In the Matter of the Welfare of the Child of: S.L.C. and A.C., Jr., Parents.

In the Matter of the Welfare of the Child of: S.L.C. and A.C., Jr., Parents. A06-553, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A06-553

 

In the Matter of the Welfare of the Child of: S.L.C. and A.C., Jr., Parents

 

Filed November 14, 2006

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. 252619/J1-04-057327/J5-04-065723

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellants S.L.C. and A.C., Jr.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue South, Minneapolis, MN  55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Bruce Jones, Nancy Hylden, Faegre & Benson, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55403-3901 (guardian ad litem Nancy Lange)

 

            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            Appellant-parents appeal district court orders terminating their parental rights, denying a motion to transfer custody to a relative, and denying a motion for a new trial, arguing that the district court (1) failed to independently review the evidence and improperly adopted the county's proposed findings, which are not supported by the record; (2) improperly refused to transfer legal custody of the child where the county failed to adequately pursue a relative placement; (3) improperly terminated parental rights based solely on the parents' incarceration; (4) erred in determining that the evidence supported termination of parental rights and that termination is in the child's best interests; and (5) denied mother due process by (a) accepting an invalid waiver of her right to testify; and (b) denying her a new trial.  We affirm.

FACTS

            D.J.C. was born to S.L.C. (mother) on January 7, 2003.  In May 2004, the Hennepin County Human Services Department (the county) filed a petition alleging that the child was a child in need of protection or services (CHIPS).  The petition alleged that mother was in jail on robbery charges and had left the child with his alleged father, A.C., Jr. (father).  Father left the child in the care of relatives, but he was later arrested, and, as a result, he did not return to pick up the child.  A relative placed the child in a crisis nursery.  After an emergency protective-care hearing, where neither mother nor father appeared, the district court issued an order for protective care and out-of-home placement, which offered mother an interim case plan that required her to complete a chemical-dependency assessment and a parenting assessment and to submit to urinalysis.  The district court ordered the county to conduct a kinship search to identify possible placement options for the child. 

            On October 26, 2004, the county filed a petition to terminate appellants' parental rights.  The petition listed father as the presumed father and stated that he had signed a recognition of parentage in August 2004.  On October 28, 2004, mother appeared at a pretrial hearing on the CHIPS petition, waived her right to a trial, admitted the allegations in the petition, and denied the allegations in the termination-of-parental-rights (TPR) petition.  The district court adjudicated the child a child in need of protection or services and ordered the county to complete its investigation of relative placements.  On January 11, 2005, the district court established the case plan that mother was required to successfully complete to regain custody of the child.  The plan required mother to complete parenting and mental-health assessments, visit the child weekly, maintain contact with her social worker, and remain law-abiding. 

            At the pretrial hearing on the TPR petition, counsel appeared on behalf of mother, who was not present, and father appeared with counsel.  Father entered a denial, but did not object to the county being relieved of the responsibility for providing a case plan for reunifying him with the child.  The district court relieved the county of the responsibility for making reasonable efforts to provide a reunification case plan and denied father's request for visitation, noting that the county and the guardian ad litem believed that telephone visitation with such a young child would not be meaningful.  Mother, who was in federal prison in Texas, filed motions requesting transfer of legal and physical custody of the child to a relative, asserting that named relatives were ready, willing, and able to take custody of the child.  The county then filed a motion to amend the TPR petition to add another statutory basis for terminating parental rights, which the district court granted. 

            Following a trial, the district court terminated mother's and father's parental rights and denied mother's motions for a transfer of custody.  Mother and father moved for a new trial, and the district court denied the motion.  This appeal challenges the orders terminating parental rights, denying mother's motions to transfer custody, and denying a new trial.

D E C I S I O N

I.

Appellants argue that because the district court adopted the county's proposed findings almost verbatim, its findings are not the product of an independent determination of the facts, which violates their due-process right to an impartial decision-maker and a reasonable decision based on the record.  Appellants also argue that the findings misstate the evidence and ignore contrary evidence.

