This opinion will be unpublished and

may not be cited except as provided by

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









In the Matter of the Children of H.C. and M.C., Parents



Filed April 5, 2005


Toussaint, Chief Judge


Rock County District Court

File No. J20450029



Paul E. Grabitske, Eskens, Gibson & Behm Law Firm, Chtd., 115 East Hickory Street, Suite 200, P.O. Box 1056, Mankato, MN 56002-1056 (for appellants H.C. and M.C.)


Terry S. Vajgrt, Assistant Rock County Attorney, 204 East Brown, Luverne, MN 56156 (for respondent Rock County)


Carma Nordahl, 552 Columbus Avenue, Westbrook, MN 56183 (guardian ad litem)



            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In these consolidated appeals, appellant-parents challenge the termination of their parental rights to their three minor children.  Because the district court’s findings address the statutory criteria, are supported by the evidence, and are not clearly erroneous, we affirm.   


            Appellants mother H.C. and father M.C. met in approximately 1989, had children in 1991, 1993, and 1995 – the year they married – and divorced in 2002.  Following the divorce, mother was given physical custody of the children, with whom she resided in Rock County, Minnesota, while father lived out-of-state in Wyoming.  In July 2002, mother entered the Luverne Community Hospital and requested a rule 25 chemical-dependency evaluation.  She informed a chemical-dependency counselor that she had a history of very heavy methamphetamine use until 1997; had smoked marijuana since age 16; and had used large amounts of cocaine between February and June 2002.  The evaluation diagnosed the mother with marijuana dependence, methamphetamine dependence in remission, and cocaine dependence. 

            Mother began outpatient drug treatment in July 2002.  In early September, her chemical-dependency counselor contacted Rock County Family Services to report that the mother needed assistance caring for her three children because she was experiencing psychological and chemical-dependency crises and required inpatient treatment.  The children were placed with father’s sister in Luverne and mother was hospitalized for depression, anxiety, and suicidal ideation.  Near the end of September, she was discharged from the hospital and began inpatient chemical-dependency treatment.

In early October, at the aunt’s request, family services placed the children in foster care; aside from one weekend they spent with their mother that month, the children have not lived with any relative since then.  Between November 2002 and March 2003, mother was hospitalized as suicidal for a total of 51 days. 

In November 2002, the county filed a children in need of protection or services (CHIPS) petition on behalf of the children, alleging they needed protection due to mother’s severe mental health and chemical-dependency issues.  The district court transferred custody of the children to the county for foster-care placement and developed out-of-home placement plans for each child that included conditions to be met by the mother before the children could be returned home.  At the time, father was living in the state of Wyoming and was not available to participate in the case plans.  In December, the children were placed with a foster family, with which they have remained since.  In January 2003, the district court concluded the children were in need of protection or services and determined they would remain in out-of-home placement until the conditions set forth in the placement plans were met.

In March 2003, the district court civilly committed mother as chemically dependent, but stayed commitment on the condition that she successfully complete a specified chemical-dependency treatment program.  In early May, when mother was discharged from the program without completing it, the court revoked the stay and committed her to the Willmar Regional Treatment Center; there, she was diagnosed with polysubstance dependence, major depression recurrent, and borderline personality disorder. 

Mother was provisionally discharged from the Willmar center in June subject to several conditions, including that she pursue therapy for chemical-dependency and behavioral issues; meet with her mental health worker; and abstain from alcohol and non-prescription drugs.  It is undisputed that she did not successfully complete any therapy and that she began using illegal drugs again.  In August, the district court ordered that mother continue chemical dependency therapy; receive rule 79 case management; and follow the family service agency’s recommendations.  The court further ordered that both mother and father complete a parenting assessment. 

In September, the county filed a permanency petition to have the children placed in long-term foster care, alleging that neither mother nor father had complied with the court-ordered case plans.  In October, mother was arrested in South Dakota and charged with methamphetamine possession.  From jail, she admitted the allegations in the permanency petition, which the district court subsequently granted. 

In February 2004, mother was convicted on the October 2003 drug offense in South Dakota, given a suspended sentence, and released.  Two days later, she had herself hospitalized in Sioux City for suicidal ideation and remained there for two weeks.  On March 1, she visited her children for ten minutes, whereupon she moved to Colorado, stayed there until June, and then returned to appear at the hearing on the petition to terminate her parental rights. 

In April 2004, the county filed a petition to terminate mother’s and father’s parental rights to the three children under four grounds set forth in Minn. Stat. § 260C.301 (2004):  that the parents had abandoned the children, as described in subdivision (b)(1); that the parents had failed to comply with the duties imposed by the parent and child relationship, as described in subdivision (b)(2); that the parents were palpably unfit to be parties to the parent and child relationship, as described in subd. (b)(4); and that court-ordered reasonable efforts had failed to correct the conditions leading to the children’s out-of-home placement, as described in subdivision (b)(5). 

