This opinion will be unpublished and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 Child of: J.G. and D.E., Parents.

Filed October 23, 2007


Dietzen, Judge


Olmsted County District Court

File No. 55-JV-06-10126


Terence J. Swihart, Downing, Dittrich & Swihart, 330 Wells Fargo Center, 21 First Avenue Southwest, Rochester, MN 55902 (for appellant J.G.)

Mark A. Olstrom, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904-3710 (for respondent Olmsted County Community Services)

Georgiana Castellanos, 2659 Third Place Northeast, Rochester, MN 55906 (guardian ad litem)


            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant mother challenges the district court order terminating her parental rights, arguing that the district court erred in finding that appellant failed to rebut the presumption that she was palpably unfit and finding that reasonable efforts had failed to correct the conditions leading to the child’s placement.  Because the district court properly applied the law and did not abuse its discretion, we affirm. 


            Appellant J.G. is the mother of K.G., who was born in May 2006.  She is the mother of six other children.  Her parental rights to three of those children were involuntarily terminated in 2004 and 2005, and the other three have been placed outside the home. 

Both K.G. and appellant tested positive for cocaine at the child’s birth.  After K.G. was born, respondent Olmsted County Community Services (county) placed the child in emergency protective care and filed a petition to terminate appellant’s parental rights.  Following K.G.’s birth, the county provided appellant with services to rehabilitate and reunite her with K.G.  Appellant participated in a parenting class for chemically dependent mothers (CRAFT program) and a chemical dependency support program (Winden program) and also searched for employment. 

            In July 2006, the district court adjudicated K.G. a child in need of protection or services (CHIPS).  Because appellant was cooperating with the county services directed at chemical dependency, parenting skills, and education regarding mental health, the county requested that the district court not proceed with termination of parental rights.  As a result, the district court ordered that appellant comply with an out-of-home placement plan.  The placement plan detailed a number of problems that appellant needed to address in order to regain custody of K.G.  These problems included her long-term drug addiction, her unmanaged mental health issues, and her lack of parenting skills.  The placement plan set out a number of concrete tasks that appellant had to accomplish to remedy these problems. 

            In October 2006, Dr. Paul Fountain conducted a psychological and parenting evaluation of appellant.  Dr. Fountain concluded that appellant suffered from polysubstance dependence, major depression, generalized anxiety, chronic posttraumatic-stress disorder, and dependent-personality disorder.  He noted that appellant had not attended Alcoholics Anonymous or Narcotics Anonymous meetings, that her excuses were not credible, and recommended that appellant see a psychiatrist to treat her mental illness through counseling and medication management.  Based on his observations and experience, Dr. Fountain concluded that appellant was “out of sync” with K.G. and recommended that K.G. not be raised by appellant. 

In November 2006, the county filed a second petition seeking termination of appellant’s parental rights.  At trial, the county offered and the district court received copies of three prior Illinois court orders terminating appellant’s rights to three previous children, which then shifted the burden of proof to appellant to demonstrate her ability to successfully parent the child.  Minn. Stat. § 260C.301 subd. 1(b)(4) (2006).  Appellant testified and provided the testimony of her niece, her sister, a family friend, and a social worker from the CRAFT program.  Appellant’s witnesses testified that appellant had maintained her sobriety, that they were willing to assist her financially, and that she had the ability to parent K.G.  The social worker testified that appellant did not demonstrate any difficulty parenting the child. 

            The county presented the testimony of two county social workers, a county public health nurse, and the court-appointed guardian ad litem.  The county’s witnesses admitted that appellant had maintained her sobriety, but testified that she had failed to comply with the out-of-home placement plan regarding her mental health, had discontinued taking her prescribed medication, was unable to parent K.G., and did not have housing or the financial means to provide for K.G.  The witnesses opined that the efforts to rehabilitate appellant and reunify her with K.G. were reasonable but had failed, that the child had not bonded with appellant, and that it was in K.G.’s best interests that appellant’s parental rights be terminated. 

            Following the hearing, the district court filed its findings of fact, conclusions of law, and order terminating appellant’s parental rights to K.G.  This appeal follows.



            Appellant argues that the district court’s finding that appellant failed to rebut the statutory presumption that she was a palpably unfit parent is clearly erroneous and not supported by substantial evidence.  On appeal our review is limited to determining whether the district court addressed the statutory criteria and whether the district court’s findings were supported by substantial evidence or were clearly erroneous.  In re Welfare of M.D.O., 462 N.W.2d  370, 375 (Minn. 1990).

            Minn. Stat. § 260C.301 provides that a court, upon petition, may terminate all rights of a parent to a child if it finds that:

a 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.  It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated.


