This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Welfare of the Children of: T.R.K. and J.C.K., Parents.


Filed February 6, 2007


Minge, Judge


Olmsted County District Court

File No. 55-JV-06-1963



Terence Swihart, Downing, Dittrich & Swihart, 330 Wells Fargo Center, 21 First Avenue SW, Rochester, MN 55902 (for appellant mother)


Mark A. Ostrem, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, Government Center, 151 Fourth Street SE, Rochester, MN 55904 (for respondent Olmsted County)


            Considered and decided by Hudson, Presiding Judge; Toussaint, Chief Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges the district court’s termination of her parental rights, claiming that the district court’s findings were clearly erroneous.  Because we conclude that the district court’s finding on at least one statutory basis for termination is supported by clear and convincing evidence and is not clearly erroneous, we affirm.





            Appellant T.R.K. is the mother of three minor children: D.R.K., born September 3, 1998; E.R.K., born June 18, 2000; and M.J.K., born May 23, 2004.  During the spring and summer of 2005, appellant’s extended family noticed her strange behavior, suspected that she was using drugs, and became concerned for the welfare of the three children.  Appellant claimed to see ghosts in the cupboards, bugs in the toilet seat, bugs in her children’s clothes, and bugs under her skin and under M.J.K.’s skin.  Appellant also suspected that her major appliances were being moved and that someone was rewiring her calculator and light bulbs.  Appellant reportedly polished screws on picture frames and regularly scratched and picked at her skin.  According to family members, appellant lost substantial weight, experienced rapid mood changes, and could not sleep at night but would sleep for long periods during the day.  During that time, appellant was unemployed and the bank was preparing to foreclose on the family home.  Her divorce from the children’s father was also pending.[1] 

            Family members reported this situation to Olmsted County Community Services (OCCS).  Social workers investigated and reported similar paranoid and delusional behavior from appellant.  The oldest child reported that appellant’s male friend was mean to the children and kept them in their bedrooms and that appellant held late-night parties with drinking, dancing, and loud music.  On July 13, 2005, the children’s paternal aunt, K.K., went to appellant’s home and offered to take the children for a week to give appellant a break from parenting.  Appellant agreed.  Thereafter, OCCS, appellant, and family members agreed that the children would remain in K.K.’s care.  Appellant was advised that if she attempted to remove the children from K.K., social services and law enforcement would be notified. 

            On August 4, 2005, appellant attempted to take the children into her care, and K.K. contacted law enforcement officers.  The children were placed in protective custody.  Four days later, OCCS filed a petition under the children-in-need-of-protective-service (CHIPS) program with the district court.  A guardian ad litem was appointed.  In August and September, the parties held several case-planning meetings to discuss visitation, arrange drug screening, and develop an out-of-home placement plan.  But appellant did not cooperate with the development of the plan, despite OCCS’s repeated efforts to gain her input and approval.  The most important requirements of the out-of-home placement plan directed appellant to identify and adequately address chemical dependency and mental-health issues that led to removal of her children.  A supplemental and substantially similar plan was developed later.

            Between development of the earlier plan and the CHIPS trial, little improved.  During that time, appellant cancelled several planned visits with her children, continued to deny drug use, and refused to submit to a urinalysis.  When appellant finally submitted to a drug screen on September 7, 2005, she tested positive for methamphetamine, cocaine, and marijuana.  Early in September 2005, the children moved from K.K.’s home in Olmsted County to their paternal grandparents’ home in Owatonna, where they remained for the duration of the proceedings. 

            In early October 2005, appellant appeared at the CHIPS trial under the influence of drugs.  The trial was continued.  Appellant tested positive for methamphetamine and marijuana, and was ordered to be confined at a Crisis Receiving Unit until she was sober.  The CHIPS trial was subsequently held, and the court found that the children were in need of protection or services under Minn. Stat. § 260C.007, subds. 6(8), 6(9) (2004).  The district court’s determination was based on evidence of appellant’s delusional and paranoid behavior, her positive drug tests, and her lack of insight into her behavior and its effect on her children.  At trial, appellant testified that she used drugs but never in front of the children, that she smoked marijuana very rarely, and that she used methamphetamine, only once, at an after-hours bar party.

            Following the CHIPS trial, appellant agreed to a visitation plan with OCCS that required appellant to be drug and alcohol free during her visits.  Appellant agreed to complete a urinalysis before each visit.  And pursuant to the out-of-home placement plan, appellant attended several appointments with psychiatrist Dr. Jeffrey Gursky of Olmsted Medical Center.  After evaluating appellant, Dr. Gursky concluded that she posed a risk to herself and others and recommended that she enter an inpatient dual-diagnosis treatment program that would address chemical-dependency issues as well as mental-health problems.  Contrary to Dr. Gursky’s recommendation, appellant refused to seek inpatient treatment for her chemical-dependency and mental-health problems.  Instead, near the end of October 2005, appellant enrolled in an outpatient chemical-dependency program through Visions Counseling Clinic.    

