In the Matter of the Welfare of the Child of: T. A. M. and J. B., Parents.

In the Matter of the Welfare of the Child of: T. A. M. and J. B., Parents. A05-1207, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and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

A05-1207

 

 

In the Matter of the Welfare of the Child of:

T. A. M. and J. B., Parents.

 

 

Filed December 20, 2005

Affirmed

Huspeni, Judge*

 

 

Scott County District Court

File No. 2004-26566

 

Debra Julius, 6885 Boudin Street, Prior Lake, MN 55372 (for appellant T.A.M.)

 

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney, Government Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for respondent Scott County)

 

Tanya Rae Derby, Assistant Scott County Public Defender, 200 Fourth Avenue West, Suite JC172, Shakopee, MN 55379 (for respondent J. B.)

 

Charles Emmons, Darlene Emmons, 5459 Woodlawn Circle, Prior Lake, MN 55372 (pro se respondents)

 

Amy Schutte, 921 Meadow Place, Belle Plaine, MN 56011 (guardian ad litem)

 

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges the termination of her parental rights, arguing that the district court erred in determining that (1) appellant was a palpably unfit parent, (2) the county made reasonable efforts to reunite appellant with her child, and (3) the child was neglected and in foster care.  Appellant also argues that the statutory permanency deadlines violate the constitutional doctrines of due process and separation of powers.  Because we conclude that the trial court did not clearly err in terminating appellant's parental rights and because appellant's constitutional challenges lack merit, we affirm. 

FACTS

            Appellant T.A.M. and her husband, J.B., are parents of a son, D.B., born in April 2002.  In December 2002, respondent Scott County Human Services Agency (SCHSA) received reports indicating that appellant "felt anxious and upset when she was alone with [D.B.] and he cried, had thoughts of hurting him, and was unable to adequately handle a choking incident with her son on December 2, 2002, when she was alone with him."  In response to that report and an overall concern regarding appellant's intellectual capabilities, psychological state, and parenting abilities, SCHSA filed a petition seeking to have D.B. adjudicated a child in need of protection or services (CHIPS) on December 9, 2002.[1] 

On December 19, 2002, appellant and J.B. entered a denial to the CHIPS petition.  The district court allowed D.B. to remain in the parental home, but placed him under the temporary protective supervision of SCHSA.  A guardian ad litem was appointed and services were ordered for appellant, including intellectual and psychological evaluations and a family assessment. 

SCHSA filed a case plan on January 13, 2003, stating that child protection services were necessary due to concerns about appellant's parenting ability.  On January 23, 2003, pursuant to agreement between the parties, the court ordered that appellant not be left alone with D.B. for periods of time exceeding 45 to 60 minutes.  The court also ordered appellant to follow the recommendations in the case plan, including participating in psychological and neurological evaluations and following recommendations made by the evaluators, undergoing a complete physical examination, participating in parenting education, and agreeing not to harm D.B.  Appellant commented regarding the case plan:  "I do not agree with most of this."  

A second report alleging neglect of D.B. was received by SCHSA in February 2003.  That report claimed that D.B. had severe diaper rash and open sores on his buttocks.  D.B.'s parents apparently acted appropriately in seeking medical help and in treating these conditions.  

At a CHIPS petition hearing in February 2003, appellant and J.B. entered a general admission to the petition with the understanding that the matter would be continued 90 days for dismissal under certain conditions.  A March 2003 order listed the conditions to be satisfied.  These included obtaining psychological and neurological evaluations and following recommendations made, cooperating with weekly visits from a public health nurse, participating in an early childhood family education program, attending a child CPR class, and promptly obtaining medical care for D.B. as necessary.   

            In April 2003, a domestic violence incident occurred between appellant and J.B.  Because D.B. was present when the incident occurred and because the home was messy and cluttered, SCHSA made a finding of maltreatment based on neglect. 

            At a review hearing in May 2003, the district court found that appellant had failed to complete a physical examination or to follow through with the neurologist's recommendations that she attend MINCEP Epilepsy Care, an epilepsy clinic.  Appellant had completed a psychological evaluation,[2] but she failed to follow the psychologist's recommendations that she participate in a dialectical behavioral therapy (DBT) group and complete a medication assessment.  At the May 2003 hearing, the court entered a CHIPS adjudication.

