This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).









In the Matter of the Welfare of:  S.L.A., a Minor Child.



Filed January 10, 2003


Robert H. Schumacher, Judge


Kanabec County District Court

File No. J30150068



Jesse A. Johnson, Route 4, Box 205 E, Pine City, MN 55063 (for appellant mother)


Sherri D. Hawley, 1398 Myrtle Street, St. Paul, MN 55119 (for appellant father)


Norman J. Loren, Kanabec County Attorney, Paul L. Henderson, Assistant County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051 (for respondent county)


Jody Ollyver DeSmidt, Walling & Berg, P.A., 121 South Eighth Street, Suite 150, Minneapolis, MN 55402 (for respondents paternal grandparents)


K.B., 320 Evergreen Street, #205, Mora, MN 55051 (pro se respondent maternal grandmother)


S.A., 961 – 109th Avenue, Coon Rapids, MN 55433 (pro se respondent aunt)


Ann M. Tessneer, Tessneer Law Office, 126 South Adams, #B, Cambridge, MN 55008 (for guardian ad litem)


            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants mother and father contend the district court erred in terminating their parental rights to S.L.A.  Mother claims the district court erred by considering her misuse of prescription medications, by concluding that she is a palpably unfit parent, and by deciding that termination is in the best interests of the child.  Father claims the court erred by relieving respondent Kanabec County of its obligation to continue with reunification efforts prior to the filing of a termination of parental rights petition and concluding that reunification efforts would be futile.  We affirm.


            S.L.A. was born on April 19, 1999.  Father signed a recognition of parentage the next day.  S.L.A. is three-quarter Caucasian and one-quarter Hispanic.  On March 25, 2001, father and mother were arrested in Hennepin County for fifth-degree controlled substance crimes.  A quarter-pound of marijuana was found in a car occupied by father, mother, and S.L.A.  Father and mother were taken into custody.  Father was subsequently sent to prison for a probation violation.  S.L.A. was placed in emergency care with respondent-intervenor aunt, a licensed foster parent.

            On March 26, 2001, the county filed a child in need of protection or services (CHIPS) petition, alleging the child was abandoned under Minn. Stat. § 260C.007, subd. 4(1) (2002), or was without proper parental care because of parent disability under subd. 4(8).  On March 27, 2001, the district court held an emergency care hearing and continued S.L.A.'s placement with aunt despite father and mother's objections.  The court ordered mother to remain law-abiding and chemical-free, and a case plan was completed.  Among other things, the case plan directed mother to submit to random urinalysis, obtain a chemical-use assessment, and enroll in Head Start or other family education classes.  On March 28, 2001, mother removed S.L.A. from foster care without approval and took the child to Mora, Minnesota. 

            On April 6, 2001, the court held an initial hearing.  The court ordered mother to complete a chemical-use assessment and a psychological evaluation.  On April 13 and 18, mother's urinalysis indicated positive for marijuana.  Mother's visitation with S.L.A. was changed to supervised when mother was unable to refrain from harassing the foster care provider.  On April 24, 2001, S.L.A. was adjudicated to be in need of protective services following father and mother's admission that the child was abandoned relative to the March 25 incident.  Mother was granted custody of S.L.A. subject to the county's protective supervision.

On April 24, 2001, father was released from prison on probation and resided with mother and S.L.A.  The court issued orders for the parents to remain law-abiding and chemical-free, to receive a variety of evaluations and assessments, and to enroll in parenting support groups and classes.  Neither was to expose S.L.A. to criminal activity or dangerous situations. 

            Following a report of a man and a woman arguing and scuffling in the early morning hours of June 23, 2001, the Pine City police detained mother and father.  Both had been drinking.  Mother later testified that she and father had fought and she sustained injuries.  Father's drinking was in violation of his probation, and even though he was returned to prison, as a result of this and other allegedly abusive incidents, mother received an order for protection on August 1, 2001.  This order was dismissed on August 10, 2001, at mother's request because of her stated desire to reunite with father.

