This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Welfare of:  J.C. and A.G.


Filed January 28, 2003


Kalitowski, Judge


Kandiyohi County District Court

File No. J50250057


John E. Mack, Mack & Daby P.A., P.O. Box 302, New London, MN 56273 (for appellant Esther Castillo)


Boyd Beccue, Kandiyohi County Attorney, John Kallestad, Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent Kandiyohi County)


Sara J. Runchey, Runchey, Louwagie & Wellman, P.L.L.P., 533 West Main Street, P.O. Box 1043, Marshall, MN 56258 (guardian ad litem and attorney pro se )


Jay Liedman, 432 Southwest Litchfield Avenue, Willmar, MN 56201 (for the children)


Murlene Gruis, 324 Twelfth Street Southwest, Willmar, MN 56201 (guardian ad litem)


Michael Thalberg, 432 Southwest Litchfield Avenue, Willmar, MN 56201 (for respondent Jessica Ellingson)


            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant mother challenges the termination of her parental rights to her children, J.C. and A.G., contending the district court (1) based its termination decision on findings not supported by the record; (2) misunderstood the nature of appellant’s mental illness; (3) failed to make reasonable efforts to place the children with family members as required by Minn. Stat. § 260C.212, subds. 2, 5 (2002); (4) erred by accepting psychological evidence from an expert witness who was not a licensed psychologist; and (5) was prejudiced against appellant.  We affirm.



            Parental rights may be terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  This court reviews a termination of parental rights to determine “whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.”  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (citation omitted).

            The legislature has established nine criteria that support termination of parental rights.  Minn. Stat. § 260C.301, subd. 1(b) (2002).  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 (2002).  The party petitioning for termination must prove one or more of the statutory termination 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;” (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,” and a parent is presumed to be unable to care appropriately for the children upon a showing that parental rights to another child were involuntarily terminated; and (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.  Minn. Stat. § 260C.301, subds. 1(b)(2), 1(b)(4), 1(b)(5)(iii) (2002).  Here, the district court found that all three of these grounds for termination existed.  Appellant contends that the court’s findings are not supported by clear and convincing evidence.  We disagree. 

            Appellant first argues that there was insufficient evidence to support the court’s finding of ongoing alcohol abuse.  But appellant’s parental rights to three of her other children were terminated in Colorado in 1997 due in large part to her abuse of alcohol.  Appellant was also in detoxification in October of 2000 with a blood alcohol concentration of 0.30%.  Moreover, on November 7, 2000, while appellant was under a court order to abstain from using alcohol, appellant arrived at a court-ordered chemical dependency assessment at 11:35 a.m. with a blood alcohol concentration of 0.073%.  Appellant has been in treatment several times, but has never successfully completed any treatment program.  Appellant testified that she has not had any alcohol since November of 2000.  But Officer Anderson testified that on August 9, 2001, appellant smelled strongly of alcohol, appeared to be passed out due to intoxication, and failed a horizontal gaze nystagmus test, indicating intoxication.  Additionally, two chemical dependency assessments have placed appellant at the highest level of chemical dependency and both her family and her doctor have encouraged her to stop drinking.  We conclude there is sufficient evidence to support the district court’s finding that appellant has substantially neglected her duties as a parent by failing to address her alcohol dependency.

            Appellant also contends that she did not refuse inpatient alcohol treatment.  We disagree.  Appellant only partially agreed with her reunification plan because she did not feel that she required inpatient alcohol treatment.  Moreover, appellant missed so many appointments at a local treatment center that the center refused to accept her.  Finally, there was significant testimony that appellant has never successfully completed any treatment program and was not attending Alcoholics Anonymous, a recommendation of the parental capacity assessment.  This evidence is sufficient to further support the district court’s finding that appellant has failed to address her alcohol dependency.

