This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1494

 

 

In the Matter of the Children of:

M.B. f/k/a A., Parent.

 

 

Filed April 1, 2005

Affirmed

Willis, Judge

 

Hennepin County District Court

File Nos. J2-02-060412 & J0-04-051583

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN† 55401 (for appellant M.B.)

 

Leonardo Castro, Chief Fourth District Public Defender, Julia M. Inz, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN† 55401 (for respondent T.P.R.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue S., Suite 1200, Minneapolis, MN† 55415 (for respondent Hennepin County Human Services Department)

 

Eric S. Rehm, 202 US Bank Building, 301 West Burnsville Parkway, Burnsville, MN† 55337 (for guardian ad litem)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.


U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Appellant-mother argues that the district court clearly erred by failing to make sufficient findings to support the termination of her parental rights and by failing to make sufficient findings regarding the best interests of the children.† Because the record supports the district courtís findings and because the findings address the proper statutory criteria, the district court did not clearly err, and we affirm.

FACTS

††††††††††† In 1993, while mother was living in the Chicago area, Cook County child-protection services terminated her parental rights with respect to four children on grounds of neglect and chemical dependency.† Cook County child-protective services lost contact with mother in 1996, when she left Chicago for Minneapolis with another child, C.B., and the man who was then her boyfriend.

In 1997, mother left three-year-old C.B. unattended in her apartment with a burning candelabrum.† As a result, C.B.ís clothes caught fire, she suffered severe burns, and she died the following day.† In 1998, mother pleaded guilty to second-degree manslaughter in connection with C.B.ís death.† The district court stayed execution of motherís sentence and placed her on probation for ten years.††

In 1999, mother violated her probation by using alcohol and by stabbing her boyfriend with a pair of scissors; the district court sentenced her to 30 days in jail and reinstated her probation.† In February 2000, mother again violated her probation by, among other things, using drugs and alcohol, and the district court sentenced her to 48 months in prison.† The district court subsequently denied her petition for post-conviction relief, and this court affirmed.† Boyer v. State, No. C8-01-617 (Minn. App. Nov. 27, 2001).

While on work release, mother became pregnant.† In July 2002, just more than a month after her release from prison, mother gave birth to D.R., and a day later, the county filed a petition to terminate motherís parental rights to D.R., who was placed in foster care.† A county child-protection worker provided case plans to both mother and D.R.ís father (father) at a hold hearing on July 3, 2002.† Motherís case plan required her to complete a psychological evaluation and a parenting assessment, and follow all recommendations; to comply with the conditions of her parole; to demonstrate sobriety by submitting to random urine testing; to maintain safe and suitable housing for and consistent visitation with D.R.; and to demonstrate an ability to care for the child.

In August 2002, mother had been living in a halfway house but was preparing to move into a residential parenting program.† Just before entering the program, she submitted a urine sample that tested positive for cocaine.† The program denied admission to mother, and she was arrested and detained.† At a parole-revocation hearing, the court adjusted motherís parole conditions to include a 30-day drug-rehabilitation program, followed by a 75-day halfway-house aftercare program.† She completed the rehabilitation program but left the aftercare program after a month.† Again, mother was arrested, detained, and ultimately sent back to prison, where she served from November 2002 to February 2003.† Before her incarceration, mother completed a psychological evaluation.† The evaluation recommended, among other things, domestic-abuse therapy based on past incidents of verbal abuse between mother and father.† Mother did not follow that recommendation.†

In February 2003, while mother was incarcerated, the district court relieved the county of its duty to make reasonable efforts to provide further services that would assist in motherís reunification with D.R. because mother had previously had her parental rights terminated as to four other children.† After mother was released from prison, she sought and completed certain services on her own, including regular chemical-dependency counseling sessions, at which she submitted to drug and alcohol testing, and grief therapy for the loss of her child, C.B.† Mother regularly visited D.R. and sought and completed a psychological evaluation and parenting assessment, which recommended that she obtain adequate housing, continue with chemical-dependency counseling, and continue to attend 12-step programs.† In April and June 2003, the district court twice continued its prior order relieving the county of its duty to make reasonable efforts to provide services but reinstated supervised, out-of-home visitation with D.R. and ordered the county to fund motherís urinalyses.†

In September 2003, one of motherís urine samples tested positive for cocaine while she was pregnant with another child, and in response, the county filed a motion to discontinue motherís visitation with D.R.† In October 2003, the district court denied the countyís motion, stating that discontinuing visitation would only further complicate an already complicated situation but that the earlier order relieving the county of its duty to make reasonable efforts in providing services remained in effect.†††

