This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of the Children of:
L.D. and J.C., Parents.
Filed February 13, 2007
Dakota County District Court
File No. J8-05-58888
Randall M. Tietjen, Stephen P. Safranski, Peter N. Surdo, Robins, Kaplan, Miller & Ciresi, L.L.P., 2800 LaSalle Plaza, 800 LaSalle Avenue, Minneapolis, MN 55402 (for appellant guardian ad litem)
James C. Backstrom,
Paul G. Morreim, Assistant Dakota County Public Defender,
Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.
Appellant guardian ad litem (GAL) challenges the district court order dismissing a petition that J.C. and J.D. were children in need of protection or services, arguing that the district court (1) failed to consider the statutory criteria alleged under Minn. Stat. § 260C.007, subd. 6; (2) erred by not concluding that the children were in need of protection or services; and (3) clearly erred by finding that the parent had substantially complied with the case plan. Because the court properly applied the law and did not abuse its discretion, we affirm.
L.D. (mother) is the mother of two daughters, J.C. and J.D., who, at the time of the petition to adjudicate the children to be in need of protection or services (CHIPS), were three and ten years old respectively. Both mother and the older daughter suffer from developmental disabilities.
On August 25, 2005, Dakota County Social Services (DCSS) filed a CHIPS petition asserting medical neglect under Minn. Stat. § 260C.007, subd. 6(3), 6(5), and 6(9) (2004). The petition alleged that J.C., while trying to stir noodles, immersed her arm in boiling water and sustained a severe third-degree burn which ultimately required skin grafting, that the mother failed to seek medical attention until the next day when the injury was brought to her attention by the daycare provider, and that mother was not honest with child protection investigators when asked about her knowledge of the injury.
Following an emergency hearing, the court found that “[r]emaining in the home is contrary to the child’s welfare and placing the child out of the family home is in the child’s best interests,” and that “[t]he child is at risk for further abuse, neglect or other maltreatment.” As a result, the district court ordered that “temporary custody of the child be with Dakota County Human Services for placement for the purposes of protective care.” J.C. was placed on a 72-hour emergency protective-care hold with her grandparents at the time of her discharge from the hospital and a GAL was appointed.
The initial CHIPS hearing was held three days later. Based on the recommendations of DCSS and the GAL, the district court ordered the return of custody of J.C. to mother, subject to protective supervision by DCSS, continued the case until October 26, and made compliance with the DCSS case plan part of the order. The case plan required that mother cooperate with DCSS, submit to a psychological and parenting evaluation, and follow any recommendations set forth in those evaluations. Subsequently, mother was evaluated by Dr. William Hoekstra.
At the next hearing, the court continued the case to January 2006, and, inter alia, stated that mother comply with the case plan as follows:
[mother] is cooperating with the previous court order and the social service
case plan and is appropriately meeting her daughter’s medical needs it is in [J.C.’s]
best interest to remain within her parental home.
2. [Mother] complies with any and all recommendations resulting from the parenting assessment and psychological evaluation she recently completed.
3. [Father] complies with any and all recommendations resulting from the parenting assessment and psychological evaluation he recently completed.
4. [Mother] follows all medical recommendations made by the doctors treating [J.C.’s] burn.
5. [Mother] participates in parenting education services.
6. [Mother and father] provide age appropriate supervision for [J.C.].
In November 2005, Dr. Hoekstra completed his report and recommended that mother receive in-home parenting skills interventions, continue to work with a psychiatrist to manage her use of medications, and participate in individual therapy to deal with her depression. Dr. Hoekstra determined that mother’s overall I.Q. was 62 and that her “parenting difficulties do not emerge from malicious attitudes. Rather, in light of her cognitive delays, it is expected that she does not readily identify problematic parenting situations in her day-to-day life, nor is she able to consistently predict problems based on the information available to her.”
At the hearing in January 2006, DCSS recommended dismissal based on mother’s substantial compliance with the case plan and her agreement to work with DCSS on a voluntary basis. The GAL objected to the dismissal and disagreed that mother had been cooperative with the services. The district court scheduled the case for a review in March and trial in April 2006. Following the January 2006 hearing, the court concluded that the best interests of the children would be served by the children remaining with their mother under the protective supervision of DCSS.
At the March 2006 hearing, DCSS again requested dismissal of the case, which was opposed by the GAL. The court denied the motion to dismiss and set the matter for trial in July 2006.
