This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, sub. 3 (2000)

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-255

 

 

In the Matter of

the Children of:  R.P.

 

 

Filed September 10, 2002

Affirmed

Parker, Judge*

 

Hennepin County District Court

File No.  J40151071

 

 

Leonardo Castro, Fourth District Chief Public Defender, David P. Murrin, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant mother)

 

Amy Klobuchar, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, Health Services Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Children, Family & Adult Services Department)

 

Michael J. Biglow, 839 Midland Bank Building, 405 Second Avenue South, Minneapolis, MN 55401 (for guardian ad litem)

 

 

Considered and decided by Anderson, Presiding Judge, Halbrooks, Judge, and Parker, Judge.

 

U N P U B L I S H E D   OP I N I ON

 

PARKER, Judge

 

This appeal arises from the district court’s revocation of a stay of the termination of appellant-mother’s parental rights.  The mother argues that because the record on which the stay was revoked consisted solely of contested written evidence and did not include testimony, the record was insufficient to allow the stay to be revoked.  She also argues that affirming the district court would violate due process.  We affirm.

D E C I S I O N

Appellant R.P. had three children:  K.P., born February 3, 1987; M.L.P., born August 18, 1994; and M.P., born May 13, 1997.  In May 2000, Hennepin County Children, Family, and Protective Services Department (the department) filed a petition alleging the children to be in need of protective services.  Appellant admitted the petition and signed a plan for protective services.  In January 2001, when she was unable to comply with the plan, the department filed a petition to terminate appellant’s and her husband’s parental rights to M.L.P. and M.P.  The department also filed a petition alleging that K.P. should remain in long-term foster care.

At trial on the termination petition on June 16, 2001, the father’s parental rights were terminated by default judgment.  Appellant agreed to voluntary long-term placement in foster care for K.P.  With regard to M.L.P. and M.P., appellant agreed to a voluntary termination of parental rights, with a stay of judgment for 120 days.  As a condition of the stay, she agreed to follow a case plan, which required her to:  (1) obtain safe and suitable housing; (2) get proper identification; (3) provide random urinalysis samples for at least one month, once per week; (4) continue with individual therapy and follow all recommendations; (5) have a psychiatric assessment completed and follow the recommendations; and (6) continue to attend parenting classes and follow those recommendations.

A review by the department in August 2001 stated that overall, appellant had been complying with the conditions outlined by the court, but that there were concerns about her ability to perform some parenting tasks that were essential to the children’s safety.  These included the ability to dual focus (e.g., to make a meal while still watching the children), to set limits consistently for the children and follow through, and to adjust to the situational needs that occur in parenting.  The department saw these factors as safety barriers to unsupervised visitation with the children.

  A further disposition review report a month later indicated that appellant had struggled since the last review in attending appointments for her children.  While she was not required to attend these appointments, the court in a previous review had indicated that she could attend if deemed appropriate.  The department noted that the behavior of missing appointments had been present historically, and that because she was more stressed, she was missing more appointments.  The department also noted a concern that appellant continued to lack a true understanding and insight into her children’s special needs.  M.L.P. was attending therapy on a regular basis and taking medication for ADHD.  M.P. was receiving special education services related to global developmental delays.

            Melvin Coleman, the psychologist working with appellant, reported that appellant had learning style challenges, with verbal, performance, and full-scale IQ scores of 89, 102, and 94 respectively.  She had missed an appointment with him on September 28, 2001, claiming, he said, her emotional state precluded her attendance.  He opined that she could either be fearful of independent living or feigning fear to avoid tasks that had typically eluded her throughout her life, including steady employment and vocational accreditation.  He stated that she appeared to be stagnant, “possibly quite purposefully.”

            Betsy Bartek, parenting instructor at Reuben Lindh Family Services, reported that on September 27, 2001, appellant was upset when she arrived at parenting class because she had missed her section 8 appointment, which meant she would have to pay full rent for October.  She appeared to be overwhelmed with this crisis and was unable to focus on meeting M.P.’s needs.  On another day, she arrived 45 minutes late and did not give an explanation to M.P., who was upset.  Over a month’s time, the staff had noticed that appellant’s hygiene had deteriorated, and on several occasions she arrived at the parenting program very hungry.  A friend was apparently keeping her money safe for her, which could be a concern if a crisis arose for her or the children.  Based on those observations and concerns, the parenting program staff concluded that careful consideration should be given as to whether this family should be reunited.

