This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2529

 

 

In the Matter of the Welfare of the Child of:

G.F. and J.S.-M.,

Parents.

 

 

Filed August 1, 2006

Affirmed in part, reversed in part, and remanded

Lansing, Judge

 

 

Hennepin County District Court

File Nos. 233026, JX-05-053609

 

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants G.F. and J.S.-M.)

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487; and

 

Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Patricia Timpane, 626 South Sixth Street, Minneapolis, MN 55415 (guardian ad litem)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            GF and JS-M appeal from the termination of their parental rights.  GF asserts that the district court erred by determining that she failed to rebut a presumption of palpable unfitness arising from previous involuntary terminations.  JS-M argues that service was defective and that the court erred by terminating his rights based on a ground not alleged in the petition.  We affirm the district court’s termination of GF’s parental rights because she failed to present affirmative evidence of her ability to parent.  We also affirm the court’s exercise of jurisdiction over JS-M because he waived service.  We reverse and remand, however, the termination of JS-M’s parental rights because it is based on a ground not alleged in the petition.

F A C T S

GF gave birth to GF-S on March 14, 2005.  Both mother and child tested positive for cocaine, as had two of GF’s previous children.  Based on GF’s chemical dependency, her mental-health issues, and her unstable environment, Hennepin County Child Protection Services filed a petition to have GF-S placed in out-of-home care, and the district court entered an order to place GF-S in a nonrelative foster home on March 17, 2005.  The same day, the county filed a petition to terminate the parental rights of both GF and JS-M, her husband and GF-S’s presumptive father.  Specifically, the petition alleged that the parents had failed to comply with the duties of the parent-child relationship, that they were palpably unfit, that reasonable efforts had failed to correct the conditions leading to the child’s placement, and that the child was neglected and in foster care.

            In June 2005 GF and JS-M attended a hearing, and JS-M requested that an attorney be appointed to represent him.  The district court scheduled a trial for August 11, 2005, and granted JS-M’s request.

            At the scheduled trial, JS-M did not appear, and GF indicated that she was dissatisfied with her attorney’s representation.  The court continued GF’s trial to September 30 and instructed the county to effect service by publication to notify JS-M that a trial on the termination of his parental rights would occur on October 3.  The county complied with this court instruction.

On September 30 the court heard testimony by GF and the guardian ad litem (GAL) appointed to the case.  GF acknowledged that she had a chemical-dependency problem and that she had mental-health issues.  She also acknowledged that she had relapsed on cocaine in August and that she had last consumed alcohol five days before the trial.  The GAL testified that GF-S was doing well in her placement and that the termination of GF’s parental rights was in the child’s best interests because the child would have a better chance at stability and permanent placement.  The county also introduced several exhibits confirming that GF missed numerous urinalysis tests, which the testing agency consequently presumed to be positive. 

GF’s medical evaluations while in treatment indicate that she minimizes the consequences of her cocaine use, that she has relapsed before, that unemployment and financial difficulties trigger her chemical abuse, and that she binges on crack/cocaine every two weeks.  The parenting-assessment report stated that, although GF had a positive interaction with her child on one observed occasion, her prognosis is guarded or poor and that the evaluator recommended the child remain in an out-of-home placement.

On October 3 the district court held a trial on the termination of JS-M’s parental rights.  JS-M again did not appear.  Because his attorney had never met with him and had only received voicemail messages from him, the court permitted his attorney to withdraw.  The court then proceeded by default. 

The child-protection worker assigned to GF-S’s case testified that the facts alleged in the petition were true.  He indicated that, although provided with the opportunity to visit GF-S twice a week for six months, JS-M visited his child only between five and ten times.  He explained that JS-M was homeless, that he either lived in his car or stayed with friends, and that this situation was not safe for a child.  He further testified that JS-M had acknowledged that he could not care for his child and that, when given custody of his other child, he sent the child to live with relatives in Mexico.  According to the child-protection worker’s testimony, the county made efforts to contact JS-M, but JS-M did not remain in contact to develop a case plan or accept responsibility for the care of GF-S. 

Based on these facts, the child-protection worker concluded that the child’s best interests would be served by terminating JS-M’s parental rights because the child had been in out-of-home placement for more than six months.  The GAL also testified that termination was in GF-S’s best interests because the child was thriving in her current placement and JS-M had rarely visited her.

In November 2005 the district court entered judgment terminating the parental rights of both GF and JS-M.  The court concluded that GF had failed to rebut the presumption that she was palpably unfit, that JS-M had abandoned the child, and that termination of their parental rights was in the best interests of GF-S.  GF and JS-M appeal from this judgment.

D E C I S I O N

We will affirm a district court’s termination of parental rights if clear and convincing evidence supports at least one statutory ground for termination and termination is in the child’s best interests.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  We review a termination order to determine whether the district court’s findings address the statutory criteria and whether the findings are supported by substantial evidence and not clearly erroneous.  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005); In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).

I

            A district court may terminate a person’s parental rights when it finds that the parent is “palpably unfit to be a party to the parent and child relationship.”  Minn. Stat. § 260C.301, subd. 1(b)(4) (2004).  A parent is palpably unfit when clear and convincing evidence establishes a “consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship” and indicates that the conduct or conditions are of a “duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.”  Id.

When a person’s parental rights to one or more other children have been involuntarily terminated, a presumption exists that the parent is palpably unfit.  Id.  Under these circumstances, the parent has the burden of rebutting the presumption of palpable unfitness.  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).  The parent must “affirmatively and actively demonstrate her . . . ability to successfully parent a child.”  Id. at 251.  The presumption also relieves the county of its obligation to make reasonable efforts to reunite the child and parent.  Minn. Stat. § 260C.001, subd. 3 (2004); D.L.R.D., 656 N.W.2d at 251.

