This opinion will be unpublished and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.M.K.A., Child.

Filed December 16, 1997


Lansing, Judge

Redwood County District Court

File No. J49650427

Kristine Solheid, 200 North Meridian Street, P.O. Box 114, Belle Plaine, MN 56011 (for Appellant)

Michelle A. Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Forsberg, Judge. *



In an appeal from termination of her parental rights, the mother of J.M.K.A. challenges the district court's findings that she was palpably unfit to parent and that the county made reasonable efforts to reunite her with J.M.K.A. We affirm the termination because the evidence supports the findings, and because the remaining issue, ineffective assistance of counsel, is neither appealable of right nor in the interests of justice.


J.M.K.A. was born on June 14, 1991. Six weeks after J.M.K.A.'s birth, Iowa social services removed him from his mother's physical custody and placed him in foster care, where he remained until 1993. In 1993, J.M.K.A. was returned to his mother's custody in Redwood County, Minnesota. J.M.K.A. lived with his mother for approximately two years.

In July 1995, the county removed J.M.K.A. from his mother's home after allegations of abuse. J.M.K.A. was adjudicated a child in need of protection and services and the court ordered his placement in a therapeutic foster home. The county developed and implemented a case plan for his mother and other family members with the goal of reuniting J.M.K.A. and his mother.

While J.M.K.A. was in foster care, he exhibited serious behavioral problems. Several experts evaluated J.M.K.A. and diagnosed him with attention deficit hyperactivity disorder and reactive attachment disorder.

On November 6, 1996, the county filed a petition to terminate the mother's parental rights. After a hearing, the district court terminated the mother's parental rights, finding her palpably unfit to parent J.M.K.A. The mother appeals.



J.M.K.A.'s mother argues the evidence was insufficient to support the district court's termination of her parental rights. In reviewing a district court's termination of parental rights, we must consider (1) whether the court's findings address the statutory criteria, (2) whether the court's findings are clearly erroneous, and (3) whether substantial evidence supports the determination. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (citations omitted). The reviewing court gives deference to the district court, but must "closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing." In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).

The district court ordered the termination of parental rights on the ground that J.M.K.A.'s mother is "palpably unfit" to parent J.M.K.A. under Minn. Stat. § 260.221, subd. 1(b)(4) (Supp. 1997). Under this section

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.


Substantial evidence presented at the termination hearing supported the finding that the mother is palpably unfit to care for J.M.K.A. The mother testified that she did not understand why the county removed J.M.K.A. from her home in 1995, despite her previous stipulations to allegations that she locked J.M.K.A. in his room, used excessive force in disciplining J.M.K.A., and observed her husband tie J.M.K.A. with a rope. The mother admitted that law enforcement officers responded to reports of disturbances at her home on several occasions. On one such occasion, the mother reported to officers that her husband had pulled her youngest child's hair and had thrown the child across the bed. A licensed psychologist who evaluated the mother testified that the mother rationalized her behavior, had a hostile attitude toward the involvement of social services, and at times, denied she had deficiencies as a parent. Several service providers testified that during home visits, they observed that the mother's home was unclean and chaotic, and that the mother interacted inappropriately with J.M.K.A. In September 1996, the mother suddenly moved from Redwood County without notifying social services before leaving the area.

The mother argues that because the county's witnesses had no contact with her immediately before the hearing, the county failed to prove that specific conditions rendering her palpably unfit existed at the time of the termination hearing. A review of the record, however, indicates this claim lacks merit. Several witnesses evaluated the mother's parenting skills during the months immediately preceding the hearing.

In finding that the mother is palpably unfit, the district court also considered testimony regarding J.M.K.A.'s special needs. A district court properly may consider the special needs of a child in determining whether a parent can adequately provide for the child. In re Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn. App. 1985). An expert testified that J.M.K.A.'s reactive attachment disorder generally is caused by "profound [parental] inadequacy, abuse, neglect, emotional abandonment, inconsistency, [and] lack of availability." According to this expert, stability, as opposed to familial intactness, should be the primary concern for children diagnosed with reactive attachment disorder.

The evidence supports the district court's finding that the mother is palpably unfit to care for J.M.K.A. The court did not err in terminating the mother's parental rights on this ground.


The mother argues that the county failed to make reasonable efforts to correct the conditions that resulted in J.M.K.A.'s placement and to reunite her with J.M.K.A. She further claims the district court failed to make specific findings regarding the county's efforts.

In every termination case, the district court must consider whether reasonable efforts have been made to reunite a parent and child. In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996). The district court must make specific findings relating to the requirement for reasonable efforts. Minn. Stat. § 260.012 (Supp. 1997).

The record indicates that the county provided the mother numerous services including parenting classes, intensive in-home therapy, money management assistance, home visits by a nutritionist and public health officials, twice-monthly contacts with a case worker, therapy and special education for J.M.K.A., and therapeutic foster care for J.M.K.A. In its findings of fact, the district court articulated the county's efforts and specifically found they were reasonable. We agree with the court's findings.


The mother argues her trial counsel was ineffective for failing to call as a witness Suzanne Ahlbrecht, a psychologist who worked with the mother. At the first-scheduled termination hearing, the mother's counsel received a continuance to obtain the testimony of Ahlbrecht. Ahlbrecht wrote several letters included in the discovery materials indicating the mother was improving in therapy. The mother's trial counsel ultimately did not call Ahlbrecht to testify.

The mother did not file posttrial motions and makes her claim of ineffective assistance of counsel for the first time on appeal. In reviewing a direct appeal from an order terminating parental rights, the court considers only whether the evidence is sufficient to support the district court's factfindings and conclusions of law. In re Welfare of S.G. and K.G., 390 N.W.2d 336, 341 (Minn. App. 1986) (citing Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976)). An appellant is precluded from alleging other error on appeal without first providing the district court an opportunity to correct the error by filing posttrial motions. Id. "The gravity of termination proceedings in general is not a sufficient reason to abandon our established rules of appellate argument * * *." In re Welfare of D.D.G., 558 N.W.2d 481, 485 (Minn. 1997).

The mother argues the court may consider her claim of ineffective assistance of counsel in the interest of justice. Minn. R. Civ. App. P. 103.04. See Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn. App. 1984) (appellate court may review an issue raised for the first time on appeal "where to decline review would work an injustice"). The mother makes no showing that review would serve the interest of justice, however.

An appellate court will grant a new trial on a claim of ineffective assistance of counsel only if the requesting party affirmatively proves that (1) counsel's representation "fell below an objective standard of reasonableness," and (2) there is a "reasonable probability that, but for counsel's unprofessional errors," the outcome of the proceeding would have differed. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984)). The mother provides no affirmative proof that her trial counsel's performance was substandard. There is no evidence that counsel failed to investigate Ahlbrecht as a witness or that Ahlbrecht's testimony would have been favorable to the mother. Because the mother failed to raise her claim of ineffective assistance of counsel in a posttrial motion, and she provides scant information indicating the value of Ahlbrecht's testimony or her trial counsel's efforts to obtain the testimony, we will not consider the claim.

The county filed a motion to strike the letters from Ahlbrecht included in the mother's appendix, arguing they were not part of the district court record. Because we affirm the termination, we need not address the county's motion.