In February 2004, mother gave birth to T.R., and the county filed a second petition for termination of parental rights, along with an ex parte motion for emergency protective care.† The district court granted the countyís ex parte motion, but after a hearing, it placed T.R. in motherís care under protective supervision because of the progress mother had made on her own.† Among the conditions of the protective supervision was that mother remain sober and that she take some responsibility for making sure that father was sober whenever he visited T.R.†

Despite the fact that the district court had relieved the county of its duty to make reasonable efforts in providing services, the county, at a review hearing in March 2004, indicated that it was willing to go forward with motherís reunification with D.R. and submitted a proposal for staged reunification in a prehearing report.† The district court adopted the countyís proposal, requiring mother to demonstrate sobriety; attend parenting classes; and maintain a safe, appropriate, and crime-free home.† The county expressed concerns about motherís relationship with father, who would be visiting the children, who had not been complying with his case plan, and who had shown little interest in the countyís reunification efforts.† The district court again stated that it would be relying in part on mother to help ďmonitorĒ fatherís sobriety during his visits.† At some time between the review hearing and April 22, 2004, the staged reunification between mother and D.R. was accomplished, and D.R. was placed in motherís care under protective supervision.

In mid-April 2004, mother and father had an argument at motherís apartment that resulted in father hitting mother.† Father reported the incident to the child-protection worker and told her that both he and mother had been using drugs and alcohol, and that he babysat for the children and had been living with mother in violation of a court order.† The child-protection worker asked the police to do a health-and-welfare check at motherís apartment, and the police reported slight injuries to motherís lip and face.† Mother initially denied fatherís report but later admitted to living with father intermittently and to an instance of domestic violence between them.† On April 19, 2004, both mother and father submitted urine samples for analysis.† Fatherís sample tested positive for cocaine, and motherís sample was too diluted to produce accurate results.† A subsequent sample from mother a few days later tested negative.

On April 22, 2004, the district court ordered out-of-home placement for both D.R. and T.R.† It relied primarily on the domestic violence that had taken place at motherís apartment in its determination that the childrenís health, safety, and welfare were in danger.† The district court ordered supervised visitation for both parents on the condition that they provide two weeks of clean urine samples.† Mother relapsed after the removal of the children, did not provide regular urine samples, and discontinued her chemical-dependency programming.†

When it became apparent that mother and father no longer shared the same legal interests, a new attorney undertook motherís representation and made her first appearance at the pre-trial hearing on May 4, 2004, and subsequently represented her at trial.† On June 22 and 23, 2004, a trial was held on the countyís petition for the termination of motherís parental rights.† Four witnesses testified:† the child-protection worker, motherís chemical-dependency counselor, mother, and the guardian ad litem.† The district court determined that mother is palpably unfit to be a parent to the children; that a child in her care has experienced egregious harm; and that she has refused or neglected to comply with her parental duties.† The district court also found that termination of motherís parental rights was in the best interests of the children, and it terminated her parental rights with respect to both D.R. and T.R.† This appeal followed.

D E C I S I O N

On appeal from a termination of parental rights, ďappellate 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.Ē† In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).† On review, ď[c]onsiderable deference is due to the district courtís decision because a district court is in a superior position to assess the credibility of witnesses.Ē† In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).† While ď[t]his court gives deference to the [district] courtís decision to terminate parental rights, . . . it will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.Ē†† In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

District courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. ß 260C.301, subd. 1(b) (2002).† Proof of one criterion is sufficient, but the primary consideration in any termination proceeding is the best interests of the child.† Id., subd. 7 (2002).† The petitioner must prove one or more of the criteria 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).† District courts are required to make clear and specific findings that conform to the statutory requirements.† In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).†

I.

††††††††††† The district court noted that under Minn. Stat. ß 260C.301, subd. 1(b)(4), because motherís parental rights previously had been involuntarily terminated as to four other children, she is presumed to be palpably unfit to be a party to the parent-child relationship.† The district court concluded that mother failed to rebut that presumption and terminated her parental rights under Minn. Stat. ß 260C.301, subd. 1(b)(4).

Mother argues that the fact that the district court returned the children to her care under protective supervision in early 2004 is sufficient to rebut the presumption, and she claims, therefore, that the district court clearly erred by terminating her parental rights on this ground.

