A06-903

In the Matter of the Welfare of the Child of:

L.H. and M.C., Parents.

Filed January 2, 2007

Affirmed

Worke, Judge

Rice County District Court

File No. J4-05-50518

L. A. H., c/o Janet Severson, 2058 Diffey Road, Eagan, MN 55112 (appellant pro se)

G. Paul Beaumaster, Rice County Attorney, Tracey L. Olson, Assistant Rice County Attorney, 218 N.W. Third Street, Faribault, MN 55021 (for respondent Rice County Social Services)

Jeffrey M. Johnson, Schurhammer & Johnson, 315 Central Avenue N., Faribault, MN 55021 (for respondent C.S.)

M.C., 538 St. Peter Street, #403, St. Paul, MN 55102 (respondent pro se)

Heather Feikema, P.O. Box 473, Albert Lea, MN 56007 (respondent guardian ad litem pro se)

Considered and decided by Worke, Presiding Judge; Klaphake, Judge; and Ross, Judge.

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

WORKE, Judge

On appeal in this termination-of-parental-rights matter, appellant-mother argues that the district court erred by (1) terminating her parental rights involuntarily when she also petitioned to terminate her parental rights voluntarily; and (2) terminating her parental rights involuntarily while terminating respondent-father’s parental rights voluntarily. We affirm.

D E C I S I O N

On appeal from the termination of parental rights, “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). “Interpretation of a statute involves a question of law, which is subject to de novo review.” In re Welfare of Children of R.W., 678 N.W.2d 49, 54 (Minn. 2004). On review, “[c]onsiderable deference is due to the district court’s decision because a 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).

Appellant-mother argues that the district court erred by concluding that it had discretion to terminate her parental rights involuntarily when she also petitioned to terminate her parental rights voluntarily. Under Minn. Stat. § 260C.301, subd. 1 (2004), a district court may upon petition, voluntarily terminate parental rights “with the written consent of a parent who for good cause desires to terminate parental rights” or involuntarily if it finds that at least one specific condition listed in the statute exists. After a petition has been filed and the child is in out-of-home placement, the district court conducts an admit/deny hearing. Minn. R. Juv. Prot. P. 34.01, subd. 1(b). The district court then determines “whether the petition states a prima facie case in support of termination of parental rights under the statutory grounds stated in the petition.” Minn. R. Juv. Prot. P. 34.03, subd. 3(a). If a party denies that parental rights should be terminated, the district court may schedule a hearing to “determine whether the statutory grounds set forth in the petition are or are not proved.” Minn. R. Juv. Prot. P. 39.01.

Here, respondent Rice County filed a petition for involuntary termination of parental rights to respondent-child. The district court conducted an admit/deny hearing and appellant-mother denied that her rights should be terminated. Appellant-mother then filed a petition to terminate her parental rights voluntarily. The district court conducted a hearing on both petitions. The district court determined that it would consider the petition for involuntary termination and if the county failed to prove that appellant-mother’s parental rights should be terminated involuntarily, it would consider appellant-mother’s petition. The district court determined that appellant-mother’s parental rights should be involuntarily terminated and ruled that her petition was moot.

The district court did not err in first considering the county’s petition. Appellant-mother suggests that the district court must first determine whether there was good cause to voluntarily terminate her parental rights, but that is not mandated by the statute that permits the district court to terminate parental rights. See Minn. Stat. § 260C.301, subd. 1. Additionally, the district court appropriately proceeded with the county’s petition. The petition was filed, the district court conducted an admit/deny hearing, and then scheduled an adjudication hearing. Appellant-mother then filed her petition. Under Minn. R. Juv. Prot. P. 43.04:

The court shall conduct a hearing when a parent voluntarily consents to the termination of his or her parental rights. At the hearing, petitioner shall make a prima facie showing that there is good cause for termination of parental rights and that it is in the best interests of the child to terminate parental rights.

. . . .

If the parent is not present in court but has signed a voluntary consent to termination of parental rights, the court shall determine whether there has been compliance with all statutory requirements regarding a written consent to termination of parental rights and whether the parent was thoroughly advised of and understood the right to trial, the right to representation by counsel, the consequences of termination of parental rights, and the alternatives to termination.

Appellant-mother did not attend the hearing and her attorney did not present any evidence to show that there was good cause to voluntarily terminate her parental rights and that it was in the best interests of respondent-child. Appellant-mother argues that her written consent was sufficient. But the rule requires that the district court determine whether there has been compliance with all statutory requirements regarding a written consent to termination of parental rights and whether appellant-mother was thoroughly advised and understood her legal rights. Appellant-mother failed to establish that the consent complied with statutory requirements and that she understood her legal rights.

Appellant-mother also argues that she complied with the procedures to convert a petition for involuntary termination into a voluntary petition provided in In re Welfare of Child of W.L.P., 678 N.W.2d 703 (Minn. App. 2004). There are two procedures to convert a petition for involuntary termination into a voluntary petition: (1) file a new petition supported by a factual basis articulating good cause for voluntarily terminating parental rights, or (2) formally amend the original petition. In re Welfare of W.L.P., 678 N.W.2d at 712. Appellant-mother filed a new petition to voluntarily terminate parental rights, but the district court did not accept that it was supported by a factual basis. The district court determined that the evidence showed that appellant-mother’s rights should be terminated involuntarily, and the district court had discretion to do so.

Additionally, although appellant-mother does not dispute that her parental rights should have been terminated, she argues that her parental rights should have been terminated voluntarily because of the effect an involuntary termination will have on her rights to her other children. When a parent’s parental rights to one or more children have been involuntarily terminated, a presumption exists that the parent is palpably unfit. Minn. Stat. § 260C.301, subd. 1(b)(4). “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 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. And under Minn. Stat. § 260C.301, subd. 3 (2004): “The county attorney shall file a termination of parental rights petition . . . [for a child whose] . . . parent has lost parental rights to another child through an order involuntarily terminating the parent’s rights . . . .”

Appellant-mother has four other children. Custody of three of the children has been transferred to family members; however, the record does not establish whether custody was transferred voluntarily or involuntarily or who has custody of the fourth child. While involuntary termination of her parental rights will affect her parental rights to her other children, this is not a factor the district court considers in determining whether involuntary termination is appropriate. See Minn. Stat. § 260C.301, subd. 1(b) (1)-(9). The district court did not abuse its discretion in involuntarily terminating appellant-mother’s parental rights.

Finally, appellant-mother argues that the district court erred by treating her differently than respondent-father. The county moved to amend its petition to terminate respondent-father’s parental rights voluntarily. Under Minn. Stat. § 260C.301, the district court may upon petition terminate all rights of a parent. The statute refers to conditions that exist as to a parent that provide a basis for terminating the parent/child relationship. The statute does not contemplate that each parent be treated the same. The district court differentiated appellant-mother from respondent-father because she was the custodial parent and had other children. The district court accepted respondent-father’s petition and consent finding that he established good cause for voluntarily terminating his parental rights, under Minn. Stat. § 260C.301, subd. 1(a). A social worker testified that respondent-father’s consent was voluntary and that he understood his rights. The district court did not abuse its discretion in treating appellant-mother’s situation differently than respondent-father’s.

Affirmed.