This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1484

 

 

In the Matter of the Child of: I. W. and T. T., Parents.

 

Filed April 11, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. J602051809

 

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

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1210 Health Services Building, 525 Portland Avenue, Minneapolis, MN 55415 (for respondent Hennepin County Children, Family and Adult Services Department)

 

James H. Gaffney, Jr., 4209 West 44th Street, Edina, MN 55424 (for guardian ad litem)

 

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant mother argues the district court erred in terminating her parental rights because the evidence was insufficient to meet the required standard of proof, and the evidence included inadmissible opinion testimony from the guardian ad litem and the caseworker. We affirm.

FACTS

I.W. (mother) is the natural mother and sole custodian of T.T., born March 28, 2000. T.R.T. is the presumptive father of T.T.[1] On June 26, 2001, mother and T.T. were living at a shelter in Minneapolis. She returned to the shelter intoxicated. The police were called, and mother was taken into custody and jailed upon discovery that she had warrants in Hennepin and Ramsey counties for a variety of offenses, including assault and disorderly conduct. As a result, respondent Hennepin County Children, Family and Adult Services Department was granted temporary custody of T.T.

Mother was sentenced in Ramsey County to 90 days in the workhouse. A child in need of protection or services (CHIPS) petition was filed on June 28, 2001, and T.T. was placed in a non-relative foster home. Mother was released from the workhouse at the end of September. In December 2001, trial was scheduled in district court on the CHIPS petition. Mother admitted the petition and the court found T.T. a child in need of protection or services on the grounds of mother's chemical dependency, incarceration, and the need for ongoing case planning services. The court continued T.T.'s out-of-home placement. The court also issued a case plan directing mother to complete an updated chemical health assessment and follow all recommendations, document sobriety through random urinalyses, complete a domestic abuse program and follow all recommendations, maintain safe and stable housing, and cooperate with the assigned child protection worker.

Shortly thereafter, mother tested positive for cannabinoids and took another chemical health assessment. She was referred to Park Avenue center's intensive residential program for treatment and began the program on January 8, 2002. On January 18, mother left the center on a pass. When she did not return, mother was discharged effective January 19. She was readmitted on February 6, 2002, following another chemical health assessment. Mother had five days of treatment but refused to go to a halfway house for an intake interview, and the center discharged her as a result. Her attorney obtained another intake interview, and she was readmitted to the center when a halfway house agreed to take her.

On February 20, however, mother refused transportation to the halfway house, and she was again discharged. The social worker testified at trial that mother's failure to accept the terms of her discharge from the center constituted an unsuccessful discharge from the primary care program. Mother concedes that she refused to go to the halfway house and submitted only 8 of 54 requested urinalyses. The district court found that mother had not successfully completed chemical dependency treatment or maintained sobriety.

In March 2002, in response to the district court direction to complete a domestic abuse program, mother entered the SAFE program at African American Family Services. Mother had previously been discharged from the same program for lack of attendance. SAFE again discharged her for failure in attendance. The caseworker testified that this discharge constituted a failure to address that element of the case plan. The district court found that mother had not successfully completed domestic abuse counseling.

Mother visited T.T. sporadically. She argues that she had valid reasons for at least some of the missed visits. The court found that mother had not consistently visited T.T., and made only 10 of 30 scheduled visits from December 2001 to June 27, 2002, the date of trial. The court found that the caseworker was aware of mother's illiteracy and made accommodations for her, but she did not complete the case plan nonetheless. The district court found that termination of the mother's parental rights was in the best interests of T.T.

Mother did not object at trial to the opinion testimony of the guardian ad litem and the caseworker regarding the best interests and adoptability of T.T. The district court found that mother has a history of incarceration and was charged at the time of trial with felony deprivation of parental rights because she absconded with T.T. following a supervised visit. The court specifically noted the numerous services offered to assist in correcting the conditions that led to the out-of-home placement and found that reasonable efforts were made to return the child to the home.

The district court concluded that there was clear and convincing evidence establishing that the parental rights of the parents should be terminated under Minn. Stat. 260C.301, subd. 1(b) (2002), because (1) the parents have substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon them by the parent and child relationship; (2) following the court's determination that T.T. is a child in need of protection or services, reasonable efforts have failed to correct the conditions leading to that determination; (3) T.T. is neglected and in foster care, and (4) it is in T.T.'s best interests that parental rights be terminated. Mother appeals.

D E C I S I O N

When reviewing a decision to terminate parental rights, this court determines whether the district court addressed the appropriate statutory factors, whether substantial evidence supports the decision, and whether the findings are clearly erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001). This court reviews the evidence in light of the clear and convincing standard. Minn. R. Juv. P. 74.04. Parental rights may be terminated on a combination of statutory factors and termination and might be appropriate when only one condition is demonstrated. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

The best interests of the child are paramount in a termination proceeding provided at least one of the statutory grounds for termination has been demonstrated. Minn. Stat.  60C.301, subd. 7 (2002). A reviewing court conducts separate analyses of the best interests requirement and statutory factors. In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998). Minn. Stat. 260C.301, subd. 1(b) (2002), lists nine separate bases upon which the court may terminate a parent's rights vis--vis a particular child. Upon determining that one or more of these enumerated bases exists in a given case, the district court then analyzes whether or not termination would serve the child's best interests. Id.

