In the Matter of the Welfare of the Children of:  G.D., Parent.

In the Matter of the Welfare of the Children of:  G.D., Parent. A05-425, Court of Appeals Unpublished, November 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-425

 

 

In the Matter of the Welfare of the

Children of:  G.D., Parent.

 

 

Filed November 29, 2005

Affirmed

Halbrooks, Judge

 

 

Kandiyohi County District Court

File No. J6-04-50394

 

John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant G.D.)

 

Boyd Beccue, Kandiyohi County Attorney, Amy Isenor, Assistant County Attorney, 415 Southwest 6th Street, P.O. Box 1126, Willmar, MN 56201 (for respondent county)

 

Bonnie L. Kleman, 2015 First Street South, Willmar, MN 56201 (for respondent M.D.)

 

Jennifer K. Fischer, Jones & Fischer, P.A., 516 Litchfield Avenue Southwest, P.O. Box 1051, Willmar, MN 56201 (for respondents L.D. and C.D.)

 

William Farrell Bannon, Johnson & Bannon, 2125 South First Street, P.O. Box 1334, Willmar, MN 56201 (for guardian ad litem)

 

 

 

            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court's order terminating her parental rights to her children, L.D. and C.D., arguing that (1) she was not given a fair or reasonable opportunity to correct any deficiencies in her parenting and that reunification efforts lacked good faith, (2) she is not palpably unfit to be a party to the parent-child relationship, (3) the district court did not adequately explore less-onerous alternatives to termination, and (4) the termination statute is unconstitutionally overbroad.  Because the district court's findings and conclusions are supported by substantial evidence in the record and are not clearly erroneous, one or more statutory grounds for termination exist through clear and convincing evidence, and because the district court has discretion to determine which permanency option is in the children's best interests, we affirm.  Because appellant raised the constitutional issue for the first time on appeal, we decline to consider it.

FACTS

            Appellant G.D. is the mother of M.D., born February 6, 1992; L.D., born November 18, 1994; and C.D., born February 6, 1998; she is also the mother of A.D. and J.D., neither of whom is involved in this proceeding.  In October 2001, Kandiyohi County Family Services (county) received a report of educational neglect and began providing services to ameliorate those concerns.  In February 2002, the county filed a petition alleging educational neglect of M.D. and L.D.; that petition was thereafter amended to include all of appellant's children.  The children were determined to be in need of protective services in September 2002 and were removed from appellant's home and placed in foster care. 

            District court orders indicate that the county has provided appellant and her family with extensive services, including children's mental-health case management; in-home family therapy; psychiatric services; individual counseling services; respite care; a SAFE worker; mentors; mental-health case management for G.D.; day treatment; financial services, including medical assistance; transportation assistance, including volunteer drivers, bus cards, and gas vouchers; parental-capacity evaluations; foster-care placement; group-home placement; child protective services; psychological evaluations; SEARCH referrals; Harmony Visitation Center for supervised visitation; Kandiyohi County Girls Group Home placement; Greater Minnesota Shelter Care placement; Hutchinson Visitation Center for supervised visitation; medication-management services; Crisis Center Placement; Wrap Around services; truancy case-management services; Scott County Mental Health Center services and evaluation; and housing and housing assistance through HRP.  These services are described in detail in more than 400 transcribed pages of trial testimony.

            In spite of the county's efforts toward reunification, circumstances did not improve enough to warrant return placement of the children in appellant's home.  Time after time, the district court found it to be in the best interests of L.D. and C.D. to stay in their foster-home placement.  These efforts culminated in the county filing both a petition to terminate appellant's parental rights to L.D. and C.D. and a permanency petition for M.D in late 2004.  A three-day trial followed, during which the district court heard testimony from 19 witnesses.  On February 2, 2005, the district court entered an order denying the permanency petition with respect to M.D.[1] and terminating appellant's parental rights to L.D. and C.D. 

