This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare of the Child of:
T. A. M. and J. B., Parents.
Filed December 20, 2005
Scott County District Court
File No. 2004-26566
Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Government Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for respondent Scott County)
Tanya Rae Derby, Assistant Scott County Public Defender,
Charles Emmons, Darlene Emmons,
Considered and decided by Toussaint, Chief Judge; Stoneburner, 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 termination of her parental rights, arguing that the district court erred in determining that (1) appellant was a palpably unfit parent, (2) the county made reasonable efforts to reunite appellant with her child, and (3) the child was neglected and in foster care. Appellant also argues that the statutory permanency deadlines violate the constitutional doctrines of due process and separation of powers. Because we conclude that the trial court did not clearly err in terminating appellant’s parental rights and because appellant’s constitutional challenges lack merit, we affirm.
Appellant T.A.M. and her husband, J.B., are parents of a son, D.B., born in April 2002. In December 2002, respondent Scott County Human Services Agency (SCHSA) received reports indicating that appellant “felt anxious and upset when she was alone with [D.B.] and he cried, had thoughts of hurting him, and was unable to adequately handle a choking incident with her son on December 2, 2002, when she was alone with him.” In response to that report and an overall concern regarding appellant’s intellectual capabilities, psychological state, and parenting abilities, SCHSA filed a petition seeking to have D.B. adjudicated a child in need of protection or services (CHIPS) on December 9, 2002.
On December 19, 2002, appellant and J.B. entered a denial to the CHIPS petition. The district court allowed D.B. to remain in the parental home, but placed him under the temporary protective supervision of SCHSA. A guardian ad litem was appointed and services were ordered for appellant, including intellectual and psychological evaluations and a family assessment.
SCHSA filed a case plan on January 13, 2003, stating that child protection services were necessary due to concerns about appellant’s parenting ability. On January 23, 2003, pursuant to agreement between the parties, the court ordered that appellant not be left alone with D.B. for periods of time exceeding 45 to 60 minutes. The court also ordered appellant to follow the recommendations in the case plan, including participating in psychological and neurological evaluations and following recommendations made by the evaluators, undergoing a complete physical examination, participating in parenting education, and agreeing not to harm D.B. Appellant commented regarding the case plan: “I do not agree with most of this.”
A second report alleging neglect of D.B. was received by SCHSA in February 2003. That report claimed that D.B. had severe diaper rash and open sores on his buttocks. D.B.’s parents apparently acted appropriately in seeking medical help and in treating these conditions.
At a CHIPS petition hearing in February 2003, appellant and J.B. entered a general admission to the petition with the understanding that the matter would be continued 90 days for dismissal under certain conditions. A March 2003 order listed the conditions to be satisfied. These included obtaining psychological and neurological evaluations and following recommendations made, cooperating with weekly visits from a public health nurse, participating in an early childhood family education program, attending a child CPR class, and promptly obtaining medical care for D.B. as necessary.
In April 2003, a domestic violence incident occurred between appellant and J.B. Because D.B. was present when the incident occurred and because the home was messy and cluttered, SCHSA made a finding of maltreatment based on neglect.
At a review hearing in May 2003, the district court found that appellant had failed to complete a physical examination or to follow through with the neurologist’s recommendations that she attend MINCEP Epilepsy Care, an epilepsy clinic. Appellant had completed a psychological evaluation, but she failed to follow the psychologist’s recommendations that she participate in a dialectical behavioral therapy (DBT) group and complete a medication assessment. At the May 2003 hearing, the court entered a CHIPS adjudication.
On October 29, 2003, a social worker and the guardian ad litem observed 18-month-old D.B. sitting outside his home unsupervised and without appropriate outerwear. Based on that incident and “the alleged history of poor supervision and neglect by the parents, and the parents’ failure to cooperate with social services,” D.B. was removed from his home and placed in emergency protective care. Within a few days, he was placed in the home of his paternal grandparents and has remained in their care ever since.
At an emergency protective care hearing held on November 13, 2003, the court ordered that D.B. was to remain in the custody of SCHSA and that the parents cooperate in establishing an out-of-home placement plan. Under this plan, adopted in January 2004 and revised in March 2004, appellant
was ordered to follow the recommendations of her psychological evaluation, receive services from MINCEP (an epilepsy clinic), not have any incidents of domestic violence, keep the home clean, participate in an infant CRP [sic] class, complete a family assessment, participate in parenting education, sign treatment releases, and submit to three random UAs.
