This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-98-708

In the Matter of the Welfare of: B.M.S.

Filed October 6, 1998
Affirmed
Amundson, Judge

Benton County District Court
File No. J6-97-50514

Kevin L. Holden, 830 West Saint Germain, Suite 210, P.O. Box 1823, St. Cloud, MN 56302 (for appellant)

Michael Jesse, Benton County Attorney, Daniel A. Eller, Special Assistant County Attorney, Benton County Courthouse, 531 Dewey Street, Foley, MN 56329 (for respondent)

Cynthia J. Vermuelen, 14 North Seventh Avenue, Suite 114, St. Cloud, MN 56303 (Guardian Ad Litem)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Mother argues that her admission to the facts supporting the petition to terminate her parental rights was made in violation of Minn. R. Juv. P. 55.03. Because of the alleged procedural errors in her admission and because she asserts that the district court did not properly consider the child's best interests, she argues that the district court erred in terminating her parental rights.

FACTS

Appellant Sherry Ann Scepaniak (mother) gave birth to B.M.S. on October 20, 1992. Mother is severely chemically dependent. She has been intermittently involved in alcohol dependency treatment since 1990. In fact, at one point while pregnant with B.M.S., she was admitted to the hospital with a blood alcohol content of .35. On May 2, 1994, B.M.S. was adjudicated as a child in need of protection or services because he was without proper parental care because of the emotional, mental, or physical disability or state of immaturity of mother.

On June 8, 1996, mother was found unconscious in her home and was taken to the hospital where her blood alcohol content was measured at .48. B.M.S. and his infant sister were at the home at the time mother lost consciousness, with no one to care for them. On July 9, 1996, mother was committed to treatment center for six months as a chemically dependent person. On July 22, 1996, the district court ordered that mother abstain from consuming alcohol or any other mood-altering chemicals and that she cooperate with treatment recommendations. After a July 31 hearing, mother was placed on an open ward at another treatment center where she ingested hair spray. Her October 7 provisional discharge was revoked on October 27 after she went on a three-day drinking binge.

On January 2, 1997, mother's commitment was continued for a period of up to one year. She was again provisionally discharged on January 13 to a less-secure treatment center. She left the next day against medical advice.

B.M.S. has been in foster care intermittently since his birth. On January 29, 1997, Stearns County petitioned for termination of mother's parental rights. On April 16, 1997, mother admitted to the facts underlying the petition. The district court, however, instead of proceeding with termination, stayed the order terminating parental rights for 18 months, on the condition that mother abstain from alcohol or other mood-altering chemicals. On August 19, 1997, the matter was transferred to Benton County, where mother and B.M.S. had moved. On January 14, 1998, Benton County moved to terminate parental rights, arguing that mother had violated the terms of the stay. Mother brought a motion to withdraw her April 16, 1997, admission on the grounds that the admission was not properly executed and she did not make it knowingly, intelligently, and voluntarily. The district court found that the admission was proper. It also determined that mother had violated the terms of the stay and on March 25, 1998, terminated her parental rights to B.M.S. This appeal followed.

D E C I S I O N

I. Mother's Admission

Both parties agree that the matter of the mother's April 16 admission is analogous to criminal cases in which a defendant seeks to withdraw a guilty plea. In such cases, the decision to withdraw a guilty plea rests within the sound discretion of the district court and will be reversed only if "upon consideration of the facts and circumstances, there was a clear abuse of discretion." State v. Brant, 407 N.W.2d 696, 697-98 (Minn. App. 1987). Here, mother challenges her admission based on alleged violations of Minn. R. Juv. P. 55.03.

