This opinion will be unpublished and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.W., Jr.

Filed March 3, 1998


Klaphake, Judge

Hennepin County District Court

File No. J2-96-52249

William E. McGee, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-0809 (for appellant father)

Renee Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-0809 (for appellant mother)

Michael O. Freeman, Hennepin County Attorney, Andrew J. Mitchell, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue South, Minneapolis, MN 55415 (for respondent county)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.



K.B. and J.W., Sr. appeal from an order terminating their parental rights to their two-and-one-half-year-old son, J.W., Jr. Because the trial court properly retained jurisdiction over the child pending a decision on permanency and the evidence meets the legal standard for terminating parental rights, we affirm.



The parents argue that once the trial court fulfilled its statutory responsibility by safely placing the child with relatives, his maternal grandfather and step-grandmother, the court had no further jurisdiction over the matter.[1] See Minn. Stat. § 260.181, subd. 3 (1996). But the cases cited by the parents in support of this argument hold that a trial court lacks jurisdiction when at least one of the child's parents or legal guardians is meeting the child's needs. See In re Welfare of T.L.L., 453 N.W.2d 355, 357 (Minn. App. 1990) (juvenile court had no jurisdiction because child not in need of protection and services when mother, child's legal custodian, adequately meeting child's needs); In re Welfare of A.S., 375 N.W.2d 596, 598 (Minn. App. 1985) (although child allegedly had been sexually abused during visits with father, dismissal of county's CHIPS petition affirmed because child's mother, her custodial parent, was adequately meeting child's needs).

In this case, the trial court first exercised jurisdiction over the child when it found probable cause existed to remove him, soon after birth, from his mother's care due to his parents' domestic abuse and chemical dependency problems. That jurisdiction continued when the court adjudicated the child to be in need of protection and services, transferred legal custody to the Department, and authorized an out-of-home placement for him. See Minn. Stat. § 260.111, subd. 1 (juvenile court has jurisdiction in proceedings concerning any child who is in need of protection and services). At that point, statutory provisions regarding permanency became relevant. See Minn. Stat. § 260.191, subd. 3b. Until the child's need for permanency is addressed, the trial court retains jurisdiction over him.

The parents argue that because of the placement with a relative, it is in the child's best interests to continue that placement instead of terminating their parental rights. However, statutory provisions regarding permanency contain restrictions on placing a child under age 12 in long-term foster care. See id., subd. 3b(3). In addition, when placement with the parents is not reasonably foreseeable, the preference is for termination of parental rights and adoption. See Minn. Stat. §§ 260.011, subd. 2(b), 260.191, subd. 3b(a). In this case, the child's grandparents have indicated a desire to adopt him.

In certain cases, it may be in a child's best interests to continue some sort of relationship with his biological parents. Here, however, no evidence suggests that continuation of the parents' visits and contact with the child would be in his best interests. See In re Welfare of A.J.C., 556 N.W.2d 616, 620 (Minn. App. 1996) (agency seeking to terminate parental rights does not have burden to negate best interest considerations that have not been established by evidence in case), review denied (Minn. Mar. 18, 1997). Thus, contrary to the parents' argument, the record fails to establish any conflict between the child's best interests, which are "paramount" under several statutory provisions, and the preference for adoption. See Minn. Stat. §§ 260.011, subd. 2; 260.221, subd. 4; In re Welfare of J.M., ___ N.W.2d ___, ___ (Minn. Jan. 28, 1998).


An order terminating parental rights is appropriate only if it appears that the condition of dependency or neglect will continue for a prolonged, indefinite period of time, and such an order must be supported by clear and convincing evidence. In re Welfare of A.D., 535 N.W.2d 643, 647-48 (Minn. 1995). A reviewing court exercises "great caution" and will affirm a termination of parental rights only "when the evidence clearly mandates such a result in accordance with the statutory grounds." Id.