To support its conclusions, the district court found that:

            [Appellant] has neglected [M.D.] and [L.D.'s] educations.  She has failed to get them to school on time each day, fed, rested, groomed, and with their homework complete.  While in her care, the children were frequently absent from school, and when they did attend, would almost always be significantly tardy.  The children frequently fell asleep in class, and often reported being hungry.  This was so even with the help of in-home support services.  Indeed, [appellant] frequently was not even awake when service providers arrived in the morning.

 

The district court also found that appellant "failed to establish household structure and routine" and that "there were no set sleeping schedules" when the children were in her care.  The court found that appellant had little empathy for L.D. or C.D., that she "physically and verbally abused her children" and that she had "consistently failed to intervene when one child is physically or verbally violent toward another."  Further, the district court found that appellant "is unable to control the children when they are together and keep them safe from harm." 

            The district court stated that appellant has been diagnosed with borderline personality disorder, learning disability, posttraumatic stress disorder, major depressive disorder, and cognitive disorder and that those disabilities "impair her psychiatric stability, social competence, personal and emotional adjustment, independent living, and community skills."  The district court found that appellant "may experience a loss of touch with reality" when she is under extreme stress and that she made little progress in the in-home family therapy that she and her children participated in from August 2002 to April 2004.  Indeed, the district court noted that "[appellant] was not able to provide consistent supervision, structure, and discipline to her children."  Further, the district court made findings concerning appellant's failure to complete therapy or the court-ordered treatment program and her sporadic participation in supervised visitation.  In general, the district court found that appellant "lacks insight into her family's problems and how to address them," and, as a result, "she has not acquired appropriate parenting skills."  This appeal follows.

D E C I S I O N

On appeal from a 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).  A reviewing court "exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  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).  The district court's findings will not be set aside unless our review of the entire record leaves "a definite and firm conviction that a mistake has been made."  In re Welfare of D.T.J., 554 N.W.2d 104, 107 (Minn. App. 1996) (quotation omitted).

I.

A district court may terminate parental rights on the basis of one or more of the nine criteria set forth in Minn. Stat. § 260C.301, subd.1(b) (2004).  The primary consideration in all termination determinations is the best interests of the child.  Minn. Stat. § 260C.301, subd. 7 (2004). 

Here, the district court terminated appellant's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), and (5) (2004).  Pursuant to one of those subdivisions, a court may terminate parental rights if it finds that, "following the child's placement out of the home, [the county's] reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement."  Id., subd. 1(b)(5). 

Appellant argues that the county's efforts to reunite her with her children were perfunctory, unreasonable, and lacked good faith; she also asserts that she was not given a fair or reasonable opportunity to correct any deficiencies in her parenting.  Appellant specifically contends that the county failed to develop a treatment plan that took into consideration her behavior caused by her mental-health issues. 

"‘Reasonable efforts' means the exercise of due diligence by the responsible social services agency," upon removal of the child from the child's family, "to use appropriate and available services to meet the needs of the child and the child's family in order to . . . reunite the family."  Minn. Stat. § 260.012(b) (2004); see also In re Welfare of Children of R.W., 678 N.W.2d 49, 56 (Minn. 2004).  Whether services constitute "reasonable efforts" depends on the nature of the problem presented, the duration of the county's involvement, and the quality of the county's effort.  S.Z., 547 N.W.2d at 892; In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  The services "must go beyond mere matters of form so as to include real, genuine assistance."  H.K., 455 N.W.2d at 532.  In determining whether reasonable efforts have been made, the district court must consider whether the services were "(1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances."  Minn. Stat. § 260.012(c) (2004).

