This opinion will be unpublished and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 Child of:


Jennifer Peterson, Parent.


Filed ­­­July 1, 2003


Harten, Judge


Hennepin County District Court

File No. J7-02-56890


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


Andrea K. Niemi, John M. Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (for guardian ad litem)


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


            Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant-mother challenges the district court’s judgment terminating her parental rights to her one-year-old child, arguing that (1) the district court’s finding that she refused to comply with her parental obligations is unsupported; (2) she corrected the problems leading to the out-of-home placement; and (3) termination of her parental rights is not in the best interests of the child.  Because the district court’s findings address the statutory criteria, are supported by the evidence, and are not clearly erroneous, we affirm.


Appellant Jennifer Peterson has a history of anger management and mental health problems.  Her mental health history includes diagnoses of bipolar affective disorder, oppositional defiant disorder, and major depressive disorder.  In June 2002, appellant was being treated for borderline personality disorder.

In November 2000, appellant agreed to voluntary out-of-home placement of her three oldest children, now ages 7, 5, and 4, while she was briefly hospitalized for depression.  In March 2001, the children were adjudicated children in need of protection or services.  The district court transferred legal custody of the children; at the September 2001 custody hearing, appellant testified that the transfer of legal custody was in the childrens’ best interests.

Appellant’s fourth child, J.E., was born two months later on 15 November 2001.  J.E. was immediately placed on a 72-hour health and welfare hold.  Respondent Hennepin County Department of Children, Family and Adult Services (DCFAS) petitioned for emergency protective care, and the district court placed J.E. in its custody.

On 13 February 2002, J.E. was returned to appellant’s custody under the protective supervision of DCFAS.  Ten days later, the police responded to a domestic disturbance call at the apartment appellant shared with J.E. and his father, Santiago Espinoza.  The police found the apartment in disarray and observed a five-inch-long cut on the underside of appellant’s wrist.  Appellant told them that she had become “very angry” over rumors of Espinoza’s unfaithfulness, that she had “trash[ed]” the apartment, and that she had inadvertently cut her wrist while putting away a knife.  Appellant later told an emergency room doctor, however, that she had intentionally inflicted the cut on herself.  J.E. was in the apartment when appellant cut herself; he was removed on 1 March 2002.

On 16 March 2002, the police again responded to appellant’s address after an argument between appellant and Espinoza.  They found various pieces of broken furniture, “includ[ing] end tables, coffee tables, baby crib being tipped over, and picture frames being thrown from the wall.”  Espinoza had videotaped appellant during the argument; the police viewed the tape and noted that she was holding a kitchen knife.

DCFAS filed a petition to terminate appellant’s parental rights to J.E.  Appellant did not testify at trial or call witnesses.  The district court considered 34 exhibits and took judicial notice of appellant’s entire child protection court file.  On 15 November 2002, the district court terminated appellant’s parental rights, finding that she had “not been able to demonstrate consistency in maintaining her case planning services or sufficient mental health stability to ensure the safety and well-being of [J.E.].”  Appellant challenges the termination of her parental rights.


On review of a district court’s findings in a termination of parental rights case, this court is “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).  This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

A district court may terminate parental rights if it finds that at least one of the nine statutory criteria for termination exists.  Minn. Stat. § 260C.301, subd. 1(b) (2002).  In an action for the termination of parental rights, “the best interests of the child must be the paramount consideration * * * .”  Id., subd. 7 (2002).  Here, the district court found clear and convincing evidence to terminate appellant’s parental rights because (1) she failed to comply with the duties imposed by the parent and child relationship; (2) reasonable efforts failed to correct the conditions leading to the out-of-home placement; and (3) termination was in the best interests of the child.

1.         Duties Imposed by Parent and Child Relationship

Parental rights may be terminated if a district court finds “that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship.”  Id., subd. 1(b)(2).  The district court found that appellant’s mental health and anger management problems prevented her from properly caring for J.E., that she exhibited disturbing and violent behavior, and that she did not take appropriate steps to protect herself from Espinoza’s ongoing abusive actions.  Substantial evidence supports those findings.

Appellant failed to effectively treat her mental illness.  Her court-ordered day-treatment program was twice extended beyond the original plan.  Moreover, appellant never completed dialectical behavior therapy (DBT), which was required by her case plan and recommended by her day-treatment team.  DBT is considered particularly effective for persons with borderline personality disorder because it teaches “skills in controlling impulsive and self-defeating behaviors.”  Appellant enrolled in individual and group DBT programs, but she missed 6 of 13 scheduled individual appointments and 4 of 11 group appointments.  Case notes also indicate that she failed to do her homework, did not actively participate, and focused more on Espinoza than herself.  Appellant was ultimately discharged from DBT in July 2002 “due to excessive absences and tardiness.”

