This opinion will be unpublished and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: D. B., Parent.
Filed August 1, 2006
Hennepin County District Court,
File No. 236121/J3-05-054715
Leonardo Castro, Hennepin County Chief Public Defender, Peter W. Gorman, Richard G. Carlson, Assistant Public Defenders, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant D.B.)
Leonardo Castro, Hennepin County Chief Public Defender, Howard S. Kaibel, Jr., Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for the children)
Laurie J. Miller, Cynthia Jokela, James R. Mayer, Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402; and
Angela M. Crandall, Faegre & Benson, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (guardian ad litem)
Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from the termination of her parental rights, appellant-mother argues that (a) Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (Supp. 2005) does not apply to this case; (b) Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (Supp. 2005) violates the constitutional separation of powers and the court’s inherent authority to act in the best interests of children; and (c) termination of mother’s parental rights is not in the children’s best interests. Because the record supports the district court’s determinations regarding the termination of mother’s parental rights, we affirm the termination. Because the district court based its refusal to put the children in long-term foster care on the children’s best interests, rather than limits on court discretion imposed by Minn. Stat. § 260C.201, subd. 11(d)(3)(i), we do not decide whether the 2004 or 2005 version of the statute applies here. Nor do we decide whether the statute violates the constitutional separation of powers.
Three of mother’s children are at issue in this proceeding. Each has special needs and requires medication. Two have the same father. Previously, the county adjudicated the children to be children in need of protection or services (CHIPS) and removed them from mother’s care, but later reunified them with mother. After reunification, the children stopped receiving their medication, and they ran away twice. The second time they ran away, they were found sleeping in the lobby of an apartment building. When the police-hold on the children expired and mother, who said she would pick up the children, had not done so, the county filed a second CHIPS petition regarding the children.
At the emergency protective care hearing, mother said she did not want to take the children home at that time, and the children were put in various foster-care placements. Mother was provided a voluntary case plan at the hearing, but did not participate in the plan, did not otherwise communicate with the county, and did not visit the children. Furthermore, the children said they did not want to see their mother. Ultimately, the children were placed in a foster placement with the paternal aunt of two of the children, where their behavior improved significantly, and the county petitioned to terminate mother’s parental rights or to transfer the children’s legal custody.
On September 7, 2005, the guardian ad litem moved to amend the county’s petition to seek long-term foster care (LTFC). On August 1, 2005, an amendment of Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (2004) became effective. Under it, a district court can apparently put children in LTFC only if, among other things, the district court approves the county’s “compelling reasons” that transfer of legal custody and termination of parental rights are inappropriate. The guardian ad litem alleged that if applied retroactively, this amendment impermissibly limited the court’s consideration of LTFC to situations where the county requested that outcome.
a trial on the petition, the district court found five statutory bases for terminating
mother’s parental rights existed, found termination of mother’s parental rights
to be in the children’s best interests, quoted the amended version of Minn.
Stat. § 260C.201, subd. 11(d)(3)(i), and terminated mother’s parental
rights. The district court later rejected
mother’s new-trial motion. Mother appealed
and this court granted amicus status to the Children’s
D E C I S I O N
The first issue is whether the district court improperly relied on the current (2005) version of Minn. Stat. § 260C.201, subd. 11(d) by not ordering LTFC. By the time of the district court proceeding, this statute stated:
If a child is not returned to the home, the court must order one of the following dispositions:
. . . .
(3) long-term foster care according to the following conditions:
(i) the court
may order a child into long-term foster care only if it
the responsible social service agency’s compelling reasons that neither an
award of permanent legal and physical custody to a relative, nor termination of
parental rights is in the child’s best interests[.]
The 2005 amendment of this provision deleted the
word “finds” from the 2004 version of the statute and added the underlined
Reading the district court’s order to have denied LTFC based on the amended 2005 version of Minn. Stat. § 260C.201, subd. 11(d)(3)(i), mother argues that so applying the statute was inappropriate. The argument is based on the fact that this proceeding was started before the effective date of the amendment to the statute and that an application of the 2005 version of the statute to this case would violate Minn. Stat. § 645.21 (2004), which states that “[n]o law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” The county argues that whether the earlier version or the current, amended statute applies here was not presented to the district court, and therefore is not properly before this court on appeal. The county’s objection is not persuasive. Review of the record, particularly mother’s written final argument and the county’s response, shows that the issue was presented to the district court.