Subdivision Two

Mother argues that her admission failed to satisfy subdivision two of Minn. R. Juv. P. 55.03. Subdivision two dictates:

Before accepting an admission on the record or by written documents the court shall on the record, or by written document signed by the person admitting and counsel, if any, and filed with the court, determine the following:
        (a) whether the person admitting acknowledges an understanding of:
            (i) the nature of the allegations of the petition, and
            (ii) the right to a trial, and
            (iii) the right to testify, and
            (iv) the right to subpoena witnesses, and
        (b) whether the person admitting acknowledges an understanding that the facts being admitted establish the allegations of the petition, and
        (c) whether the person admitting acknowledges an understanding that a possible effect of a finding that the allegations are proved may be the transfer of legal custody of the child to another, when such transfer is permitted by law.

Mother contends that she was advised of her right to trial, but was never advised that she had the right to testify and to subpoena witnesses; that the record does not establish that she acknowledged an understanding of the facts establishing the allegations in the petition because she was never specifically questioned about the facts; and that she was never specifically advised that legal custody of B.M.S. could be transferred.

Because of the gravity of the issue termination of parental rights, we exercise great caution in reviewing termination proceedings. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). However, mother's arguments regarding the failure of her admission to meet requirements laid out by Minn. R. Juv. P. 55.03 are semantic, rather than substantive, in nature. It is true that mother was never specifically questioned regarding her waiver of the right to "subpoena" witnesses. It is equally clear from the transcript that the requirement was met in substance. Mother was repeatedly asked whether she understood she was waiving her right to trial. Specifically, she was questioned by the assistant county attorney if she understood that at trial "you would have the right to call witnesses in your favor." It seems a stronger argument could be made in the reverse. Instead of this language used here, the use of "subpoena" may be more difficult for a lay person to comprehend.

While mother asserts that she was never questioned on the specific facts underlying the petition, she did have knowledge of those facts. First, she was questioned by the district court: "Do you understand what is alleged or described in the Petition?" The assistant county attorney also asked her:

The Petition for Termination of Parental Rights has very lengthy--what we call the Statement of Facts in Support of the Petition. You had the opportunity to review those facts, have you not?

Moreover, the questioning of mother by her own attorney demonstrates a thorough knowledge of the facts supporting the petition. Mother and her counsel went through several points in the petition that mother "had issues with": the number of treatment programs she was involved with; her knowledge of her pregnancy with her daughter when she was found to be intoxicated; the facts surrounding her being found unconscious; and the length of her October 1996 drinking binge. All this indicates a complete acknowledgement of the facts underlying the petition. In deciding whether it was properly made, the court is to consider the circumstances surrounding the admission. The facts surrounding mother's admission show such full understanding.

Finally, mother argues that she was never advised that a possible effect of the admission would be, in the words of the rule, "the transfer of custody." This argument, again, puts form over substance. Clearly, mother knew that termination of parental rights--which any reasonable person understands to include a transfer of custody--was a possible consequence of her admission. First, the assistant county attorney questioned her, saying:

And that if you fail to abide by the agreement then the provisions of this agreement will mean that the Court may enter an order terminating your parental rights to both these children, do you understand that?

The exchange between mother and her attorney is even more revealing:

Q. Do you understand that once we enter this agreement and the court approves it, if you violate any of the terms of this agreement and we come back to court it will be only to determine whether or not your violated this agreement?
A. Um-hum.
Q. You understand that at that point whether or not the children are terminated or your rights to parent your children are terminated will have already been decided?
A. Um-hum.
Q. Can you tell me why you are entering into this agreement?
A. Because I believe that even if I would go to trial and I would have witnesses and things that say the Court would not terminate my rights at that time, I do believe if I would drink again anytime in the future they would just reenter the Termination Petition and do it all over again. So, I really feel I have nothing to lose. And the other reason that I'm doing this is, I really don't want to drag out my whole past and everything else to be honest with you, and I believe that if I take this agreement the children will return home a lot sooner than if I would go to trial, that's why.

