A05-1081

In the Matter of the Welfare of

the Children of: C.W. and R.E.M., Parents

Filed December 6, 2005

Affirmed

Hudson, Judge

Stearns County District Court

File Nos. J4-04-51650, J6-04-51651, J8-04-51652

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

Janelle P. Kendall, Stearns County Attorney, Gayle A. Borchert, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, Minnesota 56303-4773 (for respondent state)

Andrew R. Pearson, Law Office of Andrew Pearson, 803 West St. Germain Street, Suite 103, St. Cloud, Minnesota 56301 (for appellant C.W.)

Danielle Bunting, P.O. Box 1593, St. Cloud, Minnesota 56302 (guardian ad litem)

Considered and decided by Lansing, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant C.W. challenges the termination of her parental rights to L.J.M., R.J.M., and G.N.W., arguing that the district court (1) did not have jurisdiction to hear the case, (2) erred by finding her palpably unfit to parent, (3) erred by not requiring respondent to prove reasonable efforts had been made to reunify, and (4) erred by finding that the termination was in the best interests of the children. Because (1) the court did have jurisdiction, (2) appellant did not rebut the presumption of unfitness that attached when her parental rights to her fourth child were terminated, (3) respondent was not statutorily required to make reasonable efforts, and (4) the district court did not err in its determination that termination of C.W.’s parental rights was in the best interests of the children, we affirm.

FACTS

In September 2002, appellant, C.W., gave birth to her fourth child, A.R.W. At that time, both C.W. and A.R.W. tested positive for cocaine. Following a hearing, A.R.W. and C.W.’s three older children, L.J.M., R.J.M., and G.N.W., were determined to be children in need of protection and services (CHIPS) and were placed under the protection of Stearns County Human Services. In January 2004, the district court involuntarily terminated C.W.’s parental rights to A.R.W., based on C.W.’s palpable unfitness to parent under Minn. Stat. § 260C.301, subd. 1(b)(4) (2002).

In March 2005, the district court held a termination of parental rights (TPR) hearing regarding C.W.’s remaining three children, L.J.M., R.J.M., and G.N.W. At the time of the termination hearing, C.W. had been through several chemical-dependency treatment programs for alcohol and cocaine dependence. Some of the programs she had completed successfully, but she was discharged from other programs for failing to keep appointments and relapsing. C.W. had relapsed on several occasions; most notably she tested positive for cocaine eight months before the TPR hearing. In addition, C.W. had not secured appropriate housing for the return of her three children. For two years C.W. had sought permanent affordable housing and had been placed on numerous waiting lists. C.W. was at the top of the waiting list at the St. Cloud Housing and Redevelopment Authority (HRA), which had an opening for a one-bedroom apartment unit in which she could only have one other person live with her. C.W. was on the waiting list for a larger apartment. At the time of the hearing, C.W. had approximately five months of her 60-month eligibility remaining for Minnesota Family Investment Program (MFIP) benefits. She had only recently obtained permanent employment with a fast-food restaurant. C.W. was also taking steps to address her mental-health and emotional needs by consulting a psychologist.

After the hearing, the district court terminated C.W.’s parental rights to L.J.M., R.J.M., and G.N.W. This appeal follows.

D E C I S I O N

On appeal in a termination proceeding, “appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). On review, we give considerable deference to a district court’s decision because the district court is in a superior position to assess the credibility of witnesses. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). But appellate courts exercise great caution in proceedings to terminate parental rights. In re Welfare of A.J.C.,556 N.W.2d 616, 622 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997). Indeed, parental rights are to be terminated only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).

This court reviews legal issues concerning jurisdiction de novo. McLain v. McLain, 569 N.W.2d 219, 222 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997).

Appellant argues that because a dispositional order was not issued by the district court after the September 17, 2002 CHIPS hearing, the court lost its “jurisdiction” to later terminate her parental rights. Appellant cites Minn. Stat. § 260C.201, subd. 1(b), and Minn. Juv. Prot. R. 41.02 as requiring the filing of written, dispositional findings and orders after the hearing. In April 2005, appellant touched on this argument in her written closing argument for the TPR hearing. The district court did not address the issue in its findings. Appellant does not specify what type of “jurisdiction” was lacking; however, because personal jurisdiction can be waived, we assume appellant is questioning the district court’s subject-matter jurisdiction.

Because subject-matter jurisdiction goes to the authority of the court to hear a particular class of actions, lack of subject-matter jurisdiction can be raised at any time, including for the first time on appeal. Minn. R. Civ. P. 12.08(c); Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995). There is no merit in appellant’s position.

Juvenile courts have original and exclusive jurisdiction in proceedings concerning any child who is alleged to be in need of protection or services. Minn. Stat. § 260C.101, subd. 1. (2004). It is undisputed that the district court had subject-matter jurisdiction to conduct the September 17, 2002 CHIPS hearing.

A court can terminate its jurisdiction on its own motion or upon the motion of any interested party, at any time. Minn. Stat. § 260C.193, subd. 6 (2004). Unless terminated, the jurisdiction of the court continues until the child turns 19 years of age if the court determines it is in the best interests of the child to do so. Id. The district court in this case did not terminate its jurisdiction.