            GF’s parental rights to three other children have been involuntarily terminated.  She is therefore presumed to be palpably unfit and must rebut this presumption.  The district court concluded that she had failed to offer evidence that establishes that she can successfully parent GF-S.  This determination is supported by evidence in the record that the district court could reasonably conclude to be clear and convincing.

            The record shows that GF used cocaine while pregnant and that GF-S was born cocaine positive.  GF continued to use cocaine after giving birth and while subject to a case plan developed by the county.  A medical assessment/intake guide indicates that she used crack/cocaine approximately three weeks before the rescheduled trial.  It also indicates that she has received treatment for her addiction at least three times, but relapsed repeatedly.  The record contains some evidence of GF’s recent progress, including favorable observations in a parenting assessment, her participation in chemical-dependency treatment, and the absence of a positive urinalysis test.  But this evidence is insufficient to rebut the presumption of palpable unfitness.  See In re Welfare of Child of W.L.P., 678 N.W.2d 703, 709-10 (Minn. App. 2004) (concluding that parent did not rebut presumption by offering evidence that she attended treatment, had negative urinalysis-test results, attended parenting classes, and visited her child); In re Welfare of J.K. & K.W., 374 N.W.2d 463, 466 (Minn. App. 1985) (affirming termination when evidence indicated improvement occurred only immediately before termination proceeding), review denied (Minn. Nov. 25, 1985). 

In light of the evidence of GF’s repeated relapses, the presence of triggering circumstances, and the timing of her treatment in relation to the trial, her chemical-dependency treatment does not overcome the presumption of palpable unfitness.  Similarly, the absence of positive urinalysis results does not demonstrate that GF has abstained from cocaine because she missed a significant number of tests, and these tests are therefore presumptively positive.  While the parenting assessment includes some favorable observations, it recommends that the child remain in an out-of-home placement and expresses significant reservations about GF’s prognosis.  GF has failed to present evidence to overcome the presumption that she is palpably unfit.

            GF does not contest that termination is in the best interests of GF-S, and the district court made the requisite findings that termination was in GF-S’s best interests.  These findings are supported by substantial evidence in the record, including the testimony of the child-protection worker, the testimony of the GAL, and the parenting-assessment evaluation.  Clear and convincing evidence supports the district court’s termination of GF’s parental rights.

II

            Turning to the district court’s termination of JS-M’s parental rights, we exercise de novo review to consider the preliminary issue of whether service was defective.  See Maki v. Hansen, 694 N.W.2d 78, 82 (Minn. App. 2005) (stating that whether service was proper is question of law subject to de novo review).  In a termination-of-parental-rights proceeding, the court must serve a summons and petition on all parties, including the parents.  Minn. R. Juv. Prot. P. 21.01, subd. 1(b), 32.02, subd. 2(a).  But JS-M waived service by voluntarily appearing at a hearing on June 29, 2005, without asserting that he failed to receive effective service of a summons and petition.  See id. 32.02, subd. 6 (“Service is waived by voluntary appearance in court.”).  Although JS-M asserts that the county’s subsequent service by publication was defective, service by publication was unnecessary when he had waived service more than two months before the allegedly defective service by publication.  We also note that the record demonstrates that JS-M was aware of the termination proceedings against him and signed a notice of the August 11 proceeding, but nonetheless did not appear.

Finally, we consider the district court’s decision to terminate JS-M’s parental rights based on its determination that he had abandoned the child.  A court may terminate a parent’s rights only after concluding that “the statutory grounds set forth in the petition are proved.”  Minn. R. Juv. Prot. P. 39.05, subd. 3(a); see also In re Staat, 287 Minn. 501, 505, 178 N.W.2d 709, 712 (1970) (reversing district court’s termination of parental rights partly because ground was not alleged in petition).  A court may not terminate parental rights based on a statutory ground not alleged in the petition because the parent must receive notice of the claim and have an opportunity to oppose it before the court enters an adverse judgment.  See Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983) (requiring district courts to base relief on issues raised either by pleadings or litigated by consent).

The district court terminated JS-M’s parental rights because it concluded that he abandoned the child.  The petition, however, does not allege that JS-M abandoned the child.  Because the petition does not include an allegation of abandonment, JS-M did not receive notice that his parental rights might be terminated on this basis.

The county asserts that the court’s analysis of the abandonment ground is equivalent to and inclusive of the reasonable-efforts ground alleged in the petition.  A termination of parental rights on the ground of abandonment requires a determination that “reasonable efforts to prevent the placement and to reunify the child and the parent were made.”  Minn. Stat. § 260C.301, subd. 8(1) (2004).  But the statutory grounds are distinct and do not merge for purposes of a termination analysis.  See id. § 260C.301, subd. 1(b)(5) (2004) (requiring court to find 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”).  The district court’s analysis of reasonable efforts is limited to its conclusion that the county “provided reasonable efforts to facilitate contact between [JS-M and his child] and that those efforts failed to correct the conditions leading to the child’s out-of-home placement.”  This abbreviated consideration does not establish the necessary review of the independent statutory ground or a determination that clear and convincing evidence supports termination on this ground.

We recognize that on this record the evidence supporting the termination of JS-M’s parental rights is compelling.  But the termination of those rights must comply with due process.  Termination on a ground not included in the petition is not permitted by the statute or by due process.  We therefore reverse the termination of JS-M’s parental rights and remand for an expedited hearing.

            Affirmed in part, reversed in part, and remanded.