This opinion will be unpublished and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:
M.W., Parent.



Filed December 31, 2007


Huspeni, Judge*



Hennepin County District Court

File No. 27-JV-06-5844



Michael O. Freeman, Hennepin County Attorney, Mary Lynch, Assistant Hennepin County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County)


Leonardo Castro, Chief Public Defender, Peter Gorman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)


John Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for guardian ad litem)



            Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the entry of a stayed order in which appellant M.W. voluntarily terminated her parental rights to her daughter, appellant argues that (a) she was denied her rights to substantive and procedural due process of law; (b) the record does not support termination of her parental rights; and (c) the record does not show that termination of her parental rights is in the child’s best interests.  Because our review of the record convinces us that there was no denial of substantive or procedural due-process rights, that substantial evidence in the record supports termination of parental rights and the filing of an order to that effect, and that such termination is in the best interests of the minor child, we affirm.


            Appellant has chemical-dependency and mental-health problems, and her minor daughter was placed in foster care in October 2005.  An early December 2006 trial reunification ended when appellant had a chemical-dependency relapse.  At a December 11, 2006 hearing, the district court granted appellant’s request that she be permitted to voluntarily terminate her parental rights.  An order terminating parental rights was issued on December 15, but the parties agreed that filing of that order would be stayed for 90 days.  The order stated that it was to be automatically filed after 90 days unless the district court had previously directed its entry, granted a motion to dismiss the proceeding, or extended the stay.

            At a follow-up hearing on March 6, there occurred what appellant’s attorney described at oral argument, not without foundation, as “procedural bedlam.”  The public defender representing appellant was not the one who represented her in December, and, having just returned from an extended leave that morning, was understandably less than completely familiar with the case.  Also, the new public defender had apparently been informed, mistakenly, that the purpose of the March 6 hearing was to identify a date for a future evidentiary hearing.  Further, the parties and the district court proceeded, at least initially, under the apparent misapprehension that entry of the termination order was not to be automatic, but would require the submission of evidence to the court.  The county was prepared to call witnesses on March 6, a list of whom had previously been provided to the public defender’s office.  When the district court reviewed the December 15 order and corrected the misapprehension that evidence was required, the public defender moved to dismiss the action, and the county commendably agreed to waive notice of that motion.  The county then sought to call its witnesses in an effort to defeat the motion to dismiss, at which point the public defender moved for a continuance.  The district court denied the motion for a continuance, but ruled that the public defender’s cross-examination of the county’s witnesses could occur at a reconvened hearing, on March 9.

            The reconvened hearing actually occurred on March 13, after which the district court issued a March 29 order terminating appellant’s parental rights.  The district court later denied appellant’s motion for a “new trial.”  This appeal followed.



            Citing four aspects of the district court proceedings, appellant argues that she was deprived of substantive and procedural due process of law.  With one exception, appellant does not specify which aspect(s) of the proceedings deprived her of substantive, and which deprived her of procedural, due process of law.

A.        Due process

            Substantive due process protects fundamental rights and liberties deeply rooted in our nation’s history and tradition, and implicit in the idea of ordered liberty.  Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 2268 (1997).  The Fourteenth Amendment “forbids” government infringement on fundamental interests unless the infringement is narrowly tailored to serve a compelling state interest.  Id. at 721, 117 S. Ct. at 2268.  The parent-child relationship is among the fundamental interests protected by substantive due process.  Soohoo v. Johnson, 731 N.W.2d 815, 820 (Minn. 2007); In re Child of P.T., 657 N.W.2d 577, 588 (Minn. App. 2003).  Whether a party has been deprived of procedural due process requires the court to balance the private interest affected by official action, the risk of erroneous deprivation of that interest through the procedures used and the value of additional or substitute procedural safeguards, and the government’s interest.  Bendorf v. Comm’r of Pub. Safety, 727 N.W.2d 410, 415-16 (Minn. 2007).


B.        Alleged violations

            1.         December 15 order:  Appellant argues that what she agreed to at the December 11 hearing was not accurately reflected in the December 15 order because the order imposed conditions on her that were not imposed at the earlier hearing.[1]  We reject appellant’s argument regarding the disparity between the conditions recited at the December 11 hearing and those listed in the December 15 order for three reasons.  First, appellant did not raise this argument to the district court; thus it is not properly before this court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997) (stating “[t]he gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument in this case”). 

