This opinion will be unpublished and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 Children of:
M.W. and D.B., Parents
Crow Wing County District Court
File No. J0-05-50419
Edward R. Shaw,
Donald F. Ryan,
Melanie R. Dotty,
Considered and decided by Toussaint, Chief Judge Presiding; Ross, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellants M.W. (mother) and D.B. (father) challenge the district court’s order terminating their parental rights to their children, Q.B. and C.B. M.W. argues that clear and convincing evidence does not exist in the record to support the termination of her parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), or (8) (2004). D.B. argues only that the district court committed reversible error by concluding that he waived his right to a court-appointed attorney by waiting until the day of the scheduled hearing to request one. Because the evidence supports termination of M.W.’s parental rights, and because the district court properly determined that D.B. was not entitled to court-appointed counsel, we affirm.
Q.B. was born to appellants, mother M.W. and father D.B., in
January 2002. After being evicted from
their Brainerd home in September 2002, appellants took Q.B. to
A social worker with Crow Wing County Social Services contacted M.W.
in January 2003 after receiving the reports from
D.B. returned from
C.B. was born to M.W. and D.B. in April 2003. D.B. moved into the
In December 2003, social services received a report that the living conditions at M.W. and D.B.’s apartment were filthy, that D.B. was using drugs, and that the children were in danger. A social worker met with appellants at the apartment. She found the condition of the apartment to be “marginal” and “a general mess” but concluded that the children were not in danger. The social worker offered M.W. and D.B. voluntary parenting education, house checks, and early-childhood programming. She also asked appellants to submit to drug screening. The social worker later testified that M.W. and D.B. were “marginally compliant with [these offered] services.”
On April 7, 2004,
The county filed a petition on April 9, 2004, alleging that the children were in need of protection or services (CHIPS). After an Emergency Protective Care hearing on April 13, the court ordered the children into the custody of social services and into the care of Cynthia and Mark Dieter, who were issued an emergency foster-care license. The county developed out-of-home placement plans for both children with the goal to reunite the children with M.W. and D.B. The plans required that M.W. and D.B. complete psychological and chemical-use assessments, establish permanent housing, provide for the children’s medical needs, participate in a parenting-education program, abstain from drug use, and submit to random drug testing. D.B.’s plan also required that he secure stable employment and remain law-abiding.
M.W. told the doctor who performed her psychological assessment that Mark Dieter had attempted to sexually abuse her. The doctor determined that M.W.’s ongoing relationship with D.B. was the primary threat to her and the children. The same doctor assessed D.B. and determined that he had “an extremely poor prognosis for ever being capable of establishing himself within a constructive parental role” and was “highly unlikely to make changes necessary to ensure the ongoing provision of a safe household for his children.”
M.W. and D.B. admitted the allegations in the CHIPS petition, and the court adjudicated the children to be in need of protection or services. The court ordered that M.W. and D.B. continue to comply with the conditions of the out-of-home placement plans, that D.B. attend Alcoholics Anonymous and Narcotics Anonymous meetings and complete chemical-dependency treatment should he test positive for drugs, and that M.W. participate in individual therapy. The court ordered both M.W. and D.B. to complete the ParentWorks program, participate in parenting education, and maintain safe, appropriate housing. The court also ordered that they be allowed unsupervised visitation, including overnight visits in their apartment. The county later offered at least 16 different social services to appellants.
D.B. was almost immediately diagnosed as being chemically dependent. He was admitted to a chemical-dependency program but discharged one month later for non-attendance. He tested positive for drugs three times in May and June 2004, and he refused to submit to drug testing at least nine times between June 2004 and July 2005. M.W. was not chemically dependent.
M.W. attended the ParentWorks program for approximately one year but was discharged from the program in June 2005, allegedly for failing to make progress. She was discharged from individual therapy after attending a few sessions in June and July 2004 because she did not settle an outstanding balance due her therapist. She did not apply for Minnesota Care (which could have provided her with medical coverage for counseling services) or avail herself of the county’s offer to help her find other counseling.
The county determined in August 2004 that M.W.’s case-plan progress was sufficient to justify returning the children to her home on the condition that D.B. not be allowed to return until he tested drug-free. D.B. tested positive for marijuana, methamphetamine, and cocaine in September 2004, and he refused to submit to any more drug tests. When the children’s guardian ad litem visited M.W.’s apartment after the children were returned, she noted the home was “quite messy” and observed evidence strongly suggesting that D.B. was in the home in violation of the court order.
M.W. lost her job as a home health aide in November 2004, when her employer suspected that she was stealing money and jewelry from clients. She was evicted from the apartment for failing to pay rent, and the Dieters refused to take her in. She contacted social services to place the children in respite care. M.W. specifically requested that the children not be placed with the Dieters, claiming that Mark Dieter was an alcoholic and had sexually abused her. She repeated these allegations in a parenting support group she attended between late 2004 and June 2005.
