This opinion will be unpublished and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:

S.M. and D.D.B., Parents.


Filed August 21, 2007

Klaphake, Judge


Steele County District Court

File Nos. 74-J9-05-50383, 74-JV-06-370, 74-JV-07-9


Jennifer J. Dunn-Foster, Dow, Einhaus, Mattison & Carver, P.A., 202 North Cedar Avenue, P.O. Box 545, Owatonna, MN  55060 (for mother S.M.)


Keith L. Deike, Patton, Hoversten & Berg, P.A., 215 Elm Avenue East, P.O. Box 249, Waseca, MN  56093-0249 (for father D.D.B.)


Douglas Ruth, Steele County Attorney, Christine A. Long, Assistant County Attorney, 303 South Cedar, Owatonna, MN  55060 (for respondent Steele County)


Julie A. Nelson, 111 East Main Street, Owatonna, MN  55060 (guardian ad litem)


            Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            In this consolidated case, appellants S.M. and D.D.B. challenge a district court order terminating their parental rights to their children, J.B. (born May 5, 2005) and L.L.B. (born January 1, 2007), under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), and (5) (2006).  The court concluded that S.M. is palpably unfit to parent despite respondent’s reasonable efforts to reunite her with the children.  The court’s conclusion was based on appellant’s unstable living and employment situation, her chemical abuse, mental health issues, and low functioning intellect.  The court further concluded that D.D.B. is palpably unfit to parent because of his unstable living conditions, lack of employment or education, chemical abuse issues, and propensity for violence, which include domestic abuse allegations against S.M., and a criminal history that includes charges of terroristic threats, assault, and interfering with a 911 call.  S.M. charges that the district court erred by finding that respondent had made reasonable efforts to rehabilitate her and by concluding that she is palpably unfit to parent.  D.D.B. claims the court erred in finding that respondent had made reasonable efforts to reunite him with the children and by declining to place the children with a great aunt, either as a foster or permanent placement.

            Because the record includes clear and convincing evidence supporting termination for palpable unfitness to parent and because termination is in the children’s best interests, we affirm.  Because the district court had insufficient notice of the availability of the great aunt to either adopt or foster parent the children, we also affirm the court’s placement decision.


            “Parental rights are terminated only for grave and weighty reasons.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  On appeal, we review a termination decision to determine whether the district court’s findings address the statutory criteria and whether those findings are supported by clear and convincing evidence.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  Only one statutory ground must be present for termination of parental rights if termination is in a child’s best interests.  In re Welfare of L.A.F., 554 N.W.2d 393, 396-97 (Minn. 1996).

            Minn. Stat. § 260C.301, subd. 1(b)(4) (2006), provides for termination of parental rights if the parent is

palpably unfit to be a party to the parent and 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.


In all terminations of parental rights under this section, the court must also make specific findings that the social services agency made reasonable efforts to prevent the placement and to reunify the family.  Minn. Stat. § 260C.301, subd. 8 (2006).  “Reasonable efforts” are “the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child’s family.”  Minn. Stat. § 260.012(f) (2006). 


            S.M. claims that respondent’s case plans for her were vague, and this lack of specificity, coupled with her cognitive shortcomings, made it impossible for her to comply.  The initial CHIPS petition identified several areas of concern that later formed the backbone of the case plan implemented by the court; they included chemical and domestic abuse, mental health, parenting skills, and living condition issues.  The record shows that the case plans and dispositional review hearing orders clearly set forth expectations for S.M. with regard to the identified areas of concern.  They included parenting assessment and education, individual counseling, court-ordered drug screening, and chemical dependency assessments and treatment, employment education and county financial resources, psychological assessment, and IQ testing.  To the extent that any plan provisions were imprecise, they were necessarily so to allow for flexibility of treatment based on identification of issues that became apparent as assessments occurred.  The record provides clear and convincing evidence that respondent made reasonable efforts on behalf of S.M. in this case.        

            S.M. further claims that the district court erred in finding that she is palpably unfit to parent her children because the record lacks evidence either that she abused or neglected the children or demonstrates the extreme behavior that typically supports termination for palpable unfitness.

            J.W.B. was placed in foster care at approximately six months of age, and L.L.B. was placed in foster care at birth.   At the time of J.W.B.’s birth, respondent identified S.M. as having parenting problems, due to her inappropriate and bizarre references to J.W.B., and her inability to bond with J.W.B. or to give him age-appropriate care.  The fact that the children were removed at such an early age may explain the lack of extreme parental conduct or conditions. 