            Second, even if we were to address the argument on its merits, we note that Minn. R. Juv. Prot. P. 19.04 addresses the manner in which a challenge to a settlement in a termination matter is to be brought.  Appellant did not invoke that rule, nor did she attempt to engage in any other procedure to challenge the December 15 order.  Absent even an attempt by appellant to apply an available procedure, and noting also that appellant does not claim that she was not apprised of all requirements placed upon her, whether they be in the December 11 hearing or the December 15 order, we conclude that there was no demonstrated risk of an erroneous deprivation of procedural due-process rights, nor is there any indication of value to be derived from any additional or substitute procedures. 

            Third, appellant cannot have been deprived of either procedural or substantive due process because on this record, we conclude that any error occurring as a result of differences between the December 11 hearing directives and those contained in the December 15 order was harmless.  See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997) (refusing to reverse termination of parental rights for harmless error); cf. State v. Cannady, 727 N.W.2d 403, 405 (Minn. 2007) (applying harmless-error analysis to due process argument).  Appellant, who is diagnosed as “severely chemically dependent,” knew that her chemical dependency and mental health created long-term and major concerns regarding her parenting ability.  Despite this knowledge, and despite multiple court orders and multiple requests by the county, appellant did not sign a medical release.  She also failed on at least two occasions to provide specimens for urinalysis (UA), and had several UAs that were positive for chemicals.  While at least one of the chemicals may have been prescribed for her, the record indicates appellant’s chemical-abuse problems included prescription medications.  The record also raises questions about whether doctors would have issued the prescriptions to appellant that they did issue if they had been fully informed of appellant’s condition. 

            Further, the reconvened March 13 hearing occurred 17 months after the minor child was first put in out-of-home placement and four months after appellant’s chemical-dependency relapse limited the child’s trial home placement to seven days.  And at the March 13 hearing, not only did appellant have the opportunity to call certain witnesses in her defense and not do so, but she explicitly admitted both that she did not think that reunification was then appropriate and that she “believe[d] [that], in the near future, that I can be a very good parent” but “[could not] put a time on [when that would happen].”

            Much of a district court’s duty in termination cases involves the thorny task of predicting a parent’s future ability to care for a child based largely on the history of the parent’s conditions and circumstances.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996); In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995).  Here, while appellant disagrees with the predictions implicit in the district court’s termination, she has not shown that if she had made a successful challenge to the December 15 order that the outcome of this case would have been any different.  Therefore, we must decline to reverse the district court on this point.

            2.         Dialectical behavior therapy:  Appellant also argues that the district court should not have “penalize[ed]” her for her failure to conclude dialectical behavior therapy when that therapy was not mentioned at the December 11 hearing or in the December 15 order.  But the December 15 order states that appellant’s “court ordered case plan” includes “[m]ental health stability including, but not limited to, psychiatric appointments, therapy appointments and medication.”  It is undisputed that appellant had dialectical behavior therapy appointments.  Because the December 15 order explicitly requires appellant to participate in therapy, appellant has not shown that the district court violated any due-process right when it considered her lack of timely progress in dialectical behavior therapy.  Importantly, in lifting the stay of the December 15 order, the court observed that not only had appellant not completed her case plan, but she had not made substantial progress.  This latter conclusion appears to have been accorded equal weight with the failure-to-complete conclusion.

            3.         Equitable estoppel:  Appellant argues that the district court deprived her of due process of law by not equitably estopping termination where the child-protection worker knew that appellant could not complete her case plan during the 90-day stay of entry of the order.  She alleges that the child-protection worker allowed her to be enrolled in an in-patient facility that would not accept children and did not seek to enroll her in a facility that would accept children, enrolled her in an in-patient facility knowing that it could take 28 months to complete the program, and enrolled her in dialectical behavior therapy that could take up to two years to complete.  This equitable-estoppel argument was not made to the district court, is not properly before this court, and we decline to address it in detail.  Thiele, 425 N.W.2d at 582; D.D.G., 558 N.W.2d at 485.  We do note, however, that if we were to address the equitable estoppel argument on the merits we would conclude it to be unpersuasive.