The district court found three statutory bases on which to terminate mother's parental rights: (1) failure to comply with the duties of the parent-child relationship, (2) failure to correct the conditions that led to the out-of-home placement, and (3) the child was neglected and in foster care. The court also considered the best interests of T.T. and found that termination of mother's parental rights was in T.T.'s best interests.

Mother argues that the district court proceeded too hastily in terminating her parental rights because insufficient time had passed from the CHIPS petition to the termination process. She also argues that the services offered were not adequate or appropriate given her illiteracy and that she had made sufficient progress with her case plan.

1. Mother takes issue with the district court's determination that she failed in her efforts to obtain and maintain sobriety and remain drug free. She argues that her progress with the in-patient treatment at the center refutes and negates the court's finding that she failed to successfully complete her chemical dependency program. We conclude, however, that the evidence supporting the district court's determination was clear and convincing.

Although mother made some minimal progress with the chemical dependency treatment, the undisputed evidence indicates that she was completely unable or unwilling to follow through with her treatment despite repeated opportunities to do so. She failed to demonstrate abstinence by way of urinalyses, and the district court's findings are amply supported in the record. The district court found that mother's prognosis for maintaining sobriety and remaining drug-free was poor. The court's determination on this issue has substantial support in the record.

Likewise, the district court's findings and conclusion regarding mother's inability to deal with the domestic abuse problem finds ample support in the record. She was twice enrolled in the SAFE program, but her attendance and commitment to the program were poor. Mother's case plan specifically listed the domestic abuse as an issue mother would need to address if she wanted to correct the conditions leading to T.T.'s placement outside the home. She was required to receive treatment and counseling and not expose T.T. to threats of violence and harm. She failed to do this or even demonstrate a willingness to treat the problem seriously and responsibly. Thus, it is not the fact of the abuse that the district court relied upon when finding domestic abuse as a factor indicating termination of parental rights, but instead it was mother's failure to deal with the problem and put T.T.'s interests first.

Mother argues that the services offered did not adequately address her illiteracy. It is true that the district court determined that mother was illiterate. But mother has not demonstrated how this added consideration actually prevented or hindered her from adequately completing the case plan and dealing with the problems that led to T.T.'s out-of-home placement. The court noted mother's minimal efforts with respect to working the case plan and correcting the problems. Her problems were not caused because she failed to understand or attempt certain of the directions the court gave to her when the CHIPS petition was granted, but because she did not follow through with the various programs and services offered to her. Clearly, mother understood that she was required to get treatment for her alcohol and drug abuse; she began such treatment on multiple occasions. She failed to complete the programs, however, despite multiple opportunities to do so. She understood that she was to receive counseling and address the domestic abuse problem. Again, she began treatment more than once but did not follow through. Likewise, mother obviously knew she was to remain sober and drug free and submit to urinalyses to demonstrate her abstinence. She submitted to some urinalyses but failed to submit to most and failed some of those to which she did submit.

Also, the caseworker testified that she was aware of mother's illiteracy, and she detailed the accommodations she made in light of it. The district court noted these accommodations in its findings. Although mother's illiteracy does warrant specific consideration, she has not demonstrated that this limitation prevented her from adequately working her case plan. Instead, the record indicates that mother did understand what was expected and required of her but failed in meeting these expectations and requirements.

Mother also argues that the district court moved too quickly through the CHIPS and termination processes. The termination proceeding did, in fact, follow closely after the CHIPS petition and hearing. Nevertheless, she fails to demonstrate how a shorter period of time hindered her work on her case plan. Once again, mother's problems with progress toward her case plan and eliminating the conditions that led to T.T.'s out-of-home placement arise out of a lack of sustained effort. Mother's problems and inadequacies with respect to working her case plan do not involve the lack of opportunity or lack of time to adequately address the case plan.

On the record before us, mother did not "run out of time" with respect to making progress on her case plan. The district court's findings included noting mother's complete failure with respect to eliminating the conditions that led to T.T.'s placement in foster care. The court did not make a finding that mother's efforts "fell short." Mother was given more than sufficient opportunity to demonstrate her willingness and ability to correct the conditions that led to T.T.'s placement outside of the home. Her argument that the termination process was too short is without merit.

2. Mother argues that the district court erred by allowing the caseworker and the guardian ad litem to offer opinion testimony as to T.T.'s best interests and adoptability. Her main contention is that there was no foundation for the witnesses' opinions because they did not have adequate experience, that they had not been involved in this particular matter for a sufficient period of time, and that the reasons for their opinions were not provided. Mother contends that this led the court to an erroneous conclusion as to T.T.'s best interests.

The opinion testimony came in without objection at trial and therefore is not subject to review on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The waiver rule has been applied in termination proceedings. In re Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001). We conclude that mother may not address this evidence on appeal given the failure to object at trial.

Mother asserts, however, that an exception applies to the waiver rule under Minn. R. Civ. App. P. 103.04 because the alleged error, in the context of a termination proceeding, amounts to "fundamental error." This assertion is misplaced given the supreme court's opinion in In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997), in which the court stated: "The gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument * * *." The supreme court held that the failure to raise an issue below constitutes waiver on appeal. Id. Mother's objection to the opinion evidence is waived and not subject to review.

Affirmed.



[1] T.R.T.'s parental rights were also terminated pursuant to the petition. T.R.T. has not appealed.