We do note, however, that the record for the termination proceeding does not contain a copy of the original CHIPS records for L.J.M., R.J.M., and G.N.W. or the order in question. But the record does include the order terminating C.W.’s parental rights to A.R.W. The district court found that a disposition plan for C.W. had been ordered after the CHIPS hearing, and listed the parts of the plan in detail. These requirements included: a chemical-use assessment, random urinalysis testing, obtaining safe and secure permanent housing for herself and her children, supervised visitation, and cooperating with the Stearns County case worker. Thus, the record indicates that there was a case plan in place for C.W. to follow. Even though the dispositional plan only named A.R.W. and C.W., this appears to be a clerical error. Each of the four children would have had the same interest in having C.W. complete these requirements. Further, the TPR here is not based on the CHIPS disposition, but is based entirely on the presumption of palpable unfitness resulting from the previous involuntary termination of C.W.’s parental rights to her youngest child.

We conclude that a district court does not “lose” its jurisdiction to hear a TPR case based on a technical error in a prior CHIPS disposition. This is especially true when—as in this case—there is no evidence of prejudice because the TPR was based entirely on a presumption of palpable unfitness to parent due to the prior involuntary termination of parental rights with respect to A.R.W.

Appellant argues that respondent failed to prove by clear and convincing evidence that appellant was palpably unfit to parent. Respondent counters that it was appellant’s burden to rebut the presumption of palpable unfitness due to the prior termination of parental rights of C.W. to A.R.W.

Courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2004). Courts are required to make clear and specific findings that conform to the statutory requirements. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). One of the statutory criteria is that the district court may terminate a parent’s rights if he or she is palpably unfit to parent. Minn. Stat. § 260C.301, subd. 1(b)(4). It is presumed that a parent is palpably unfit to be a party to the parent-and-child relationship upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated. Id. Once the existence of a prior involuntary termination of parental rights has been established, it is the parent’s burden to prove fitness to be a parent, and even the claimed absence of other reasons to terminate parental rights is not sufficient to overcome the presumption of unfitness. In re Welfare of the Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).

Here, respondent proved that C.W.’s parental rights to A.R.W. had previously been involuntarily terminated based on the determination that she was palpably unfit to parent A.R.W. Because of that prior involuntary termination of parental rights, the presumption of palpable unfitness had attached to C.W. C.W. did provide some evidence of her attempts to correct her chemical-dependency, housing, and mental-health issues. But C.W. failed to show that she successfully remedied any of these issues, nor did she “affirmatively and actively demonstrate” her ability to successfully parent a child. See In re Welfare of D.L.R.D., 656 N.W.2d 247, 251 (Minn. App. 2003) (“When the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her or his ability to successfully parent a child.”).

The record further reflects that C.W. had a history of repeated relapses. In 2004, after she successfully completed two phases of a chemical-dependency treatment program, C.W. relapsed and tested positive for cocaine. C.W. was at the top of the St. Cloud HRA waiting list for a one-bedroom apartment, but she could only have one other person live with her. This is not a housing situation conducive to the return of her three children. Finally, C.W.’s MFIP eligibility was about to expire, and she had just recently found an entry-level job at a fast-food restaurant. Thus, C.W. provided no proof that she could support herself and her children.

Because C.W. failed to provide evidence that she had (1) controlled her alcohol and cocaine dependency, (2) obtained appropriate housing, and (3) obtained employment to support herself and her children, the district court did not err in finding appellant had not rebutted the presumption that she was palpably unfit to parent.

III

Appellant argues that Stearns County did not make reasonable efforts to assist her in correcting the conditions at issue.

Minn. Stat. § 260C.001, subd. 3 (2004) provides that reasonable efforts for rehabilitation and reunification are not required when the district court has determined that the parental rights of the parent to a sibling have been involuntarily terminated. As this court explained in In re Welfare of D.L.R.D., 656 N.W.2d 247, 251 (Minn. App. 2003),

When the presumption of unfitness applies, a parent must affirmatively and actively demonstrate her . . . ability to successfully parent a child. We recognize this is a particularly onerous task when, because of the prior termination of parental rights, the statute has relieved the county of the obligation to develop a case plan and make reasonable efforts to reunite the parent and child. To shoulder this burden, the parent, with the assistance of counsel, is inevitably required to marshal any available community resources to develop a plan and accomplish results that demonstrate the parent’s fitness.

Here, C.W.’s parental rights to her youngest child had been involuntarily terminated. Because reasonable efforts were not statutorily required of respondent, the court did not err by not requiring respondent to prove they made reasonable efforts.

There is a presumption that it is in the best interests of the children to be cared for by their natural parents. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). In termination cases, a court’s paramount concern is for the child’s best interests. In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). In analyzing what action is in the best interests of each child, the district court must balance three factors: (1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of that child. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). Further, the court must “explain its rationale in its findings and conclusions.” In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003).

Here, the district court, in extensive findings of fact, determined that it was in the best interests of each of the children to terminate C.W.’s parental rights. The district court noted the length of time the children had been in placement, each child’s need for permanency, as well as the children’s need for stability, nurturing, and attachment. The record shows that C.W.’s problems with her chemical abuse, housing, mental health, and financial stability remained largely unresolved. C.W.’s minimal progress in preparing to have the children returned to her supports the district court’s conclusion that the unstable conditions would continue for a prolonged, indeterminate period of time and that termination was in the best interests of the children.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.