            On October 29, 2003, a social worker and the guardian ad litem observed 18-month-old D.B. sitting outside his home unsupervised and without appropriate outerwear.[3]  Based on that incident and "the alleged history of poor supervision and neglect by the parents, and the parents' failure to cooperate with social services," D.B. was removed from his home and placed in emergency protective care.  Within a few days, he was placed in the home of his paternal grandparents and has remained in their care ever since. 

At an emergency protective care hearing held on November 13, 2003, the court ordered that D.B. was to remain in the custody of SCHSA and that the parents cooperate in establishing an out-of-home placement plan.  Under this plan, adopted in January 2004 and revised in March 2004, appellant

was ordered to follow the recommendations of her psychological evaluation, receive services from MINCEP (an epilepsy clinic), not have any incidents of domestic violence, keep the home clean, participate in an infant CRP [sic] class, complete a family assessment, participate in parenting education, sign treatment releases, and submit to three random UAs.

 

The goal of the plan "was to reunify the child with the parents or principal caretakers."  Appellant signed the plan, indicating that she "did not agree with all of it." 

            On November 14, 2003, police responded to another domestic violence incident between appellant and J.B. at their home.  The couple was evicted from that home in February 2004, and the record indicates that appellant has not maintained stable housing since being evicted.  She spent some time at a women's shelter, but was asked to leave when she failed to follow the rules.  She has moved frequently, staying with friends, relatives, or just "on the street." 

            On April 22, 2004, SCHSA filed a termination of parental rights (TPR) petition.  After a hearing in August 2004, the court made 63 findings and concluded that SCHSA had not made "sufficient reasonable efforts to prevent placement and reunify the child with his mother," and noted the restrictions on the duration and conditions of appellant's parenting time, the atmosphere of distrust and hostility under which the parenting time was conducted, the awkwardness of location and environment for the parenting time, and the failure to increase the duration of the parenting time and relax the conditions during the course of SCHSA's involvement.  The court ultimately concluded that SCHSA had failed to establish any of the bases for terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b) (2004), and dismissed the petition.[4]  The court also ordered that the permanency placement aspects of the proceeding be continued for six months beyond the statutory guidelines to October 29, 2004. 

            At a CHIPS disposition hearing in October 2004, appellant reported that she was living at a St. Paul women's shelter and was working as a telemarketer.  She continued to miss many of her scheduled visits with D.B.  A social worker and D.B.'s guardian ad litem reported that appellant was not cooperative and had yet to complete the requirements of her previous case plans.  The court ordered appellant to follow the case plan, provide medical, psychological, employment, and housing information releases, complete an infant CPR class, participate in dialectical behavioral treatment (DBT) classes and counseling, cooperate with a public health nurse to update her parenting skills, obtain an evaluation from MINCEP, attend visitation with D.B., maintain employment, and obtain safe and clean housing. 

At a review hearing in November 2004, a social worker, a child protection worker, and D.B.'s guardian ad litem submitted reports indicating that appellant had become homeless after she was asked to leave the women's shelter, was still without employment, that her representation to the court in October that she had obtained employment was, in fact, not truthful, that she had not made any efforts to complete DBT classes, that she had allegedly slapped a visitation supervisor, that she failed to follow through with the MINCEP evaluation, that she continued to miss and be late for her visits with D.B., and that she failed to stay in touch with SCHSA.  Once more, the court ordered the parties to continue to follow the case plan and again ordered appellant to enroll in DBT classes, provide urinalyses, obtain an evaluation through MINCEP, attend visitation with D.B., obtain and maintain employment, and obtain permanent, safe, and clean housing.  SCHSA's motion to be relieved from providing any further efforts toward reunification and from providing any further services to appellant was denied at this hearing.  

On December 17, 2004, SCHSA filed a second TPR petition.  At a hearing on December 23, 2004, case workers reported that appellant was still homeless, had not participated in a DBT group or in a MINCEP evaluation, had not obtained employment and still failed to regularly attend scheduled visits with D.B.  SCHSA's renewed motion to cease providing efforts toward reunification was denied. 