At trial, the GAL presented testimony that the burn injury to J.C. was accidentally caused by the child, that mother had not sought medical attention in a timely manner, and that mother was not truthful about how the injury had occurred. Additional testimony was presented that mother left J.D. unsupervised at home several times and at a public park. DCSS stated that it addressed these issues with mother but did not commence any formal investigation. The GAL also introduced a report received in late February 2006 that J.C. had been inappropriately touched by mother’s former boyfriend, who denied the touching. Following an investigation, DCSS determined that there was no neglect on mother’s part but questioned her judgment in male relationships.
DCSS social worker Sandra Rick acknowledged that the allegations in the original CHIPS petition were true, but testified that because mother had complied with the case plan there was no longer a basis for the CHIPS petition, and the matter should be dismissed. Based on her years of experience and involvement in mother’s case, Rick believed that mother would work with social services on a voluntary basis.
Following the trial, the district court filed its findings of fact, conclusions of law, and order, in which it concluded that mother “substantially complied with the case plan” and dismissed the matter. This appeal by the GAL followed.
D E C I S I O N
The GAL contends that the district court failed to evaluate the statutory criteria for a CHIPS petition set forth in Minn. Stat. § 260C.007, subd. 6 (2006) and that it erred by not concluding that the children were in need of protection or services. DCSS argues that this case was continued to determine whether mother would comply with the case plan and that since she complied with the case plan dismissal is appropriate.
Questions of law,
such as the interpretation of the statutory criteria for adjudicating a CHIPS
petition, are reviewed de novo. In re Welfare of Children of R.W., 678
N.W.2d 49, 54 (
Stat. § 260C.007, subd. 6, identifies the 15 statutory grounds by which
children may be determined to be in need of protection or services. At a CHIPS trial, the court is “to determine
whether the statutory grounds set forth in the petition are or are not proved.”
Minn. Stat. § 260C.201, subd. 12 (2006), provides the district court with authority to continue a case in certain circumstances. It states:
If it is in the best interests of the child to do so and if the allegations contained in the petition have been admitted, or when a hearing has been held as provided in section 260C.163 and the allegations contained in the petition have been duly proven, before the entry of a finding of need for protection or services or a finding that a child is neglected and in foster care, the court may continue the case for a period not to exceed 90 days on any one order. Following the 90-day continuance:
(1) if both the parent and child have complied with the terms of the continuance, the case must be dismissed without an adjudication that the child is in need of protection or services or that the child is neglected and in foster care; or
(2) if either the parent or child has not complied with the terms of the continuance, the court shall adjudicate the child in need of protection or services or neglected and in foster care.
(Emphasis added.) Thus, if the allegations in the
CHIPS petition have been either admitted or proven at a hearing and the court
determines that “it is in the best interests of the child to do so,” the court
may continue the matter for up to 90 days per order, subject to conditions
established by the court.
First, the statute requires that the allegations of the petition, i.e., medical neglect of J.C. arising out of the burn incident, be proven after a hearing. Mother does not dispute that she did not seek medical treatment for J.C. until the day after the accident. Following the emergency hearing, the court found “probable cause to believe that a juvenile protection matter exists” and that the petition makes a prima facie showing that the children would be “immediately endangered” if they remained in mother’s care. The court found that placing the children out of the home would be in their best interests and incorporated DCSS’s recommendation that the youngest daughter be placed temporarily with her grandparents. Thus, the allegations of medical neglect of J.C. have been sufficiently proven.
B. Best Interests of the Children
The second requirement is that the continuance must have been in the best interests of the children. This factor focuses on whether continuing the case to allow mother to comply with the case plan was in the children’s best interests. Here, the district court continued the case to allow mother to comply with the case plan and correct the conditions that led to the filing of the petition. Both the GAL and DCSS were supportive of the continuance and recommended that compliance with the case plan was in the children’s best interests. On this record, the continuance was in the children’s best interests.
C. Compliance with the Conditions of Continuance
Finally, dismissal is appropriate where the parent and child comply with the conditions of the continuance. The GAL contends that the court erred in concluding that mother substantially complied with the case plan. Specifically, the GAL argues that mother did not comply with the recommendations made by Dr. Hoekstra and adopted by the court.
First, Dr. Hoekstra recommended that mother receive in-home parenting skills training. The GAL argues that compliance requires not only in-home parenting skills training, but also completion of the training. The district court concluded that mother had satisfied this requirement of the case plan. The testimony shows that mother began receiving training from one provider, but switched to another provider due to scheduling conflicts. Mother had received ten hours of training from the new provider as of the date of the trial. The social worker explained that she did not impose a time deadline for completion of the parenting training, but rather that mother would be participating in the training on an ongoing, voluntary basis. On this record, the district court’s finding that mother’s ongoing participation in the parenting skills training constituted compliance with the recommendation is not clearly erroneous.
