This opinion will be unpublished and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:
J.D.C. and J.L.W., Parents.
Filed November 14, 2006
Isanti County District Court
File No. JV-05-76
Sherri D. Hawley, Walling, Berg
& Debele, P.A.,
Samantha J. Gemberling, Gemberling
Elizabeth Maria Hiljus,
Mary Pfeiffer, Guardian Ad Litem,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this consolidated appeal from the district court’s termination of parental rights, appellant-mother argues that (1) the district court’s finding that she is palpably unfit to parent is clearly erroneous; (2) the district court’s finding that Isanti County made reasonable efforts at reunification is clearly erroneous; (3) the district court erred by concluding that Isanti County’s failure to actively pursue relative placement was not fatal to the petition to terminate parental rights; and (4) the district court’s conclusion that termination was in the best interests of the child is erroneous. Appellant-father argues that (1) the district court’s finding that Isanti County provided reasonable efforts at reunification is erroneous; (2) the district court failed to make sufficient findings of fact regarding the best interests of the child; (3) Isanti County failed to pursue a relative placement for the child; and (4) Isanti County did not satisfy the requirements of the Indian Family Preservation Act and the Indian Child Welfare Act. We affirm.
On February 21, 2006, after a court trial, the district court issued an order terminating mother’s parental rights pursuant to Minn. Stat. § 260C.301, subds. 1(b)(2), (4), (5) (2004). The court found, among other things, that mother did not consistently follow the visitation schedule, did not follow the recommendations of her chemical-dependency assessment and did not comply with the random-urinalysis calendar. On March 3, 2006, mother made a motion for a new trial alleging that (1) there was insufficient evidence to support the conclusion that termination was in the child’s best interests because Isanti County did not comply with the relative-placement requirements of Minn. Stat. § 260C.212, subd. 5 (2004); (2) Isanti County did not provide sufficient evidence on the child’s potential for contact with his half-siblings; and (3) the county failed to establish that termination was in the best interests of the child as opposed to the “less onerous” option of a relative placement. The district court denied mother’s motion for a new trial on March 13, 2006.
Both parents appealed the district court’s decision to terminate their parental rights, and on April 19, 2006, the parents’ appeals were consolidated.
D E C I S I O N
first asserts that the district court’s conclusion that she is, and for the
reasonably foreseeable future will continue to be a palpably unfit parent is
erroneous because it is not supported by clear and convincing evidence. On appeal from an order terminating parental
rights, “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, 484 (
Here, the district court concluded that termination of mother’s parental rights was appropriate under section 260C.301, subdivisions 1(b)(2), (b)(4), and (b)(5). Section 260C.301, subdivision 1(b), provides, in relevant part, that:
The juvenile court may upon petition, terminate all rights of a parent to a child . . . if it finds that one or more of the following conditions exist:
. . . .
(2) 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;
. . . .
(4) that a parent is palpably unfit to be a party to the parent 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. . . . ;
(5) 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.
A careful examination of the record shows that the district court’s finding that mother is palpably unfit to parent is supported by clear and convincing evidence. At mother’s TPR trial, several witnesses testified about mother’s failure to comply with her case plan. The child-protection specialist testified that, despite being told numerous times that complying with her case plan was important, mother did not follow through with all of its requirements. Mother did not remain law-abiding during the child-protection proceedings and was charged with possession of stolen property and a probation violation; she spent several weeks in jail on a probation violation just prior to the TPR trial. In addition, the social worker testified that mother did not complete her parenting-skills classes and did not attend individual therapy. Mother also did not maintain regular contact with her child. Because the case worker did not know mother’s whereabouts in the weeks leading up to trial, mother’s mental-health status and chemical-dependency status were unknown at the time of trial. A psychologist testified that mother is cognitively low-functioning and that, although her cognitive ability would not necessarily impair her ability to parent, her prognosis would be “guarded” if she failed to follow through with recommendations. Further, the county skills worker stated that she had concerns regarding mother’s ability to parent her child, based on a positive drug test, a lack of financial resources, a lack of motivation to find a job, and the fact that the parents were being evicted from their home. The skills worker also testified that she was concerned that mother would not attend to her child’s medical needs and that mother and child were not bonding appropriately. Finally, the guardian ad litem expressed concerns about mother’s inability to put the needs of her child above her own.
Based on our review of the record, we conclude that the district court’s finding that mother is palpably unfit to parent is supported by clear and convincing evidence and is not erroneous.
Reasonable Efforts at Reunification
Mother argues that the district
court clearly erred when it found that
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.
issues with chemical use and dependency are part of the conditions which led to
the termination petition, and the case plan developed for mother clearly
addresses those issues. The district
court’s conclusion that
We conclude that the district court did not clearly err by finding that the county made reasonable efforts as required under Minn. Stat. § 260C.301, subd. 1(b)(2), and that those efforts were unsuccessful.
argues that the district court’s finding that
(a) Once a child alleged to be in need of protection or services is under the court’s jurisdiction, the court shall ensure that reasonable efforts . . . by the social services agency are made to prevent placement or to eliminate the need for removal and to reunite the child with the child’s family at the earliest possible time. . . . Reasonable efforts for rehabilitation and reunification are not required upon a determination by the court that:
(1) A . . . petition has been filed stating a prima facie case that:
. . . .
