. 

[2] In its order taking appellant’s termination of parental rights under advisement, the court included only six of the eight stay conditions, leaving out appellant’s obligation to prohibit contact with the children’s father and her obligation to attend individual therapy if necessary.  Even though the court did not include these mutually agreed upon conditions, appellant violated the remaining conditions without excused absences.

[3] It is unclear from the record when appellant received the progress reports.  The Department alleges that appellant received the report before the hearing, but appellant contends that she did not receive all of the reports until the day of the hearing.