Even before the 2005 amendment of Minn. Stat. § 260C.201, subd. 11(d)(3)(i), LTFC was not a favored disposition for children. See Minn. Stat. § 260C.201, subd. 11(d)(3) (2004) (stating district court can order LTFC only if it finds, among other things, “compelling reasons that neither an award of permanent legal and physical custody to a relative, nor termination of parental rights is in the child’s best interests”); In re Welfare of J.M., 574 N.W.2d 717, 721-22 (Minn. 1998) (noting that LTFC is a disfavored disposition, that “[e]ven if a child meets the statutory criteria, long-term foster care remains a disfavored permanent placement option for all children[,]” and that LTFC “is a highly disfavored disposition for children under age 12”); see also Minn. Stat. § 260C.201, subd. 11(c) (2004) (not listing LTFC among “preferred placement options”). Before the 2005 amendment, if another disposition was workable, courts did not have to consider LTFC as a disposition or balance it against the other available dispositions. See In re Welfare of Children of R.W., 678 N.W.2d 49, 58 (Minn. 2004) (stating, where parent alleged termination was defective, district court had ruled that termination of parental rights and adoption was in children’s best interest and “[t]herefore, the district court was not required to consider [LTFC] as an alternative to adoption as part of its best interests analysis”).
Here, the district court found that (a) the county sought termination of parental rights or transfer of legal custody; (b) no relatives were willing to take the children (excepting the paternal aunt of two of them who was willing to act as a foster parent); (c) the county and the guardian ad litem agree that the best outcome would be for the foster parent (the paternal aunt for two of the children) to adopt them; (d) the foster parent did not want to adopt the children at this time, but did want them to stay with her in LTFC because she wanted continued assistance in caring for the children; (e) the services currently received by the children are not guaranteed to continue because some services “such as school district resources are not in the control of the [county]”; (f) LTFC is not a permanent placement, can be disrupted “at the option of the foster parent,” and the behavioral problems of these children are such that “there is a higher than normal possibility of disruption of LTFC”; (g) without a termination, adoption is not available; and (h) it is in the children’s best interests that parental rights be terminated. The district court then concluded that “[t]here is clear and convincing evidence that it is in the best interest of the children that any and all parental rights be terminated” and stated that both the 2004 and 2005 versions of the statute “clearly rank [LTFC] as a permanency alternative to be considered only if there are compelling reasons not to [terminate parental rights or transfer legal custody.]” The district court supported this second assertion by quoting both the portion of Minn. Stat. § 260C.201, subd. 11(c) (2004), stating non-LTFC dispositions “are preferred permanency options” (emphasis added by district court) and the 2005 version of Minn. Stat. § 260C.201, subd. 11(d)(3)(i).
Thus, while the district court quoted the 2005 version of Minn. Stat. § 260C.201, subd. 11(d)(3)(i), absent from its analysis is any indication that it declined to consider LTFC because the county did not seek that disposition and hence that the statute precluded consideration of LTFC as a disposition. Indeed, the findings show that the district court balanced LTFC against termination and adoption, concluding that LTFC was inappropriate because (a) of the instability of the identity of the caretaker generally associated with LTFC as well as the fact that the behavioral problems of these children exacerbated that instability; (b) LTFC also created an instability in the services available to the children; and (c) any stability that could be created by termination and adoption was precluded by LTFC. Because the district court did not apply the 2005 version of the statute retroactively, we do not address mother’s allegation that such an application of the amendment is retroactive and improper.
The second issue is whether the amended statute violates the constitutional separation of powers and whether the district court has inherent authority to order LTFC. Questions of separation of powers and a court’s inherent authority are related. See In re Clerk of Court’s Compensation for Lyon County, 308 Minn. 172, 180, 241 N.W.2d 781, 786 (1976) (stating “[i]nherent judicial power grows out of express and implied constitutional provisions mandating a separation of powers and a viable judicial branch of government”); State v. T.M.B, 590 N.W.2d 809, 811 (Minn. App. 1999) (stating “[t]he source of the judiciary’s inherent authority is the separation of powers doctrine and the concomitant need for judicial self-preservation (citing Clerk of Lyon County, 308 Minn. at 176-77, 241 N.W.2d at 784)), review denied (Minn. June 16, 1999).
Alleging that the amended version of Minn. Stat. § 260C.201, subd. 11(d)(3)(i), conveys to the county the sole authority to seek LTFC, mother argues that the amended statute violates the separation of powers because the legislature cannot condition the district court’s exercise of a dispositional option on the consent of the executive branch of government. Mother further argues that in In re Welfare of Child of E.V., 634 N.W.2d 443, 449-50 (Minn. App. 2001), this court “held that a district court, acting in equity in child-welfare matters, has inherent authority to order a statutorily-prohibited remedy if that remedy serves the best interests of the child.” Mother concludes, “[t]he [district] court had inherent equitable authority to order such a placement, and should have exercised that authority.” Amicus makes a similar argument. Assuming mother and amicus correctly read E.V., here the district court did consider LTFC, and concluded that it was not appropriate for these children because of a lack of stability of both identity of the caregiver and the services for the children, and because LTFC precluded any stability that might be afforded by adoption.