At a pretrial hearing on February 3, 2005, appellant reported that she was temporarily living with her mother at her grandmother's apartment and had attended visitation, but had not found employment or housing.  Additionally, she had not arranged to complete the DBT group and MINCEP evaluations.  The court granted her request to increase visitation from one three-hour visit to two two-hour visits per week.  Due to appellant's history of missing visits, the court required her to call and confirm each visit a day in advance.  The child protection worker sent appellant a letter at her grandmother's address explaining this confirmation requirement.  The record indicates that appellant received that letter. 

The district court judge who presided over the earlier TPR hearing that had resulted in dismissal of the petition also presided over the hearing on the second TPR petition held in March 2005.[5]  Testimony received from social workers, D.B.'s guardian ad litem, and a case aide revealed that appellant did not have a stable address or phone number, that she had made numerous unverifiable claims of employment, that she missed many of her scheduled visits with her son, that her parenting skills had not improved since the first hearing, and that she had resisted services offered to her.  When questioned about the services offered to appellant, a child protection worker explained, "I have attempted to help them with services and each time I have attempted I have in no uncertain terms been told to not bother working with them as far as services." 

Testimony was also received from the psychiatrist who examined and diagnosed appellant in 2003.  He testified that appellant's conduct was consistent with his earlier diagnosis, that she was depressed, and that her behavior showed indicia of antisocial and histrionic personality traits.  He reiterated his earlier treatment recommendations of a medication assessment and DBT group, but added that even if appellant followed treatment recommendations, her ability to satisfactorily parent would nonetheless be "questionable."  The record indicates that appellant failed to complete the DBT group.  As of the time of this hearing, appellant had also not received the court-ordered evaluation from MINCEP.  The record reflects that although the clinic expended extensive efforts to evaluate appellant, she refused to cooperate with the clinic in scheduling an appointment. 

The district court set forth 83 extensively detailed findings of fact after the hearing, and concluded that termination of appellant's parental rights was appropriate under Minn. Stat. § 260C.301 (2004) because SCHSA demonstrated by clear and convincing evidence that appellant was palpably unfit to be a parent under subdivision 1(b)(4); that following D.B's placement out of the home, reasonable efforts failed to correct the conditions leading to the placement under subdivision 1(b)(5); and that D.B. was neglected and in foster care under subdivision 1(b)(8).  The court stated that since dismissal of the first TPR petition, the county had made reasonable efforts to reunify D.B. with his mother.  SCHSA representatives had offered appellant assistance and services.  Additionally, SCHSA replaced the case aide with whom appellant did not get along.  The agency provided bus passes and gas cards for appellant to use for transportation to and from her visits with D.B.  Appellant was also assigned a new social worker.  The court concluded that it was in D.B.'s best interests for appellant's parental rights to be terminated. 

Appellant challenges each of the district court's three bases for terminating her parental rights.  Her argument particularly focuses on the alleged failure of SCHSA to provide reasonable services to reunify her with her son.  Appellant also alleges that the statutory permanency deadlines are unconstitutional. 

D E C I S I O N

 

            Our review of the district court's decision to terminate parental rights is "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).  We afford considerable deference 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).  But while appellate courts defer to the trial court's findings, we exercise great caution in proceedings to terminate parental rights.  In re Welfare of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004).  Indeed, parental rights are to be terminated only for grave and weighty reasons.  Id. 

            District 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).  Proof of one criterion is sufficient, but the primary consideration in any termination proceeding is the best interests of the child.  Id., subd. 7 (2004).  The petitioner must prove one or more of the criteria by clear and convincing evidence.  See In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).  District courts must make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  

I.

            Parental rights may be terminated based on clear and convincing evidence that a parent is "palpably unfit" in that the parent demonstrates

a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be 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.

 

Minn. Stat. § 260C.301, subd. 1(b)(4); In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). 