††††††††††† Minn. Stat. ß 260C.301, subd.1(b)(4), allows the district court to terminate parental rights based on findings

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct . . . or of specific conditions directly relating to the . . . relationship . . . that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.† It is presumed that a parent is palpably unfit . . . upon a showing that the parentís parental rights to one or more other children were involuntarily terminated . . . .

 

Id. (emphasis added).† ďWhen the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her or his ability to successfully parent a child.Ē† In re Welfare of D.L.R.D., 656 N.W.2d 247, 251 (Minn. App. 2003).†

††††††††††† To support its conclusion, the district court found that ď[m]other has a lengthy history of child protection intervention and chemical dependencyĒ; that motherís parental rights as to four children were involuntarily terminated in another state because of motherís inability to provide appropriate food, shelter, or supervision and because of concerns regarding her use of drugs or alcohol; that mother has ďa major chemical dependency problem and continues to use drugsĒ; and that mother ďhas a history of turbulent relationships and has been both the victim of and perpetrator of domestic violence.Ē†

††††††††††† The record supports the district courtís findings.† Although mother concedes that had her case gone to trial before the birth of T.R., the county ďmight have been able to terminate [motherís] parental rights to [D.R.] based on the prior involuntary termination in Illinois,Ē she argues that she affirmatively demonstrated her ability to be a successful parent.† It is a well-settled principle that ďevidence relating to termination must address conditions that exist at the time of the hearing.Ē† See Chosa, 290 N.W.2d at 769 (citing In re Welfare of Barron, 268 Minn. 48, 127 N.W.2d 702 (1964)).† But motherís testimony at trial alone establishes that she:† (1) relapsed at least three times in the last two years, including once after the children were removed in April 2004; (2) discontinued chemical-dependency counseling in April 2004; (3) was attending Alcoholics Anonymous only ďonce in a whileĒ at the time of trial; (4) had a history of domestic violence with father, including the incident in April 2004 that led to the removal of her children; and (5) was living with father ďon and offĒ in violation of a court order at the time of trial.† ††

We conclude that the district court did not clearly err by determining that mother failed to rebut the presumption that she is palpably unfit to be a party to the parent-child relationship.

II.

††††††††††† The district court also terminated motherís rights under Minn. Stat. ß 260C.301, subd.1(b)(6), concluding that C.B.ís death while under motherís care indicates a lack of regard for a childís well-being such that a reasonable person would believe it contrary to the best interests of D.R. and T.R. to be under motherís care.† The court concluded that C.B. had experienced an infliction of bodily harm or neglect that demonstrated a gross inadequacy regarding motherís ability to provide minimal parental care.

Mother again relies on the fact that the district court in early 2004 returned the children to her care under protective supervision, arguing that she was no longer likely to harm her children and that the court clearly erred by terminating her parental rights on the ground that a child had suffered egregious harm while under motherís care.

We do not find motherís argument to be persuasive.† At the February 2004 hearing prompted by the countyís petition to terminate motherís parental rights to T.R., the county stated that because mother had made progress in improving her parenting abilities, the county did not have the clear and convincing evidence necessary to support a termination of motherís parental rights.† As a result, the district court returned T.R., and later D.R., to motherís custody, under protective supervision.† But when mother subsequently failed to follow through in her rehabilitation efforts and began using drugs again, a reasonable person would believe that it would be contrary to the childrenís best interests to be in her care.

Under these circumstances, the district courtís decisions to place the children with mother under protective supervision and its later decision to terminate motherís parental rights under the egregious-harm provision of the termination statute were both consistent with the record before the district court when it made the decisions.† The decisions are not inconsistent with each other; they were appropriate responses to motherís projected ability to care for her children at the time each decision was made.† See In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995) (stating that in any decision regarding termination of parental rights, the district court is not to rely primarily on the past history, but rather, on the projected permanency of the parentís ability to take care of the child).

††††††††††† In any event, the terms of the egregious-harm provision under which the district court terminated motherís parental rights are satisfied here.† That provision allows the district court to terminate parental rights based on findings

that a child has experienced egregious harm in the parentís care which is of a nature, duration, or chronicity that indicates a lack of regard for the childís well-being, such that a reasonable person would believe it contrary to the best interest of the child or of any child to be in the parentís care.