Minn. Stat. § 260C.301, subd. 1(b)(4) (2006).  When the statutory presumption of palpable unfitness is established due to a prior involuntary termination, the burden shifts to the parent to rebut the presumption by “affirmatively and actively demonstrat[ing] her or his ability to successfully parent a child.”  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250-51 (Minn. App. 2003); see In re Welfare of the Child of T.D., 731 N.W.2d 548 (Minn. App. 2007) (discussing rebuttal of presumed unfitness).  The district court concluded that the county had established the statutory presumption of palpable unfitness, and, therefore, the burden shifted to appellant to demonstrate her fitness to parent her child. 

Appellant contends that she rebutted the presumption by demonstrating that she had maintained her sobriety, that she was addressing her mental health problems, and that she had the basic parenting skills to provide for K.G.  The district court found clear-and-convincing evidence was presented that appellant is palpably unfit “because of her unaddressed mental health, her lack of parenting skills, and her inability to provide for the basic needs of her child.”  The court acknowledged that appellant’s “success in remaining free from cocaine must be applauded” but that she “has an ongoing problem of not addressing her mental health.”  We agree. 

            Appellant completed the Winden program, which is a chemical dependency support program, but failed to do the necessary follow-up.  She failed to attend multiple appointments with at least three different psychiatrists, failed to follow recommendations regarding psychiatric medications, and later discontinued taking the medications. 

            Appellant also argues that she developed the necessary parenting skills to parent K.G.  She relies heavily on the testimony of a CRAFT social worker.  The district court found that the county’s witnesses had more opportunity to observe K.G. and appellant interact and that their testimony was more persuasive.  The court concluded: “Despite the completion of parenting education through the CRAFT programs, months of parenting education with [the county public health nurse], and [the county social worker’s] willingness to provide further parenting education services, [appellant] still significantly lacks basic parenting skills.”  We see no abuse of discretion.

Appellant further argues that the district court improperly considered her financial status.  But appellant misconstrues the findings of the district court.  The order states:

Despite a plethora of available services, [appellant] was unable to obtain any housing or secure any financial means to provide for her son.  She made little effort to obtain affordable housing and employment, did not take the necessary steps to obtain any financial assistance, and allowed at least one form of assistance to lapse.


We read the district court’s findings to relate to palpable unfitness and neglect, and not financial status.  Thus, the court’s conclusion that appellant failed to rebut the statutory presumption by clear-and-convincing evidence is supported in the record.      


Appellant contends that the district court clearly erred by finding that reasonable efforts have failed to correct the conditions leading to the child’s out-of-home placement under Minn. Stat. § 260C.301, subd. 1(b)(5) (2006).  Because we conclude that the district court did not clearly err in terminating appellant’s parental rights on the ground that she is palpably unfit, it is not necessary for us to address this second ground for termination of appellant’s parental rights.  In re R.M.M.III, 316 N.W.2d 538, 541 (Minn. 1982) (stating that only one statutory basis needs to be proven to terminate parental rights).  But even if we did reach this issue, we would conclude that the record contains clear-and-convincing evidence that reasonable efforts failed to correct the conditions leading to the child’s out-of-home placement.   

Minn. Stat. § 260C.301, subd. 1(b)(5), sets forth circumstances in which it is “presumed that reasonable efforts” have failed.  Here, the district court found that appellant had not substantially complied with the court’s orders and case plan, and therefore, presumed that reasonable efforts to correct the conditions leading to the out-of-home placement have failed.  Minn. Stat. § 260C.301, subd. 1(b)(5).  Appellant does not explicitly dispute application of the presumption, but does argue that reasonable efforts did not fail.

Here, the county advised appellant that the child was removed from the home due to her chemical dependency, mental health issues, lack of parenting ability, and inability to provide for her child’s basic needs.  A case plan was approved by the district court and given to appellant that clearly set forth what appellant needed to do to correct these conditions.  The county’s witnesses testified that reasonable efforts were made to rehabilitate appellant and reunite her with K.G.  Therefore, we conclude that there is clear-and-convincing evidence that reasonable efforts failed to correct the conditions leading to K.G.’s out-of-home placement. 


Termination of parental rights requires that the district court analyze the best interests of the child.  The paramount consideration in this proceeding is the best interests of the child.  Minn. Stat. § 260C.001, subd. 3 (2006).  In determining the best interests of the child, the 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 Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (quoting In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992)).

The district court found that K.G. has attached and bonded with his current foster parents, that he considered his current foster parents his preferred caregivers, and that he would be emotionally harmed if parental rights were not terminated.  The district court also found that K.G. has not attached and bonded with appellant.  These findings are supported by evidence from Dr. Fountain and testimony from the county social workers, the county public health nurse, and the court-appointed guardian ad litem. 

The district court’s finding that termination of appellant’s parental rights was in K.G.’s best interests is supported by clear-and-convincing evidence and is not clearly erroneous.