            On August 29, 2001, mother petitioned for another order for protection.  She repeated the allegations of father's abuse and added allegations that he was harassing her from prison by way of threatening letters and phone calls.  As a result, mother no longer wished to reconcile with father.

On September 5, 2001, mother tested positive for opiates.  Although mother listed Vicodin on her prescription medication list, she later admitted she did not have a valid prescription for that drug at the time the test was administered.  Previously, on several occasions mother had failed to provide urine samples when directed, and the district court deemed these failed tests.

            The district court held a review hearing on September 11, 2001.  The court ordered custody of S.L.A. transferred to the county for foster home placement, with father and mother to have only supervised visitation.  The court reiterated its orders regarding chemical use, criminal and dangerous conduct, and the programs father and mother were to utilize.  The second order for protection was dismissed at mother's request, as she again wished to reconcile with father despite his past violence and abusive behavior, much of which had occurred in S.L.A.'s presence. 

            S.L.A. was placed with her paternal grandparents after the hearing.  Her paternal grandparents are licensed foster care providers.  Father was released from prison on September 12, 2001.  Father and mother were allowed supervised visits only.

            On October 19, 2001, father left a threatening voice-mail message for one of the county workers on the case.  There were several instances of threatening and abusive behavior by father directed at the county workers, including graphic outbursts of violent threats, some of which were clandestinely taped by a third party.  Many of these profane, violent, graphic outbursts were in the presence of S.L.A.

            On November 21, 2001, the court held another review hearing.  The court found that it was not convinced of mother's ability to keep S.L.A. safe.  The court noted mother's dismissing the various orders for protection despite father's abusive and violent behavior in the presence of S.L.A.

The court also found that the county had made reasonable efforts to provide appropriate services for father but that he had failed to utilize many of the services or to cooperate with the county workers, in addition to harassing them.  The court relieved the county of any future obligation to provide services for father or otherwise attempt to reunify him with S.L.A.  The court concluded that any such efforts were futile and not in the best interests of S.L.A.  The court also found that it was in S.L.A.'s best interests to continue the permanent placement hearing past the six-month deadline so that additional services could be offered to mother toward possible reunification.  The court found that mother had made some progress justifying a continuance.

            During the following December and January, mother had a positive test for marijuana.  The court also deemed a test as failed because mother did not provide a urine sample.  Father had a positive test for cocaine.

            On February 8, 2002, the county filed a petition for termination of parental rights.  The trial was continued when S.L.A.'s paternal grandparents moved to intervene in the action.  On March 1, 2002, father was convicted of fifth-degree possession of a controlled substance and placed on probation.  The terms of his probation included random urinalysis.  Father had ten positive test results between March 7 and April 25, 2002.  On March 5, 2002, mother again requested an order for protection against father, alleging physical abuse and threats against her and S.L.A.  On March 6, the court issued an order for protection effective for one year.

            Twice in March 2002 mother failed urinalysis tests.  She explained one of failure by claiming a Vicodin prescription, although again she did not have a valid prescription for that drug.  Later in March, mother had another positive test, but she had a valid prescription in effect at that time, and the court did not deem this a failed test.

            The matter was tried to the court April 30 through May 3.  The evidence included extensive testimony from the licensed psychologist who evaluated both father and mother pursuant to court order.  The psychologist diagnosed father with anti-social personality disorder and paranoid features, in addition to cocaine and amphetamine dependency.  He noted that father's disorder is dangerous and extremely pervasive and that it would continue into the foreseeable future.

The psychologist diagnosed mother with complex post-traumatic stress disorder and cannabis abuse.  He also noted narcissistic and histrionic personality traits, and testified that mother is impulsive, immature, angry, and hostile and might have a history of overly aggressive behavior.  He further testified that mother may have seriously contemplated suicide and is experiencing symptoms of depression, including possible vegetative symptoms.  The psychologist testified that mother's condition is pervasive, requires significant treatment, and would continue into the foreseeable future.  He opined that mother was likely to continue to subject herself and S.L.A. to abusive males, increasing exponentially the likelihood that S.L.A. would become an abuser or an abuse victim.  He testified that mother's conditions would critically impact her ability to care for S.L.A.

