This opinion will be unpublished and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 Children of:


A.J., A.P., and T.P.



Filed ­­­April 8, 2003

Affirm in part and dismissed in part

Harten, Judge



Hennepin County District Court

File No. J7-01-058211


Leonardo Castro, 4th District Chief Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, #200, Minneapolis, MN 55401-0809 (for mother J.J.)


Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, MN 55415 (for Hennepin County)


Alan C. Thiel, Thiel, Campbell, Gunderson & Anderson, P.L.L.P., 5200 Willson Road, Suite 411, Minneapolis, MN 55424-1345 (for guardian ad litem)


Colin T. Nelson, Suite 200, Western Union Building, 317 Second Avenue South, Minneapolis, MN 55401 (for father R.P.)


Karen L. Nasby, Assistant Public Defender, C-2200 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for child A.J.)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N



Appellant argues that the district court erred in terminating her parental rights because (1) she had rehabilitated herself by the time of trial; (2) evidence of the children’s preferences was not given sufficient weight; and (3) some evidence was improperly admitted.  Because appellant’s rights to her oldest child were not terminated, and, at oral argument, appellant withdrew her challenge to the placement of the oldest child in permanent foster care, we dismiss that part of the appeal.  We affirm the termination of appellant’s parental rights to her two younger children. 


Appellant J. J. is the mother of three children.  The oldest, A.J., was born in 1986; his biological father contributes to his support but has had no part in his life.  In 1987, appellant began a relationship with R.P., the father of  her other children, A.P., born in 1992, and T.P., born in 1999.  R.P. has repeatedly abused appellant, resulting in appellant’s repeatedly entering a shelter.[1]

Respondent Hennepin County Department of Children, Family and Adult Services  (DCFAS) became involved with the family in December 2000, when appellant left two of the children with a friend and failed to return for several days.  The children have been in continuous out-of-home placement since December 2000. 

A.J., A.P., and T.P. were all adjudicated children in need of protection or services (CHIPS) in February 2001 because of appellant’s chemical dependency and need for treatment.  The district court ordered a case plan to be developed for appellant.  Her failure to comply with several of the plan’s requirements led DCFAS to petition for termination of her parental rights.

 Following a trial during which three DCFAS social workers, respondent guardian ad litem, appellant, R.P., and A.J. testified, appellant’s parental rights to the two younger children were terminated.[2]  Appellant challenges that termination, arguing that she had rehabilitated herself by the time of trial, that the district court did not give sufficient weight to the children’s preferences, and that some evidence was improperly admitted. 



1.         Termination of Parental Rights to A.P. and T.P.


            When a trial court’s findings in a termination case are challenged, appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.


In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted).

            Appellant concedes that her children were appropriately removed in December 2000 but argues that, by the time of trial in April 2002, she was adequately rehabilitated and her children could have been safely returned to her.  Specifically, she claims that she had complied with requirements of the case plan drawn up when her children were adjudicated CHIPS in February 2001.  

            The first five requirements pertained to appellant’s chemical dependency: she was ordered (1) to maintain sobriety, with no use of nonprescription drugs; (2) and (3) to complete chemical dependency assessment and treatment and follow recommendations, including halfway house treatment; (4) to participate in urinalysis testing; and (5) to take part in AA/NA.  The district court found that, although appellant testified that she had been sober for 30 days at the time of trial on 15 April 2002:

                        10.1    [Appellant] has not maintained her sobriety during the pendency of these proceedings.  Her urinalyses have resulted in positive results for alcohol, opiates, and cocaine. * * *


10.2    [Appellant] told the social worker in January 2002, that she was using cocaine.  


10.3    On January 19, 2001, [appellant] was admitted to Journey Home * * *.  This was [appellant’s] second treatment admission.  She was discharged from the Journey Home program against staff advice with a poor prognosis.


10.4    On February 5, 2001, [appellant] agreed to a treatment plan for aftercare * * *.  [Appellant] was to commence aftercare for 12 consecutive sessions on February 12, 2001.  * * * By March 13, 2001, [appellant] was discharged * * * for drinking and being dishonest about it.


10.5 On March 20, 2001, [appellant] underwent a Substance Abuse Assessment * * * that concluded that [appellant] did not meet the criteria for a treatment referral.


10.6    Although not court ordered, [appellant] completed the ABC program on September 19, 2001.  For aftercare, ABC recommended that [appellant] participate in weekly AA, contact a sponsor, as needed, complete 10 ABC aftercare sessions, and continue to see her therapist on an ongoing basis.  [Appellant] did not follow any of these aftercare recommendations and did not remain sober.  [Appellant] produced an AA attendance card for only one meeting on April 12, 2002 [three days before trial].