            The standard for equitably estopping the government requires, among other things, that the party seeking to estop the government be affirmatively and wrongfully misled by the government.  Prairie Island Indian Cmty. v. Minn. Dep’t of Pub. Safety, 658 N.W.2d 876, 890 (Minn. App. 2003).  Appellant does not attempt to apply this standard.  Nor does she allege that the county misled her.  In any event, any misleading of appellant is harmless.  Contrary to the assumption upon which appellant’s argument is based, we note again that a critical factor in the district court’s decision was not that appellant failed to complete her case plan, but that she failed to make adequate and timely progress on that plan, including therapy and chemical-dependency treatments, combined with the amount of time the child had already spent in out-of-home placement and with what the court found to be the child’s need for permanency.[2]  Absent a viable factual basis upon which to equitably estop the county, appellant has not shown that there is an equitable-estoppel-based violation of her rights to substantive or procedural due process of law.[3]

            4.         Proceedings of March 6 & 13:  Appellant argues that four aspects of the March hearings violated her right to procedural due process of law.  The first two challenges specify that appellant’s attorney did not know that the hearing would be a contested evidentiary hearing and that the district court did not initially continue the proceeding.  Appellant concedes, however, that the district court later functionally continued the proceeding by allowing appellant’s attorney to cross-examine the county’s witnesses at the reconvened hearing.  The district court was unambiguous both in its expression of concern about whether appellant’s counsel was prepared on March 6, and its belief that by March 9 appellant’s attorney would be ready to cross-examine the county’s witnesses:

I am concerned about the fact that I acknowledged that [appellant’s new attorney] is just back after a five-month leave . . . and was not previously the attorney of record in this matter . . . . the best I can do [is] to allow [appellant’s new attorney] ample time to cross-examine since she hasn’t seen the file, is have us come back [on March 9], so you can have from now until then to prepare for the cross-examination portion . . . . I think that would take care of any other concerns with regards to the lack of communication within the Public Defender’s Office.


Instead of reconvening the hearing on March 9, however, the hearing was actually reconvened on March 13.  Thus, appellant’s counsel had more time to prepare for cross-examination than the court believed was necessary.[4]

            On appeal, appellant does not allege that a week was inadequate to prepare for cross-examination.  Nor does she identify what, if any, prejudice resulted from an inadequate time to prepare for cross-examination.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (requiring party to show error and prejudice to prevail on appeal); In re Welfare of Children of J.B., 698 N.W.2d 160, 166 (Minn. App. 2005) (citing Midway Ctr. in a termination-of-parental-rights appeal).  Thus, regarding appellant’s first two alleged defects in the March proceedings, she has failed to show that the March proceedings resulted in any prejudice to her or in any denial of her right to procedural due process of law.  Indeed, as the district court noted at the March 6 hearing, because the child was removed from appellant’s care in December 2005, we are “past [the] time lines.”  See Minn. Stat. § 260C.201, subd. 11(a) (2006) (stating that “where the child is in foster care . . . the court shall commence proceedings to determine the permanent status of a child not later than 12 months after the child is placed in foster care”).

            Appellant alleges as a third defect in the March proceedings that the district court did not let her call witnesses not listed on the county’s witness list.  Appellant’s argument lacks merit for two reasons.  First, the argument misapprehends the record.  The crux of the argument is that the district court erroneously refused to allow new witnesses because it mistakenly believed that the proceedings were continued trial dates, for which witness lists were due in November 2006 and by which date appellant had not submitted a witness list.  While the district court does appear to have made this ruling, there was a subsequent off-the-record conference.  After that conference, and after the district court reviewed the December 15 order, the court stated that “my previous ruling was incorrect” and functionally retracted its prior ruling regarding witnesses.  Thus, appellant is challenging a ruling that the district court retracted.

            Second, the merits of appellant’s argument are unpersuasive.  When the district court ruled on March 6 that appellant would be able to call only witnesses on the county’s witness list, appellant’s attorney responded: “I believe [the witnesses I would like to call] would be [on the county’s list] since they are service providers that [appellant] has been working with.  So, there wouldn’t be an unfair advantage . . . by calling these witnesses.”  Between March 6 and 13, however, appellant changed her mind and submitted a witness list, asking to call nine witnesses, at least three of whom were on the county’s witness list.  But appellant, in fact, did not call any witnesses at the March 13 hearing, other than herself.  Nor has she indicated how any witnesses she did not call would have created a significant possibility that the case would have been resolved differently.  Cf. D.J.N., 568 N.W.2d at 176.  Therefore, we decline to reverse the district court for this reason.

            Appellant’s last procedural due-process deprivation argument arising from the March proceedings is that the district court refused to allow her to submit medical records that she alleges substantiated the existence of at least one prescription that would explain positive UA results.  But, as noted above, appellant had not signed a medical release, failed on numerous occasions to provide UA specimens, apparently had chemical-abuse problems involving prescription drugs, may have received the prescriptions that she wanted to produce as evidence under false pretenses, and explicitly testified that she was not then capable of parenting her daughter.  Under these circumstances, the district court’s refusal to consider a list of prescribed medications that appellant proposed to submit after the March 13 hearing was not inconsistent with the juvenile rules or a deprivation of procedural due process of law.  Cf. Minn. R. Juv. Prot. P. 17.06, subd. 4(b) (stating that if a party refuses to comply with a discovery order, the district court may prohibit the disobedient party from introducing designated matters into evidence).