The goal of the plan “was to reunify the child with the parents or principal caretakers.” Appellant signed the plan, indicating that she “did not agree with all of it.”
On November 14, 2003, police responded to another domestic violence incident between appellant and J.B. at their home. The couple was evicted from that home in February 2004, and the record indicates that appellant has not maintained stable housing since being evicted. She spent some time at a women’s shelter, but was asked to leave when she failed to follow the rules. She has moved frequently, staying with friends, relatives, or just “on the street.”
On April 22, 2004, SCHSA filed a termination of parental rights (TPR) petition. After a hearing in August 2004, the court made 63 findings and concluded that SCHSA had not made “sufficient reasonable efforts to prevent placement and reunify the child with his mother,” and noted the restrictions on the duration and conditions of appellant’s parenting time, the atmosphere of distrust and hostility under which the parenting time was conducted, the awkwardness of location and environment for the parenting time, and the failure to increase the duration of the parenting time and relax the conditions during the course of SCHSA’s involvement. The court ultimately concluded that SCHSA had failed to establish any of the bases for terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b) (2004), and dismissed the petition. The court also ordered that the permanency placement aspects of the proceeding be continued for six months beyond the statutory guidelines to October 29, 2004.
CHIPS disposition hearing in October 2004, appellant reported that she was
living at a
At a review hearing in November 2004, a social worker, a child protection worker, and D.B.’s guardian ad litem submitted reports indicating that appellant had become homeless after she was asked to leave the women’s shelter, was still without employment, that her representation to the court in October that she had obtained employment was, in fact, not truthful, that she had not made any efforts to complete DBT classes, that she had allegedly slapped a visitation supervisor, that she failed to follow through with the MINCEP evaluation, that she continued to miss and be late for her visits with D.B., and that she failed to stay in touch with SCHSA. Once more, the court ordered the parties to continue to follow the case plan and again ordered appellant to enroll in DBT classes, provide urinalyses, obtain an evaluation through MINCEP, attend visitation with D.B., obtain and maintain employment, and obtain permanent, safe, and clean housing. SCHSA’s motion to be relieved from providing any further efforts toward reunification and from providing any further services to appellant was denied at this hearing.
On December 17, 2004, SCHSA filed a second TPR petition. At a hearing on December 23, 2004, case workers reported that appellant was still homeless, had not participated in a DBT group or in a MINCEP evaluation, had not obtained employment and still failed to regularly attend scheduled visits with D.B. SCHSA’s renewed motion to cease providing efforts toward reunification was denied.
At a pretrial hearing on February 3, 2005, appellant reported that she was temporarily living with her mother at her grandmother’s apartment and had attended visitation, but had not found employment or housing. Additionally, she had not arranged to complete the DBT group and MINCEP evaluations. The court granted her request to increase visitation from one three-hour visit to two two-hour visits per week. Due to appellant’s history of missing visits, the court required her to call and confirm each visit a day in advance. The child protection worker sent appellant a letter at her grandmother’s address explaining this confirmation requirement. The record indicates that appellant received that letter.
The district court judge who presided over the earlier TPR hearing that had resulted in dismissal of the petition also presided over the hearing on the second TPR petition held in March 2005. Testimony received from social workers, D.B.’s guardian ad litem, and a case aide revealed that appellant did not have a stable address or phone number, that she had made numerous unverifiable claims of employment, that she missed many of her scheduled visits with her son, that her parenting skills had not improved since the first hearing, and that she had resisted services offered to her. When questioned about the services offered to appellant, a child protection worker explained, “I have attempted to help them with services and each time I have attempted I have in no uncertain terms been told to not bother working with them as far as services.”
Testimony was also received from the psychiatrist who examined and diagnosed appellant in 2003. He testified that appellant’s conduct was consistent with his earlier diagnosis, that she was depressed, and that her behavior showed indicia of antisocial and histrionic personality traits. He reiterated his earlier treatment recommendations of a medication assessment and DBT group, but added that even if appellant followed treatment recommendations, her ability to satisfactorily parent would nonetheless be “questionable.” The record indicates that appellant failed to complete the DBT group. As of the time of this hearing, appellant had also not received the court-ordered evaluation from MINCEP. The record reflects that although the clinic expended extensive efforts to evaluate appellant, she refused to cooperate with the clinic in scheduling an appointment.