            In re Welfare of A.V., 593 N.W.2d 720 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999), addressed similar concerns.  In that case, the mother suffered from low cognitive functioning and a personality disorder and the father had a brain injury that affected his cognitive functioning and made him prone to anger.  This court rejected the father’s argument that the record was insufficient to support termination for palpable unfitness because the father’s disabilities did not manifest themselves “in specific dangers to the children.” 721.  This court stated that termination for palpable unfitness under such circumstances could be based on the “conditions of the parents” and not just strictly on their conduct, noting that the district court had determined that it was not in the children’s best interests to allow an “experiment with [the childrens’] young lives so that their parents [could] exhaust every possible, unrealistic alternative to termination of their parental rights.”  Id.; see Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985) (noting that mental retardation and mental illness of parent caused incapacity to learn parenting skills).  The same rationale is applicable in this case.  Further, because of S.M.’s minimal compliance with the case plan, the conditions that affected her parenting ability have not changed and will not change in the foreseeable future.  See In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (requiring conditions existing at time of termination hearing to continue for “prolonged, indeterminate period” to support termination).  Under these circumstances, the district court did not err in terminating S.M.’s parental rights for palpable unfitness to parent.


            D.D.B. claims that the services offered to him by respondent were unreasonable because they did not first identify or offer treatment to him for a cognitive deficiency.  A psychologist, Dr. Kenneth Dennis, concluded that D.D.B. suffers from a cognitive deficit in the area of executive functioning, described as a deficit in “planning, problem solving, and scheduling” that is consistent with those who have sustained a head injury.  According to Dr. Dennis, until D.D.B. was able to complete six weeks of cognitive skills training in twice weekly two-hour sessions, he would be unable to benefit from other needed treatments, such as anger management or chemical dependency.

            The record also shows, however, that D.D.B received cognitive skills training while he was incarcerated from August 9 through September 12, 2006, which would have been equivalent to the training recommended by Dr. Dennis.  This training included treatment three times per week for one-and-one-half hours or two hours per session.  D.D.B. continued to be unsuccessful in other areas of treatment after he received this cognitive skills training.  Further, in weighing Dr. Dennis’s testimony, the court may have considered the fact that Dr. Dennis met with D.D.B. only once at the Steele County Detention Center and that he was otherwise unfamiliar with the family or the case plan.

            Respondent also insists that it provided initial psychological services to D.D.B. that included a recommendation that he seek further assessment for possible bi-polar or personality disorders, but D.D.B. avoided further assessment that could have identified his cognitive problems as a separate issue.  After D.D.B. was unsuccessful in most treatment areas and routinely failed to appear for many services offered to him, the court ordered that respondent need only offer services to D.D.B. that were voluntarily requested by him.  Dr. Dennis’s report was sent to the case manager after this order was in effect, and D.D.B. did not seek any services for the cognitive condition. 

            The record provides clear and convincing evidence that respondent provided reasonable services to D.D.B.  Those services included a parenting assessment, psychological evaluation, anger management evaluation, and chemical dependency evaluation and treatment.  D.D.B. was unable or unwilling to meaningfully participate in these services.  Further, we note that because only one basis for termination is necessary, D.D.B.’s failure to challenge the district court’s finding that he was palpably unfit to parent undermines his claim that respondent failed to make reasonable efforts to reunite the family.  See L.A.F., 554 N.W.2d at 396-97.

            D.D.B. argues that even if termination of his parental rights was appropriate in this case, the district court should have transferred legal and physical custody of the children to their great-great paternal aunt, Lydia Shepherd, who was willing to provide long-term care or to adopt the children.  Respondent conducted an extensive relative search that did not reveal Shepherd; she was identified by D.D.B. as a possible permanent placement option for the children only two weeks before trial.  Upon review of court-ordered placement and permanent placement determinations, a district court may order a disposition that includes “permanent legal and physical custody to a relative in the best interests of the child[.]”  Minn. Stat. § 260C.201, subd. 11(d)(1) (2006).  However, “an order for transfer of permanent legal and physical custody to a relative shall only be made after the court has reviewed the suitability of the prospective legal and physical custodian[.]”  Id.  Here, the district court did not have the opportunity to properly review the suitability of Shepherd as a permanent placement for the children before the termination proceedings.  Under these circumstances, the district court did not err in declining to place the children with Shepherd.