            Appellant next argues that she had complied with the bulk of her case plan, and that the record does not support revoking the stay of the order terminating her parental rights.  In a termination-of-parental-rights appeal, “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.”  D.D.G.,558 N.W.2d at 484.  Here, the record does not support appellant’s argument.[5]

            As required by the December 15 order, appellant completed an updated chemical-dependency evaluation, but not until January 17, 2007.  Appellant asserts that her delay in completing her updated chemical-dependency evaluation was caused by the 2006 holidays.  The district court rejected this assertion, and we concur in that rejection.  Whether appellant made adequate efforts to complete an updated chemical-dependency evaluation in a timely fashion is, essentially, a question of appellant’s credibility.  And appellate courts defer to district court credibility determinations.  See In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990) (noting district court is in a “superior position” to assess witness credibility).

            We have already addressed appellant’s argument that her positive UAs are explained by her prescriptions, and no further analysis of that argument is needed here.

            Appellant attempts to explain her admittedly “uneven” attendance at therapy with a psychiatric nurse, stating that she lacked transportation.  Consistent with the record, and especially with the testimony of the child-protection worker that appellant used lack of transportation as an excuse for not attending therapy, the district court rejected appellant’s transportation argument.  See M.D.O., 462 N.W.2d at 374-75.  That rejection is supported by the record.

            Appellant argues that her failure to adequately document her attendance at chemical-dependency therapy is the fault of the child-protection worker for not consistently asking for verification of her attendance.  Why the child-protection worker’s failure to ask for verification precluded appellant from submitting such verification to the district court is not explained.  A similar analysis applies to appellant’s argument that the county’s services were inadequate because the county did not procure medical records for which appellant had not signed a release.

            Appellant’s argument that she should not be penalized for her failure to obtain housing that would allow her to stay with her daughter has limited persuasiveness in view of the testimony of the child-protection worker that even if appellant had such housing, the child-protection worker would not have recommended reunification.

            We recognize that appellant correctly asserts that she has complied with probation requirements, has, of late, complied with her parenting-education requirement, has not been asked to participate in the child’s therapy, and generally has cooperated with the guardian ad litem.  The district court, too, acknowledged and considered appellant’s successes on these matters, but concluded that appellant’s other parenting defects outweighed her successes.  Aware of our proper standard of review, we must decline an invitation to rebalance the district court’s assessments of these concerns.


            For a termination of parental rights to occur, the termination must be in the child’s best interests.  Minn. Stat. § 260C.301, subd. 7 (2006).  Here, appellant argues that her close relationship with her daughter shows that termination is not in the child’s best interests.  The district court acknowledged and considered the bond between appellant and her 11-year-old daughter.  The court was also aware, as are we, of the minor child’s strong desire to continue to have a relationship with her mother.  We do not lightly dismiss the importance of the bond between mother and daughter, and their wish to keep that bond unbroken. 

The following, however, are not disputed on appeal: (a) the child has been in out-of-home placement for all but one week of the past 17 months; (b) appellant is severely chemically dependent; (c) while appellant has recently participated in parenting classes, a child-protection worker stated that, in January 2007, appellant was “not very motivated” and stated in March 2007 that “[appellant’s] greatest struggle has been maintaining sobriety”; (d) appellant’s therapist reports that appellant is “still in denial about her addiction[,]” is “a prime candidate to relapse again because she’s not going to AA group & using transportation as an excuse[,]” and has not been to therapy often enough for the therapist to have an opinion about appellant’s parenting ability; (e) appellant is being treated for “severe mental illness”; (f) the guardian ad litem believes that termination is in the child’s best interests; (g) appellant admits she cannot currently care for the child, but states that she “may” be able to do so in the future; and (h) the guardian ad litem states that appellant’s problems “‘are taking precedent over having her daughter in her life’” and that each time appellant relapses, it “causes mental anguish and disappointment for her daughter.”  This record demonstrates that the district court did not abuse its discretion in determining that termination of appellant’s parental rights is in the child’s best interests.


