This opinion will be unpublished and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: D.F., Child.
Filed July 23, 2002
Polk County District Court
File No. JX0050225
Gregory A. Widseth, Jeffrey S. Remick, Odland, Fitzgerald, Reynolds, Remick & Widseth, P.L.L.P., 201-1/2 North Broadway, P.O. Box 457, Crookston, MN 56716 (for appellant mother)
Wayne H. Swanson, Polk County Attorney, Larry D. Orvik, Assistant Polk County Attorney, 22 East 7th Street, Crookston, MN 56716 (for respondent county)
David W. DeGroat, Assistant Mahnomen County Attorney, P.O. Box 459, Mahnomen, MN 56557 (guardian ad litem)
Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Foley, Judge.
Appellant challenges the termination of her parental rights, arguing that the district court lacks subject matter jurisdiction. Appellant argues that the record does not show that (1) she is palpably unfit to be a parent; (2) respondent provided reasonable efforts to reunite the family; and (3) she failed to correct the conditions that led to the child’s placement. Appellant also claims that she had ineffective assistance of counsel. We affirm.
Appellant mother seeks review of a Polk County order terminating her parental rights to D.F. who was born on July 7, 1998. Appellant and D.F.’s father never married and their relationship was intermittent throughout the proceedings. The father’s parental rights were terminated by the Polk County order, but he is not a party to this appeal.
On May 12, 2000, a daycare provider reported that D.F. had multiple bruises on his face and body. This prompted an investigation and D.F. was placed in protective custody. Deputy Sid Canham interviewed appellant. His report noted that she became extremely upset and stormed out of the office when questioned about the bruises. Appellant later returned to the sheriff’s office and asked if she could talk to Deputy Canham. Appellant stated that she did not know where the bruising came from, but she explained that the laceration on D.F.’s forehead resulted from him running into a door and that she had taken him to the hospital. Appellant did not think that the bruises on D.F.’s back were there when she dropped him off that morning and was concerned about the daycare center. She indicated that the bruises on his shins were about a week old and that the bruise on the left side of his forehead was from falling in the bathroom.
On May 16, 2000, Dr. E.J. Kanten at Riverview Heathcare Association examined D.F. and found that D.F.’s platelets were “markedly low.” Dr. Kanten said he could not rule out child abuse, but noted that the bruising could easily be accounted for by the low platelets.
On May 24, both parents entered admissions to the CHIPs petition and the court adjudicated D.F. to be a child in need of protection. The court ordered appellant to undergo numerous evaluations. Dr. John Molstre, Ph.D., conducted a parental capacity evaluation; Dr. Timothy Tinius, Ph.D., conducted a neuropsychological evaluation of appellant; and Dr. Stephen Olson, Ed.D., conducted a psychological evaluation. All three doctors agreed that appellant lacked insight and was unable to understand and conceptualize what was being said to her, and that her parental rights should be terminated.
After the evaluations and various hearings, the county filed a petition to terminate appellant’s parental rights. The district court terminated her parental rights on December 17, 2001.
1. District Court Jurisdiction
Appellant argues that the district court lacked jurisdiction to terminate her parental rights. Jurisdiction is a question of law which this court reviews de novo. Larson v. New Richland Care Center, 538 N.W.2d 915, 918 (Minn. App. 1995), review denied (Minn. Mar. 4, 1997).
Minn. R. Juv. P. 74.05, subd. 3(a) states:
Within fifteen (15) days of the conclusion of the trial, the court shall make a finding that the statutory grounds set forth in the petition have or have not been proved. If the court finds that the statutory grounds set forth in the petition are not proved, the court shall dismiss the petition or determine that the child is in need of protection or services and schedule further proceedings pursuant to Rule 75. If the court finds that the statutory grounds set forth in the petition are proved, the court shall terminate parental rights. The findings and order shall be filed with the court administrator who shall proceed pursuant to Rule 46.
Appellant argues that the use of the word “shall” makes the 15-day limit a mandatory one. Minn. Stat. § 645.44, subd. 16 (2000). Appellant asserts that because more than 15 days passed between the hearing and the issuance of the opinion, this court does not have jurisdiction and the matter should be dismissed with prejudice. We disagree and conclude that the language in Rule 74.05, subd. 3 is directory, not mandatory.
Rule 74.05, subd. 3(a) does not specify a sanction for noncompliance with the 15-day limit, while other rules stating a timeframe in which an action “shall” occur state a sanction of dismissal, and still others expressly permit the unlimited extension of a time limit for good cause. See Minn. R. Juv. P. 15.02, subd. 3 (if court fails to enter order within time prescribed by rule, child will be released); 27.02, subd. 3 (any motion shall be served at least three days before it is to be heard “unless good cause is shown” for further delay); 13.02, subd. 4 (commencement of trial within 30 days or court shall dismiss). No authority has been given as a basis for a sanction of dismissal for the district court’s failure to comply with Rule 74.05. In re Welfare of J.D.K., 449 N.W.2d 194, 196 (Minn. App. 1989); In re Welfare of J.J.H., 446 N.W.2d 680, 682 (Minn. App. 1989), review denied (Minn. Dec. 8, 1989).
Absent legislative authority, or the supreme court’s guidance on implementation of seemingly compulsory, unconditional time rules, [there is] no basis for adopting appellant’s proposition of law that an order issued after noncompliance with such a rule must be automatically and finally reversed.
J.J.H., 446 N.W.2d at 682.