The district court set forth 83 extensively detailed findings of fact after the hearing, and concluded that termination of appellant’s parental rights was appropriate under Minn. Stat. § 260C.301 (2004) because SCHSA demonstrated by clear and convincing evidence that appellant was palpably unfit to be a parent under subdivision 1(b)(4); that following D.B’s placement out of the home, reasonable efforts failed to correct the conditions leading to the placement under subdivision 1(b)(5); and that D.B. was neglected and in foster care under subdivision 1(b)(8). The court stated that since dismissal of the first TPR petition, the county had made reasonable efforts to reunify D.B. with his mother. SCHSA representatives had offered appellant assistance and services. Additionally, SCHSA replaced the case aide with whom appellant did not get along. The agency provided bus passes and gas cards for appellant to use for transportation to and from her visits with D.B. Appellant was also assigned a new social worker. The court concluded that it was in D.B.’s best interests for appellant’s parental rights to be terminated.
Appellant challenges each of the district court’s three bases for terminating her parental rights. Her argument particularly focuses on the alleged failure of SCHSA to provide reasonable services to reunify her with her son. Appellant also alleges that the statutory permanency deadlines are unconstitutional.
D E C I S I O N
Our review of the district court’s decision to terminate
parental rights is “limited to determining whether the findings address the
statutory criteria, whether those findings are supported by substantial
evidence, and whether they are clearly erroneous.” In re
Welfare of D.D.G., 558 N.W.2d 481, 484 (
In any TPR proceeding under Minn.
Stat. § 260C.301 (2004), the court must make findings and conclusions regarding
the provision of reasonable efforts or must find that the provision of services
is not required or would be futile.
Minn. Stat. §§ 260.012(a), (c), 260C.301, subd. 8 (2004). “The nature of the services which constitute
‘reasonable efforts’ depends on the problem presented.” In re
Welfare of S.Z., 547 N.W.2d 886, 892 (
When determining whether reasonable efforts have been made, the court shall consider whether services to the child 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.
In addition, reasonable
efforts are expressly required for terminating parental rights under Minn. Stat.
§ 260C.301, subd. 1(b)(5). This
statutory provision requires that parental rights may be terminated only on a
showing by 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.” Minn. Stat. § 260C.301, subd. 1(b)(5); J.S., 470 N.W.2d at 701. It is presumed that reasonable efforts have
failed upon a showing that: (1) a child
resided out of the parental home under court order for 12 months within the
preceding 22 months; (2) the court approved the out-of-home placement plan; (3)
conditions leading to out-of-home placement have not been corrected, which is
presumed upon a showing that the parent has not substantially complied with a
court’s orders and a reasonable case plan; and (4) reasonable efforts are made
by the social services agency to rehabilitate the parent and reunite the
Appellant argues that Minn.
Stat. § 260C.201, subds. 11, 11a, are unconstitutional because they
deprive appellant of due process of law and violate the separation of
powers. We reject these arguments for
two reasons. First, because these
arguments are inadequately briefed and lack adequate citation, we decline to
address them. State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc.,
558 N.W.2d 480, 480 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant voluntarily terminated her parental rights to another child in April 2002. SCHSA noted the prior termination in its CHIPS petition.
 The diagnosis was that appellant had histrionic personality, dysthymic, and generalized anxiety disorders.
 It appears from the record that D.B. was in the exclusive care of his father at the time of this incident.
 The court also entered a second CHIPS adjudication after the April hearing, concluding that at the time of the earlier CHIPS determination, “[b]ecause the parents disputed the adjudication . . . and the Court and the State seemed to recognize that the parents were contesting the adjudication, there was not a clear and proper adjudication.” There was no attempt by appellant to seek review of the first CHIPS adjudication.
 This hearing involved only appellant; J.B. had earlier agreed that his parental rights were to be terminated, conditioned upon the termination of appellant’s parental rights.
 There is an indication in the record that appellant’s I.Q. is 85. While early petitions in this proceeding expressed certain concerns about appellant’s intellectual capabilities, the record is otherwise silent on that issue.