This opinion will be unpublished and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: D.M. and C.M.

Filed October 7, 1997


Davies, Judge

Freeborn County District Court

File Nos. J39650550, J59650548

Kevin G. Cedergren, Cedergren Law Office, P.O. Box 426, Albert Lea, MN 56007 (for appellant)

Craig Nelson, Freeborn County Attorney, Erin M. O'Brien, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for respondent)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Thoreen, Judge. *



Appellant-mother challenges the trial court's order terminating her parental rights to her two minor children. We affirm.


Appellant M.M.J. is the mother of D.M., born October 16, 1987, and C.M., born June 14, 1989. The Freeborn County Department of Human Services first developed a child protection case plan for the family in October 1988. Concerns at that time included a lack of cleanliness in the home, inconsistency in parenting skills, and a history of neglect.

In July 1989, appellant left D.M. and month-old C.M. unattended in the car while she visited a friend; both children were taken into protective custody and placed in foster care. The court ordered the children returned to appellant in October 1989.

Appellant voluntarily returned the children to foster care in March 1990, and the county developed a second case plan. In September 1990, the children were adjudicated in need of protection or services. In June 1991, the district court returned custody of the children to appellant. The court also developed "a plan," requiring appellant, among other things, to provide competent caretakers for the children and a clean, healthy, smoke-free home. In September 1992, the court added a requirement that appellant and the children undergo individual and family therapy.

In October 1994, the county requested custody of the children because of appellant's failure (1) to follow medical instructions in caring for the children, (2) to follow through with family therapy and with the children's therapy, and (3) to meet the children's educational needs. The court, finding that appellant repeatedly failed to comply with reunification requirements, transferred custody to the county in January 1995. The county placed the children in foster care and developed a third case plan.

In late 1995, the court suspended appellant's visitation for eight weeks, finding that the children were more withdrawn, oppositional, and angry after visits with appellant. The county petitioned to terminate appellant's parental rights on the grounds that the children had been in out-of-home placement for more than a year, there had been no progress in satisfying the case plan, and no indication that there would be progress in the foreseeable future. The trial court terminated appellant's parental rights and this appeal followed.


In reviewing an order for termination of parental rights, this court must decide "whether the trial court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). Parental rights may be terminated only if the party pursuing termination demonstrates with "clear and convincing evidence that a specific statutory ground for termination exists." In re Welfare of M.J.L., 407 N.W.2d 714, 718 (Minn. App. 1987).

I. Failure to Correct Conditions

Appellant argues that termination of her parental rights is improper because the county failed to prove by clear and convincing evidence that reasonable efforts have failed to correct the conditions that led to the determination that the children were in need of protection or services.

A court may terminate parental rights upon finding, as the court did here,

[t]hat following upon a determination of neglect or dependency, or of [the children's] need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination.

Minn. Stat. § 260.221, subd. 1(b)(5) (1996). Reasonable efforts are presumed to have failed:

(ii) * * * upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan, and the conditions which led to the out-of-home placement have not been corrected; and

(iii) reasonable efforts have been made by the social service agency to rehabilitate the parent and reunite the family.

Minn. Stat. § 260.221, subd. 1(b)(5).

Residence Outside the Parental Home

Here, the children were adjudicated in need of protection or services in September 1990. The children have been in foster care since January 1995, more than one year before the county petitioned to terminate parental rights.

B. Correction of Conditions

Over the past eight years, both the county and the district court have developed child protection plans. Each of these plans dealt with the family's need for therapy; the children's needs for a clean, healthy, smoke-free home; and appellant's need for parenting education. At best, appellant has only minimally complied with these plans. There is no indication in the record that appellant has resolved the issues and problems that necessitated these plans and removal of the children from the home.

The central and continuing concern has been appellant's need to actively participate in therapy. But during 1995 and 1996 appellant kept only 12 therapy appointments, having cancelled eight and failed to show up for six more (including her latest appointment). As of the date of the trial, it had been six weeks since she had met with her therapist; that therapist testified that he had no reason to believe appellant's attendance pattern would change.

C. Reasonable Efforts to Rehabilitate

Since 1990, the county has provided public health and home health nursing services, individual counseling for appellant, play therapy for the children, in-home family therapy, parenting education, and several psychological evaluations for each family member. Social workers and other county employees have provided transportation. Foster care has been provided and visitation has been scheduled and supervised.

The record shows that over the past eight years the county and district court have made adequate efforts to rehabilitate appellant and to reunite the family. The record also provides substantial evidence that appellant has failed to correct the conditions leading to the court's determination that the children were in need of protection or services. Therefore, we need not address appellant's argument that the county failed to prove by clear and convincing evidence that the children are neglected and in foster care. See Minn. Stat. § 260.241, subd. 1 (1996) (district court need find only one statutory ground to terminate parental rights).

II. Best Interests of the Children

The children's best interests is the paramount consideration in terminating parental rights, provided at least one statutory provision for termination has been found. Minn. Stat. § 260.221, subd. 4 (1996); In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).

Although the trial court did not issue a finding directly stating that termination of appellant's parental rights was in the best interests of the children, the court clearly considered the children's best interests in making its determination. The court found that both children had been adjudicated as children in need of protection or

services and without proper parental care. The court cited the continuing failure of appellant, because of emotional, mental, or physical disability, to comply with the child protection orders. The court noted that the psychologist who evaluated the children described each as being "severely emotionally disturbed" with "very special needs based on serious psychological problems and developmental difficulties." The court found that the children were making substantial progress living outside the parental home but that they continued to need a structured, nourishing home environment. The court also found that, based on past history, appellant would not provide this needed environment. The court's determination to terminate appellant's parental rights is consistent with the best interests of D.M. and C.M.

Appellant, admitting that she cannot care for the children at the present time (and she gives no indication as to when she could care for them), requests that the matter be remanded "for further consideration of permanency planning." The court is limited, however, in its "permanency planning." Minn. Stat. § 260.191, subd. 3b (1996), provides that, if the children cannot be returned to the home, a court may order permanent placement by: (1) transferring custody to a relative; (2) terminating parental rights and placing for adoption; or (3) ordering placement into long-term foster care. Here, relatives have indicated that they would not be able to take custody of the children. Placement into long-term foster care is not an option in this case. See Minn. Stat. § 260.191, subd. 3b(a)(3) (court can place children in long-term foster care only if child has reached 12 years of age or has sibling in same long-term foster care). Therefore, permanent placement is limited here to termination of parental rights with placement for adoption.