The district court specifically found that the county made "reasonable efforts to rehabilitate [appellant] and reunite her with [L.D.] and [C.D.]."  The district court went on to list 14 separate examples of the county's efforts.  The transcript in this matter comprises more than 400 pages of testimony, the majority of which addresses the county's efforts in this case.  The county presented 15 witnesses, all of whom referred to or described in detail the county's efforts and the results of those efforts.  In fact, the record demonstrates that various agencies made special efforts to accommodate appellant and her family, above and beyond those efforts or services normally extended in child-protection cases.  For example, the coordinator of the supervised-visitation center testified that appellant was terminated from the visitation program because of her excessive tardiness and cancellations.  Even so, the Harmony Center gave appellant extra chancesmore chances than they would normally give a family.  Further, the children's guardian ad litem testified that the recommended time for a guardian ad litem to spend on a CHIPS case is 50 hours.  Yet she spent more than 500 hours "trying to work this out for these children and do what's best for them." 

And while appellant argues that the county failed to develop a treatment plan that took into consideration her behaviors caused by her mental-health issues, she presents no evidence countering the testimony of Dr. Brian Boe, which reflects that the therapy recommended and attempted for appellant is a therapy that is specifically designed for somebody with borderline-personality disorder.  Further, one of appellant's therapists attempted to integrate that special therapy into one-on-one sessions with appellant after she was terminated from the day treatment program because of her poor attendance. 

            Finally, it is notable that L.D. and C.D. spent an extraordinary amount of time in foster care while the county attempted to help appellant and her family.  L.D. and C.D. were placed in their current foster home in September 2002.  The matter was reviewed several times while the children were in foster care, and the district court repeatedly found that the county made reasonable efforts to reunite the family. 

            Because the record clearly demonstrates that the county provided extensive, specialized services to appellant and her family and that those reunification efforts did not correct the conditions that led to the children's out-of-home placement, the district court did not clearly err in determining that the county made reasonable efforts to reunify.  Because this finding is sufficient to terminate appellant's parental rights, we do not reach the issue of whether the court erred in determining appellant to be a palpably unfit party to the parent-child relationship.

II.

            Appellant also asserts that the district court did not explore less-onerous alternatives to termination, citing the court's decision to leave M.D. in foster care as support for the proposition that appellant should be able to enjoy continued contact with L.D. and C.D. 

            Appellant argues that the only difference between M.D.'s situation and that of L.D and C.D. is the fact that M.D. is older and that the placement of L.D. and C.D. in foster care with M.D. is in the best interests of L.D. and C.D.  While appellant correctly notes the existence of both of these permanency options, she neglects to concede that Minn. Stat. § 260C.201 (2004) expresses no preference between the two options.  Rather, the district court is to apply the best-interests analysis when selecting the appropriate option.  See Minn. Stat. § 260C.201, subd. 11(e) ("In ordering a permanent placement of a child, the court must be governed by the best interests of the child . . . .").  Thus, it is within the district court's discretion, guided by the best interests of the child, to terminate parental rights. 

Here, the record supports the district court's determination that termination is in the best interests of L.D. and C.D.  The district court found that the children suffer from mental illness and that returning them to appellant's care would therefore be "particularly harmful."  The district court found that appellant is "unable to provide [for] [L.D. and C.D.'s] minimum basic needs" and that appellant would not be able to provide for those needs for the reasonably foreseeable future.  The district court also found that appellant physically and verbally abused the children, that they are afraid of appellant, that L.D. becomes aggressive in the presence of appellant, and that C.D. fears physical abuse if returned to appellant's care.  Accordingly, the district court did not err in concluding that termination of parental rights to allow for adoption was in the children's best interests.    

III.

Finally, appellant questions whether Minn. Stat. §§ 260C.201, .317 (2004) are unconstitutionally overbroad.  This court generally considers only those issues that the record shows were presented and considered by the district court in deciding the matter before it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  "Even in the context of termination of parental rights, failure to raise constitutional issues in the district court precludes the issues from being raised on appeal."  In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999).  Here, appellant concedes that she did not challenge the constitutionality of the statutes in question at trial.  Therefore, we decline to consider the constitutional argument on appeal.   

            Affirmed.

[1] The district court denied the permanency petition for M.D. because the county had not made reasonable efforts to either locate an adoptive family for M.D. or to find relatives who could accept a permanent placement.  M.D. remains a child in need of protective services.  These issues are not before us on appeal.