            Third, appellant contends that the district court improperly relied on appellant’s relationship with Reynaldo Guerrero as a basis for termination.  Guerrero is the father of A.G. and in September of 2000, J.C. reported to appellant that Guerrero had sexually abused J.C.  Guerrero subsequently pleaded guilty to criminal sexual conduct in the fifth degree.  As part of appellant’s reunification plan, she agreed to discontinue contact with Guerrero.  But based on testimony at trial, the district court found that appellant continued to have contact with Guerrero on several occasions. 

            At the termination hearing, appellant testified that she no longer has contact with Guerrero and that evidence relating to the termination grounds must address conditions that exist at the time of the hearing on the petition for termination.  See P.R.L., 622 N.W.2d at 543.  While the court must consider conditions that exist at the time of the hearing on the petition for termination, there is no authority for the proposition that this necessarily renders a parent’s past conduct irrelevant.  To the contrary, the district court may make a prediction about a parent’s future ability to care for his or her children.  In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996).  And a parent’s history can be a useful basis for projecting a parent’s likely conduct for the reasonably foreseeable future.  In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995).  Thus, the district court’s finding that appellant substantially neglected her duties as a parent to J.C. and A.G. by continuing her relationship with Guerrero after learning that he sexually abused J.C. was supported by substantial evidence and not clearly erroneous.

            Fourth, appellant argues that the district court discriminated against appellant due to her receipt of public assistance.  But the district court only referred to appellant’s receipt of public assistance because appellant’s public assistance was scheduled to end on July 1, 2002, and appellant did not have a plan to address her loss of benefits.  One of the considerations in termination proceedings is whether the parent is “physically and financially” able to meet responsibilities.  Minn. Stat. § 260C.301, subd. 1(b)(2).  Thus, the district court was required by statute to evaluate appellant’s financial situation and her means to support herself and her children without public aid.

            Fifth, appellant argues that the district court improperly used appellant’s lack of formal education as support for termination.  But the district court only mentioned appellant’s level of education because appellant has had significant difficulty maintaining a job, and her lack of education is a barrier to gainful employment. 

            Sixth, appellant argues that her lack of cooperation with social services was justified because she perceived them to be “the enemy.”  Appellant was extremely hostile to both of the social workers assigned to her case.  According to the record, appellant frequently called her social workers and used profanity.  Additionally, appellant’s behavior toward her chemical dependency assessor was so disturbing that six of the assessor’s colleagues ran to the assessor’s office to see that she was all right.  Regardless of appellant’s perceptions, her behavior toward social services was unjustified and unacceptable.

            Finally, appellant contends that her failure to appear for several random urinalyses and other court-ordered appearances was due to a lack of transportation because appellant does not have a driver’s license and social services improperly failed to assist her to obtain a license.  But the county had no legal obligation to assist appellant in obtaining a driver’s license.  Moreover, there is no evidence in the record that appellant ever requested assistance in obtaining her driver’s license.

            Based on the substantial evidence of appellant’s history and conduct, the district court’s conclusion about appellant’s ability to be a stable parent for J.C. and A.G. properly addressed the statutory criteria and was not clearly erroneous.  Thus, we 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, and failed to correct conditions leading to the children’s out-of-home placement. 


            Appellant argues that her bipolar disorder, as diagnosed during the parental capacity assessment, was responsible for her failure to follow through with the recommendations of the parental capacity assessment.  Appellant further contends that social services failed to get appellant further treatment.  But the county made several attempts over a period of more than two years to get appellant into chemical dependency treatment, parenting classes, and individual counseling.  Appellant consistently refused to participate.  Moreover, the parental capacity assessment merely determined that the results of appellant’s psychological tests “suggested” that appellant “may be experiencing” a mental disorder.  The assessment also determined that appellant “can generally function on a satisfactory basis * * * .”

            Whether the county has met its duty of reasonable efforts requires consideration of the length of time the county was involved and the quality of effort given.  In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).  Here, the county made significant efforts for over two years to assist appellant and appellant refused to participate in the services offered to her.  Thus, the county sufficiently met its duty of reasonable efforts to assist appellant.


            Next appellant argues that social services failed to make reasonable efforts to place J.C. and A.G. with relatives, constituting reversible error.  We disagree.

