This opinion will be unpublished and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:


N.M., Parent.


Filed ­­­November 29, 2005


Dietzen, Judge


Kandiyohi County District Court

File No. J0-04-50360


John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant N.M.)


Boyd Buccue, Kandiyohi County Attorney, Amy J. Isenor, Assistant County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201 (for Kandiyohi County Family Services)


Sara J. Runchey, 533 West Main Street, P.O. Box 1043, Marshall, MN 56258 (for guardian ad litem)


            Considered and decided by Peterson, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N




Appellant challenges the district court’s order terminating her parental rights, arguing that the statute permitting severance of parental rights without future contact with the children violates her constitutional rights and that the district court erred by finding that she is “palpably unfit” to parent and that the county provided reasonable efforts at reunification.  Because we conclude that appellant’s constitutional rights were not violated and termination of appellant’s parental rights is supported by clear and convincing evidence, we affirm. 



Appellant-mother N.M. is the parent of three children: E.M., born April 22, 1994; S.M., born March 22, 1997; and, B.M., born July 31, 1999.  The children’s father, R.M., voluntarily terminated his parental rights on September 27, 2004.  R.M. and appellant married after the birth of their first child, E.M., and separated shortly after the birth of B.M.  The children resided with appellant after the separation until she moved to Texas, leaving the children with their father.  The couple eventually divorced, and appellant signed a marital termination agreement giving R.M. sole physical custody of the children. 

On February 5, 2004, the Kandiyohi Children and Family Services (the County) filed a CHIPS petition alleging maltreatment while the children were residing with R.M.   The County filed the petition based on medical examinations of B.M. that revealed serious physical injuries resulting from inflicted trauma.  Subsequent investigation revealed that R.M. and his girlfriend had disciplined the children by duct taping their mouths, hands, and feet; forcing them to kneel on bricks until their knees bled; requiring the children to sit at the wall for long periods of time with their arms outstretched; isolating them in the basement; and withholding food.  As a result, all three children were removed from R.M.’s home.  R.M. pleaded guilty to and was convicted of four counts of malicious punishment of a child and incarcerated.  All three children were placed in a foster home where they have continuously resided.

When appellant learned of the children’s placement in foster care, she contacted the County to obtain custody of the children.  But the County was reluctant to transfer custody of the children to appellant because Steele County child protection had previously removed E.M. and S.M. from appellant’s home; and in a dissolution proceeding between the parties, the district court had awarded R.M. sole physical custody of the children with weekend visitation for appellant.  

Consequently, the child protection worker assigned to the case met with appellant, the guardian ad litem, and the maternal grandmother to develop a case plan for reunification.  The case plan included a parenting capacity evaluation, parenting classes, and requirements that appellant rebuild her relationship with the children and demonstrate stability.  Specifically, she was required to write two letters to each child per week, make weekly scheduled telephone contact with the children and regularly participate in visitation of the children.  Appellant signed and agreed to the case plan.

On July 30, 2004, a petition for termination of parental rights was filed by the County alleging that the parental rights of appellant should be terminated based on her refusal to comply with reasonable efforts at reunification.  The termination of parental rights trial took place on January 27, January 28, and February 4, 2005.  At trial, appellant and 12 witnesses testified, most of whom were social service or mental health professionals called by the County and supportive of termination. 

The child protection social worker testified regarding appellant’s compliance with the case plan and reunification efforts.  She testified that appellant did not complete parenting education classes, did not contact the guardian ad litem, and refused mental health services.  Appellant completed one of two parental evaluations with a psychologist.  Appellant cancelled six supervised visits and attended eight visits between March 2004 and August 2004.  Between August 2004 and January 2005, appellant also failed to call five times and called late six times.  In one instance, appellant called and left an angry message, not realizing that she was calling on the wrong day. 

