This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of the Welfare of: J. S.

Filed June 24, 1997


Parker, Judge

Hennepin County District Court

File No. 184741

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Hennepin County)

Michael O. Freeman, Hennepin County Attorney, Andrew J. Mitchell, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue South, Minneapolis, MN 55415 (for respondent)

William E. McGee, Hennepin County Public Defender, Renee Bergeron, Warren Sagstuen, Assistant Public Defenders, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants)

Alan C. Thiel, 411 Edina Executive Plaza, 5200 Willson Road, Edina, MN 55424 (for guardian ad litem)

Considered and decided by Parker, Presiding Judge, Harten, Judge, and Holtan, Judge.[*]



Appellants challenge the district court's finding that termination of their parental rights was in the best interests of their child. Appellants also argue that the age classification of Minn. Stat. § 260.191, subd. 3b (1996), violates equal protection under the state constitution. We affirm.


1. Appellants argue that even if this record sustains the statutory requirements for termination of their parental rights, the district court erred by ordering termination because it was not in J.S.'s best interests.[1]

The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.

Minn. Stat. § 260.011, subd. 2(b)(2) (1996). We recognize there is no more grave matter and

exercise "great caution in [parental] termination proceedings, finding such action proper only when the evidence clearly mandates such a result * * * ."

In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) (citation omitted). Further,

the trial court's findings in a termination case must address whether termination is in a child's best interests and, if so, explain the trial court's rationale for reaching that conclusion.

In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996).

Here, the district court found that termination was in J.S.'s best interests, and this result is mandated by the unanimity of the experts' testimony on this point. Appellants focus on the contradiction between the district court finding that termination was in the child's best interests and the district court finding, also based on the testimony of all experts, that J.S. would benefit from continued limited contact with her parents and extended family. Appellants argue that termination will not be in J.S.'s best interests because she is unlikely to be adopted and termination will only sever her contact with her parents and extended family.

The district court's order provides J.S. with

(1) a protective and supportive environment in her current placement;

(2) a chance at adoption; and

(3) continued limited contact with her parents and extended family.

We view this result as an attempt to apply the best-interests standard to this child in the broadest possible sense.

By encouraging continued limited contact between J.S. and her parents, the district court recognized the efforts the parents had made and provided a means for them to remain involved in J.S.'s life if they choose. At the same time, the court's order allows J.S. to continue to thrive in her current foster home placement until she is adopted, without the instability and uncertainty that her parents would continue to create if their rights were not terminated. The district court's order reflects a sensitive consideration of this child's best interests and is supported by the record.

At the time of the termination proceeding, J.S. was age ten. The district court took the care and time to interview her at her foster home before deciding if termination was in her best interests. The court's order and memorandum provided great assistance to our review, and findings 10.5:

[J.S.] is a quiet, pleasant and personable girl who, while 10 years old, does not have any handicaps or deficiencies which would work against her ability to be adopted.

and 14.1:

While adoption of 10-year-old children is less likely than adoption of infants or tender-age children, [J.S.] is an attractive 10-year-old child without disabilities. Because [J.S.] still has many years of childhood before her, the chance for adoption into a loving and permanent home is a chance she should have.

particularly reflect the thoughtful approach the district court took to determine this child's best interests.

2. Appellants also argue that the district court's choices were unconstitutionally limited by the permanency statute, which requires:

If the child is not returned home, the dispositions available for permanent placement determination are:

(1) permanent legal and physical custody to a relative * * *;

(2) termination of parental rights and adoption * * *;

(3) long-term foster care; transfer of legal custody and adoption are preferred permanency options for a child who cannot return home. The court may order a child into long-term foster care only if it finds that neither an award of legal and physical custody to a relative, nor termination of parental rights, nor adoption is in the child's best interests. Further, the court may only order long-term foster care for the child under this section if it finds the following:

(i) the child has reached the age of 12 and reasonable efforts by the responsible social service agency have failed to locate an adoptive family for the child * * * .

Minn. Stat. § 260.191, subd. 3b (1996). Appellants argue that J.S.'s best interests would be better served by placement in long-term foster care without terminating their parental rights, ensuring continued contact with them. They argue that the statute unconstitutionally withholds this choice from J.S. based on age (she is not 12) and thereby violates equal protection.

Appellants did not raise their equal protection argument or brief it in the district court, and therefore we need not consider it on appeal. See Elwell v. County of Hennepin, 301 Minn. 63, 67-68, 221 N.W.2d 538, 542 (1974) (questions not considered by the trial court are beyond the scope of appellate review). Further, appellants' constitutional challenge is premised on a finding that long-term foster care without termination of parental rights is in the best interests of a child under age 12. That is not the case presented here.

Instead, the district court found that termination of parental rights was in this child's best interests. The district court did not consider appellants' equal-protection challenge, nor did it indicate that its decision was controlled or even limited by the challenged statutory language. Because the district court found that termination of parental rights and adoption were in the child's best interests, it did not need to consider long-term foster care. See Minn. Stat. § 260.191 (long-term foster care an option only if termination is not in child's best interests). Because the district court's termination decision is supported by the record, we need not reach appellants' constitutional challenge to decide this case. See In re Winton, 350 N.W.2d 337, 343 n.9 (Minn. 1984) (court will consider constitutional attack only when absolutely necessary to resolution of case), review denied (Minn. Apr. 20, 1993); In re Welfare of E.U.W., 496 N.W.2d 847, 852 (Minn. App. 1993) (power to declare statute unconstitutional is to be exercised only when absolutely necessary and then only with great caution), review denied (Minn. Apr. 20, 1993). Accordingly, we decline to consider appellants' constitutional challenge.


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

[ ]1 In support of termination, the district court found that appellants substantially, continuously, and repeatedly refused to comply with their parental duties, that they were palpably unfit to be parties to the parent-child relationship, and that J.S. was neglected and in foster care. See Minn. Stat. § 260.221, subd. 1 (1996) (grounds required for involuntary termination). These findings are supported by the record and are not challenged on appeal.