At the June 2004 hearing on the petition to terminate parental rights, the district court heard testimony from three employees of the county family-services agency and the court-appointed guardian ad litem (GAL).  The GAL’s testimony was based largely upon her June 2004 court-ordered report, in which she made an individualized determination of the needs of each child and assessed the propriety of terminating the parents’ parental rights in light of each of the statutory best-interests criteria set forth in Minn. Stat. § 260C.193, subd. 3 (2004).  The GAL testified that the mother had placed her children at risk by her persistent drug use and by repeatedly leaving the children with their paternal aunt without providing contact information or indicating when she would return.  She specifically contrasted the instability of the children’s lives before the December 2002 foster-care placement with the “stable and predictable parenting” they received in foster care. 

When the GAL prepared her report, the mother was living with her parents in Colorado, and the father was living in Wyoming; both parents were therefore inaccessible to the children.  The GAL recommended that the mother’s parental rights to the children be terminated and that the children be transferred to the Commissioner of Human Services for the purpose of adoption. 

As to the father, the GAL reported that he has “to [her] knowledge, not ever acknowledged or inquired as to the emotional health of needs or his children”; that he “has shown no consistency in his contact with his children”; that he has never been the children’s primary caregiver and has had contact only periodically with them; and that during the period he was living in the same town as the children’s foster parents, he refused repeated requests from the foster parents to visit the children.  The GAL recommended that H.C.’s parental rights to the children be terminated. 

The Rock County Family Services child-protection worker who worked with the parents, and the children beginning in September 2002, testified at length, addressing each of the allegations in the termination petition.  She testified that both parents had essentially abandoned the children during the two years preceding the termination petition.  As to the father, she observed that he had refused to submit to court-ordered parenting assessments or urinalyses; had not participated in the creation or implementation of the out-of-home placement plan; had seen the children a total of 13 times since November 2002 (approximately 18 months earlier); and had consistently refused to cooperate with family services’ attempts to assist him with case-plan compliance.  Father did not appear at the hearing on the termination petition but, after the hearing, his attorney asked the district court to continue the matter to allow the father a chance to address the court.  The court scheduled a continuance approximately six weeks later, at which father declined to testify. 

 As to the mother, the social worker testified she has continuously refused to attend to the children’s needs; that the county had repeatedly provided the mother with resources to address her mental-health and chemical-dependency issues; that the county coordinated the children’s foster-care placement and worked with mother to maintain contact with the children; that neither parent had complied with the case plan, corrected the conditions that led to the out-of-home placement, or indicated they would be able to correct those conditions in the foreseeable future.  The worker stated that the children’s best interests would be served by terminating both parent’s parental rights.  Mother testified at the hearing, stating she intended to pursue therapy and “would like to become responsible again.” 

In September 2004, the district court ordered the mother and father’s parental rights terminated.  The court order systematically addressed each of the allegations in the termination petition, made findings as to each allegation, and concluded that both parents had failed to comply with the duties imposed by the parent and child relationship; the father was palpably unfit to be a party to that relationship; father had abandoned the children; and that court-ordered reasonable efforts had failed to correct the conditions leading to the children’s out-of-home placement. 

The district court also found that efforts toward reunification focused on [father’s] chemical use and lack of involvement with the minor children; as to the mother, on her “chemical and mental health issues.”  The court observed that the father’s “voluntary move to the State of Wyoming has rendered implementation of the case plan all but impossible.”  With respect to the abandonment determination, the court found father had moved continuously between Minnesota, Wyoming, and Iowa since the filing of the CHIPS petition, had no regular contact with the children, and had not demonstrated consistent interest in the children’s well being for six months.  Both parents appeal.


A district court may terminate parental rights if the petitioning party proves by clear and convincing evidence that at least one statutory ground for termination exists and that termination would be in the child's best interests.  Minn. Stat. §§ 260C.301, subds. 1, 7, .317, subd. 1 (2004); In re Welfare of Children of R.W., 678 N.W.2d 49, 54 (Minn. 2004).  On appeal from a termination proceeding, “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).  This court closely inquires into the sufficiency of the evidence to determine whether it is clear and convincing.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  “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).

“The district court, in a termination proceeding, must consider a child’s best interests and explain its rationale in its findings and conclusions.”  In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003); Minn. Stat. § 260C.301, subd. 7 (stating  “the best interests of the child must be the paramount consideration” in proceeding to terminate parental rights); see also Minn. R. Juv. Protect. P. 41.05, subd. 1 (requiring that disposition order shall include a “statement explaining how the disposition serves the best interests and safety of the child”).  In analyzing the best interests of the child in a termination proceeding, the district court must balance three factors: (1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child.  In re Welfare of M.P., 542 N.W.2d 71, 75-76 (Minn. App. 1996).