            From the time OCCS took the children into custody, appellant’s employment and housing circumstances were unstable.  And during this time period, some of appellant’s visits with her children were successful and some were not.  Multiple times during October, appellant tested positive for drugs and was not allowed to visit her children.  Appellant was also involved in confrontations with social workers.  On several occasions, appellant exhibited poor parental judgment, including her consistent failure to bring diaper supplies for M.J.K.  Early on, appellant’s visits and phone calls were irregular, but the record indicates that appellant’s newest job made scheduling visitation easier for her and that the consistency of her visitation and phone calls improved.  Appellant’s employment status also improved.

            Based on its evaluation of appellant’s situation, OCCS filed a petition to terminate appellant’s parental rights.  A hearing was set for April 2006.  By the time of trial, appellant’s circumstances had improved.  The district court observed:

At the time of trial, [appellant] is employed, residing in a home physically capable of housing the children, has not submitted a UA positive for methamphetamine since October 2005, and the last positive test for marijuana occurred in December 2005.  She has completed outpatient chemical dependency treatment, [and] reportedly attends aftercare support groups    . . . .


But the district court determined that appellant’s improved housing and employment arrangements and her compliance with testing recommendations were too recent to be reliable indicia of long-term improvements.  The district court concluded that appellant had not benefited from chemical-dependency treatment, emphasizing that she refused to acknowledge her prior drug use, its effect on her children, and its impact on her parenting abilities.  Ultimately, the district court ordered termination of appellant’s parental rights on three separate statutory grounds.  This appeal follows.   



            “There is perhaps no more grave matter that comes before the court than the termination of a parent’s relationship with a child.”  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).  Because of the interests at stake, “[w]e review terminations of parental rights to determine whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.”  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  To determine whether the district court’s findings are clearly erroneous, we give due consideration to the statutory requirement that the basis for termination of parental rights be proven by “clear and convincing evidence.”  Minn. Stat. § 260C.317, subd. 1 (2004); see also In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996) (discussing the relationship between the standard of review used by this court and the level of proof required at the district court level).  The “clearly erroneous” component of our standard of review derives from Minn. R. Civ. P. 52.01, which precludes the setting aside of facts “unless clearly erroneous.”  This court gives “[c]onsiderable deference” to the district court’s decision because the district court is in the best position to evaluate the credibility of witnesses.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). 

            The district court may terminate parental rights on the basis of one or more of the nine conditions listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Satisfaction of one criterion is sufficient, but the paramount and common consideration in any termination proceeding is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2004).

            Here, the district court found that termination was proper on the basis of three different statutory provisions: “the parent has substantially, continuously, or repeatedly refused or neglected to comply with” parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); the parent is “palpably unfit” to act as a parent “because of a consistent pattern” of conduct that indicates the parent will be unable to care appropriately for the needs of the child “for the reasonably foreseeable future,” id., subd. 1(b)(4); and “reasonable efforts” “have failed to correct the conditions” leading to out-of-home placement.  Id., subd. 1(b)(5).  Appellant confines her appeal to challenging the three statutory findings and does not challenge the district court’s finding that termination of her parental rights is in the best interests of the children. 

We begin our analysis with the district court’s third basis for its decision to terminate appellant’s parental rights: that “reasonable efforts . . . have failed to correct the conditions leading to the child[ren]’s [out-of-home] placement.”  Id.  Under this standard, we ask whether the district court’s finding of such failure is clearly erroneous.  P.R.L., 622 N.W.2d at 543.

The district court may terminate parental rights if it finds by clear and convincing evidence that, after placing the child outside of the home, the efforts of social services have failed to correct the conditions that caused the need for the placement.  Minn. Stat. § 260C.301, subd. 1(b)(5).  Reasonable efforts to correct the conditions leading to out-of-home placement have presumptively failed if:

            (i) . . . In the case of a child under age eight at the time the [CHIPS] petition was filed . . . the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;

            (ii) the court has approved the out-of-home placement plan . . .;

            (iii) conditions leading to the out-of-home placement have not been corrected . . .; and

            (iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family. 


Id.  Here, appellant concedes that the county has established elements (i), (ii), and (iv).  Prong (iii) of this provision is presumptively satisfied “upon a showing that the parent or parents have not substantially complied with the district court’s orders and a reasonable case plan . . . .”  Id., subd. 1(b)(5)(iii).  Appellant challenges only the district court’s findings with respect to (iii) and asserts that because she did substantially comply with the out-of-home placement plans, the district court’s use of the presumption to meet prong (iii) was improper.    

            The record contains two substantially similar out-of-home placement plans.  The earlier plan required appellant to “participate in assessments and evaluations . . . to determine . . . [the source of her delusions and paranoia] . . . includ[ing] drug testing, a psychiatric assessment, and other assessments recommended by the psychiatrist (such as neurological, physical, etc.)”  It also required appellant to “[c]omplete all assessments ordered by Olmsted Medical Center Psychiatrist/Physician, Dr. Gursky and follow recommendations that are the outcome of the assessments.”