Second, Dr. Hoekstra recommended that mother “continue to work with a psychiatrist to manage her use of medication treatment regarding her symptoms of depression.” The GAL argues that mother failed to see her psychiatrist after Dr. Hoekstra’s recommendation, and, therefore, she did not comply with this recommendation. The district court credited the social worker’s testimony that mother’s medications were appropriately managed through follow-up care from the family physician and it was not necessary for her to see the psychiatrist. The GAL has not shown how managing her follow-up care through her family physician was not substantially in compliance with the case plan. Thus, we cannot say that the district court’s findings were clearly erroneous.
Third, Dr. Hoekstra recommended that mother receive individual therapy. It was undisputed that mother has not participated in individual therapy. The district court found that mother is employed, attending school, caring for two children, participating cooperatively with in-home parenting skills training, working cooperatively with the children’s schools for assessments and individual education plan goals, working cooperatively with the developmental disabilities unit of Dakota County services and with a personal care assistant, and working cooperatively with a family group decision making program. The district court found the social worker’s testimony persuasive that while individual therapy would be beneficial, it was not a high priority, because mother’s “plate [was] full” with other activities. The court’s finding that this condition was not necessary and that mother substantially complied with the case plan is not clearly erroneous.
Fourth, the court order also required mother to provide age-appropriate supervision. The GAL argues that several incidents which occurred during the pendency of the case demonstrate that mother did not provide age-appropriate supervision. The examples include letting J.C. (the three year-old) play alone at a public park in October 2005, repeatedly leaving J.D. (the ten-year old) at home alone, and that mother may have failed to protect her children against alleged sexual abuse of J.C. by mother’s former boyfriend.
The district court did not make express findings on whether or not mother provided age-appropriate supervision but did credit the social worker’s testimony that currently there was no basis for filing a CHIPS petition and that she did not believe it was necessary to remove the children from mother’s home.
Here DCSS investigated the allegations of abuse that occurred after the filing of the CHIPS petition and concluded that no further action was warranted. And the social worker testified that the issue of leaving J.C. and J.D. alone was being addressed through parenting skills training and mother’s cooperation with social services. On this record, we cannot say that the district court erred in failing to consider these incidents further.
Finally, the GAL argues that mother’s cognitive level renders her unable to adequately supervise the children. The GAL cites Dr. Hoekstra’s observation that mother’s parenting difficulties “do not emerge from malicious attitudes. Rather, in light of her cognitive delays, it is expected that she does not readily identify problematic parenting situations in her day-to-day life nor is she able to consistently predict problems based on the information available to her.” The GAL essentially argues that even if mother complies with the plan, her abilities do not allow her to adequately supervise the children. Here, DCSS argued, and the district court concluded, that it was in the best interests of the children to remain with mother under the protective supervision of DCSS. On this record, we cannot say that the district court conclusion is clearly erroneous. In the event that other incidents of negligence arise, the GAL is not precluded from seeking appropriate relief.
Because the district court’s underlying findings that mother has complied with the case plan adopted by the court are sustainable, the court’s conclusion that mother had substantially complied with the case plan is sustainable as well. See Maxfield, 452 N.W.2d at 221 (where underlying findings of fact are sustainable and not clearly erroneous, the district court’s ultimate findings must be affirmed). Therefore, the third and final requirement of Minn. Stat. § 260C.201, subd. 12, i.e., compliance with the terms of the continuance, is met, and we conclude that the court properly dismissed the CHIPS petition after continuance based on mother’s compliance with the case plan.
In its statement of the case,
appellant GAL argues that the district court erred by admitting and relying on
the testimony of a lay social worker regarding the diagnosis and treatment of mother’s
psychological condition. This argument was
not briefed, and arguments not briefed on appeal are waived. Melina
v. Chaplin, 327 N.W.2d 19, 20 (
In its response brief, DCSS
argues that the district court erred by not dismissing the CHIPS petition in
January and March 2006 when it abandoned prosecution and requested dismissal
prior to CHIPS adjudication. But DCSS
has not filed a notice of review. We will
not consider a challenge to issues decided adversely to a respondent when the
respondent has not filed a notice of review.
 Father is a non-custodial parent, and his actions are not at issue in this appeal.