2. Statutory Grounds
When a district court’s findings in a termination case are challenged, we are limited to determining whether those findings address the statutory criteria, are supported by substantial evidence, or are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Although some deference is given to the trial court’s findings, we exercise great caution and “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn. App. 1987) (quotations omitted).
“Parental rights are terminated only for grave and weighty reasons.” M.D.O., 462 N.W.2d at 375. There is a presumption that natural parents are suitable to be entrusted with the care of their children and that it is in the children’s best interests to be in the natural parents’ care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).
The legislature has established nine criteria that can be used to support termination of parental rights. Minn. Stat. § 260C.301, subd. 1(b) (Supp. 2001). 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).
A. Minn. Stat. § 260C.301, subd. 1(b)(4)
The district court found that appellant was palpably unfit to parent and, accordingly, terminated her parental rights. A district court may terminate parental rights if it finds that
a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.
Minn. Stat. § 260.301, subd. 1(b)(4) (Supp. 2001). Moreover, the county must “prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.” M.D.O., 462 N.W.2d at 377.
Here, the district court found that
[appellant] has little attention and concentration. These deficits affect her ability to remain on task and shows high variability in her response. Functionally, she is moderately to severely impaired in her ability to anticipate, plan, sustain attention, concentration, remember, organize, implement, and complete a response.
The doctor’s reports in the record indicate that appellant had been diagnosed with Dysthymic Disorder, Borderline Personality Disorder, and a significant level of neuropsychological deficits. Appellant received education on properly caring for D.F. from multiple sources. Despite these services, she remained unable to properly care for her child.
Dr. Molstre concluded that “[appellant] did not willfully or intentionally neglect or abuse her son, but my overall sense is that she wasn’t able to provide a safe and secure and stable environment for her son.” Dr. Tinius concluded that he thinks it would be “very difficult for [appellant] to parent. [I]t would be very difficult for her to anticipate the children’s needs, to remember what needs to be done.” Dr. Stephen Olson found that appellant has difficulty focusing on tasks, and that it is “highly unlikely that [her] functioning will change to the point where she is able to provide the care and nurturing that a young child needs.”
The doctors’ conclusions that appellant lacked insight, was unable to understand and conceptualize what was being said to her, and that her parental rights should be terminated, were consistent with the observations of the social services personnel. Guardian ad litem David Wayne DeGroat submitted a report indicating that “[appellant] has a long-standing mental illness that interferes with her ability to parent.” DeGroat believed it was in D.F.’s best interest to terminate appellant’s parental rights. Appellant’s case manager, Angela Walsweck, testified that although appellant tried repeatedly, she was simply not able to make progress. Linda Gill, who provided family-based services to appellant, testified that appellant was unable to follow through on any of the instructions she received from social services.
The district court also found that
[appellant] lacks stability and is unable to maintain an even temper. Her outbursts include breaking windows at various homes, punching [D.F.’s father]. She admitted that she was unable to control her rage and just let him have it.
The record supports the finding that appellant cannot control her temper: (1) when she was first told of her child being taken from her, she threw a phone across the room; (2) D.F.’s father had a restraining order against her; and (3) appellant admitted to hitting D.F.’s father and breaking his windows.
The record contains clear and convincing evidence that appellant is palpably unfit to parent. The district court’s findings are not clearly erroneous and we agree that it is in the child’s best interest to terminate appellant’s parental rights.
B. Minn. Stat. § 260C.301, subd.1 (b)(5)
The district court also found that reasonable efforts have failed to correct the conditions leading to placement. Minn. Stat. § 260C.301, subd. 1(b)(5) (Supp. 2001). It is presumed that reasonable efforts have failed if (1) a child has resided out of the parents’ home for a cumulative period of 12 months within the preceding 22 months; (2) the district court has approved a case plan; (3) conditions leading to out-of-home placement have not been corrected; and (4) reasonable efforts have been made by the social services agency to rehabilitate the parents and reunite the family. Id.
Appellant argues that because no written case plan was ever presented to her or the court, it is impossible to determine what specific actions must be taken to correct the problems which led to the child’s placement. This court is limited to the record before the district court. Because this issue was not raised to the district court it is therefore waived. Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988).
Appellant also argues that the district court erred in determining that she failed to fulfill her parental duties. Minn. Stat. § 260C.301, subd. 1(b)(2) (2000). Because we conclude that appellant is palpably unfit to parent and the party petitioning for termination must prove only one statutory ground to terminate parental rights, we need not address appellant’s other arguments. See In re Welfare of J.S., 470 N.W.2d at 701.
3. Ineffective Assistance of Counsel
Appellant further argues that she received ineffective assistance of counsel during the petition hearing. She argues that trial counsel was ineffective for failing to (1) bring a motion to dismiss the original CHIPS petition when the basis for the petition was explained by the child’s medical condition; (2) have her examined by the expert employed to testify on her behalf; (3) adequately prepare the expert witness; (4) object to documentary evidence; and (5) call her to testify.
Appellant did not file a posttrial motion and makes her claim of ineffective assistance of counsel for the first time on appeal. In reviewing a direct appeal from an order terminating parental rights, the court considers only whether the evidence is sufficient to support the district court’s findings of fact and conclusions of law. In re Welfare of S.G. and K.G., 390 N.W.2d 336, 341 (Minn. App. 1986) (citation omitted). A party is precluded from alleging other error on appeal without first providing the district court with the opportunity to correct the error by filing posttrial motions. Id. at 340-41.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.