            The guardian ad litem, Doris Barry, reported on October 18 that appellant’s housing was not adequate shelter for the children.  Barry also reported that unsupervised visits with the children had been “erratic and unacceptable” and that she had been unable to make scheduled visits because appellant was not at home.  Barry was of the opinion that the conditions that caused the removal of the children had not changed, and she recommended termination of parental rights with no further delays.

            A disposition review in October indicated that appellant had initially fixed a number of items when she moved into her apartment in August 2001, but that by early October, the condition of the apartment had deteriorated somewhat, with dishes on the kitchen floor, cigarette butts in several trays throughout the house and ashes on the floor, and a garbage bag with garbage in it hanging on the kitchen doorway.  Appellant reported that this condition occurred because the gas had not yet been turned on and she had no hot water.  By the time of the October 16 visit, however, after the gas had been turned on, the safety and appearance of the home had deteriorated further, with power tools left out in the living room, two layers of garbage and clutter, and cigarette ashes thick on the floor.  Appellant’s social worker, Jennifer Schoenberg, expressed concern that appellant was unable to rectify issues as they were discussed with her unless she was asked at the moment to put away or clean up items as a person walked through the house with her.  The department had great concerns about appellant’s ability to maintain a safe and suitable home for her children, and noted that she was following a similar pattern to that which brought about initial child protection involvement.

            Schoenberg reported that as appellant’s social worker for the past 15 months, she had seen appellant progress, but that since appellant had obtained her own apartment and visitation with the children had increased, she had regressed to a more distracted and evasive state.  She had recently blamed the doctors for not identifying her children’s special needs, she interrupted conversations, and she had difficulty following a train of thought.  Appellant was having difficulty taking responsibility for her behavior, the deterioration of her housing, setting and keeping therapy appointments, and on-time visitation with the children.  She had re-established a practice of taking her children to a number of places during visitation and leaving them with strangers, even on school nights.

Schoenberg also reported concerns about appellant’s lack of financial management, her possible inability to care for her own mental and physical needs, and a decline in her self-care.  Her parenting exhibited a “great sense of chaos.”  Based on all of these considerations, Schoenberg recommended vacating the stay and freeing the children for adoption.

At a dispositional hearing on October 21, 2001, the court did not take testimony or receive evidence, but heard arguments from appellant’s attorneys, the department, and the guardian ad litem.  After the hearing, the district court found that despite continuous assistance, appellant had not obtained and maintained suitable shelter for her family.  The court also found that appellant was not capable of providing safe, suitable housing for her young children, nor would she be capable of doing so in the foreseeable future.  The court recognized the special needs of both children and found that they would need a great many services to progress.  The court stated:

[Appellant] has demonstrated that she cannot take care of herself without significant help from others.  Her history shows that when she is faced with multiple responsibilities, her pattern of functioning regresses to that which led to the opening of this case initially.  There is no way she can appropriately parent these two children.

 

Accordingly, the court lifted the stay and ordered that appellant’s parental rights to M.L.P. and M.P. be terminated.

Parental rights are to be terminated only for grave and weighty reasons.  In re Welfare of H.G.B.,306 N.W.2d 821, 825 (Minn. 1981).  In reviewing terminations of parental rights, this court determines whether the district court’s findings address the relevant statutory criteria, whether they are supported by substantial evidence, and whether they are not clearly erroneous.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  The reviewing court will “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).  In any termination-of-parental-rights action, if other statutory requirements are met, “the best interests of the child must be the paramount consideration.”  Minn. Stat. § 260C.301, subd. 7 (2000).

             Under Minn. Stat. § 260C.301, the court may terminate parental rights on a finding

(5) that following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement.  It is presumed that reasonable efforts under this clause have failed upon a showing that:

 

*  *  *  *

 

(iii) conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and

 

(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.