In August 2004, the district court granted appellant unsupervised visitation.  But testimony indicated that appellant was tardy, was forgetful of meeting times and places, made requests for early return of the children to the foster parent, and cancelled the visitations without notice.  Appellant also failed to contact the children’s schools and participate with their therapy as requested by the County.  The child protection worker testified that she encouraged appellant to transfer her residence to Minnesota to rebuild the relationship with the children and to facilitate more frequent visitation.  But appellant refused to leave Texas.  The County pursued placement of the children with a relative, but the two potential relatives provided by appellant were disqualified or failed to respond. 

Following a parenting capacity evaluation of appellant, a psychologist concluded that appellant will likely find it difficult to attach emotionally to the children and that she will likely be unreliable, ambivalent, dissatisfied with herself and others, and anxious and overwhelmed with the demands of living.  He concluded that appellant will be “limited in [her] ability to understand and respond to the needs of others.”  The psychologist expressed concerns about appellant’s statements that she does not need any mental health treatment and never benefited from counseling, particularly in light of her children’s therapeutic needs.  He concluded that appellant would not be able to provide a nurturing or safe environment for her children. 

The children’s counselors and three psychologists performed psychological evaluations of the children and testified at trial.  These mental health experts testified as to the children’s significant psychological and emotional needs as a result of the traumatic abuse inflicted by their father.  The experts stated that E.M. meets the diagnostic criteria for post-traumatic stress disorder and will require counseling throughout her childhood.  S.M. was diagnosed with adjustment disorder with disturbance of emotions and conduct, which also requires counseling.  All three children were identified as demonstrating anxiety, fear, distrust of adults, unhealthy coping skills, low self-esteem, and difficulties in appropriately expressing their emotions.  The experts testified that the children will require counseling and a caregiver able to provide a consistent, stable, structured, nurturing, and safe environment, and to model healthy relationships, appropriate coping and conflict resolution mechanisms, and life skills. 

Appellant testified that she loved her children and was serious about reunification.  Appellant testified that she had stable housing and employment in Texas, and had narrowly missed passing her GED exam.  Appellant testified that she did not utilize the psychiatric services offered by the County because she does not need mental health services.  Appellant admitted her failure to complete parenting classes, contact the guardian ad litem, and fully comply with other aspects of her case plan.  Appellant testified that, as a Mexican immigrant, she often did not understand the documents she received in regard to services and legal matters.  Appellant testified that she wrote letters to her children and other documents in English, but sometimes has difficulties reading English.  Appellant admitted that the placement plans and reunification requirements were orally explained to her by child protection and the court. 

Following trial, the district court granted the County’s petition to terminate appellant’s parental rights on two grounds.  The district court determined that appellant was palpably unfit pursuant to Minn. Stat. § 260C.301, subd. 1(4), and failed to correct the conditions leading to the children’s placement despite reasonable reunification efforts by the County as required by section 260C.301, subdivision 1(5).  The district court also determined that termination of parental rights was in the children’s best interests.  The district court ordered termination of appellant’s parental rights as to all three children.  This appeal follows.



Appellant raises two arguments on appeal.  First, appellant contends that Minn. Stat. § 260C.317 (2004), which severs all ties between parent and child upon termination of parental rights, is constitutionally infirm because it violates the fundamental right of parents to have a relationship with their children and fails to consider less severe alternatives to absolute severance of the parent-child relationship, such as open adoption.  Respondent contends that the parental right to a relationship with one’s children is not absolute and that the district court’s best interest analysis necessarily contemplates less severe options than termination of parental rights. 

This court generally considers only those issues that the record shows were presented and considered by the district court in deciding the matter before it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  “Even in the context of termination of parental rights, failure to raise constitutional issues in the district court precludes the issues from being raised on appeal.”  In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999).  Here, appellant concedes that she did not raise the issue of the constitutionality of Minn. Stat. § 260C.317 in the district court.  Therefore, this court need not consider the constitutional argument on appeal. 