In this case, both parents waived their right to a trial and made a number of admissions that were incorporated into the trial court's order. K.B. admitted that she was chemically dependent, that her chemical use impacts her ability to care for the child, that she has failed several treatment programs designed to address her chemical abuse, and that the Department has made reasonable efforts to assist her. The court found that J.W., Sr. has been diagnosed with chemical dependency, continues to use chemicals, and has a history of domestic abuse against K.B. which places the child at risk. The court further found that the child has special needs in the form of developmental delays, and that he needs "care givers to read his cues and provide him with developmental appropriate environments." The court concluded that K.B.'s and J.W., Sr.'s parental rights should be terminated because they are palpably unfit and because the Department's reasonable efforts have failed to correct the conditions leading to the CHIPS determination. See Minn. Stat. §, 260.221, subd. 1(b)(4), (5).

Because both parents had exhibited some recent success and had been working on their chemical abuse problems, the court withheld entry of its order, subject to the parents' compliance with court-ordered case plans. When K.B. successfully completed her 12-week reunification case plan, the child was returned to her care. Three weeks later, he was removed from her care based on her admitted violations of her case plan, including a relapse into the use of crack cocaine.

After an evidentiary hearing, the trial court issued an order terminating both K.B.'s and J.W., Sr.'s parental rights. The court restated the findings it had made in its earlier, withheld order and made further findings regarding both parents' failure to comply with the conditions of their court-ordered case plans.

In particular, the trial court found that K.B. had failed to comply with the conditions imposed on her after the child was returned to her care because she (1) failed to provide urinalyses and cancelled a scheduled home visit with the social worker; (2) cancelled scheduled home visits with the in-home parenting educator and with the child's special education teacher; (3) admitted that she and the child had had contact with J.W., Sr. since the child was returned to her care; and (4) admitted to the social worker that she had relapsed and used crack cocaine since the child was returned to her care.

K.B. argues that the trial court erred in terminating her parental rights because she was in substantial compliance with her case plan and because reunification was attempted too early to be successful. Although K.B. admits that she agreed to the 12-week reunification plan, she now insists that, in hindsight, the process was hurried and insufficient to prepare K.B. for the reality of caring for a developmentally delayed and hyperactive two-year-old. K.B.'s therapist testified that she was not consulted about the return of the child to K.B.'s care and that if she had been consulted, she would have advised against placing the child with K.B. at that time because K.B. was depressed, having problems with her 19-year-old daughter who was also living with her, and needed additional family counseling with her daughter.

However, the social worker, who had been working with K.B. on her case plan, testified that K.B. was not in compliance and that she did not believe the child was returned too early. During the 12-week reunification process, K.B. was provided with numerous and extensive services, including in-home visits by the social worker, parenting educators, and the child's special education teacher. The reunification process also incorporated gradual, overnight visits with the child. Under these circumstances, we cannot conclude that K.B. was in substantial compliance with her case plan or that reunification would have been successful had there been a longer and more gradual process. Rather, we conclude that the trial court's findings are amply supported by clear and convincing evidence, and that those findings support termination of K.B.'s parental rights. See In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996) (child's best interests would not be served by further delay, where provision of additional services to father unrealistic and termination of father's parental rights supported by clear and convincing evidence).

With respect to J.W., Sr., the trial court found that he had failed to comply because he (1) was discharged from the Eden Men's Program, after leaving against staff advice; (2) failed to attend the Domestic Abuse Project group as scheduled; (3) failed to submit to three scheduled urinalyses; and (4) violated the order for protection regarding K.B. by calling her, leaving threatening messages, and showing up at her place of employment.

J.W., Sr. agrees that he failed to successfully comply with all the elements of his case plan. Nevertheless, he "respectfully requests that his parental rights not be terminated" and that "his son * * * be reunited with * * *[K.B.]." Because the trial court's findings are supported by clear and convincing evidence, and because those findings demonstrate J.W., Sr.'s palpable unfitness, by his conduct, to be a party to the parent-child relationship, we affirm the trial court's decision that it is in the child's best interests to terminate J.W., Sr.'s parental rights.

The trial court's decision terminating the parental rights of K.B. and J.W., Sr. is affirmed.


[ ]1 Respondent Hennepin County Department of Children and Family Services (the Department) argues that the parents' challenge to the trial court's jurisdiction was not raised below and may not be considered for the first time on appeal. See In re Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn. 1982). However, issues involving lack of subject matter jurisdiction may be raised at any time and may even be considered by this court sua sponte. See Minn. R. Civ. P. 12.08(c).