 

Minn. Stat. §  260C.301, subd. 1(b)(5)(iii), (iv) (Supp. 2001).

In this case, appellant signed a written consent at the June 2001 hearing to terminate her parental rights.  This satisfied the statutory criteria for terminating her parental rights under Minn. Stat. § 260C.301, subd. 1(a) (Supp. 2001).  She contests, however, the district court’s revocation of the stay of the termination after the hearing in October 2001.    In revoking a stay of termination of parental rights, a court must

make specific factual findings concerning current conditions sufficient to show by clear and convincing evidence that a statutory condition justifying termination was satisfied at the time the stay was lifted * * *.

 

Welfare of P.R.L., 622 N.W.2d at 544 (citation omitted). 

            The district court specifically found, in ordering the stay vacated, that obtaining and maintaining safe and suitable housing was a condition of the stay and that, despite continuous assistance from the department, appellant had not obtained and maintained suitable shelter for the children.  Conditions in appellant’s apartment had deteriorated from the move-in date until the time of hearing; the apartment was filled with clutter, and appellant continued to accumulate things.  The court also found that appellant had not continued her individual therapy on a consistent basis, as required by the case plan appellant agreed to follow as a condition of the stay.

            These findings are supported by substantial evidence.[1] The guardian ad litem reported that, to her knowledge, the housing provided by appellant was not adequate shelter for the children.  Appellant’s social worker noted the presence of garbage, clutter, and possible child safety hazards in the home.  She expressed the department’s concern that appellant was unable to maintain a safe and suitable home for her children, stating that appellant was following a pattern similar to that which had originally brought about initial child protection involvement.  Appellant’s attorney argued that the apartment was cluttered due to repairs requiring the use of tools, and that appellant had difficulty cleaning before the gas was turned on, which provided hot water.  However, the tools left around the apartment were an obvious safety hazard to young children, and the clutter persisted after the gas was turned on in early October.

            Appellant contends that she completed required psychological testing, but that the department did not obtain a copy of a second, valid MMPI-2 test.  However, appellant’s psychologist also reported that she had missed at least one appointment and had difficulty in scheduling future appointments.  Finally, appellant maintains that she complied with many of the conditions of the case plan, including submitting clean urinalysis tests and attending parenting classes.  But her success in some areas of the case plan does not negate the evidence that in other areas, she failed to comply.  Therefore, we hold that the district court did not err in vacating the stay.

            Appellant also contends on appeal that her due process rights were violated because the district court failed to take testimony at the October hearing on the issue of lifting the stay.  Fundamental fairness is the applicable due-process standard for juvenile proceedings.  McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985 (1971).  To achieve fundamental fairness, the parties must have an opportunity for an adversarial hearing.  Id.  In child protection matters, the minor’s parent “is entitled to be heard, to present evidence material to the case, and to cross-examine witnesses appearing at the hearing.”  Minn. Stat. § 260C.163, subd. 8 (2000).

            The transcript of the October 24 hearing reveals that appellant’s attorney did not request an opportunity to introduce testimony or to have witnesses be cross-examined.  Appellants must preserve objections and provide an adequate record to afford appellate review.  In re Estate of Magnus, 436 N.W. 2d 821, 823 (Minn. App. 1989).  While we are concerned about the lack of testimony at the revocation hearing, there is no indication that the district court judge, who was familiar with the case, would have denied appellant the opportunity to present testimony, had it been requested.  Instead, the attorney for appellant made no objection to the lack of testimony at the hearing.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582  (Minn. 1988).

Finally, there is no indication that taking further testimony would have changed the district court’s determination.  The district court made specific findings concerning appellant’s failure to maintain safe and suitable housing for the children and her inability to take care of herself without significant help from others.  Appellant, despite her efforts, has not been able to sustain the day-in-and-day-out task of parenting her children, who have special needs.  See In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (holding that in a termination-of-parental-rights case, a technical violation of the parent’s due process rights was outweighed by the best interests of the children), review denied (Minn. Mar. 29, 1995).  In this case, clear and convincing evidence supports the district court’s revocation of the stay.

Affirmed.