This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of the Welfare of:

N.J.B. and Q.T.B.

Filed March 2, 1999


Harten, Judge

Stearns County District Court

File Nos. J3-98-506565

and J0-98-50677

Allen P. Eskens, Attorney at Law, 3 Civic Center Plaza, Suite 207, P.O. Box 3412, Mankato MN 56002 (for appellant mother)

Roger S. Van Heel, Stearns County Attorney, Richard J. May, Assistant County Attorney, 705 Courthouse Square, #448, St. Cloud, MN 56303 (for respondent)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



Appellant challenges the termination of her parental rights, arguing that the court lacked jurisdiction and failed to make appropriate findings. Because we conclude that the court had jurisdiction and see no abuse of discretion in the termination of appellant's parental rights, we affirm.


N.J.B. was born to appellant Susan Brainerd and Joseph Donald Penniston on November 22, 1992; Q.T.B. was born to appellant and an unknown father on March 17, 1997. Penniston consented in writing to the termination of his parental rights to N.J.B.

Both children were placed in foster care in the same home in June 1997, when N.J.B. was four years old and Q.T.B. was three months old; both had been neglected while in appellant's care. The boys are still in the foster home. Respondent Stearns County (County) filed CHIPS petitions on them based on the neglect and on appellant's chemical dependency.

In July, a disposition order required appellant to complete the discharge recommendations of her hospital recovery program, attend AA weekly, maintain sobriety, cooperate with random urinalysis, have supervised visitation, cooperate with social services by permitting home visits and attending appointments, cooperate with individual therapy as long as needed, and have in-home services initiated prior to reunification with her children.

Appellant last visited the children in January 1998. After she either cancelled or did not appear for three consecutive scheduled visits in January and February, her visitation was suspended. She contacted social services and asked to visit again in April, but the visit did not occur because appellant did not comply with the social worker's request for a urinalysis and for information on where she was living, and she left before the visit could be arranged.

County filed petitions for termination of parental rights (TPR) to the boys, alleging (1) both parents had abandoned them; (2) appellant had not complied with the duties of the parent-child relationship; (3) appellant was palpably unfit to be a parent; (4) reasonable efforts had failed to correct the situation that led to the CHIPS adjudications; and (5) they were neglected and in foster care.

A hearing on the TPR petition was scheduled, then rescheduled. Appellant signed a notice to appear at the hearing, but did not appear when it was held on the rescheduled date. The district court ordered Service by Publication of Notice for Trial; notice was published on July 1, 8, and 15. On July 1, appellant left a phone message for her court-appointed attorney saying she would call back, but the message contained neither a phone number nor an address where she could be reached. She later left another phone message for the attorney saying she would call back, but again gave neither a phone number nor an address.

The trial was held as scheduled; appellant's attorney attended but appellant did not. Her attorney's motion for a continuance on the ground that he had not met with his client was denied. The boys' social worker testified that appellant had been in detox treatment about 14 times, had not maintained sobriety, was chemically dependent despite several attempts at treatment, was unable to care for her children because of her chemical dependency, was frequently unavailable, and had made no effort to provide for their support. She also testified that the boys were adoptable. A district court order terminated appellant's rights to N.J.B. and Q.T.B. on all counts of the TPR petitions.

She appeals, arguing that the district court was without jurisdiction because it failed to give proper notice and that the termination of her parental rights is not in the best interests of her sons.


1. Jurisdiction

Determination of whether service of process was proper is a question of law. A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue.

Abu-Dalbouh v. Abu-Dalbouh, 547 N.W.2d 700, 703 (Minn. App. 1996) (citation omitted). Appellant argues that the trial court erred in denying her motion for a continuance because there is no evidence that proper notice was perfected. But the record reveals that three notices were appropriately published and the transcript shows that appellant was notified. She appeared once in person and at all times through counsel during the proceedings, but failed to meet with her attorney or to let either her attorney or social services know where she could be reached by phone or in writing. Her failure to make herself available either for personal service or for meetings with her attorney is not a basis for finding no jurisdiction.

2. Termination

Parental rights are terminated only for grave and weighty reasons. The standard of review is, therefore, well defined. The 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. The child's best interests, however, remain the paramount consideration in every termination case.

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citations omitted.)

The court found that "it is in the best interests of [N.J.B. and Q.T.B.] to terminate the parental rights of [appellant]." This finding is based in part on Minn. Stat. § 260.221, subd. 1(b)(1) (1996), appellant's abandonment of the boys. The court found:

[Appellant] although living in the St. Cloud area, has not visited [these children] since January 19, 1998; [she] has not contributed to [their] physical, emotional or spiritual needs since June of 1997.

This finding is supported by the evidence. The social worker testified that it was six months since appellant had visited the children, that appellant had been in the area, had asked to see the children (she left the area before visiting them without providing the urinalysis or documentation the social worker requested), had not complied with the July 1997 disposition order in that she had not maintained sobriety (to the point of being in detox several times), had not cooperated with social services, and had not continued with therapy.

The social worker also submitted a letter showing that although appellant had been scheduled for weekly visits from July 18, 1997, until February 2, 1998, her visits were sporadic, stopped entirely for three months in late 1997, and did not occur after January 1998. Despite the reasonable efforts of the social service agency to facilitate appellant's contact with her children, she had had no contact for over six months. The district court's findings are supported by substantial evidence and are not clearly erroneous.[1] Appellant argues that the county's failure to make reasonable efforts to reunite her with her children defeats the termination of her parental rights. We note first that the county did not fail to make reasonable efforts; it designed a program for appellant that she failed to follow and scheduled visitation appointments that she failed to keep. Moreover, even if the county had failed to make reasonable efforts, this failure would not defeat a termination of her rights on grounds of abandonment. See In re Welfare of L.A.F., 554 N.W.2d 393, 397 (Minn. 1996) ("[S]ocial service agency involvement is required only if the petitioner seeks to establish a presumption of abandonment.)" (emphasis in original). Abandonment can be established absent the presumption. Minn. Stat. § 260.221, subd. 1(b)(1) (1996). The finding that appellant abandoned N.J.B. and Q.T.B. is supported by the evidence; the finding that termination of appellant's parental rights is in their best interests is not clearly erroneous.


[1] The district court also based the termination of parental rights on Minn. Stat. § 260.221, subd. 1(b)(2) (failure to comply with the duties imposed by the parent-child relationship); (4) (palpable unfitness to be a parent); (5) (failure to correct the conditions that led to the children being adjudicated CHIPS); and (8) (the fact that the children are neglected and in foster care). Because we conclude that appellant's abandonment of her children was a sufficient basis for terminating parental rights, we do not address the other counts and express no opinion on them.