            The guardian ad litem also testified.  She had met with each parent on several occasions and had the opportunity to observe S.L.A. on numerous occasions.  She testified that it is in S.L.A.'s best interest for the parental rights of both parents to be terminated.

            The court made detailed and extensive findings of fact, including the psychological diagnoses and opinions regarding both mother and father.  The court specifically detailed the plethora of services offered to both parents, acknowledging that each parent had utilized some of these services.  The court found that each parent had failed to make use of several of the services or had failed to make significant progress despite the services they had utilized.  The court took note of mother's dismissal of the various orders for protection and her refusal to deal realistically with father's abuse and the danger it presented to S.L.A.

The court noted father's significant criminal history as well as his pervasive drug use and the psychologist's diagnoses.  The court found that mother had psychological problems, was reluctant to deal with these problems in any meaningful way, had abused chemicals, and had continued instability in residence and employment.  The court specifically found that neither father nor mother is capable of caring for S.L.A. in the foreseeable future and that terminating both father's and mother's parental rights is in the best interests of S.L.A.

            Judgments were entered terminating the parental rights of both father and mother.  Both father and mother filed separate appeals, which were consolidated.


A reviewing court "exercises great caution" when analyzing termination orders, affirming such orders only if "the evidence clearly mandates such a result."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  The district court must make specific findings in support of the termination decision, and this court reviews the record to determine whether those findings are supported by substantial evidence.  Id.  Although the appellate court "carefully review[s] the record, [it] will not overturn the trial court's findings of fact unless those findings are clearly erroneous."  In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (citations omitted).  The best interests of the child is "the paramount consideration" in every termination case.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).   

1.            The evidence presented demonstrating father's problems and inadequacies with respect to parenting S.L.A. was substantial and compelling.  Father's criminal history, drug abuse, and violent disposition and threatening outbursts in the presence of  S.L.A. justify the district court's findings that termination of father's paternity rights was in the best interests of S.L.A.

Father argues the district court erred when it relieved the county of its responsibility to provide further services to him toward reunification with S.L.A. because the court deemed such efforts and services futile.  Father claims the district court acted prematurely with this ruling on November 21, 2001, because the petition to terminate parental rights was not filed until February 8, 2002.  Also no other petition regarding permanent placement had been filed.  Father argues that Minn. Stat. § 260.012 (2002) must be read in conjunction with Minn. Stat. § 260C.178 (2002) and Minn. Stat. § 260C.201 (2002), as well as Minn. R. Juv. P. 67.09, and that taken as a whole, these provisions provide that the district court can make the futility determination only when the termination petition or petitions regarding permanent placement have been filed.   Additionally, father claims that he has made further progress toward the case plan and improving his parenting skills such that the district court's premature order resulted in prejudice to him.

Minn. Stat. § 260.012 (a)(3) provides that the district court may make a futility determination when a termination petition has been filed "or other petition according to section 260C.201 subdivision 11, has been filed."  The November 21, 2001 hearing was scheduled as a 90-day review given that the county had custody of S.L.A. as required under Minn. Stat. § 260C.201 and Minn. R. Juv. P. 76.01, subd. 1.  The county argues that this allowed the district court to make the futility determination even though the petition for termination had not yet been filed. 

We agree.  Father's interpretation would frustrate the very purpose of the statutory provisions directing the district court to act in the best interests of the child.  The district court must be allowed to make the futility determination at any stage of the proceedings, provided the facts clearly indicate the basis for that determination.  Additionally, Minn. Stat. § 260.012(c) clearly states that the district court must make findings and conclusions regarding the provision of reasonable efforts on the part of the county at the out-of-home placement review hearings, here the November 21 hearing.  At that hearing, the court made the futility finding and the evidence supports this determination.  The district court did not err in finding that further efforts with respect to father were futile. 

