This opinion will be unpublished and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 Welfare of the

Child of:  K. L. M. and J. E. J., Parents.



Filed January 10, 2006


Halbrooks, Judge



Stearns County District Court

File No. J2-05-50054



John D. Reep, Reep Law Office, PLLC, 919 West St. Germain Street, St. Cloud, MN 56301 (for appellant K. L. M.)


Janelle P. Kendall, Stearns County Attorney, Gayle A. Borchert, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent Stearns County)


Karen Novak, 11344 Grand Lake Road, Cold Spring, MN 56320 (guardian ad litem)


J. E. J., 1124 13th Street South, St. Cloud, MN 56301 (respondent)



            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Crippen, 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.  She contends that the district court clearly erred by requiring her to rebut the presumption of palpable unfitness to parent because the previous involuntary termination of her parental rights to two other children was invalid.  Because appellant was represented by counsel during the previous proceeding and failed to challenge that order within 30 days, the order is final, and she cannot challenge it now.  Appellant also asserts that she rebutted the presumption because she provided evidence that she has made positive changes.  Although appellant may have made positive changes, they are insufficient to rebut the presumption of palpable unfitness.  Finally, appellant argues that the district court clearly erred by finding that termination is in the child’s best interests.  Because the district court did not clearly err by finding that termination is in the child’s best interests, we affirm.


            Appellant K.L.M. is the mother of three children.  In 2004, the district court in Sherburne County terminated her parental rights to her two oldest children.  The county attorney permanently placed the two children with their foster parents because appellant failed to complete the county’s case plan for reunification.  Prior to the district court’s transfer of custody, appellant had been discharged from two chemical-dependency outpatient programs; she continued an abusive relationship with J.E.J., father of two of appellant’s children, despite a court order to the contrary; and, in violation of a court order, she moved out of her mother’s home. 

            After the county terminated her parental rights, appellant entered, and successfully completed, an inpatient chemical-dependency treatment program.  Following the inpatient treatment, she entered a halfway-house program, which she also successfully completed, but not without problems.  Appellant failed to tell staff members at the halfway house that she was pregnant with J.E.J.’s child.  In addition, in December 2004, after leaving the halfway house, she was evicted from her townhouse and moved into a shelter. 

            Also in December 2004, appellant had a doctor’s appointment and, while eight months pregnant, tested positive for marijuana.  On January 6, 2005, appellant gave birth to her third child, J.J., who is the subject of this termination proceeding.  Both appellant and J.J. tested positive for marijuana, and appellant admitted to smoking marijuana at least twice during her pregnancy.  On January 12, 2005, J.J. was removed from appellant’s custody, and the county attorney filed a petition to terminate appellant’s parental rights.

            Between January and April 2005, appellant claims that she started participating in individual therapy, resumed taking an antidepressant, began attending Alcoholics and Narcotics Anonymous meetings, obtained employment, continued her schooling, and ceased having contact with J.E.J.  During the trial on the termination petition in April 2005, appellant acknowledged that those changes were all things that she started only recently or had yet to begin.  In May 2005, the district court granted the county’s petition and terminated appellant’s parental rights to J.J.  This appeal follows.


            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 (Minn. 1997).  In so doing, we afford considerable deference 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).  But “[w]hile we defer to the trial court’s findings, we are required to exercise great caution in proceedings to terminate parental rights.”  In re Welfare of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).  “Indeed, parental rights may be terminated only for grave and weighty reasons.”  Id.  We “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). 

I.          Did the district court err in finding that appellant failed to rebut the presumption that she is palpably unfit to parent?


Typically, a natural parent is presumed to be fit and suitable to be entrusted with the care of her child, so the petitioning party must prove by clear and convincing evidence that the parent is palpably unfit.  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995); In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  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).  But proof of one criterion is sufficient.  Minn. Stat. § 260C.301, subd. 7 (2004).    

One of the nine statutory grounds for termination of parental rights is when

a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature 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 to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated or that the parent’s custodial rights to another child have been involuntarily transferred to a relative.


Minn. Stat. § 260C.301, subd. 1(b)(4) (emphasis added).

            Thus, once parental rights to one or more other children are shown to have been involuntarily terminated, Minnesota law presumes the parent to be palpably unfit to be a party to the parent-and-child relationship.  Id.  The burden then shifts to the parent to prove fitness to parent, and even the claimed absence of other reasons to terminate parental rights is insufficient to overcome the presumption.  W.L.P., 678 N.W.2d at 709; In Re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).  When the presumption of unfitness has attached, the parent must “affirmatively and actively demonstrate her . . . ability to successfully parent a child.”  D.L.R.D., 656 N.W.2d at 251.