M.W. began work at the Social Security Administration as a clerical assistant in December 2004. The children were ordered into foster care in January 2005 because of M.W.’s continued homelessness and persistent contact (and occasional cohabitation) with D.B. The county developed a new out-of-home placement plan that required M.W. to obtain safe housing and allowed her, D.B., and Cynthia Dieter to have supervised visits with the children. The plan required D.B. to abstain from using illegal drugs, to participate in chemical-dependency treatment, to submit to random drug testing, and to remain law-abiding. M.W. signed the plan, but D.B. refused. In January or February 2005, police found M.W. and D.B. sleeping in their car in a parking lot and cited D.B. for possession of the drug paraphernalia that police found in the car.
In March 2005, the county referred M.W. to a financial-assistance program for individuals with a poor rental history. M.W. did not avail herself of this service and remained mostly homeless, sleeping in her car, in hotels, and with friends. M.W. and D.B. were arrested on charges arising from the thefts M.W. allegedly had committed as a home health aide. The criminal complaint alleged that D.B. had sold property that M.W. had stolen. M.W.’s employer fired her from her job at Social Security because of the arrest.
Meanwhile, the children were transitioned from a foster family to
a permanency home. M.W. informed the
county in April that she favored placing the children with the Dieters, and
recanted her previous allegations of sexual abuse against Mark Dieter. In May, M.W. and D.B. moved to
On May 25, 2005, the county filed a petition for termination of M.W.’s and D.B.’s parental rights on various statutory grounds. D.B. was personally served with a petition and summons on June 8, notifying him that the hearing would occur on June 21, 2005, and detailing the bases alleged for termination of his parental rights. The summons informed D.B. that he was “required to appear” at the hearing and that his failure to appear would allow the court to sever his parental rights. The summons was accompanied by an acknowledgement-of-rights form setting out D.B.’s rights and responsibilities as a party, including his right to be represented by an attorney and his responsibility to notify the court administrator should his address change. The form directed D.B. to designate his request for a court-appointed attorney. D.B. did not complete and return the form. Nor did he appear at the June 21 hearing or at a later hearing on August 4.
D.B. finally appeared at the August 11 hearing. He requested that the court appoint counsel to represent him. The court recessed the proceeding to allow D.B. to complete an application for court-appointed counsel. The court determined that D.B. was eligible, but concluded that because there were no attorneys available to represent D.B. that day, it would deem D.B.’s “late application [for counsel] to be a waiver of [his] right to appointed counsel in this matter and [would] proceed with this hearing.” D.B. represented himself at the hearing.
Over the course of the six-day hearing, the court heard testimony from 19 witnesses, including M.W. and D.B., Cynthia and Mark Dieter, and social workers. The district court specifically disbelieved M.W.’s testimony that she ended her relationship with D.B. and Cynthia Dieter’s testimony that she had inherited property with an apartment available for M.W. and the children; the court noted evidence that the property was devised to Cynthia Dieter’s brothers, not to Cynthia Dieter. The court also specifically rejected testimony that M.W.’s family is prepared to provide sufficient support for M.W. and the children. It observed that Cynthia and Mark Dieter had refused to help M.W. when she was homeless and that M.W. repeatedly alleged that the Dieters abused alcohol and that Mark Dieter had sexually abused her. In contrast, the court found that the children’s permanent-placement family provided a “safe, stable, and loving environment.”
The guardian ad litem testified that she believed that Cynthia Dieter had abused her position as a police officer to intimidate her in relation to the termination proceedings. She testified that Cynthia Dieter had followed her and her family in a squad car, driven back and forth in front of her house after hearings, and had run background checks on her, her husband, and her attorney. Cynthia Dieter refused to answer these allegations during the hearing, citing her Fifth Amendment right not to incriminate herself.
In a 31-page order containing 93 factual findings, the district court found the evidence sufficient to terminate M.W.’s and D.B.’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (8) (2004), and sufficient to terminate D.B.’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4). This appeal follows.
M.W. and D.B. separately contend that the district court erred by
ordering the termination of their parental rights. On appeal in 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,
The district court here identified three statutory bases for terminating M.W.’s parental rights: (1) that she has neglected her parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (2) that reasonable efforts have failed to correct the conditions that led to the children’s out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (3) that the children are neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8). The court found that termination of D.B.’s parental rights was justified under the same three statutory bases and also under Minn. Stat. § 260C.301, subd. 1(b)(4) (parent is palpably unfit to be a party to the parent-and-child relationship). The court found also that termination of M.W.’s and D.B.’s parental rights is in the best interests of the children, following Minn. Stat. § 260C.301, subd. 7.
A. M.W.’s Neglect of Parental Duties
M.W. challenges the district court’s conclusion that termination of her parental rights is warranted by the finding that she neglected to comply with the duties imposed by the parent-child relationship. A district court may terminate parental rights if it finds
that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development, if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.
Minn. Stat. § 260C.301, subd. 1(b)(2). M.W. argues that the conditions at the time of the termination hearing do not support termination of her parental rights and, in the alternative, that the evidence does not support a finding that the conditions justifying termination at the time of the hearing would continue for a prolonged and indefinite period of time.
M.W. first challenges the district court’s finding that she was
not able, at the time of the hearing, to provide safe, stable, and appropriate
housing for the children. M.W. notes that
she had maintained an apartment in
M.W. next challenges the district court’s finding that she lacked
a healthy support system. But the record
demonstrates that M.W. repeatedly accused the Dieters of alcohol abuse and Mark
Dieter of actual or attempted sexual abuse.