            Social services is required to identify relatives of the children and notify the relatives of the need for foster care and the possibility of the need for permanent care of the children outside the home.  Minn. Stat. § 260C.212, subd. 5 (2002).  Appellant argues that the relative search was inadequate because it consisted of asking appellant for names of relatives and then also asking the recommended relatives for other names.  Appellant gave social services the names of four relatives as possible foster caregivers.  Two of the individuals never responded, a home study was conducted for one individual, which came back as negative for placement, and the fourth individual was not appropriate because a CHIPS petition was already pending in that household.  One of the recommended individuals gave social services the name of a family friend, but she was determined to be an inappropriate placement because there was a warrant out for her arrest. 

            Appellant contends that social services should have contacted more of her relatives on its own because it was well known that appellant has a large extended family.  But appellant has failed to identify these relatives, and the record indicates that the only other relatives that social services knew of were the relatives who were also involved with family services.

            We conclude that the relative search conducted by social services was reasonable and does not constitute reversible error.  Moreover, the adequacy of the relative search has no bearing on appellant’s fitness as a parent.  Finally, if there were a relative of appellant who is willing and able to care for J.C. and A.G., the relative could have contacted family services and requested a home study to pursue placement.


            Appellant argues that the parental capacity assessor, Dr. Caroline Bull, should not have been allowed to testify as an expert witness because Dr. Bull was not a licensed psychologist.  We disagree. 

            Evidentiary rulings lie within the sound discretion of the trial court, and its rulings will not be reversed absent an abuse of discretion.  Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445-46 (Minn. 1990).  A lack of board certification is not a bar to expert testimony.  Hagen v. Swenson, 306 Minn. 527, 528, 236 N.W.2d 161, 162 (1975).  A witness may qualify as an expert based upon their “knowledge, skill, experience, training, or education.”  Minn. R. Evid. 702.  Therefore, anyone whose profession or vocation deals with the subject at hand may testify as an expert.  Id.  The value of the evidence is tested by cross-examination and ultimately weighed by the jury.  Id.         

            Dr. Bull received a Psy.D degree from the University of St. Thomas in 1998 and began performing parental capacity assessments in 1999.  Since 1999, Dr. Bull has conducted approximately 50 parental capacity assessments. 

            The district court did not abuse its discretion by allowing Dr. Bull’s expert testimony.  Lack of board certification is not a bar to expert testimony, and Dr. Bull’s experience and knowledge regarding parental capacity assessments assisted the trier of fact.  Thus, Dr. Bull met the requirements of a qualified expert witness, according to Minn. R. Evid. 702.

            Appellant also argues that respondent did not lay a proper Frye-Mack foundation regarding the expert testimony based on the psychological tests.  But the record indicates that appellant did not preserve this issue by objection at the hearing.  Failure to preserve objections at the trial level waives those issues on review.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  And this rule applies to termination of parental rights cases.  In re Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001).  Because appellant failed to preserve the objection, we do not address the issue of a proper Frye-Mack foundation.     


            Appellant argues that the district court was biased against appellant and thus, should have recused itself.  This argument is without merit.

            Appellant argues that the district court failed to rule on appellant’s request for removal for prejudice.  But the record indicates the district court did respond by denying appellant’s motion as being untimely filed.  Appellant also argues that the district court demonstrated prejudice when it discussed appellant’s receipt of public assistance.  As previously mentioned, the district court evaluated appellant’s finances due to a statutory obligation, not because the court was biased against appellant.

            Appellant contends that the district court discriminated against her based on a mental disability.  As previously discussed, the parental capacity assessment did not contain any definitive language diagnosing appellant with a mental disorder.  Rather, the assessment merely recommended further evaluation.

            Finally, appellant contends that the “tenor” of the court’s order is “extremely demeaning and dismissive.”  We disagree.  Having reviewed the record, we conclude that the district court conducted itself in a conscientious and respectful manner throughout the trial and also in its findings of fact, conclusions of law and order.  Because there is no evidence that the district court was biased against appellant, the court was under no obligation to recuse itself.