            Here, Minn. Stat. § 260C.301, subd. 3(a) (2004), required the county to file a petition to terminate appellant’s parental rights to her third child.  That statute provides that the county attorney shall file a termination petition within 30 days after a determination that a parent is the subject of an order involuntarily transferring permanent legal and physical custody of another child to a relative under Minn. Stat. § 260C.201, subd. 11(e)(1) (2004).  Application of the presumption relieved the county of the duty to make reasonable efforts to reunite the child with appellant and shifted the burden of proof to appellant to rebut the presumption.  Minn. Stat. § 260.012(a)(1)(iv) (2004) (listing when reasonable efforts are not required); D.L.R.D., 656 N.W.2d at 250 (holding that because of the presumption of mother’s unfitness, the district court did not need to establish independent reasons for termination because it is mother’s burden to establish the existence of conditions that show her fitness to parent).

In addition, Minn. Stat. §§ 260C.001, subd. 3, 260.012(a)(1)(ii) (2004), do not require that the county engage in reasonable efforts for rehabilitation and reunification when the district court finds that the parental rights of the parent to another child have been involuntarily terminated.  As this court explained in D.L.R.D.,

[w]hen the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her . . . ability to successfully parent a child.  We recognize this is a particularly onerous task when, because of the prior termination of parental rights, the statute has relieved the county of the obligation to develop a case plan and make reasonable efforts to reunite the parent and child. 


656 N.W.2d at 251 (emphasis added).


            Appellant makes two assertions to support her argument that the district court erred in finding that she did not rebut the presumption that she is a palpably unfit parent.  First, she contends that the previous involuntary termination of parent rights was invalid.  Second, she states that she rebutted the presumption by presenting evidence at the trial regarding the alleged positive changes she has recently made.

            A.        Previous involuntary transfer of custody

            Minn. R. Juv. Prot. P. 47.02, subd. 2, provides that the time for taking an appeal from an appealable order is 30 days.  An order terminating a parent’s parental rights is an appealable order.  Minn. R. Juv. Prot. P. 47.02, subd. 1.  Timely service and filing of the notice of appeal is jurisdictional.  In re Welfare of J.R., 655 N.W.2d 1, 6 (Minn. 2003)[1]; see also Bongard v. Bongard, 342 N.W.2d 156, 158 (Minn. App. 1983) (stating that “time limits on appeals are jurisdictional”).

Here, the time to appeal the prior termination ruling expired before this appeal was taken, so the prior ruling is now final and any challenge to that ruling in the current appeal is an improper collateral attack on the prior ruling.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (stating, in a civil case, that “[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”); Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (stating Minnesota does not permit collateral attack of facially valid judgments and that judgments alleged to be merely erroneous or founded on nonjurisdictional defects are “not subject to attack”), review denied (Minn. Feb. 26, 1997).  The record here reflects no motion to vacate or challenge the prior ruling, so, for purposes of this appeal, we must accept the prior ruling as valid.  Cf. J.R., 655 N.W.2d at 7 (Anderson, Paul, J., concurring) (noting the sufficiency of the prior termination order because the mother was represented by counsel during the prior proceeding and did not challenge the prior order on appeal).

            B.        Presumption of palpable unfitness

            Appellate courts have repeatedly and consistently affirmed terminations of parental rights when the parent can show only recent progress.  In re Welfare of J.K. & K.W., 374 N.W.2d 463, 466 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985) (declining to hold findings clearly erroneous even where the evidence indicated improvement immediately before the termination proceeding).  Thus, even where a parent shows positive progress and changes, if the change is partial, slow, or belated, it is insufficient to overcome the presumption of palpable unfitness.

            Here, appellant argues that she rebutted the presumption of palpable unfitness because she produced evidence at trial alleging that she made many positive changes.  She reported that she had ceased using drugs and alcohol since the birth of J.J.  In addition, appellant testified that she was taking classes at a local community college and had found a job through the school.  Furthermore, she stated that she was participating in individual counseling to address emotional and mental-health issues and had resumed taking an antidepressant.

            Although these changes are positive, they are insufficient to rebut the presumption of palpable unfitness because they are all very recent changes that appellant either had not commenced as of the day of trial or had commenced only immediately preceding the trial.  For instance, appellant had not secured housing prior to trial, but claimed that she would “this week or next week.”  Her participation in individual therapy only began in January, after the birth of J.J.  The job that she obtained from her community college had not yet begun.  She had yet to begin chemical-dependency therapy, despite her renewed attendance at Alcoholics and Narcotics Anonymous meetings since J.J.’s birth.  And, finally, any claim of sobriety is unsubstantiated because she had not had a single urinary analysis since testing positive for marijuana on the day of J.J.’s birth.

