This opinion will be unpublished and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 L.I., a/k/a L.W. and F.W.



Filed April 4, 2006

Affirmed; motion granted

Crippen, Judge *



Hennepin County District Court

File Nos. J1-03-068219, 247426



Leonardo Castro, Fourth District Chief Public Defender, Peter W. Gorman, Assistant County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401(for appellant F.W.)


Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and


Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415  (for respondent Hennepin County Human Services and Public Health Department)


Shirley A. Reider, 842 Raymond Avenue, Suite 205, St. Paul, MN 55114 (for Guardian ad Litem)


            Considered and decided by Shumaker, 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


            On appeal after remand in this proceeding to terminate parental rights, appellant father argues that the district court’s findings are clearly erroneous and that the lack of a hearing on remand deprived him of substantive due process of law.  We affirm the district court.


            Together, the parties have six children; mother also has two additional children by another man.  In 2002, mother obtained a default divorce judgment awarding her sole legal and physical custody of the children.  Later, mother’s eldest daughter, not one of appellant’s children, claimed that appellant had abused her.  All eight children were placed out of the home in June 2003. 

Appellant, as a noncustodial parent, was a participant in, but not a party to, the juvenile protection proceeding.  As a noncustodial participant, he was apparently not eligible for representation by the public-paid counsel and he did not seek to become a party or otherwise act on advice from the county and from the district court that he obtain counsel.  Also, despite having contact with the county, including being present at certain district court proceedings at which he was told to attend a sex-offender program, appellant did not sign a June 2003 case plan that required sex-offender treatment.

            At an August 2003 hearing that appellant did not attend, mother, based in part on the allegations that appellant had abused the daughter, admitted that her children were in need of protection or services (CHIPS).  At the hearing, the district court approved a case plan for appellant that required him to, among other things, complete sex-offender treatment.

            Appellant was formally made a party to the proceeding on October 23, 2003 and, after the county petitioned to transfer legal custody of the children or to terminate the parents’ parental rights, appellant was formally presented with a case plan on November 5.  This case plan also required him to complete sex-offender treatment.  After a trial, the district court terminated both parents’ parental rights.  The parents appealed, and this court dismissed mother’s appeal as untimely but reversed the termination of appellant’s parental rights for lack of adequate findings of fact.  In re Children of L.I. a/k/a L.W. & F.W., No. A04-1313, 2005 WL 832363, at *3 (Minn. App. Apr. 12, 2005).  We stated that the reversal did not bar termination and granted the district court discretion to reopen the record on remand to receive evidence regarding events since its first ruling, as well as further argument regarding the statutory bases for the termination. 

            On remand, the district court declined to receive additional evidence and found that appellant had not completed his case plan, that much of his testimony about why he did not do so was not credible, and that, but for his refusal to participate, he would have had adequate time to complete the case plan.  The district court then re-terminated appellant’s parental rights. 


            The standard of review for termination matters is set out in In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001), and In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) and requires this court, among other things, to affirm a district court’s findings of fact unless they are clearly erroneous when reviewed in light of the clear and convincing standard of evidence required to make findings in termination proceedings.


Appellant mostly asserts that the district court’s findings are clearly erroneous, not that the findings do not support the termination of parental rights.  After review of the record and appellant’s arguments regarding the challenged findings, we conclude that the findings are adequately supported, except for immaterial considerations not impacting the termination decision.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that appellate courts need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings,” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”); Peterka v. Peterka, 675 N.W.2d 353, 357-58 (Minn. App. 2004) (applying Wilson in a family case).[1] 

Mindful of the primacy in appellant’s argument of two sets of findings that he alleges are clearly erroneous, we address those findings in some detail before briefly addressing certain other findings that he challenges.