But even if we were to consider appellant’s argument that Minn. Stat. § 260C.317 is unconstitutional, we conclude that it lacks merit.  First, while the Minnesota Supreme Court has long recognized the fundamental right of parents to enjoy the custody and companionship of their children, it has held that parental rights are not absolute and should not be enforced to the detriment of the child’s welfare and happiness.  In re Welfare of Rosenbloom, 266 N.W.2d 888, 889 (Minn. 1978); In re Welfare of P.T., 657 N.W.2d 577, 583 (Minn. App. 2003).  The fundamental right of parents to enjoy the custody and companionship of their children is subject to the state’s compelling interest in protecting children from abuse and neglect.  P.T., 657 N.W.2d at 589.  Thus, this court and the Minnesota Supreme Court have consistently applied the termination of parental rights statutes under the appropriate circumstances without offending constitutional rights.  See, e.g., In re Welfare of R.W., 678 N.W.2d 49 (Minn. 2004). 

Second, appellant’s argument that Minn. Stat. § 260C.317 is constitutionally flawed because it fails to consider less severe alternatives to absolute severance of the parent-child relationship is misconstrued.  Section 260C.317, subdivision 1, provides that:

Upon the termination of parental rights all rights, powers, privileges, immunities, duties, and obligations, including any rights to custody, control, visitation, or support existing between the child and parent shall be severed and terminated and the parent shall have no standing to appear at any further legal proceeding concerning the child.


(Emphasis added).  Clearly, the statute is not applicable until parental rights have already been terminated.  Consideration of less severe alternatives to termination occurs prior to the operation of section 260C.317, subdivision 1.  Specifically, the district court considers permanency options that allow continued parent-child contact, such as transfer of legal and physical custody or long-term foster care, in its “best interest analysis” pursuant to section 260C.301, subdivision 7.  See also Minn. Stat. § 260C.201, subd. 11.  But once the district court determines that termination is in a child’s best interests, the legislature intended a clean break in the parent-child relationship at the time of termination as provided by section 260C.317.  In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997). 

Appellant further argues that even though her parental rights were terminated, she should be allowed contact with her children through an open adoption process.  Section 260C.317, subdivision 1 provides that “a parent whose parental rights are terminated . . . may be a party to a communication or contact agreement under section 259.58.”  Section 259.58 permits adoptive parents and a birth parent to enter an agreement regarding communication or contact between an adopted minor and the birth parent.  Minn. Stat. § 259.58(1). But the agreement is not legally enforceable unless the terms of the agreement are contained in a written court order sought before a decree of adoption is granted.  Minn. Stat. § 259.58(3)(a).  And the supreme court has noted that “while the law does not bar informal open adoption arrangements made at the time of adoption, such arrangements should not be made at the time of termination.”  D.D.G., 558 N.W.2d at 485.  Therefore, the district court did not err in failing to consider open adoption at the time of termination, and appellant could seek an open adoption agreement independent of termination proceedings prior to adoption.


Next, appellant contends that the County did not meet its burden of proving statutory criteria for termination of parental rights by clear and convincing evidence.[1] On appeal from termination of parental rights, “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 D.D.G., 558 N.W.2d at 484.  On review, “[c]onsiderable 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).  While this court “gives deference to the [district] court’s decision to terminate parental rights . . . it will closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing.”  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. § 260C.301, subd. 1(b) (2004).  Proof of one criterion is sufficient, but the primary consideration in any termination proceeding is the best interests of the child. Id., subd. 7 (2004).  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).

            A.        Palpable Unfitness

Appellant argues that the County did not meet its burden of proving she was “palpably unfit” as a parent.  Respondent contends that the record provides ample evidence supporting termination of parental rights due to palpable unfitness, including the testimony and reports of multiple witnesses.   

Parental rights may be terminated based on clear and convincing evidence that a parent is “palpably unfit” in that the parent demonstrates a “consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship” of a duration or nature rendering the parent unable for the reasonably foreseeable future to care appropriately for the ongoing physical, mental, or emotional needs of the child. Minn. Stat. § 260C.301, subd. 1(b)(4) (2004). 