This exchange makes a penultimate but important point: mother was represented at the August 16 hearing by counsel, who clearly reviewed mother's legal situation with her. That lawyer's competence has never been questioned. In the analogous situation of the guilty plea, Minnesota courts have held that the representation by counsel, which implies that counsel advised the client on the implications of the plea, renders the district court's failure to question on specific constitutional waivers less damaging to the guilty plea. See State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988) (in a collateral attack on conviction based on a guilty plea, court rejected the challenge, stating that "when the defendant is represented by counsel, failure of the trial court, in accepting the plea, to inquire of the defendant whether he or she waives other constitutional trial rights will not invalidate the enhancement value of the guilty plea."); State v. Simon, 339 N.W.2d 907, 907 (Minn. 1983) (noting that the plea was counseled, "a fact that justifies the conclusion that counsel presumably advised defendant of his other rights.") Based on the documented conversations and absent a claim of ineffective assistance of counsel, we conclude that mother was familiar with the factual basis for her admission and of the importance of the rights she waived.

Subdivision Three

Mother next asserts that the admission did not satisfy the requirements of subdivision three of Minn. R. Juv. P. 55.03, which states: "The court shall refuse to accept an admission unless there is a factual basis for the admission." This requirement, like the same requirement in the guilty plea context, is presumably to ensure that the admission is "accurate, voluntary, and intelligent (i.e. knowingly and understandably made)." Warren, 419 N.W.2d at 797-98 (in the context of a guilty plea) (quotation omitted).

Mother retracts her admission, arguing that it was not knowingly, intelligently, or voluntarily made. To support her argument, she recounts the record's lacunae in showing knowledge of specific rights she waived. Rejecting that argument in earlier discussion, we reiterate there is little to support mother's assertion. It is rare that an individual makes an admission to the facts underlying a petition to terminate parental rights (or a guilty plea) with great relish; however, that lack of enthusiasm does not mean that it was not knowingly, intelligently, or voluntarily made. Mother clearly made the admission because she believed it represented the course of action most likely to reunite her with her family. It is extremely unlikely that an individual would make such an admission (or a guilty plea) without the belief that such action would benefit them in some way.

II. Best Interests

The paramount consideration in all proceedings concerning a child found to be in need of protection or services is the best interests of the child. Minn. Stat. 260.011, subd. 2(a) (1996). Mother asserts that termination of her parental rights is not in the best interests of B.M.S. She argues that even though she is chemically dependent, she has maintained long periods of sobriety during which she was a good parent. To support this claim, she cites her own testimony that she was sober once for 16 months, another time for 14 months (the dates of these periods was not disclosed). To recommend her parenting skills, she cites the Benton County social worker's testimony that B.M.S.'s therapist had removed the diagnosis of attachment disorder--which the social worker believed was a misdiagnosis--since his return to mother and that in 1997 the two Stearns County workers she'd spoken with only said positive things about mother's parenting skills (although the social worker did not feel comfortable testifying on Stearns County issues).

In addition, mother argues that Benton County did not move to terminate her parental rights to her daughter, which she cites as evidence that termination is not in B.M.S.'s best interests, either. We cannot speculate on the disparate treatment of mother's two children because there was no discussion of it in the record before us. Given that the reason for termination of parental rights to B.M.S.--debilitating alcoholism--would appear to adversely impact the children equally, this result from the district court is troubling. In the future, district courts should state the rationale for disparate treatment of children so that any reviewing court can more fully address this argument raised by mother.

Despite the unknown circumstances of B.M.S.'s younger sister, given the weight of evidence indicating mother's extreme chemical dependence, we are unable to conclude that termination of parental rights is not in B.M.S.'s best interests. Significant efforts have been made by the county to help mother deal with her chemical dependency issues so that she can provide a safe, stable, and loving home for B.M.S. Those efforts have all utterly failed. When considering termination of parental rights, the district court must focus less on past history than on the projected future the child will have under the parent's care. In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995). The district court aptly noted, "the conditions leading to the determination of the child being a Child in Need of Protection of Services will not be corrected in the reasonably foreseeable future."

Affirmed.