            Here, the record indicates that appellant had mental and physical health issues and that she failed to comply with court orders requiring her to address those issues.  A psychological evaluation recommended that she participate in a DBT group and the district court underscored that recommendation in its October and November 2004 orders.  Appellant failed to complete that treatment.  The court also repeatedly ordered appellant to complete seizure treatment at MINCEP, an epilepsy clinic.  Although appellant contacted MINCEP several times, the court found that she cancelled many appointments, once by falsely claiming she was pregnant, and was "highly manipulative and belligerent towards multiple staff members, having inappropriate angry outbursts despite staff attempts to help [appellant]." 

            The district court also found that appellant could not appropriately care for D.B. given that she failed to "even meet her own employment, financial and housing needs."  Appellant had not obtained a job nor did she have any income source since the first TPR hearing.  Without permanent housing, she stayed in shelters and with family members.  Although appellant testified that she had been staying in various hotels with her mother, the court found her testimony "not completely credible" because in that same time period, she had claimed to be living in many different places.

            In reviewing the extensive record in this case, we note with a certain concern that involvement of SCHSA with appellant and D.B. was initiated on bases that may be described as fairly benign.  That involvement led, however, to orders of the court directed at assisting appellant and unifying the family.  A case plan was developed, and while appellant may not have been wholly satisfied with the directives of that case plan, she did not formally challenge any of those directives.  Any concerns this court may have about the rather frail bases for initial involvement of welfare officials in this matter, however, are assuaged by the frequent, extensive, and conscientious involvement of a single district court judge in the many court appearances and hearings occurring over a period of more than 18 months in this case.  That judge presided over both TPR proceedings, each of which raised clear credibility issues.

Our careful review of the record indicates that when the district court dismissed the first TPR petition after a hearing, it gave credence to appellant's testimony explaining why she was unable to meet her various obligations under the out-of-home placement plan.  The record indicates with equal clarity that at the hearing on the second TPR petition the district court was reluctant to grant that same credibility to appellant's testimony.  The court emphasized appellant's fabricated or unverifiable claims of employment and pregnancy.  Because a district court generally is in a "superior position to assess the credibility of witnesses" and because this district court in particular had such extensive familiarity with appellant's case, we defer to the court's appraisal of appellant's credibility.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). 

            Appellant argues on appeal that her low I.Q. should weigh against terminating her parental rights.[6]  This argument, however, was never raised before the district court.  This court is reluctant to consider issues that were not presented to or decided by the district court, and we decline to address here the alleged impact of appellant's I.Q. level on her ability to parent.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

            In addressing the statutory criteria, the district court underscored appellant's continued failure to seek help for her mental and physical problems and her inability to obtain housing or employment, and how the failure to remedy these conditions rendered her unable to care for D.B.  Testimony from numerous witnesses, including case protection workers, case aides, D.B.'s guardian ad litem, a psychologist, and a neurologist, expressed grave doubts that appellant could satisfactorily parent D.B.  Each of these witnesses testified regarding the substantial obstacles appellant faces in meeting D.B.'s needs and her failure to meet or address those obstacles.  We conclude that the district court's determination that appellant was palpably unfit to parent D.B. is supported by substantial evidence in the record and is therefore not clearly erroneous. 

II.

In any TPR proceeding under Minn. Stat. § 260C.301 (2004), the court must make findings and conclusions regarding the provision of reasonable efforts or must find that the provision of services is not required or would be futile.  Minn. Stat. §§ 260.012(a), (c), 260C.301, subd. 8 (2004).  "The nature of the services which constitute ‘reasonable efforts' depends on the problem presented."  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996). 

When determining whether reasonable efforts have been made, the court shall consider whether services to the child and family 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). 

In addition, reasonable efforts are expressly required for terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).  This statutory provision requires that parental rights may be terminated only on a showing by clear and convincing evidence "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."  Minn. Stat. § 260C.301, subd. 1(b)(5); J.S., 470 N.W.2d at 701.  It is presumed that reasonable efforts have failed upon a showing that:  (1) a child resided out of the parental home under court order for 12 months within the preceding 22 months; (2) the court approved the out-of-home placement plan; (3) conditions leading to out-of-home placement have not been corrected, which is presumed upon a showing that the parent has not substantially complied with a court's orders and a reasonable case plan; and (4) reasonable efforts are made by the social services agency to rehabilitate the parent and reunite the family.  Id.  Also, a prior adjudication of need for protection or services is a necessary prerequisite to termination of parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).  Id., subd. 6.   