            The district court found that appellant’s pattern of conduct renders her unable to care appropriately for her children’s significant mental health and emotional needs for the reasonably foreseeable future.  Specifically, the district court found that appellant is unresponsive to the needs and feelings of others, unreliable, unable to provide a stable and consistent environment, and unable to attach emotionally to the children.  The district court also found that appellant distrusts and resists social service workers and mental health professionals.  And the district court found that the children’s mental health diagnoses and significant emotional and behavioral difficulties require continued therapy and a caregiver who can provide nurturing, stability, consistency, and support of their therapeutic needs.

The record supports the district court’s findings that appellant is palpably unfit under section 260C.301, subdivision 1(b)(4), to care for the ongoing needs of the children.  The mental health professionals all testified to the children’s significant mental and emotional needs, and the type of caregiver and environment they require.  These professionals testified that the current foster parents, rather than appellant, were equipped to address these needs and provide the necessary nurturing, stability, consistency, and positive role-modeling.  Appellant’s evaluating psychologist and child protection workers testified to the substantial barriers faced by appellant in meeting her children’s needs and her continued failure to provide the necessary consistency, stability, and support for her children.  This testimony is reinforced by exhibits in the record, including psychological evaluations and summaries from the supervised visitation center.  Because the district court’s findings of palpable unfitness are supported by clear and convincing evidence, they are not clearly erroneous.

B.        Failure to Correct and Reasonable Efforts


Appellant argues that the County failed to make reasonable efforts at reunification, which resulted in her failure to correct the conditions leading to the children’s placement.  Minn. Stat. § 260C.301, subd. 1(5) (2004).  Respondent contends that the County made reasonable efforts but that these efforts were futile due to appellant’s failure to comply with her case plan. 

Under section 260C.301, subdivision 1(5), parental rights may be terminated based on clear and convincing evidence 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.”  Id. (emphasis added).  It is presumed that “reasonable efforts” have failed if the County can prove that: (1) a child has resided out of the parental home for 6 months (under 8 years old) or 12 months (age 8 and above) within the preceding 22 months; (2) the court approved the out-of-home placement plan; (3) conditions leading to the out-of-home placement have not been corrected, which can be presumed upon a showing that the parent has not substantially complied with the court’s orders and a reasonable case plan; and (4) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.  Id.

Here, all four factors are supported by clear and convincing evidence.  There was no dispute as to the first two factors under section 260C.301, subdivision 1(5).  The children resided out of the home for the requisite period of time, and the district court approved the out-of-home placement plans.  And, with regard to the third factor, the district court made extensive findings that appellant had “not complied substantially with the case plan sufficiently to effectuate the purpose of the plan which was to allow [appellant] to demonstrate her commitment to parenting her children and to rebuilding a relationship with her children.”  Specifically, the court found that appellant did not complete court-ordered parenting classes, frequently missed appointments with social service and mental health professionals, failed to contact the guardian ad litem, and refused adult mental health services offered by her case manager, stating that she neither needed or wanted the services.  Appellant also failed to re-establish a meaningful relationship with her children under the case plan by missing visitations and scheduled telephone calls, and refusing to become involved in the children’s school or therapy. 

The crux of appellant’s argument is that the County failed to make reasonable efforts to rehabilitate the parent and reunite the family.  The determination of whether efforts are reasonable is guided by Minn. Stat. § 260.012(c) (2004), which requires the district court to “make findings and conclusions as to the provision of reasonable efforts” or find that the provision of services or additional services would be futile.  In determining whether reasonable efforts have been made, the court considers whether the services offered to the children and family were: (1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances.  Minn. Stat. § 260.012(c). 

Appellant argues that the County’s reunification efforts lacked reasonableness under section 260C.012(c) because they were neither “culturally appropriate” nor “realistic under the circumstances.”  See id.  First, appellant argues that the efforts were not “culturally appropriate” because she has limited English language skills and the County did not take this into consideration in its reunification efforts. 