            A.         Abuse of Child

            A major theme of appellant’s argument suggests that:  (1) the allegation that he abused a child was initially based on assertions in the petition seeking to have the children adjudicated CHIPS relative to mother; (2) because mother admitted that the children were CHIPS, the question of whether appellant actually abused the child was not adjudicated in that proceeding; (3) as a participant in but not a party to the CHIPS proceeding, the limited rights afforded participants under Minn. R. Juv. Prot. P. 22.02 did not allow appellant to demand adjudication of the question; and therefore (4) without a criminal conviction or other adjudication, use of an assumption that he abused the child was an improper basis for terminating his parental rights—also making irrelevant a finding on his failure to complete sex-offender treatment.

            But whether the abuse question was or will be referred for a criminal prosecution is distinct from whether this juvenile-protection record contains clear and convincing evidence of abuse.  The district court’s finding on occurrence of the abuse is consistent with:  (1) social-worker testimony that appellant stated that he did not understand why his having sex with the child should preclude him from having contact with his own children; (2) testimony from both mother and the grandmother that the child told them about the abuse, and each believed the child; (3) the CHIPS petition which, based on assertions by mother and a report by a care facility, alleged appellant abused the child; and (4) testimony by the child-protection worker that the file contained a note in which the department had determined that abuse had occurred and that appellant was under criminal investigation for abuse. 

Moreover, the department’s abuse determination in the CHIPS proceeding was made after an investigation by a police sergeant and a child-protection worker, when the sergeant, child-protection worker, and the child-protection worker’s supervisor collectively determined that appellant had abused the child.  Although the department’s abuse determination was not made by a court, the record shows that:  (1) appellant could have challenged the abuse determination within the department; (2) appellant could have contested what had happened in mother’s CHIPS proceeding by exercising his right to intervene under Minn. R. Juv. Prot. P. 23.01; and (3) the department’s process for making the abuse determination and the weight to be given that determination in the termination proceeding was a focus of appellant’s argument to the district court. 

Based on our review of these circumstances, the district court’s abuse finding is not clearly erroneous.

The unchallenged existence of the department’s abuse determination in the CHIPS proceeding was substantially a result of appellant’s refusals to engage in the proceedings and is not an adequate basis for challenging the result of the termination proceeding.  Cf. J.B., 698 N.W.2d at 171 (affirming bifurcation of termination proceeding in a manner prejudicing appellant, stating “[b]ecause [appellant] initially chose to avoid participating in the proceedings, the district court did not abuse its discretion by bifurcating [mother’s] proceeding from [appellant’s] proceeding and allowing [mother’s] proceeding to proceed in a timely fashion”).

            B.         Case Plan Compliance

            Our prior opinion states that appellant first became a party to the case on October 23, 2003 and was first presented with a case plan on November 5, and then evaluates appellant’s lack of case-plan compliance starting on November 5.  L.I., 2005 WL 832363, at *2-*3.  On remand, the district court noted that appellant was first presented with a case plan on November 5, but went on to find that (1) appellant’s failure to have a case plan earlier was caused by his “failure to attend court or appointments with child protection and his fugitive status,” and (2) if appellant had appeared earlier, “he would have been presented his case plan several months earlier, and consequently would have had more than enough time to comply with his case plan.”  Appellant argues that these findings are defective because they are inconsistent with our prior use of November 5 to evaluate his case-plan compliance.

            L.I. I did not hold that appellant could not be held responsible for his pre-November 5 lack of case-plan compliance, and the order reviewed in L.I. I lacked findings stating that it was appellant’s fault that he did not get his case plan earlier. Although we found unsupported the district court’s findings on appellant’s post-November 5 noncompliance, our holding did not bar termination of appellant’s parental rights and granted the district court discretion whether to reopen the record.  It is evident that the only way to terminate appellant’s parental rights without reopening the record would be to use a noncompliance date before November 5, and the district court on remand justified consideration of pre-November noncompliance by making findings, supported by the record, that appellant could have had a case plan months earlier and that, as of June, he was aware of the bulk of what his case plan would have included had he chosen to engage in the process.