The parents argue the district court did not sufficiently explain its rationale for concluding termination was in the children’s best interests; did not adequately weigh the parents’ and children’s respective interests in preserving the parent-child relationship; did not make individualized findings concerning the children’s best interests; and failed to make statutorily required findings concerning the parents’ physical and financial ability to adequately parent the children.  We disagree.

            The district court’s rationale for concluding termination was in the children’s best interests is set forth plainly in its termination order, where the court makes findings, as to both parents, concerning the conditions that led to the initial out-of-home placement and the parents’ failure to correct those conditions despite the efforts of the county.  The termination order addresses the allegations in the termination petition, makes relevant findings, and reaches conclusions of law articulated in the language of the applicable statutory termination criteria.  At the termination hearing, the court heard detailed testimony from the GAL concerning the best-interests criteria, and the order specifically references the GAL’s testimonial conclusion that termination was in the children’s best interests.  The findings concerning abandonment, the parents’ failure to cooperate with the case plans, mother’s failure to successfully pursue substance-abuse and mental-health treatment, and the county’s efforts to address these issues are supported by the record and are not clearly erroneous.  It is true, as the parents argue, that the district court did not cite the statutes by section number when addressing the criteria for termination.  But the court’s conclusions closely track the statutory language, and we are not, as  the parents contend, “left guessing” as to the grounds for termination. 

The parents argue the district court failed to consider the children’s prospective best interests.  But the termination order plainly considers the parents’ ongoing ability to adequately care for the children in the reasonably foreseeable future.  At the hearing and in the termination petition, the court received evidence concerning the prospective benefits of allowing the children to remain in a stable foster environment.

The parents correctly cite to Minn. Stat. § 260C.212, subd. 2 (2004), for the proposition that the best-interests analysis must include an “individualized determination” concerning each child; they argue that the district court failed to make such individualized determinations.  The GAL, in her report and her testimony, considered the individual needs of each child and detailed how each child’s best interests would be served by termination; the court heard testimony from family-services workers concerning each child’s needs.  The termination order itself does not address the children’s interests individually.  But the district court concluded termination was warranted on the basis of the parents’ general failure to comply with minimum statutory parenting standards as to all three children.  There is no record evidence – and the parents have never before contended – that an individualized assessment of each child’s best interests would alter the district court’s conclusion that the children’s universal interests would be best served by termination.  

The parents argue the district court erred by failing to specifically find that they were “physically and financially able” to comply with the duties imposed by the parent and child relationship, as required by Minn. Stat. § 260C.301, subd. 1(b)(2) (2004); they contend that the evidence demonstrates their inability to comply with the financial duties and mother’s inability – by reason of her chemical dependence – to comply with the physical duties.  The parents did not assert their inability to parent the children before the district court, and have, therefore waived the right to do so on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We further observe that the parents provide no support for the proposition that a parent who remains chemically dependent due to her failure to comply with court-ordered drug therapy, as is the case with the mother, may then assert her chemical dependence as a defense against termination.  Nor do  the parents point to any record evidence that they were physically unfit to work. 


The parents argue the district court erred in concluding mother is palpably unfit to parent, contending parental rights may not be terminated on the basis of mental illness or chemical dependency.  But the court did not base its conclusion concerning the mother’s palpable unfitness upon her mental illness and chemical dependency, but upon the fact that her unresolved mental-health and chemical-dependency issues have become “permanently detrimental to the physical and/or mental health of the children.”   Mother also maintains the district court did not give sufficient weight to her testimony at the hearing, in which she expressed her commitment to resolving her chemical-dependence, mental-health, and employment situation.  Evidence presented at a child-protection proceeding must address conditions that exist at the time of the hearing.  S.Z., 547 N.W.2d at 893.  Here, the court heard the mother’s testimony, balanced her past actions with her testimony, and weighed the testimony as it saw fit.  The district court’s findings concerning the mother’s palpable unfitness are supported by the record and are not clearly erroneous.


The parents argue the district court failed to justify its conclusion that the county made reasonable efforts to assist the father.  “Reasonable efforts” is defined as “the exercise of due diligence by the responsible social services agency to use appropriate and available services to meet the needs of the child and the child’s family in order to . . . reunite the family.”  Minn. Stat. § 260.012(b) (2004).  “‘[R]easonable efforts,’ by definition, does not include efforts that would be futile.”  R.W., 678 N.W.2d at 56.  Whether the county has met its duty of reasonable efforts requires consideration of the length of time the county was involved and the quality of effort given.  In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).  Here, the county made significant persistent efforts for over two years to assist both parents.  Father simply refused to participate in any services offered to him or comply with any court-ordered conditions.  The district court did not err in concluding that the county made reasonable efforts to assist him.


The parents argue that as to mother, the district court erroneously applied the presumption that reasonable efforts had failed to correct the conditions leading to out of home placement.  But as appellants concede in their brief, the court, in its order, “never holds the presumption applies.”  Because this is the case, it does not appear necessary to speculate about the presumption’s application.