10.7    On October 4, 2001, [appellant] was arrested in Minneapolis for prostitution.  [She] waved down an undercover police officer and offered to perform oral sex for $40. * * * 


10.8    On February 8, 2002, [appellant] underwent a Rule 25 Chemical Health Assessment * * * and it was determined that she is chemically dependent. * * *


10.9    On March 15, 2002, [appellant] was admitted to Riverplace Counseling * * * [and] reported that on that day, she had smoked and injected three hundred dollars’ worth of crack cocaine * * * [and] that her intravenous drug use included cocaine, methamphetamine and heroin.  She also reported that she used opiate pain medication inappropriately * * *. [She] was discharged from the program on April 5, 2002, with a recommendation that she move to New Choices sober housing * * *.


10.10   During the pendency of these proceedings, [appellant] has not consistently submitted to urinalysis.  Prior to [her] major chemical relapse in January 2002, [she] submitted diluted urinalysis as well as failed to provide some requested urinalysis.  [She] did not provide urine samples during January and February 2002.


Appellant asserts that, at the time of trial, she had been sober for 30 days, had completed a treatment program, had attended an AA meeting, and was living in a halfway house. She argues that her situation at the time of trial should have outweighed her failure to maintain sobriety and stay off drugs between the CHIPS adjudication in February 2001 and her entry into a third treatment program in March 2002.  But appellant has presented no evidence that she can remain sober and off drugs while living on her own without supervision; her 30 days of sobriety at the time of trial had been spent in a treatment center or a halfway house.[3]

Minn. Stat. § 260C.301, subd. 1(b)(4) (2000 & Supp. 2001), provides that parental rights may be terminated if the court 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. 


The district court found that appellant is palpably unfit to be a party to the parent child relationship with A.P. and T.P. specifically because her chemical dependency renders her unable to care for them for the foreseeable future.  This finding is supported by the findings on appellant’s chemical dependence, and those findings are supported by the record, particularly by the 60 documents admitted as evidence.

            The other requirements of appellant’s case plan pertained to her ability to provide a home for and be a parent to her children.  She was ordered to (1) complete a parenting education program; (2) complete a domestic abuse or anger management program; (3) complete a psychological evaluation; (4) participate in individual therapy; (5) have weekly supervised and weekend overnight visitation with the children; (6) maintain safe and stable housing after being in a halfway house; and (7) keep in contact with a social worker.  Regarding these orders, the district court found:

                        10.12  [Appellant’s] participation in a parenting education program * * * has not been consistent.  [She] was terminated from the program in February 2002. 


                        10.13  As of March 27, 2001, [appellant] refused to participate in a domestic violence group, claiming that she was no longer in a relationship with [R.P.].  [She] participated in a domestic abuse program at Sojourner Shelter in June 2001.  After completing the program, [she] entered a domestic abuse shelter on at least two occasions.  During that time, [she] continued to maintain a relationship with [R.P.].


                        10.14  On or about September 2001, when [appellant] was at the Sojourner Shelter, she reported to the guardian ad litem that [R.P.] had gotten drunk and beat her up. * * *


                        10.15  During the pendency of these proceedings, [a] DCFAS Social Worker * * * has seen [appellant] bruised and [she] has admitted to [the social worker] that [R.P.] is violent to her.  [She] discussed with [the social worker] her inability to stay apart from [R.P.] * * *. [She] leaves [him] but then returns to him.  * * *


                        10.16  [Appellant] has not maintained stable and suitable housing.  In a letter, dated January 7, 2002, [her] landlords asked her to leave her apartment because of [R.P.’s] presence in the apartment.  [She] had promised her landlords that she would get a restraining order against [R.P.] but continued to let [him] come into the apartment.  * * *


                        10.17  [Appellant] left * * * transitional housing in July 2001, after returning from a weekend pass high on chemicals.


                        10.18  [Appellant’s] visitation with the children has been inconsistent.  [She] did not visit at all during February and the first half of March 2002.  * * *


                        * * * *


                        10.20  [Appellant’s] participation in individual counseling has been sporadic and insufficient.


                        10.21.[Appellant] has untreated mental health problems.  * * *


                        * * * *


                        10.24  On February 27, 2002, [about six weeks before trial, appellant] underwent a diagnostic interview * * *.  [Her] diagnosis included opioid dependence; crack cocaine dependence; bipolar disorder provisional; herpes; hepatitis C; homelessness; prostitution; unstable relationship history; and poor social skills.


The district court noted that:

                        8.0       DCFAS Social Workers * * * and the court-appointed guardian ad litem * * * testified and were credible and persuasive witnesses.