respect to constitutional challenges, we note that “[i]t is fundamental that
we, like the United States Supreme Court, address constitutional attacks on
statutes only when absolutely necessary to the resolution of the case.” In re
Complaint Concerning Winton, 350 N.W.2d 337, 344 n.9 (
However, we observe that to the extent Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (Supp. 2005) precludes a district court from considering LTFC as a disposition unless LTFC is requested by the county, the statute appears to infringe on the district court’s inherent authority to act in the best interests of children and that if the district court were to determine that LTFC is in the children’s best interests, the court may order that outcome. See In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999) (affirming, as within district court’s “inherent discretion[,]” an order allowing child to stay in temporary foster care for more than one year despite statutory requirement that permanency be implemented after one year when only available permanency option (termination) had not been proved); Spaeth v. Warren, 478 N.W.2d 319, 324-25 (Minn. App. 1991) (noting court’s ability to exercise its inherent powers in child’s best interests predates “any legislative protection of maternal rights or children’s interest[s]”), review denied (Minn. Jan. 30, 1992).
third issue is whether termination of mother’s parental rights is in the best
interests of the children. The district
court terminated mother’s parental rights on five statutory bases, and found
that clear and convincing evidence existed showing termination of mother’s
parental rights to be in children’s best interests. When reviewing a termination decision,
appellate courts determine whether there is clear and convincing evidence to
support at least one statutory ground for termination and, if so, whether
termination is in the best interests of the child. In re
Welfare of Children of T.A.A., 702 N.W.2d 703, 708 (
a child’s best interests in termination proceedings requires the district court
to balance the child’s interest in preserving a parent-child relationship, the
parent’s interest in preserving a parent-child relationship, and any competing
interests of the child. In re Welfare of R.T.B., 492 N.W.2d 1, 4
In this proceeding, the children’s interest in preserving their relationship with mother is limited. While they indicated they do not want to be adopted, they also indicated that this could change if they could be adopted by the current foster parent (the paternal aunt of two of the children). Also, mother admits that none of the children want to be reunified with, or even visit, her.
Similarly, mother’s interest in preserving the parent-child relationship is limited. She does not challenge the findings that (a) she “has not asked to be reunified with the boys”; (b) in the nine months before trial, she had “no contact” with the children and, while she asked for visitation once during that time, “[s]he never asked again after she was told that visitation was conditioned on participating in a case plan”; and (c) there is an evidentiary basis for terminating her parental rights on each of the statutory bases. Also, the social worker testified that termination, rather than LTFC, was in the children’s best interests and recommended termination. The child services worker testified that adoption, which requires termination, was a better option for the children than LTFC.
The guardian ad litem testified that not reunifying mother and the children is in the children’s best interests, as is keeping the children in their current placement. The guardian ad litem also testified that she was “torn” between recommending LTFC and termination because she believed that it was in the children’s best interests to stay with the current foster parent, but, because that foster parent indicated she did not currently want to adopt the children, that would require LTFC which is less stable than adoption.
It is undisputed that the children prefer to remain with the current foster parent, and might consider being adopted by her. The following is also undisputed that: because that foster parent is not currently willing to adopt the children; their placement with her under the present circumstances would have to be LTFC; that because she can unilaterally terminate LTFC, it is inherently less stable than termination of parental rights and adoption; that the behavioral history of these children makes disruption of LTFC more likely than it is in most cases; and that LTFC precludes adoption and the stability that would accompany it. Mother has not shown that the record does not support the district court’s best-interests findings.
Finally, we note that the record is clear that, to the extent possible, keeping these children in the same placement is in their best interests and that nothing currently precludes them from continuing in the same placement. We also note that their present foster parent (paternal aunt) did not consider adoption as long as parental rights had not been terminated but that she may consider adoption once termination has been completed. The guardian ad litem should be informed of the county’s current and future plans for the placement of these children and have the ability to continue to advocate for their best interests.
In sum, our review of the record shows the existence of clear and convincing evidence supporting the statutory basis of the termination of mother’s parental rights and that such termination is in the best interests of the children.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We refer to the joint arguments of mother and the guardian ad litem as mother’s arguments.
 Amicus argues
that the legislature passed the 2005 amendment of Minn. Stat. § 260C.201,
subd. 11(d)(3)(i), because the legislature misunderstood Title IV-E of the
Social Security Act and the results of an associated federal audit, and because
the legislature incorrectly believed that the amendment, which encouraged fewer
LTFC placements, would have no fiscal impact on juvenile protection
proceedings. Given our disposition of
the case, we do not reach the question of the legislature’s motive in amending
the statute. However, we note that
courts generally avoid taking judicial notice of motive. See,
e.g., State v. Target Stores, Inc.,
 Generally, appellate courts address only issues presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) (stating in proceeding to terminate parental rights that argument raised for first time on appeal was “waived”).
 There is no explicit argument that Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (Supp. 2005), is facially unconstitutional.
But for the nature
of the arguments made to this court, we would not consider a prospective
adoption in a termination proceeding.
Termination of parental rights is to be based on the statutory
standards, not whether a new adoptive home is better than the parental home. In re Welfare of J.M., 574 N.W.2d 717,