 

Minn. Stat. ß 260C.301, subd.1(b)(6). The child-protection statutes define ďegregious harmĒ to mean, among other things, ďconduct towards a child that constitutes a violation of sections 609.185 to 609.21.Ē† Minn. Stat. ß 260C.007, subd. 14(1) (2002).† Mother was convicted under Minn. Stat. ß 609.205 in connection with the death of C.B.† A termination of parental rights on this ground requires a showing that a child experienced egregious harm in the parentís care that demonstrates ďthe parentís grossly inadequate ability to provide minimally adequate parental care to any child.Ē† In re Matter of Welfare of A.L.F., 579 N.W.2d 152, 155 (Minn. App. 1998).††

To support its conclusion, the district court found that C.B. died as a result of third-degree burns over ninety percent of her body when mother left her unattended with a burning candelabrum in motherís apartment and that mother was convicted of second-degree manslaughter for causing the death of C.B.†

The record supports the district courtís findings.† We therefore conclude that the district court did not clearly err by determining that a child had suffered egregious harm while under motherís care such that a reasonable person would believe it contrary to the best interests of D.R. and T.R. to be in motherís care.

III.

††††††††††† The district court also terminated motherís rights under Minn. Stat. ß 260C.301, subd. 1(b)(2), concluding that she had substantially, continuously, or repeatedly refused or neglected to comply with duties imposed on her by the parent-child relationship.

Mother claims that by the time that the district court returned the children to her care in early 2004, she had changed her behavior and was applying skills she had learned for herself and for her children and argues that the district court clearly erred by terminating her parental rights on the ground that she was refusing or neglecting to comply with her parental duties.††

††††††††††† The district court may terminate parental rights based on findings

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, including but not limited to providing the child with . . . [the] care and control necessary for the childís physical, mental, or emotional health and development, if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.†††††††

 

Minn. Stat. ß 260C.301, subd. 1(b)(2).†

††††††††††† To support its conclusion, the court found that in February 2003 the county was relieved of its duty to make reasonable efforts to provide further services; that the county nevertheless provided services throughout the case, including parenting and chemical-dependency assistance; and that mother has not corrected the conditions that led to the removal of D.R. and T.R. from motherís care.†

††††††††††† The record supports the district courtís findings.† Again, mother claims that ď[i]t is clear from the evidence that [she] appropriately parented her children during the time she had them in her care.Ē† But a report from a parenting-services provider with which mother had been working in March and April 2004 stated that none of motherís parenting goals was met.† And furthermore, ďevidence relating to termination must address conditions that exist at the time of the hearing.Ē† Chosa, 290 N.W.2d at 769.† As discussed above, motherís testimony at trial established that she relapsed at least three times in the preceding two years, including once after the children were removed in April 2004; that she discontinued chemical-dependency counseling in April 2004; and that she attends Alcoholics Anonymous only ďonce in a while.Ē†

We conclude that the district court did not clearly err by determining that mother has refused or neglected to comply with her parental duties.

IV.

Because a childís best interests are the paramount consideration in proceedings to terminate parental rights, the district court may not terminate parental rights if the record does not show that termination is in the childís best interests, even if one or more of the statutory prerequisites for termination exist.† In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996).† The district court determined that termination of motherís parental rights is in the best interests of D.R. and T.R.† Mother argues that Minn. Stat. ß 260C.212, subd. 2, requires the district court to make an individualized best-interests determination for each child involved, that the district court failed to do so, and that such failure compels a reversal.†

We reject motherís argument for two reasons:† first, Minn. Stat. ß 260C.212 relates to the propriety of a particular out-of-home placement for a child, not to the termination of parental rights.† See Minn. Stat. ß 260C.212, subd. 2(a), (b) (2002) (requiring individualized determinations of a childís needs and how the placement selected for that child will serve those needs, and listing factors to be considered in determining childís needs).† Because this is a termination-of-parental-rights proceeding, the applicable best-interests analysis is a balancing of the childís interest in preserving the parent-child relationship, the parentís interest in preserving the parent-child relationship, and any competing interests of the child.† In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (citing In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987)).† The district courtís failure to address the best-interests factors in Minn. Stat. ß 260C.212 is not, therefore, a ground for reversal.†

††††††††††† The second reason for rejecting motherís argument is that, while the district court did not make explicit findings addressing the best-interests balancing test, review of the district courtís order shows that it did so implicitly and that it resolved that balance in favor of terminating motherís parental rights.† A review of those parts of the record that demonstrate the childrenís exposure to neglect, harm, drug use, and domestic violence supports the district courtís resolution of the best-interests inquiry in favor of terminating motherís parental rights.† And that resolution is consistent with the observation in caselaw that a child has a significant interest in the stability of his home environment and his health.† M.G., 407 N.W.2d at 121.† Because the district courtís order shows that it considered the competing interests at issue in a termination-of-parental-rights proceeding and because both the record and caselaw support the district courtís determination of the best-interests inquiry, the district courtís error in failing to make explicit findings addressing those best-interests considerations is not a ground for reversing the district courtís decision to terminate motherís parental rights.† 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).†

V.

