This opinion will be unpublished and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 the Children of

D.G., Parent.


Filed November 16, 2004

Klaphake, Judge


Hennepin County District Court

File Nos. J2-03-057102 & 161190


Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant parent)


Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue, Minneapolis, MN  55415 (for respondent Hennepin County DCFS)


Eric S. Rehm, 301 West Burnsville Parkway, #202, Burnsville, MN  55337 (for guardian ad litem)


            Considered and decided by Hudson, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant D.G. challenges the district court’s decision to terminate her parental rights to her three youngest children, who were 11, 10, and 9 at the time of the December 2003 trial.  She asks this court to reverse the termination of parental rights decision and to remand for entry of an order placing the children in long-term foster care.

            Because the district court properly applied the law, and because its findings are not clearly erroneous and are supported by clear and convincing evidence, we affirm.



            Failure to State Prima Facie Case in TPR Petition

            Appellant first argues that the district court erred in denying her motion to dismiss the April 2003 TPR petition.  In support of her motion to dismiss, appellant argued that it was unfair for the county to proceed now, having delayed until the children were not adoptable.  Appellant also argued that there was no evidence in the petition that a TPR would serve the children’s best interests.

            The rules do not specifically require that a petition allege a prima facie showing that TPR is in the children’s best interests.  The rules merely require that the petition state “facts which, if proven, establish a prima facie case to support the statutory grounds set forth in the petition.”  Minn. R. Juv. P. 51.04(c); see also Minn. R. Juv. P. 71.03, subd. 3 (requiring that court must determine whether petition “states a prima facie case in support of termination of parental rights under the statutory grounds stated in the petition”).

            The district court here denied appellant’s motion to dismiss and ruled that the petition made a prima facie showing to support the statutory grounds pled and that it was unnecessary to make a prima facie showing that TPR is in the children’s best interests.  Even if a best interests showing was necessary, however, the TPR petition properly covered this issue by outlining the children’s lengthy out-of-home placements and appellant’s long history of noncompliance and unsuccessful programming.

            Waiver of Trial Rights

            Appellant next argues that the district court erred when it accepted her limited waiver of trial rights.  Statutory rights related to trial procedure in termination of parental rights cases are determined by examining the circumstances surrounding the case.  In re Welfare of G.L.H., 614 N.W.2d 718, 723 (Minn. 2000) (discussing right to counsel).  Under Minn. R. Juv. P. 72.03, subd. 3(a), “[b]efore accepting an admission the court shall determine on the record” whether the person understands the nature of the statutory grounds, the right to trial, the right to testify, and the right to subpoena witnesses, as well as the factual basis being admitted to establish the statutory grounds.  See also Minn. R. Juv. P. 74.03, subd. 2(a) (providing that party has right to present evidence, witnesses, and argument in TPR trial).

            Although the district court did not question appellant at length about her understanding of her trial rights, we are satisfied that the five-day trial, where the parties called 10 witnesses and stipulated to almost 100 exhibits, provided an adequate forum for presentation of appellant’s concern that the district court consider long-term foster care, rather than termination of parental rights.  In addition, the district court did not merely accept appellant’s admissions without more; to the contrary, the court made detailed findings to support the conclusion that reasonable efforts had failed to correct the conditions leading to the children’s out-of-home placements.  Because appellant cannot prove that she was harmed or prejudiced by the district court’s failure to question her more thoroughly on her admissions, any error in that regard was harmless.  See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error).[1]


            An appellate court reviewing a TPR order must “study the record carefully to determine whether the evidence is clear and convincing.”  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  TPR is affirmed “as long as at least one statutory ground for termination [under Minn. Stat. § 260C.301, subd. 1(b) (2002)] is supported by clear and convincing evidence and termination is in the child’s best interests.”  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  Once it is concluded that a statutory ground for termination exists, the “only remaining issue is whether termination is in the best interests of the children.”  Id. at 57.

            Stale Evidence

            Appellant argues that the district court erred in focusing on stale evidence and past conditions.  She notes that the district court made almost 40 findings on her past behavior and contacts with the county between 1989 and the initiation of this latest CHIPS proceeding in late 2002.  She insists that this demonstrates that the court improperly focused on past problems and that its TPR decision was meant to redress past county and court “inaction [rather] than to deal with the children’s present needs and conditions.”

            While a district court may not give undue weight to past conditions, it may consider past patterns of behavior to determine whether that behavior is likely to continue and thus make effective parenting unlikely in the future.  In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996).  In this case, consideration of appellant’s lengthy history with the county was relevant to issues involving whether the children could be returned to her care in the reasonably foreseeable future and whether long-term foster care placement was in the children’s best interests.  Appellant’s history with the county shows a consistent pattern of failure on her part to understand her own and the children’s problems and to take responsibility for those problems.  Appellant’s history also shows that she continues to lack an ability to appropriately interact with and support the decisions made by the children’s caregivers and treatment providers.  Appellant’s past inability to work effectively and productively with treatment professionals is highly relevant to the issue of whether long-term foster care would be in the children’s best interests, because that disposition would allow appellant continued contact with the children.  We therefore conclude that the district court did not err in focusing on past conditions, as those conditions were highly relevant to an understanding of the children’s best interests.

            Disposition:  Long-term Foster Care or Adoption

            Appellant argues that the district court erred by failing to fully consider whether long-term foster care (LTFC) was preferable to placement of the children for adoption.  The dispositions available to the district court were (1) reunification; (2) transfer of legal custody to a relative; (3) LTFC; or (4) TPR with placement for adoption.  Minn. Stat. § 260C.201, subd. 11(d) (2002).