A final observation is appropriate.  Termination of parental rights proceedings are typically guided procedurally by the relevant rules and substantively by the relevant statutes.  This case did not progress in the manner typical for termination of parental rights proceedings.  And that atypical progression required, we believe, that all parties and the court address questions no longer falling squarely within the relevant rules and statutes.  This matter, which began as an involuntary termination of parental rights proceeding, became on December 11, 2006, a proceeding in which appellant requested that she be permitted to voluntarily terminate those rights.  That request was granted and, instead of filing the termination order, the district court, in what appears to be a compassionate but atypical attempt to provide additional opportunity to appellant to qualify herself to care for and nurture her daughter, stayed the filing of the order for 90 days, despite the fact that the supreme court has unambiguously expressed a thorough disfavor of staying involuntary termination orders.  P.R.L., 622 N.W.2d at 543-44.  Further, all parties and the district court expressed or otherwise demonstrated confusion regarding the purpose of the March 6 court appearance.  The December 15 order seemed to contemplate that, by the end of the stay, one of three scenarios would have occurred:  the court would have earlier directed entry of the order, it would have granted a motion to dismiss the proceeding, or it would have extended the stay.  Indisputably, there was no earlier entry of the order.  Nor were there any guidelines in the order to govern proceedings if a motion to dismiss was brought, or if an additional stay was considered.  All of the March proceedings occurred in a matter already governed by strict time constraints; a matter that was certain to significantly and traumatically impact the lives of mother and daughter.  It is little wonder that questions of substantive and procedural due process would arise.  We urge an ever-vigilant awareness on the part of all involved that atypical proceedings must be conducted with the same concern and adherence to protections for the rights of parents and children as are those procedures that are guided by specific statutes and rules.           

We are not insensitive to the frustration experienced by appellant and we empathize with her concern regarding the proceedings occurring here.  Our exhaustive review of the record, however, causes us to conclude that appellant’s substantive and procedural due-process rights were not violated.  There is no question that appellant and her daughter desire that their parent-child relationship continue.  But the record does substantiate and support the decision of the district court to lift the 90-day stay of the December 15 order, and we affirm that decision.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 


[1] At the December 11 hearing, appellant was orally informed that she was to use no mood-altering chemicals, including pharmaceuticals, without a prescription, no alcohol, marijuana, or cocaine, that she was to follow recommendations of mental-health-services providers, was to continue to attend AA and NA meetings, was to comply with all probation-officer requirements, was to cooperate with child-protection social workers, and was authorized to engage in visitation with the minor child.  The December 15 order included additional provisions requiring appellant to obtain an updated rule 25 chemical-dependency evaluation, engage in random urinalyses, keep psychiatric and therapy appointments, remain on medications, engage in parenting education, obtain safe and suitable housing, and participate in the minor child’s therapy.

[2] The fact that the trial court relied on appellant’s failure to make adequate progress weakens her argument that the services provided to her were inadequate because the dialectical behavior therapy could not be completed during the 90-day stay of the termination order.


[3] The portion of appellant’s equitable-estoppel argument based on her complaint that the child-protection worker continued to help her with her case plan after telling her that the worker would recommend revoking the stay of the order terminating parental rights is unclear.  How assisting appellant with her case plan creates an equitable estoppel or violation of due process of law is unexplained.  Further, while appellant testified that she temporarily “gave up” on her case plan after her December 2006 chemical-dependency relapse, she also testified that she did not give up after the child-protection worker’s February 2007 statement that revocation of the stay would be recommended.  There is nothing in the record to substantiate the claim that the worker’s statement impacted, much less misled, her. 


[4] The December 15 order states that entry of the order terminating appellant’s parental rights is to be “withheld for 90 days[,]” but “automatic[]” at the end of that period.  The order does not state, however, whether the 90-day period is to be measured from the December 11 hearing at which the district court adopted the parties’ stipulation or from the December 15 order formalizing the adoption of that stipulation.  The transcript of the March 6 hearing shows that the district court read its order to start the 90-day stay on December 11, meaning that the March 13 reconvening of the hearing occurred two days after the 90-day period expired.  See Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (stating a district court’s construction of its own ruling is given “great weight” on appeal), review denied (Minn. Dec. 22, 1987).  Thus, not only did the district court grant appellant additional time to prepare for cross-examination, it functionally amended its December 15 order to grant an additional stay of the automatic entry of the order.

[5] Appellant’s argument is partially based on her citation of In re Welfare of P.R.L., 622 N.W.2d 538, 544 (Minn. 2001), for the proposition that revoking a stay of an order terminating parental rights requires that grounds for termination be present both when the initial order issued and when the stay is lifted.  Unlike this case, however, P.R.L. involved an involuntary termination of parental rights.  Therefore, it is not clear that this aspect of P.R.L. articulates the standard to be applied in this appeal.