Father also argues that the district court contradicted itself by finding futility yet also extending the permanency deadlines at the November 21 hearing.  Father's argument would perhaps have merit if the district court had been analyzing his parental rights only.  S.L.A. was in the county's custody, however, and both father's and mother's parental rights were at issue.  Accordingly, the court's finding that further efforts with respect to reuniting father with S.L.A. were futile is not inconsistent with the court's decision to continue a permanency decision as to mother.

Also, father raises the issue regarding his Hispanic culture and that of S.L.A. as grounds for reversal.  The district court acknowledged that the county failed to consider father's Hispanic culture as of the time when the services and programs were made available for reunification purposes.  Minn. Stat. § 260.012 specifically provides that the district court must consider whether the services available to the parent and child were "culturally appropriate" when determining whether the reunification efforts are futile.  The court did consider the cultural appropriateness of the services the county made available to father and found that the services were not culturally appropriate. 

Although the statute directs the court to consider the cultural appropriateness of the services, this is just one of many factors enumerated in the statute that the court must consider when analyzing the services provided and whether the further provision of those services is futile.  The court made detailed and specific findings, which were supported by substantial evidence, as to the services made available.  The court acknowledged the services provided were imperfect but also stated that those imperfections were due in large part to father himself.

Father failed to avail himself of many of the services, or availed himself only sporadically and in a less than timely manner.  He not only failed to  cooperate with the county workers, on occasion he made graphic, violent threats against the workers, often in the presence of S.L.A.  The court's finding that further reunifications efforts were futile was supported by the evidence and is in the best interests of S.L.A.            

2.            Mother contends the district court erred in terminating her parental rights.  Specifically, mother takes issue with the district court's determinations regarding her abuse of prescription medications, her neglect of parental duties, palpable unfitness, and the child's best interests.  The county argues that the evidence amply supported the district court's findings and conclusions.

The district court heard an abundance of evidence regarding the substantial problems mother faces in conducting her own affairs, let alone caring for S.L.A.  The evidence supports the court's findings that mother suffers significant psychological problems that directly affect her ability to parent.  As the district court noted, mother has consistently and constantly subjected herself to abuse at the hands of father, despite the obvious danger to herself and S.L.A.  Mother has not shown that she is willing or able to address this problem, and in fact appears unwilling to do so.  The court acknowledged mother's progress in certain limited areas toward meeting the case plan, but the court also found significant shortcomings toward meeting the goals and objectives of the plan as a whole.  Mother's progress relative to her psychological problems was not significant, especially considering the amount of time available to her.  The district court's findings regarding mother's neglect of parental duties, her palpable unfitness, and S.L.A.'s best interests are supported by substantial evidence.

Mother also argues the district court's conclusions are erroneous because the court considered improper evidence regarding her drug problems.  The court relied, in part, on the evidence on mother's misuse of prescription drugs as grounds for termination.  Evidence was presented regarding mother's apparent addiction to some of these medications.  The court's orders at the review hearings, and the case plan itself, directed mother to refrain from the use of illegal drugs and misuse of "mood altering" prescription medications.  Although we conclude that at least some of the prescription medications mother took fall within the "mood altering" category, it is not clear that all of them do.  The guardian ad litem conceded on cross-examination that she had not specifically discussed with mother the misuse of prescription medications.  Mother argues that this renders the court's ultimate decision to terminate invalid because it was made in part on evidence surrounding her claimed abuse of prescription medications, some of which might not have been "mood altering."

We conclude that whether or not there was an abuse of prescription drugs, it was not significant to the district court's ultimate decision. The court made sufficient findings relative to mother's parenting problems outside of those touching upon possible misuse of prescription drugs to support termination.

The district court's decision to terminate father's parental rights follows directly from the court's findings that in turn are clearly supported by substantial evidence.  The termination of mother's parental rights is also supported by substantial evidence.  More critically, the evidence supports the district court's conclusion that both terminations are in the best interests of S.L.A.