            Several findings note that an arrest warrant was issued for appellant in September 2003, that he was arrested in October 2003, and that his “previous failure to sign the case plan is due to his own failure to attend court or appointments with child protection and his fugitive status.”  Appellant correctly notes that the existence of the warrant is not supported by this record.  But the district court could have taken notice of a warrant, if one existed.  Minn. R. Juv. Prot. P. 3.02, subd. 3.  Also, it is not the alleged warrant alone that the district court found to cause appellant’s failure to sign the June 2003 case plan, but the combination of his failures to appear and what the court found to be his fugitive status.  On this record, because of the extent of appellant’s refusal to engage in the process, any warrant-related error by the district court is harmless.

            Finally, appellant testified that his early failures to participate in a sex-offender program were a result of a lack of funding.  The district court rejected this assertion on credibility grounds, stating:  “[C]laims that financing was unavailable were baseless.”  Appellant argues that exhibit 11 supports his testimony.  But exhibit 11’s support is merely a reference to a phone message from appellant to the county asserting that “[there was] no funding for the class.”  Viewed in the light most favorable to the district court, appellant’s message was one of the “claims that financing was unavailable” that the district court found “baseless.”  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating district court need not accept even uncontradicted testimony if there are reasonable grounds to doubt its credibility).

C.        Other Findings

            Noting that his case plan did not require him to participate in a “psychosexual assessment,” appellant challenges the finding that he did not do so.  The record is not clear, but the “psychosexual assessment” appears to be a misnomer for part of the sex-offender treatment, of which appellant had notice in June 2003. 

            The district court found that appellant did not visit the children during the pendency of the case.  Appellant challenges this finding, correctly observing the existence of no contact and restraining orders.  He also correctly notes cases holding that sporadic visitation, by itself, is not a sufficient basis to terminate parental rights.  But the crux of appellant’s inability to visit the children was his failure to progress on his case plan.  His visitation failures are relevant because they are directly related to his pre-November noncompliance, for which he is accountable. 

            Appellant challenges the findings that he first sought counsel six months after the case was initiated, stating that public-paid counsel is not available for noncustodial parents who are not parties and that the juvenile court knew this.  The CHIPS petition was filed in June 2003 and appellant sought counsel in December 2003.  As noted above, to the extent appellant argues that public-paid counsel does not represent noncustodial participants in juvenile protection proceedings, he could have intervened and been made a party.

            Appellant argues that there is no support for the finding that he offered to terminate his parental rights if custody could be transferred to the grandparents and mother’s rights would not be terminated.  Although he is correct, the child-protection worker testified that appellant offered to terminate his parental rights if, instead of terminating mother’s parental rights, the district court transferred custody of the children.


            Appellant argues that he was denied substantive due process of law because the district court denied his request for a hearing on remand.  The district court file does not reflect appellant’s request, and he moved this court to supplement the record on appeal with an affidavit of his trial counsel addressing the request.  See Minn. R. Civ. App. P. 110.05 (allowing record to be supplemented to correct omissions).  Generally, appellate courts address only issues presented to and considered by the district court.  In re Welfare of Children of Coats, 633 N.W.2d 505, 512 (Minn. 2001). 

Here, the order on remand does not address substantive due process of law, the affidavit of appellant’s trial counsel does not allege that the issue was presented to the district court, and appellant made no motion for amended findings or other relief.  Thus, although we grant appellant’s motion to supplement the record, we decline to address the question of substantive due process of law because it is not properly before this court.  Even if we were to address the argument, it is unpersuasive on this record and in light of our affirmance of most of the district court’s findings.

            Affirmed; motion granted.

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

[1] Although appellant challenges most of the findings made on remand, he only infrequently tries to show how the allegedly erroneous findings prejudiced him.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (requiring party to show error and prejudice to prevail on appeal); State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to address issue absent adequate briefing); see also In re Welfare of Children of J.B., 698 N.W.2d 160, 166 (Minn. App. 2005) (citing these cases in a termination appeal).