Here, the district court did not make an explicit finding that the reunification efforts were “culturally appropriate.”  But the record does not indicate that appellant’s language skills were a significant barrier at any point during the termination of parental rights process.  Appellant testified that she missed passing her GED exam by seven questions, wrote letters to her children and other documents in English, and she can read English and only sometimes has difficulties comprehending what she is reading.  Appellant also testified that the placement plans and reunification requirements were orally explained to her by child protection and the court. 

Next, appellant contends that the County’s efforts were not “realistic under the circumstances.”  See id.  Appellant argues that the mental health services offered did not adequately address the “Stockholm Syndrome” resulting from her experience with domestic violence and that the manifestations of this mental illness were not considered by the County in developing its case plan.  

Appellant’s argument that the mental health services offered by the County were inappropriate lacks merit.  The district court found that appellant refused adult mental health services.  Appellant argues that her refusal to cooperate with or seek treatment was a manifestation of her mental illness and it is unfair to use her mental illness against her.  Appellant also argues that her failures in finding addresses, reading orders, or keeping track of time were a result of her mental health issues.  But appellant cannot use her mental illness as both a shield to excuse her failure to seek mental health services and simultaneously as a sword to contend that the County failed to make reasonable efforts.  This court has held that if “the mental illness or other mental or emotional disability precludes that parent from providing proper parental care and defeats all reasonable efforts to remedy the conditions which led to a determination of dependency . . . the statutory requirement for termination has been met.”  In re B.L.W., 395 N.W.2d 426, 430 (Minn. App. 1986).  Based on our review of the record, the district court’s findings that appellant failed to correct the conditions leading to placement despite reasonable reunification efforts by the County are supported by clear and convincing evidence, and therefore are not clearly erroneous.

C.        Best Interests of the Children

            Because a child’s 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 child’s best interests, even if one or more of the statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996).  A best-interests analysis is a balancing of the child’s interests in preserving the parent-child relationship, the parent’s interests 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).  “Competing interests include such things as a stable environment, health considerations and the child’s preferences.”  Id. “Where the interests of parent and child conflict, the interests of the child are paramount.” Minn. Stat. § 260C.301, subd. 7. 

Here, the district court made extensive findings regarding the children’s best interests and concluded that the children’s best interests are served by termination of appellant’s parental rights.  Specifically, the district court found that the interests of appellant with regard to E.M. is “outweighed by the child’s need for mental health treatment and totally invested parenting by a parent willing to receive education on parenting and willing to implement suggestions on parenting;” in regard to S.M. is “outweighed by the child’s need for mental health treatment and need for a caregiver who is willing to receive education and training specific to [S.M.’s] behavioral issues;” and, in regard to B.M. is “outweighed by the child’s need for a caregiver who is completely in control of her emotions and reactions.  The child needs a parent who is willing to seek services for her own mental health and to seek services for [B.M.].  The child needs a caregiver to model appropriate relationship dynamics.”  The district court based these findings on appellant’s persistent instability, emotional unavailability, lack of attachment with the children, and inability to support her and the children’s significant therapeutic needs.  The district court concluded that “[appellant’s] circumstances are too unknown, her future plans too vague, and her mental health too questionable to be the solid foundation the children need to grow upon . . . [Appellant] is simply incapable of parenting these high needs children.”

Based on the testimony of various witnesses regarding appellant’s parenting capacity and efforts, and the needs of the children, the district court’s conclusion that
termination is in the best interests of the children is supported by clear and convincing evidence.


[1] There is a presumption in favor of a noncustodial parent upon the custodial parent’s death or relinquishment of any claim to a child’s physical custody.  See In re N.A.K., 649 N.W.2d 166, 175 (Minn. 2002).  The noncustodial parent is entitled to custody of a minor child unless there are “grave and weighty” reasons to separate the child from his or her natural parents.  Id.  But appellant has not raised this presumption during the proceedings below or on appeal; therefore, we decline to address the issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); See also Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).