            As the county notes, of these available options, LTFC is disfavored.  LTFC is only available to children 12 or older, or siblings of a child 12 or older when all are ordered into the same LTFC home, and when the children have a significant, positive relationship.  Minn. Stat. § 260C.201, subd. 11(d).[2]  In addition, before ordering a child into LTFC, a district court must find “compelling reasons” that neither an award of permanent legal and physical custody to a relative, nor termination of parental rights, is in the child’s best interests.  Id.; R.W., 678 N.W.2d at 57-58.

            Appellant argues that the district court’s decision fails to fully consider the fact that these children likely will not be adopted, given their ages and significant needs and problems.  The district court, however, was not required to make findings on the adoptability, or lack thereof, of the children before terminating parental rights.  In re Welfare of J.M., 574 N.W.2d 717, 722-23 (Minn. 1998).

            Appellant also argues that the district court should have ordered LTFC as a matter of equitable relief, even though it goes beyond the statutory provisions allowing for this type of a disposition.  See In re Child of E.V., 634 N.W.2d 443, 449-50 (Minn. App. 2001).  The district court considered the equitable aspects of LTFC, yet still determined that LTFC was not appropriate, not just due to the children’s ages, but also due to the lack of compelling reasons for LTFC and the negative impact that appellant’s continued involvement would have on the children.  Thus, the district court specifically concluded that LTFC would not be in the children’s best interests.

            TPR in Children’s Best Interests

            Appellant finally challenges the district court’s finding that TPR is in the children’s best interests.  She first argues that the district court considered the issues in the wrong order and improperly placed the burden on her to show that LTFC was in the children’s best interests.  But, given appellant’s repeated admission that the children could not return to her care in the foreseeable future, the district court had only three options to choose from:  LTFC, TPR, or a continuation of the CHIPS matter.  Because all parties agreed that continuation of the CHIPS matter was a temporary and not a permanent solution, the only viable options here were LTFC or TPR.  Focusing first on LTFC, the district court concluded that given the children’s ages, that option was not available under the statute.  The court further suggested that even if it were available, LTFC would not serve the children’s best interests in this case.

            Appellant argues that the district court improperly used evidence regarding the youngest child to reach conclusions about all three children.  In particular, the court relied upon the testimony of the youngest child’s therapist, Brownell Mack, who treated the child before he was placed at Northwoods Residential Treatment Center.  Mack’s testimony describes appellant’s involvement with the child as difficult and counterproductive.  Mack advocated for adoption versus LTFC as the best option for this child.      While we agree that the district court used Mack’s testimony and extrapolated to reach conclusions regarding her relationships with the other two children, that testimony was largely consistent with testimony from the other two children’s most recent foster parent and the staff at Northwoods, all of whom testified regarding the problems that appellant’s ongoing contact with the children created.

            Appellant next argues that because only one professional, Mack, explicitly supported TPR, the district court erred in determining that TPR was in the children’s best interests.  Although the staff at Northwoods refused to take a position as to the legal outcome of this case, their testimony suggested that appellant’s ongoing contact with the children was detrimental to their therapeutic progress and that such contact would be detrimental to any placement they might have after they leave Northwoods.  In addition, the testimony from the foster parent suggested that appellant is unable to participate positively in the children’s care and to interact beneficially with social service providers.

            Appellant had a number of supporters, including two social workers and the guardian ad litem.  One social worker, however, had not had a significant opportunity to observe appellant interact with the three children.  The other social worker acknowledged that appellant might become overwhelmed if faced with parenting two children and acknowledged that appellant would need to make significant progress before she could function in a useful parental role.

            The guardian ad litem testified regarding the strong bond between appellant and the children.  But the court pointed to substantial other evidence that showed that (1) appellant related to the children as a peer, rather than a parent; (2) appellant lacks boundaries and has been unable to place the children’s needs first; and (3) appellant acts out in front of the children and fails to interact appropriately with service providers.  As the district court reasoned, the existence of a bond does not give appellant the right to retain her parental rights where that bond interferes with the children’s best interests.

            The guardian ad litem also suggested that appellant had not been provided full services as a developmentally delayed adult.  Other evidence, however, suggests that appellant’s cognitive difficulties are only part of the reason she has so many problems parenting and dealing with service providers for her children.  In addition, appellant has been receiving services for developmentally delayed adults, but her parental abilities have not appreciably improved.

            Lastly, appellant argues that the district court’s best interests analysis fails to appropriately balance the interests of maintaining the parent-child relationship with any competing interests of the children.  As the county argues, however, the competing interests of the children are overriding and support the court’s decision to TPR.  All three children require extensive services, structure and stability, and active, effective parenting.  Appellant has interfered with services, is unable to establish any significant degree of stability, and admits that she is unable to actively function as a primary parent in the foreseeable future.  Based on the evidence and testimony presented, we cannot conclude that the district court clearly erred in finding that the children’s best interests are served by TPR.


[1]We also reject appellant’s claim that the district court erred in considering issues beyond the parties’ agreement.  The district court had an obligation to consider the grounds set out in the TPR petition and was not limited to considering only those issues agreed to by the parties.  Indeed, by taking the position that long-term foster care was in the children’s best interests, rather than termination of her parental rights, appellant placed the issue of her fitness to parent before the court and invited the court to consider that issue.

[2]  Appellant argues for the first time on appeal that the LTFC statute violates equal protection standards by treating similarly situated children differently based on their age.  Because the record and arguments on this issue are not well developed, consideration of the issue here on appeal is unwarranted and unwise.  See In re Welfare of E.Y.W., 496 N.W.2d 847, 852 (Minn. App. 1993) (stating that appellate courts must take great care in declaring statute unconstitutional), review denied (Minn. Apr. 20, 1993).  We therefore decline to address this issue further.