Appellant argues that SCHSA neither offered nor provided her any assistance beyond gas cards and bus passes.  We cannot agree. 

The district court's decision denying the first TPR petition criticized the SCHSA for failing to undertake reasonable efforts to reunify appellant and D.B.  But when the district court granted this second TPR petition, it specifically explained that the deficiencies in SCHSA's efforts had been remedied since the court's previous decision. 

The record indicates that SCHSA's efforts addressed the problems that the district court described in its previous order.  SCHSA replaced the case aide with whom appellant did not get along, provided bus passes and gas cards to assist appellant in overcoming her transportation problems, assigned her a new social worker to help her satisfy the court order, and offered appellant assistance and services.  Despite the fact that SCHSA representatives remedied the efforts that the court had previously found to be lacking, appellant nonetheless failed to comply with the court's order. 

Appellant argues that SCHSA representatives had very little contact with her since the previous trial.  But the record indicates that appellant failed to comply with the court's order requiring her to update SCHSA with her contact information.  The fact that a child protection worker successfully reached appellant by mailing a letter to her grandmother's house does not indicate that SCHSA representatives actually knew where appellant was staying.  Furthermore, even when a SCHSA representative was in contact with appellant, testimony indicates that she rebuffed that representative's efforts to discuss available services. 

Appellant also implies that SCHSA did not provide reasonable efforts because it twice asked the court to allow it to discontinue providing services.  Appellant cites no statutory basis or caselaw to support this argument.  Minnesota law provides that a social services agency's obligation to provide reasonable efforts at reunification can be lifted under certain circumstances.  See Minn. Stat. § 260.012(a), (c).  Even where the district court allows the county to stop providing services, a reviewing court may still conclude that the county provided reasonable efforts at reunification.  See In re Children of T.A.A., 702 N.W.2d 703, 707-10 (Minn. 2005).  Here, the district court denied both of SCHSA's requests to cease reasonable efforts.  We reject appellant's assertion that a request to discontinue services necessarily renders inadequate the services that were provided. 

Here, D.B. was adjudicated CHIPS in September 2004.  The record indicates that (1) D.B. resided outside of the parental home under court order for over 12 of the preceding 22 months; (2) the court approved the out-of-home placement plan in January 2004; and (3) appellant did not reasonably comply with the court's orders.  In addition, substantial evidence supports the district court's conclusion that SCHSA made reasonable efforts to reunify appellant and D.B.  Therefore, we conclude that the district court did not clearly err by finding that those reasonable efforts failed to correct the conditions leading to D.B.'s placement. 

III.

Parental rights may be terminated if clear and convincing evidence shows that a child is neglected and in foster care.  Minn. Stat. § 260C.301, subd. 1(b)(8); J.S., 470 N.W.2d at 701.  "Neglected and in foster care" refers to a child:

(a)       Who has been placed in foster care by court order; and

(b)       Whose parents' circumstances, condition, or conduct are such that the child cannot be returned to them; and

            (c)       Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

 

Minn. Stat. § 260C.007, subd. 24 (2004). 

 

            D.B. was placed in foster care by court order on October 29, 2003.  The district court found that appellant did not have and has not demonstrated the ability to obtain housing or employment.  She has not provided financial support for D.B.  And she has refused services made available to her.  The court also noted that "[a]lthough [appellant] has continued to participate in visitation with [D.B.], she frequently misses visitation to the extent that she has willfully failed to meet reasonable expectations with regard to visiting the child."  The record supports the district court's findings.  

            Appellant defends her attendance record at the visitations and argues that she "did not fail to visit the child."  As noted above, however, the court acknowledged that she continued to participate in visitation.  But her participation in visitation does not nullify the ultimate conclusion of the district court that D.B. was neglected and in foster care.  That conclusion is supported by substantial evidence in the record and therefore is not clearly erroneous.

IV.

            Because a child's best interests are the paramount consideration in proceedings to terminate parental rights, the district court may only terminate parental rights if the record shows that termination is in the child's best interests.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 722-24 (Minn. 1998).  "In analyzing the best interests of the child, the 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 the child."  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  "Where the interests of the parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7 (2004). 

