This opinion will be unpublished and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:

Filed July 28, 1998
Shumaker, Judge

Scott County District Court
File No. 1997-02793

Jody Ollyver DeSmidt, Nathalie S. Rabuse, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for appellant mother)

Thomas J. Harbinson, Scott County Attorney, Thomas W. Haines, Assistant Scott County Attorney, Peggy Flaig Hellier, Assistant Scott County Attorney, 428 South Holmes Street, Courthouse 206, Shakopee, MN 55379 (for respondent county)

Michael W. McDonald, 16670 Franklin Trail S.E., Suite 250, Prior Lake, MN 55372 (for respondent father)

Steve L. Bergeson, First Judicial District Assistant Public Defender, 111 South Broadway, Jordan, MN 55352 (for minor child)

Kathleen M. Anderson, 25375 Panama Avenue, Webster, MN 55088 (guardian ad litem)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


LeAnn Arndt appeals from the district court's order terminating her parental rights to her daughter, A.L.A., on the grounds that the evidence does not support the order and that the district court committed reversible error by not permitting her attorney to cross-examine A.L.A.'s guardian ad litem. We affirm.


Law enforcement officers executed a search warrant at appellant's home on January 20, 1995; found cocaine; arrested respondent, Curtis Arndt; [1] and placed the minor daughters of appellant and respondent Arndt in emergency foster care. On the basis of findings that respondent Arndt and appellant used illegal drugs in the home in the presence of the children, severely neglected the children, and exposed the children to violent domestic disputes, the district court adjudged A.L.A. and her sister to be children in need of protection or services (CHIPS) on February 16, 1995. By that time, A.L.A. had been transferred to foster care in the home of relatives, where she remained as of the date of the termination trial.

Shortly after A.L.A.'s removal from the home, appellant was diagnosed as chemically dependent. She actively used cocaine throughout her 16-year marriage to respondent Arndt, switching to crack cocaine during the three years preceding the execution of the search warrant. Since A.L.A.'s CHIPS adjudication, the district court has ordered nine case plans for respondent Arndt or appellant. All case plans involved a requirement of addressing chemical dependency issues. Appellant initially entered out-patient treatment but was discharged from aftercare because of a relapse. She was readmitted but discharged again prior to completion. She then entered a third treatment program but was discharged prior to its completion.

The county has provided appellant with numerous services during A.L.A.'s foster care, including transportation, housing and medical assistance, financial assistance, and chemical dependency and psychological treatment services. During periods of employment, appellant has refused to report her income to the county and has failed to contribute to A.L.A.'s support. She has been habitually late for visits with A.L.A. and sometimes has not appeared at all. She has admitted to a psychologist that she has never been sober for more than four months. In addition to chemical dependency, appellant also has issues involving impaired judgment, confusion, vulnerability, anxiety, co-dependency, and low self-esteem. She has moved five times since the CHIPS proceeding and has neither a permanent residence nor one that could accommodate A.L.A.


As a matter of law, termination of parental rights is not a preferred action. In re Welfare of M.G., 407 N.W.2d 118, 120 (Minn. App. 1987). A natural parent is presumed to be a "fit and suitable person to be entrusted with the care of his child." In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). Despite this presumption, "the best interest of the child standard [is a] paramount consideration in termination of parental rights proceedings." In re J.J.B., 390 N.W.2d 274, 279 (Minn. 1986). Due to the gravity of the proceedings, a reviewing court must exercise "great caution," and must "closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing." Clausen, 289 N.W.2d at 156. On review of an order terminating parental rights,

[t]he appellate court must determine 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).

A court may terminate parental rights if it finds that any of eight statutory conditions exists. Minn. Stat. § 260.221, subd. 1(b) (1996); see also In re Welfare of P.J.K., 369 N.W.2d 286, 291-292 (Minn. 1985). In this case, the district court based its decision on three of those statutory conditions. It found appellant palpably unfit to continue as a parent of A.L.A. because of appellant's ongoing chemical dependency. Minn. Stat. § 260.221, subd. 1(b)(4) (1996). It found that, after A.L.A.'s adjudication under CHIPS, appellant had not made reasonable efforts to correct the conditions leading to the adjudication. Minn. Stat. § 260.221, subd. 1(b)(5) (1996). Finally, the court found that A.L.A. is a neglected child and is in foster care. Minn. Stat.

§ 260.221, subd. 1(b)(8) (1996).