††††††††††† Mother also raises several issues that are not properly before this court, either because they were not argued to the district court or because they were not preserved for appeal.† See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally address only issues presented to and considered by the district court); see also In re Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001) (noting that Thiele is applicable in termination of parental rights appeals); D.D.G., 558 N.W.2d at 485 (stating that gravity of a termination proceeding is an insufficient reason to abandon established rules for preserving issues for appeal).† We will, however, briefly address motherís arguments regarding these issues.†

A.

Mother argues that the district court violated her procedural due-process rights by adopting verbatim the countyís proposed findings, thereby failing to exercise independent review of the facts.† But verbatim adoption of a partyís proposed findings of fact and conclusions of law is not reversible error per se.† Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).† While a party may draft proposed findings and conclusions, the district court is ultimately responsible for ensuring that its findings and conclusions are sufficient for meaningful review.† Id. n.6.† And here, as discussed above, the district courtís order is sufficient to allow meaningful review of its decision to terminate motherís parental rights.† Therefore, the district courtís adoption of the countyís proposed findings is not a ground for reversal.

B.

††††††††††† Mother argues that the district court erred by admitting and relying on hearsay evidence, specifically fatherís report to the child-protection worker in April 2004.† See Minn. R. Evid. 802 (prohibiting the admission of hearsay statements); Minn. R. Juv. Protect. P. 3.02, subd. 1 (stating that, unless otherwise provided by statute or rule, evidence admissible in juvenile protection proceedings is that admissible in civil trial).† For purposes of addressing motherís argument, we assume that the evidence to which she refers was improperly admitted.† D.J.N., 568 N.W.2d at 175 (stating that in child-protection proceedings, admission of hearsay reports is within district courtís discretion).† The district courtís reliance on the disputed evidence was limited:† of the 68 individual findings made, only three relate to evidence reported by father.† Moreover, at the emergency-protection hearing on April 22, 2004, the district court stated that its decision to order out-of-home placement was not based on the disputed evidence but rather on the incident of domestic violence, admitted to by both mother and father, that occurred between mother and father at motherís apartment.† Thus, this record, taken as a whole, does not suggest that admission of the disputed evidence was prejudicial error, and motherís argument lacks merit.† See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (stating that ď[e]ntitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining partyís ability to demonstrate prejudicial errorĒ (quotation omitted)).

C.

Mother argues that the district court set her up for failure by holding her responsible for monitoring fatherís sobriety during his visits with the children.† The exact nature of this argument is unclear, but mother did not object to monitoring fatherís sobriety during visitation at either the February 2004 hearing or the March 2004 hearing.† Indeed, at the February 2004 hearing, she asked for clarification about the extent of her responsibilities regarding father.† Moreover, on appeal, mother claims that ď[t]he absurdity of [the courtís] requirement became evident when [mother] tried to enforce it.Ē† (Emphasis added.)† If the problem with the requirement that mother take some responsibility for making sure that father was sober when he visited the children did not become evident to mother until the confrontation in April 2004, she apparently did not foresee problems at the time of the hearings.† Because mother both failed to object to the responsibility given to her and asked for and received clarification of the extent of her responsibility and because mother apparently did not foresee a problem with the responsibility in question, we do not find motherís argument to be persuasive.†

D.

††††††††††† Mother argues finally that because a new attorney was assigned to her case shortly before the pre-trial hearing on May 4, 2004, the ďlack of both information and time to meaningfully prepare violated [motherís] statutorily guaranteed right to receive a fair trial.Ē† But the usual remedy when counsel lacks sufficient time to prepare for trial is a request for a continuance under Minn. R. Juv. Protect. P. 5.01, subd. 1.† No such request was made here, and motherís new attorney had six to seven weeks to familiarize herself with the record and to prepare for trial.† Because mother argues, in essence, that the district court abused its discretion by not granting a continuance that she did not request, we reject motherís claim that her trial attorney had so little time to prepare that the proceedings violated motherís right to a fair trial.†

Affirmed.