9.0       [Appellant, R.P., and A.J.] testified and were not credible or persuasive witnesses.


“Considerable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.”  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted).

            The district court’s findings that appellant was palpably unfit to be a party to the parent-child relationship pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4), because of chemical dependency and domestic abuse are supported by the evidence and are not clearly erroneous.

2.         Children’s Preferences

            Appellant contends that the district court disregarded the wishes of A.P. to live with her.[4]  A.P. was nine at the time of trial.  She did not testify, but she wrote the district court with a letter asking to live with appellant.  But the preferences of children up to age nine need not be given significant weight.  See, e.g., In re Dependency of Klugman, 256 Minn. 113, 122-23, 97 N.W.2d 425, 431-32 (1959) (disregarding conflicting preferences expressed by nine year old).  In contrast, the preferences of children considerably older than nine have been given weight.  See, e.g., In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996) (remanding for findings on weight given to preference of child almost 15); In re Welfare of M.M.B., 350 N.W.2d 432, 435 (Minn. App. 1984) (considering preference of child aged 16 1/2).  The district court did not err in overriding A.P.’s wish to live with appellant.

3.         Evidentiary Issues

            A decision on the sufficiency of the foundation for evidence is within the discretion of the district court.  McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. 26 Mar. 1992).  When reviewing a district court ruling on the competence of a proffered expert witness, the appellate court must apply a deferential standard, reversing only if there is an abuse of discretion, and may not conduct an independent review of the credentials of the witness.  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 761 (Minn. 1998).

            The district court found that

            DCFAS Social Workers * * * and the court-appointed guardian ad litem * * * testified and were credible and persuasive witnesses.


Appellant argues that the district court abused its discretion in admitting and relying on the three social workers’ testimony. 

            Because no objection was made to the testimony of two of the social workers during the trial, appellant may raise this argument with respect to only the third social worker.[5]  Appellant claims that this social worker lacked a graduate degree, had worked with appellant’s children for only four months, and had worked only with the children, not with appellant.[6]  But she offers no support for her views that a social worker with only a bachelor’s degree is incompetent to testify, that a social worker must be on a case for more than four months to form a valid opinion, and that a social worker must work with both parent and children to have a valid opinion in a termination case. 

            Finally, appellant objects that the social worker testified that appellant’s parental rights should be terminated and the children released for adoption.  But

                        [t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.


Minn. R. Evid. 704. 

            The district court did not abuse its discretion in permitting the social worker to testify.[7]

            Affirmed in part, dismissed in part.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] R.P.’s parental rights to A.P. and T.P. were also terminated in this action.  He has not challenged the termination.

[2]Her rights to A.J. were not terminated because A.J., then 15, testified that he preferred long-term foster care to adoption and did not want appellant’s rights to him terminated.  Also, at oral argument appellant withdrew her challenge to the long-term foster care placement of A.J.  Accordingly, we dismiss the part of the appeal that pertains to appellant’s rights to A.J.

[3] Giving appellant more time to demonstrate that she can remain sober and refrain from abusing chemicals is not the answer.  “Each delay in the termination of a parent’s rights equates to a delay in a child’s opportunity to have a permanent home * * * .”   In re Welfare of J.R., Jr., 655 N.W.2d 1, 5 (Minn. 2003).  

[4] Appellant concedes that T.P. was too young to express a preference but contends that the district court also disregarded the wishes of A.J.  Because we dismiss that part of the appeal pertaining to A.J., we do not address this issue.

[5] Appellant did challenge another social worker’s testimony in her motion for a new trial, but “[a] party may not raise an issue for the first time in a motion for a new trial.” In re Trusteeship of Trust of Williams, 631 N.W.2d 398, 407 (Minn. App. 2001) (citation omitted), review denied (Minn. 25 Sept. 2001).  Appellant objects to the third social worker’s testimony for the first time on appeal.  Generally, this court will not address on appeal what has not been presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Appellant asserts that this social worker’s testimony is reviewable as “fundamental, prejudicial error,” but appellant neither identifies the alleged fundamental error nor explains what prejudice she suffered from it.

[6] Appellant objects to the testimony of the other two social workers on the ground that they had worked only with appellant, not with the children.

[7] Appellant also argues that the district court abused its discretion in admitting evidence as to the children’s post-termination placement opportunity.  However, appellant did not object to this evidence when it was offered (on the contrary, her attorney elicited much of it), and she did not raise the issue until her motion for a new trial.  “A party may not raise an issue for the first time in a motion for a new trial.”  Williams, 631 N.W.2d at 407 (citation omitted). Therefore, the issue was not properly before the district court and is not properly before this court.