Minn. Stat. § 260.221, subd. 1(b)(4) (1996), provides 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.

The district court is required to make clear and specific findings, and the evidence must address conditions that exist at the time of the hearing. In re Welfare of Chosa, 290 N.W.2d 766, 679 (Minn. 1980). When considering the termination of parental rights, the court relies "not primarily on past history, but `to a great extent on the projected permanency of the parent's inability to care for his or her child.'" In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995) (citing In re Welfare of Solomon, 291 N.W.2d 364, 368 (Minn. 1980)). The evidence shows that appellant is afflicted with a cocaine addiction of long duration, and that in 2 1/2 years since A.L.A. was taken from the home appellant has neither maintained sobriety nor completed the numerous treatment opportunities offered to her. Her psychologist testified that appellant is chronically chemically dependent, that she needs continuous structure, therapy, and support within her community, and that she should be given another 12 months before being entrusted with A.L.A.'s care. Appellant's chemical dependency counselors testified that she has a history of not seeking support within her community and that has contributed to her relapses. This evidence establishes a pattern of conduct by appellant that renders her unable for the reasonably foreseeable future to care appropriately for A.L.A. Therefore, the district court's conclusion that appellant is palpably unfit to continue in the parent and child relationship is supported by clear and convincing evidence.

The same evidence establishes the other two bases on which the district court terminated appellant's parental rights. A.L.A. has been in foster care for more than 2 1/2 years because of appellant's cocaine addiction and her inability to correct the parenting deficiencies resulting from that addiction. Despite numerous efforts by the county to help appellant, she has not taken reasonable and necessary steps to complete treatment.

A court may terminate parental rights when it finds by clear and convincing evidence that

following upon a determination of * * * a child'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). It is presumed that reasonable efforts have failed if the child has resided outside the home for more than a year following adjudication, the conditions leading to the adjudication will not be corrected within the reasonably foreseeable future, and the social service agency has made reasonable efforts to rehabilitate the parent and reunite the family. Id. In addition to clear and convincing evidence that A.L.A. has been out of the home for more than one year and that appellant's chemical and related problems will not be corrected within the reasonably foreseeable future, the district court heard evidence as to the numerous social service interventions extended to appellant. The court is to judge reasonableness of the efforts by the "quantity and quality of assistance provided." In re Welfare of A.H., 402 N.W.2d 598, 604 (Minn. App. 1987). The efforts in this case, in addition to those previously discussed, included a battered women's program, supervised and unsupervised visitation, developmental assessments, "Head Start," and two reunification plans.

A court may also terminate parental rights when it finds by clear and convincing evidence that "the child is neglected and in foster care." Minn. Stat. § 260.221, subd. 1(b)(8) (1996). A child who is "neglected and in foster care" is one

who has been placed in foster care by court order; whose parent's condition is such that the child cannot be returned; and whose parent has failed to make reasonable efforts to adjust that condition despite availability of rehabilitation services.

Minn. Stat. § 260.015, subd. 18 (1996). All of the evidence clearly and convincingly establishes these criteria.

Upon a finding that a statutory ground for termination exists, the court must nevertheless treat the best interests of the child as paramount. Minn. Stat § 260.221, subd. 4 (1996); In re the Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). The district court concluded that appellant's cocaine addiction takes precedence over her ability to care for A.L.A. The evidence shows that A.L.A. is currently in a stable, nurturing relationship with her foster family and considers herself a member of that family. The evidence clearly supports the conclusion that the termination is in A.L.A.'s best interests.

Following the trial, the district court instructed the guardian ad litem, who had been present throughout, to prepare a report of her views and recommendations based on the information she obtained during the trial. Appellant did not object, but now contends that she should have had an opportunity to cross-examine the guardian. The absence of objection or a request for an evidentiary hearing results in a waiver of any error predicated on the district court's procedure. See S.G.K. v. K.S.K., 374 N.W.2d 525, 529 (Minn. App. 1985) (holding appellant may not challenge trial court's procedures after failing to object or move for evidentiary hearing). Even if the procedure was error, the error was harmless. Because the guardian's report was based on the evidence presented at trial, the report was cumulative and presented no new material evidence. Without the report, the district court had clear and convincing evidence that supported three statutory bases for terminating appellant's parental rights.


[1] Curtis Arndt, A.L.A.'s father, is listed as a "respondent" on the briefs but has not filed a separate brief and supports LeAnn Arndt's position on appeal.