            Here, the district court made extensive factual findings describing appellant's and D.B.'s circumstances and concluded that "[t]he best interests of [D.B.] clearly dictate that [appellant's] parental rights should be terminated."  The court noted appellant's ongoing mental health problems, failure to obtain housing or employment, resistance to services, unimproved parenting skills, and continued factual misrepresentations.  The court went on to explain that D.B. has lived with his paternal grandparents since he was removed from appellant's home in October 2003 and that all of the professionals involved in D.B.'s case reported that he was thriving there. 

            Because clear and convincing evidence supports terminating appellant's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4), (5), (8), and because the evidence appears to support the court's conclusion that termination is in D.B.'s best interests, the district court did not clearly err in terminating appellant's parental rights.

V.

Appellant argues that the statutory permanency deadlines violate the constitutional doctrines of due process and separation of powers.  She refers to both the deadline for filing a petition to terminate parental rights under Minn. Stat. § 260C.301, subd. 4, and the deadline for permanent placement determination under Minn. Stat. § 260C.201, subds. 11, 11a (2004), as the "permanency statute."  Minn. Stat. § 260C.301, subd. 4, states that except in certain specified circumstances, "the county attorney shall file a termination of parental rights petition or a petition to transfer permanent legal and physical custody to a relative under section 260C.201, subdivision 11, for all children who have been in out-of-home care for 15 of the most recent 22 months."  In relevant part, Minn. Stat. § 260C.201, subd. 11(a), states that, except in specified situations, "where the child is in foster care or in the care of a noncustodial parent under subdivision 1, the court shall conduct a hearing to determine the permanent status of a child not later than 12 months after the child is placed in foster care or in the care of a noncustodial parent."  Subdivision 11a applies to children under eight years of age at the time the petition was filed and requires court review of the case six months after the child's out-of-home placement.  Minn. Stat. § 260C.201, subd. 11a(a).   

Appellant raises her challenge to Minn. Stat. § 260C.301, subd. 4, for the first time on appeal.  We decline to address this challenge because it was not argued or considered in the court below.  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) (citing In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981)). 

Appellant argues that Minn. Stat. § 260C.201, subds. 11, 11a, are unconstitutional because they deprive appellant of due process of law and violate the separation of powers.  We reject these arguments for two reasons.  First, because these arguments are inadequately briefed and lack adequate citation, we decline to address them.  State, Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997); Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).  Second, to the extent we understand the arguments, they seem to misconstrue Minn. Stat. § 260C.201, subds. 11, 11a, as transmuting the burden placed on the county to show the existence of a basis for terminating parental rights to a burden on the parent to show his or her fitness.  Here, the district court extended the statutory timelines for determining D.B.'s permanency status on more than one occasion.  Moreover, as explained above, the petitioner county clearly has the burden of proving at least one of the statutory criteria in Minn. Stat. § 260C.301, subd. 1(b), by clear and convincing evidence before a court will terminate a person's parental rights.  Minn. Stat. § 260C.301, subd. 7; In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).  Appellant fails to explain if or how Minn. Stat. § 260C.201, subds. 11, 11a, shifts or affects that burden. 

            Affirmed.

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

[1] Appellant voluntarily terminated her parental rights to another child in April 2002.  SCHSA noted the prior termination in its CHIPS petition. 

[2]  The diagnosis was that appellant had histrionic personality, dysthymic, and generalized anxiety disorders.

[3] It appears from the record that D.B. was in the exclusive care of his father at the time of this incident.

[4] The court also entered a second CHIPS adjudication after the April hearing, concluding that at the time of the earlier CHIPS determination, "[b]ecause the parents disputed the adjudication . . . and the Court and the State seemed to recognize that the parents were contesting the adjudication, there was not a clear and proper adjudication."  There was no attempt by appellant to seek review of the first CHIPS adjudication.

[5] This hearing involved only appellant; J.B. had earlier agreed that his parental rights were to be terminated, conditioned upon the termination of appellant's parental rights.

[6]  There is an indication in the record that appellant's I.Q. is 85.  While early petitions in this proceeding expressed certain concerns about appellant's intellectual capabilities, the record is otherwise silent on that issue.