            The supplemental plan developed in October, like the earlier version, focused on identifying the cause of appellant’s delusional behavior and effectively dealing with those problems.  The supplemental plan required appellant to examine recommended treatment “and choose the [options] that [would] most likely increase safety and allow the children to safely return home.”  It also required appellant to participate in family therapy for the benefit of the children’s mental and emotional health.  The district court found that appellant did not substantially comply with the out-of-home placement plans.               

            The district court’s findings are supported by the record.  The initial plan required appellant to follow recommendations of Dr. Gursky.  Although the supplemental plan gives appellant discretion to choose adequate treatment, the supplemental plan emphasizes that she seek treatment “most likely [to] increase safety” for the children.  Appellant did not follow Dr. Gursky’s recommendation of inpatient treatment.  Instead, appellant enrolled in an outpatient chemical-dependency program operated by the Visions Counseling Clinic.  

            The district court did not find that the Visions outpatient program was effective in dealing with appellant’s situation.  At the time she entered the program, appellant was diagnosed with amphetamine dependence and cannabis dependence by Ted Pierzina, an administrator of the Visions program.  To treat appellant’s dependence, the Visions program required random drug screens.  If appellant failed to comply with the program’s requirements, Visions was to refer her to an inpatient chemical-dependency program.  These conditions were expressly incorporated into the out-of-home placement plans.  On November 10 and November 15 appellant tested positive for marijuana, and on November 16 appellant tested positive at much higher levels than prior tests.  Although OCCS forwarded the results of the positive tests to Visions, Visions did not refer appellant to inpatient treatment.  Instead, Visions continued to report that appellant was in compliance with the program and ultimately reported that appellant successfully completed its chemical-dependency program.  At trial, Mr. Pierzina conceded that he received appellant’s positive test results and that he regularly reported that appellant had remained drug free.

            The district court was also skeptical of Visions’ aftercare plan, observing that post-treatment goals were vague and that the plan offered appellant few concrete steps to meet those goals.  Most importantly, the district court determined that appellant failed to recognize that she had a chemical-usage problem and that she repeatedly failed to recognize that her drug use caused her delusions, directly led to the children’s out-of-home placement, fundamentally compromised her ability to parent, and harmed her children.  The claim by Visions that she had successfully completed its program when she lacked this understanding of her desperate condition and its impact on her children indicated to the district court that the Visions’ claim was not persuasive, that the Visions’ program had not been effective, and that the fundamental, underlying requirements of the out-of-home placement plans were not substantially satisfied.  The district court observed that appellant had had drug-abuse problems since her adolescence and found that appellant had little or no insight into how her chemical dependency, illegal drug use, or paranoid behavior affected her children.  The district court reasoned that, in light of her history and the delusional behavior that led to the out-of-home placement, the plans demanded more of appellant than temporarily testing sober.  The district court concluded that appellant’s consistent minimization of her chemical-dependency problems, coupled with her questionable compliance with the Visions program, indicated that her drug problems were not sufficiently addressed to overcome the clear and convincing evidence that she was unable to fulfill the responsibilities of being a parent. 

            In addition to appellant’s questionable fulfillment of the chemical-dependency portion of the out-of-home placement plans, until shortly before trial, appellant had failed to undergo blood work or an MRI to rule out any physical causes of appellant’s prior delusional episodes.  The case plans clearly required appellant to undergo such testing as a precautionary measure.  Appellant also did not participate in family therapy until late in the process even though her participation was also required by the plans.

            While evidence presented at trial indicates that appellant was drug-free after November 2005, and that she did ultimately complete the blood work and MRI in accordance with Dr. Gursky’s recommendation, whether appellant’s treatment was successful and whether appellant substantially complied with the out-of-home placement plans are determinations that require weighing conflicting evidence on an extensive record and judging the credibility of witness testimony.  These are determinations that the district court is better suited to make.  On this record, we conclude that the failure of appellant to seek certain assessments until shortly before the hearing and her failure to recognize the existence and severity of her condition gave the district court an adequate basis for determining that appellant’s claims of compliance and improvement were superficial and that based on the entire record, clear and convincing evidence supported the conclusion that the underlying conditions had not changed.

            Like the district court, we resist employing an overly mechanical analysis of appellant’s compliance with the out-of-home placement plans.  The legislature’s direction that the district court determine whether the parent has “substantially complied” with the case plans implicitly requires the district court to evaluate whether the parent has complied in substance, not merely in form.  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii) (emphasis added).  Consistent with our analysis, both of the plans consistently focus on appellant’s adequate and effective treatment of her chemical-dependence problems, thereby guaranteeing the safety and welfare of the children.  Here, we defer to the district court’s findings, and because those findings are supported by clear and convincing evidence, we conclude that the district court’s finding of appellant’s substantial non-compliance with the case plans was not clearly erroneous.

            Because there is adequate evidence to support the district court’s determination that despite reasonable efforts by the county, appellant had failed to correct the conditions leading to out-of-home placement, we do not reach the two other statutory grounds under which the district court terminated appellant’s parental rights.


[1] The children’s father, J.C.K., voluntarily terminated his parental rights for good cause, and his rights are not implicated in this appeal.