Appellant repeatedly exhibited disturbing and violent behavior: cutting herself while J.E. was in the home, damaging her apartment while in a rage, and destroying her property.  Her continuing interactions with J.E. were also alarming.  At an August 2002 supervised visit, a family worker observed appellant repeatedly attempt to feed J.E. chicken and french fries.  The worker warned appellant that J.E. was too young for solid food and that he appeared to be choking; the worker eventually had to ask appellant to stop feeding J.E. solid food.  Furthermore, the court-appointed guardian ad litem reported:

My concerns about [appellant’s] ability to care for [J.E.] are little changed from my concerns with her previous children.  She has been diagnosed with a borderline personality disorder which makes it difficult for her to take directions or suggestions, discuss situations or ask for help.  I have observed these difficulties first hand in supervised visitation settings * * * and see them also in the reports from visits that I did not attend. * * *


In observing [appellant] at play with [J.E.] she is very controlling and directs his activities and play without allowing [him] to take the lead.  * * * She does not observe or respond well to his cues.  She is very physical with him * * * , over stimulating him and not understanding his reactions.


[Appellant] does not handle stress well with [J.E.].  On several occasions when he has been ill or fussy at visits, she would insist that he be taken home immediately, not wanting to deal with his illness or fussiness.


Appellant’s behavior demonstrates an utter lack of insight into J.E.’s needs and places him at risk of serious harm.

Finally, appellant’s continuing violent relationship with Espinoza prevents her from providing a safe and stable home for J.E.  In a 20 March 2002 report, appellant’s parenting counselors wrote that they were “seriously concerned about safety issues” between appellant and Espinoza and that the couple needed “to work on their relationship issues in order to be able to safely co-parent their son.”  Appellant consistently denied any problems with Espinoza and refused to seek help, even after admitting to both her therapist and social worker that Espinoza physically abused her.  Although appellant eventually moved out of Espinoza’s apartment, evidence shows that she continued to maintain contact with him.  Before a July 2002 supervised visit with J.E., family-services staff observed Espinoza hit appellant while the couple argued in a car outside.

Appellant’s inability to care for her mental health, her disturbing and violent behavior, and her dangerous failure to provide a safe and stable home for J.E. are clear and convincing evidence of a continuous refusal or neglect to comply with the duties of the parent and child relationship.

2.         Correcting the Conditions Leading to the Out-of-home Placement


            The district court determined that reasonable efforts failed to correct the conditions leading to J.E.’s out-of-home placement.  Minn. Stat. § 260C.301, subd. 1(b)(5), provides that a district court may terminate parental rights after finding

(5) that following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement.  It is presumed that reasonable efforts under this clause have failed upon a showing that:


(i) * * * In the case of a child under age eight * * * , the presumption arises when the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;


(ii) the court has approved the out-of-home placement plan * * * ;


(iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and


(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.


            The evidence supports the district court’s finding that DCFAS made reasonable efforts to correct the conditions leading to J.E.’s out of home placement and that those efforts failed.  J.E. was placed outside of appellant’s home for all but two weeks of his first year.  During that year, appellant failed to substantially comply with her court-approved case plan requirements that she participate in a DBT program and follow any day-treatment program recommendations.  While appellant did enroll in a second DBT program just prior to the termination hearing, she did not complete the program, and nothing in the record supports an inference that she would have completed it.  Finally, DCFAS’s efforts to reunite the family included therapy, parenting classes, supervised visitation, foster care, and daycare.  The district court’s determination that termination of appellant’s parental rights was justified under Minn. Stat. § 260C.301, subd. 1(b)(5), is supported by substantial evidence and is not clearly erroneous.

3.         The Best Interests of the Child

Appellant argues that the district court erred in determining that terminating her rights to J.E. was in the best interests of the child.  “The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.”  Minn. Stat. § 260C.001, subd. 3 (2002).      

              The district court found that

            [J.E.] has spent nearly his entire life to date in foster care due to his parents’ inability or unwillingness to fully correct the conditions which led to his out-of-home placement.  [Appellant’s] personality disorder and mental health history, in combination with her non-compliance with therapy and anger management, make her an on-going threat to [J.E.’s] health and safety.  Furthermore, the domestic violence between [appellant] and Mr. Espinoza has continued throughout these proceedings and [appellant] shows no insight into the danger this would pose the child.  * * * It is therefore in the best interest of [J.E.] that he be freed for permanency through adoption.


Substantial evidence in the record supports the district court’s findings, and it did not err in ordering the termination of appellant’s parental rights to J.E.