(ii) the parental rights of the parent to another child have been terminated involuntarily.
he cites no caselaw for the proposition, father also argues that because Isanti
County did not “introduce any evidence that it filed a petition, prior to the
termination of parental rights petition, that stated a prima facie case that
[father’s] parental rights had previously been involuntarily terminated,” the
county was never actually relieved of its duty to make reasonable efforts. We find this argument unpersuasive. In Child
of P.T. & A.T., this court acknowledged that when the
Best Interests of the Child
Mother contends that the district court failed to make specific findings to support its conclusion that termination is in the best interests of the child and argues that its conclusion that termination is in the best interests of the child is erroneous. We disagree.
When determining the best interests
of a child, a district court is required to “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
Contrary to mother’s assertion, the district court made several findings regarding the best interests of the child. While not explicitly labeling them as such, the district court’s findings clearly addressed each of the R.T.B. factors. With respect to mother’s interest in preserving the parent-child relationship, the district court found that “[t]he parent-child relationship or bonding between [mother] and the minor child is tenuous and minimal. [Mother] has not been invested in any of services offered to give her the skills to raise the child.” The district court also found that mother “only had two visits with the minor child during the month of August.” These findings also address the child’s interests in preserving the parent-child relationship.
The court also made findings regarding the competing interests of the child. The district court found that mother’s “current chemical use or abstinence is unknown” and that the child has only known one home—the foster home he was placed in immediately after being discharged from the hospital after his birth. The district court also found that mother’s home
did not have electrical power, nor did it contain any of the items necessary to care for the minor child. More specifically, the home did not contain baby furniture, baby clothing, diapers or food. It was also reported that [mother] was evicted from her home and the home was in foreclosure.
These findings address the health and safety of the child as well as the stability of the child’s environment. While the findings of the district court do not explicitly address the best-interests analysis articulated in R.T.B., it is clear that the court carefully considered those factors before making its decision. We conclude that the district court’s findings were sufficient to address the best interests of the child. Because the findings made by the district court are also supported by substantial evidence in the record, they are not clearly erroneous.
Father likewise argues that the district court failed to make the requisite findings of fact and conclusions of law with respect to the best interests of the child. In its January 18, 2006 order terminating father’s parental rights, the district court did not specifically address the R.T.B. factors in its findings of fact or conclusions of law. The district court did make findings, however, relating to the fact that father frequently missed or was late to visitations with the child and failed to comply with the random-urinalysis calendar. The court also noted that the child has known only one home since birth—that of his foster family. These findings suggest that the district court considered the stability of the child’s environment and father’s interest in preserving the parent-child relationship, which are “competing interests” in an R.T.B. analysis. We recognize that the district court’s findings of fact and conclusions of law on this point are scant, but, viewing the record as a whole, the findings are sufficient for us to conclude that the district court properly considered the R.T.B. factors.
argues that the district court erred when it concluded that
district court concluded that the county did not “actively” pursue relative
placement. However, it also made
findings that the county conducted a relative search and located relatives of
the child who were willing to be a permanent-placement option, but that the
county recommended that the child not be placed with those relatives. Moreover, the parents did not supply the
agency with many names of relatives as possible placement options. The social worker testified that mother gave
her names of only two relatives nearly two months into the relative-search
process and that she did not provide the social worker with the names of any
close family friends as placement options.
It was only through a thorough investigation that the county was able to
locate any relatives willing to be a permanent-placement option. The relatives that were eventually located
Mother does not cite any caselaw that establishes that an agency’s failure to actively pursue relative placement precludes the termination of parental rights. Also, mother does not challenge the actual placement of the child, only the sufficiency of the relative search. The relevant statutory language provides that:
In implementing the requirement that the responsible social services agency must consider placement with a relative under subdivision 2 without delay after identifying the need for placement of the child in foster care, the responsible social services agency shall identify relatives of the child and notify them of the need for a foster care home for the child and of the possibility of the need for a permanent out-of-home placement of the child. The relative search required by this section shall be reasonable and comprehensive in scope and may last up to six months or until a fit and willing relative is identified.
Minn. Stat. § 260C.212,
subd. 5(a) (2004). There is a strong
preference for placement of a child with a relative if the parents are unable
to or unwilling to care for the child. In re Welfare of M.M., 452 N.W.2d 236,
suggesting that the district court erred, father also argues that
Finally, father argues that
argument was only obliquely addressed through testimony at trial and the
district court did not make any factual findings on this issue, nor did it
address this issue in its conclusions of law.
Moreover, father did not address this issue in either his written
closing arguments or his motion for a new trial. Because the district court did not make
findings of fact or conclusions of law on this issue, and because father did
not bring this issue to the attention of the district court in his motion for a
new trial, we decline to address it on the merits. Frank
v. Ill. Farmers Ins. Co., 336 N.W.2d 307, 311 (
However, even if we chose to address this issue on its merits, father did not provide the county with enough information to enable them to determine whether the child is covered under MIFPA or ICWA; and indeed the information the county managed to gather strongly suggests that the child is not, in fact, an Indian child. Father did not even provide the county with the name of a tribe. The county’s investigation revealed only that, according to father’s mother, “there is some Native American heritage on a great great great great grandmother who was only partial.” Father’s mother similarly did not know what tribe her relative might have belonged to and did not know anyone who might know. Additionally, the Isanti County social worker testified that father’s Native American heritage was examined in his two previous termination cases, and it was determined that neither he nor his children were eligible for enrollment in a tribe.
 Minn. Stat. § 260C.007, subd. 6(3), provides that a child is in need of protection or services if he “is without necessary food, clothing, shelter, education or other required care for the child’s physical or mental health or morals because the child’s parent, guardian, or custodian is unable or unwilling to provide that care.”