            This case is very similar to W.L.P., in that W.L.P. argued many of the same things, which proved to be insufficient to rebut the presumption.  678 N.W.2d 703.  For instance, W.L.P. introduced “the testimony of a counselor who completed an evaluation based solely on [W.L.P.’s] self-reporting . . . and her ability to stay drug free for a three-month period while living in a structured environment.”  Id. at 710 (emphasis added).  This court found it significant that W.L.P. remained sober only “while residing in the controlled environment of the halfway house.”  Id.  And, moreover, she had previously successfully completed chemical-dependency treatment programs, only to relapse following the programs.  Id.

            Appellant testified that since she was 15 years old—nine years ago—the longest that she has ever remained sober is one and one-half years, all while she was in a controlled, residential treatment program.  She has never remained sober when not residing in a very structured environment.  In fact, prior to her successful inpatient chemical-dependency program, she was discharged from two outpatient programs for failure to attend and possible relapses.  And even following her inpatient treatment, appellant admitted to relapsing by smoking marijuana and doing so while pregnant with J.J., as late as her eighth month.  On the day of J.J.’s birth, both he and appellant tested positive for marijuana.  Although appellant claims that she remained sober between then and the date of the trial, that is self-reported and unsubstantiated.  Further, appellant had stopped attending Alcoholics and Narcotics Anonymous after completing the halfway-house program and did not begin attending again until the three months before trial.  Thus, it is clear that without a highly structured, controlled, and residential treatment program, appellant has shown no proof that she is able to remain sober for any length of time.

Further evidence of appellant’s inability to follow a case plan manifested when she failed to obey her doctor’s and the district court’s orders.  First, appellant’s doctor prescribed an antidepressant to her in 2003, and instead of taking the medication and following that recommendation, she independently stopped taking the medication.  She then resumed taking the medication only after J.J.’s birth.  In addition, appellant admitted that, while pregnant with J.J., she missed several prenatal appointments. 

Second, as a result of the previous termination proceedings, the district court ordered that appellant have no contact with J.E.J.  Appellant denied having contact with him in 2004, despite becoming pregnant with his child that year.  Appellant was living at the halfway house at the time she became pregnant and failed to tell the staff members of their contact or of her condition.  She now claims that she has no contact with J.E.J., but that claim is also unsupported.

            Thus, the district court did not clearly err by finding that appellant failed to rebut the presumption that she is palpably unfit to parent because the positive-sounding changes she reports are insufficient to rebut the presumption of palpable unfitness, as they had yet to begin, are too recent or have come too late, and she has not sustained the changes or produced any evidence that she will sustain them. 

II.        Did the district court clearly err in finding clear and convincing evidence that the termination of appellant’s parental rights was in the best interests of the child?


It is presumed that it is in the best interests of the child to be cared for by his natural parents.  In re Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  In fact, in termination proceedings, a court’s “paramount concern is for the child’s best interests.”  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  “In analyzing the best interests of the child, the 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 R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Further, the court must “explain its rationale in its findings and conclusions.”  In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003).

            Timeliness is of utmost importance in TPR cases, because “[e]ach delay in the termination of a parent’s rights equates to a delay in a child’s opportunity to have a permanent home and can seriously affect a child’s chance for permanent placement.”  J.R., 655 N.W.2d at 5 (citing Nat’l Council of Juv. and Family Ct. Judges, Resource Guidelines: Improving Court Practice in Child Abuse & Neglect Cases 14 (Spring 1995)).  In addition,

[t]he prolonged uncertainty for children of not knowing whether they will be removed from home, whether and when they will return home, when they might be moved to another foster home, or whether and when they may be placed in a new permanent home is frightening.  This uncertainty can seriously and permanently damage a child’s development of trust and security.


Id.  Thus, a parent does not have the right to take as much time as she needs in order to prove that she is fit to raise a child, as delay negatively affects the child.

Appellant contends that the court should allow her to work toward reunification with J.J. because J.J.’s guardian ad litem allegedly stated that reunification may be appropriate and because other individuals testified that she sought out parenting and medical advice regarding J.J.  Appellant claims that she repeatedly requested additional time to show that she has changed, both from Stearns County and the district court.  But that is not enough.  Appellant does not contend that the guardian ad litem said that appellant was ready for reunification now, but rather that she was ready to “work toward reunification.”  It is not fair to J.J. to be in limbo regarding his home as appellant tries to prove her fitness to parent.   

Further, appellant does not assert that, beyond the guardian ad litem and parenting counselors’ statements, the district court erred.  Appellant does not present any additional evidence tending to show that termination is not in the child’s best interests.  Therefore, the district court did not clearly err in finding that termination is in the best interests of the child.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] The Minnesota Legislature amended and renumbered the Rules of Juvenile Procedure, creating the Rules of Juvenile Delinquency Procedure and the Rules of Juvenile Protection Procedure.  Minn. R. Juv. P. 82.02, which the J.R. court interpreted and construed as jurisdictional, is now Minn. R. Juv. Prot. P. 47.02.