It is undisputed that they refused to help or house M.W. when she was
homeless (and pregnant) in November 2004.
M.W. also argues that the evidence shows that she “was ending her
relationship” with D.B. at the time of the termination hearing. The district court found this incredible, based
on M.W.’s testimony that she and D.B. were living together in
The district court found that M.W. consistently failed to maintain adequate housing and that she exposed the children to dangerously unsanitary conditions and criminal activity (including drug use) in their home. The court made numerous findings identifying the unsuccessful social services the county offered to stabilize M.W.’s housing. The court was unpersuaded that M.W. would comply with her parental duty to provide safe housing.
We conclude that the district court’s finding that M.W. neglected
to comply with the duties imposed by the parent-child relationship is supported
by clear and convincing evidence in the record.
Although there is no evidence that the children were deprived of food or
clothing, the record amply demonstrates M.W.’s proven unwillingness to provide safe
housing for the children and more generally to provide the “other care and
control necessary for the child[ren]’s physical, mental, or emotional health
and development,” Minn. Stat. § 260C.301, subd. 1(b)(2), because of her continuing
association with D.B. and exposure of the children to him. We are careful to point out that termination
based on section 260C.301, subdivision 1(b)(2), is not authorized simply when a
parent cannot provide a home, but when a parent can provide a home yet refuses or neglects to do so. The statute permits termination for the
nonprovision of shelter for a child “if the parent is physically and
financially able” and correction efforts have and will continue to be
M.W. has continued to associate—and periodically live—with D.B.,
despite the danger he poses to M.W.’s housing and employment prospects and
despite the August 2004 court order that D.B. not be present at M.W.’s
residence until he produce clean drug-test results, which he has repeatedly not
done. In January 2005, the court ordered
the children into foster care because of M.W.’s continued homelessness and
persistent contact with D.B. The court
specifically found that the county referred M.W. to an agency that offered her
financial assistance to pay rent if she could find an apartment, but that
despite this offer, M.W. remained homeless.
M.W. declined repeated social-services offers to assist her to obtain
housing, tacitly choosing homelessness, forgoing reunification with the
children, and finally relocating to
As for the projected permanency of M.W.’s neglect regarding care for the children,
the district court found that M.W. was living with D.B. in
B. Best Interests of The Children
M.W. argues that the county failed to prove by clear and
convincing evidence that it is in the children’s best interests for her
parental rights to be terminated. Three factors guide this court’s review of
the district court’s determination regarding the best interests of the
children: “(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 (
The district court made several findings concerning the best interests of the children, specifically concluding that their emotional attachment to M.W. and D.B. is diminishing and that the children are in a stable and safe foster environment. M.W.’s arguments that termination is not in the children’s best interests rest almost entirely on her contentions—discredited by the district court—that she has ended her relationship with D.B. and reasonably expects that her family will support her in finding housing and employment in Ely. The record supports the district court’s finding that termination was in the children’s best interests.
C. Court-Appointed Counsel
D.B. argues that the district court committed reversible error by concluding that he waived his right to court-appointed counsel by failing until the day of the hearing to request that counsel be appointed. Although his argument is not entirely devoid of merit, we conclude that the district court’s determination that D.B. was not entitled to appointed counsel does not warrant reversal.
Minnesota Statutes and the controlling juvenile-protection rules establish
a parent’s right to counsel in a juvenile-protection hearing. But they leave the decision whether to
appoint counsel to the district court’s discretion, stating that if the
parent desires counsel but is financially unable to employ it, the court “shall
appoint counsel” in any case in which the court decides that an appointment is
“appropriate.” Minn. Stat.
§ 260C.163, subd. 3(b) (2004);
It is undisputed that D.B. did not exercise his right to request
a court-appointed attorney by completing the form attached to the summons and petition
served on him on June 8, 2005. He did
not appear at the June 21 hearing, and the court postponed the matter solely
due to D.B.’s failure to appear. Nor did
he appear at the August 4 hearing. Two
mailings sent to the
As a threshold matter, D.B. may have lost his right to counsel by the time he appeared on August 11. Rule 25.01 provides that the “right [to court-appointed counsel] attaches no later than when the party or participant first appears in court.” D.B. first appeared in this matter—and asserted his right to counsel—at the third scheduled hearing; we do not read the rule as preserving a party’s statutory right to court-appointed counsel for so long as he chooses not to appear at noticed hearings. The district court observed that although D.B. qualified financially for court-appointed counsel, appointment was not possible as a practical matter because no attorneys were immediately available. This result followed D.B.’s non-appearances and his continued failure to request appointment of counsel.
We see no abuse of discretion in the district court’s decision that
appointment of counsel was not appropriate in this case, but we do not come to our
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
We have also reviewed the record as it relates to M.W.’s arguments regarding the alternative bases for termination under Minn. Stat. § 260C.301, subd. 1(b)(5) and (b)(8). Our review leads us to believe that the district court also did not err in finding alternative support for the termination on those statutory grounds.