A proper termination order includes detailed and specific findings that are sufficient to provide an appellate court with a meaningful opportunity for review.  In re Welfare of M.J.L., 582 N.W.2d 585, 588 n.3 (Minn. App. 1998).  Verbatim adoption of a party's proposed findings is a disfavored practice.  See Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002) (noting that verbatim adoption of proposed findings is not commendable and that preference is for district court to independently develop findings); see also In re Children of T.A.A., 702 N.W.2d 703, 707 n.2 (Minn. 2005) (acknowledging short deadline for order on TPR petition but noting that preferred practice is for district court to draft its own findings rather than adopt proposed findings).  On allegations that the district court has adopted proposed findings verbatim, a reviewing court conducts a "careful and searching review of the record."  Dukes v. State, 621 N.W.2d 246, 258 (Minn. 2001).  If, after this careful review of the record, the reviewing court concludes that the district court's findings are not clearly erroneous, the verbatim adoption of proposed findings alone is insufficient grounds for reversal.  Id. at 258-59. 

            Appellants' assertion that the district court did not independently review the record is without merit.  Comparing the county's proposed findings with the district court's order reveals that the district court made significant changes to a number of the county's proposed findings, and the district court did not include egregious harm as a basis for terminating parental rights, which was a basis for termination that was included in the proposed order.  The district court discharged its duty to independently review the evidence and make findings of fact. 

            Appellants' claim that the findings misstate the evidence and ignore contrary evidence is also without merit.  Appellants contend that the district court (a) improperly relied on stale evidence about appellants' behavior before the child's birth and before their incarceration; (b) unfairly faulted appellants for failing to act when their incarceration prevented them from acting; and (c) drew unsupported conclusions about appellants' inability to parent now and in the foreseeable future.  But the district court's findings are supported by the evidence.  The fact "[t]hat the record might support findings other than those made by the trial court does not show that the court's findings are defective."  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). 

            Finally, appellants claim that a number of findings are based on "evidence that should not have been admitted."       But the evidence relied on by the district court was introduced and received at trial without objection.  Absent an objection to the evidence and an argument in the new-trial motion challenging the district court's admission of the evidence, appellants have waived their right to challenge on appeal the district court's admission of the evidence.  See In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990) ("Generally, to preserve issues, including evidentiary rulings, arising during the course of a trial, counsel must make timely objections and move for a new trial.").

            Because appellants failed to object to admission of the evidence relied on by the district court, the record demonstrates that the district court independently reviewed the evidence and crafted specific findings, and the evidence supports the district court's findings, appellants are not entitled to relief on their claim that the district court did not independently determine facts based on the evidence. 

II.

            Appellants argue that the district court abused its discretion in denying mother's motions to transfer custody of the child to one of the relatives that mother identified in her motion, the district court did not require the county to satisfy its statutory obligation to pursue placement with a relative, and the district court's findings of fact on this issue are deficient.  Appellants contend that pursuant to Minn. Stat. § 260C.201, subd. 11 (Supp. 2005), and Minn. Stat. § 260C.201, subd. 11a (2004), if a child cannot be returned to the child's natural parent, the court must consider permanent placement with a relative. 

            But appellants do not explain why the disposition options provided under Minn. Stat. § 260C.201, which apply to children who are in need of protection or services or are neglected and in foster care, must be applied in this termination proceeding.  The statute governing dispositions when parental rights are not terminated states:

            If, after a hearing, the court does not terminate parental rights but determines that the child is in need of protection or services, or that the child is neglected and in foster care, the court may find the child is in need of protection or services or neglected and in foster care and may enter an order in accordance with the provisions of section 260C.201.

 

Minn. Stat. § 260C.312(a) (Supp. 2005).

            After a hearing, the district court terminated appellants' parental rights.  Consequently, the district court did not enter an order in accordance with the provisions of section 260C.201, and there is no reason why the permanent-placement options under section 260C.201 apply.  Instead, the termination statute provides:

            If the court terminates parental rights of both parents . . . , the court shall order the guardianship and the legal custody of the child transferred to:

                        (a)       the commissioner of human services; or

                        (b)       a licensed child-placing agency; or

                        (c)       an individual who is willing and capable of assuming the appropriate duties and responsibilities to the child.

 

Minn. Stat. § 260C.325, subd. 1 (2004).  Under this statute, when the district court terminated appellants' parental rights, the district court was not required to consider permanent placement with a relative.

III.

            Appellants argue that the district court erroneously terminated their parental rights based soled on the fact that they were incarcerated.  By itself, incarceration is an insufficient basis for terminating parental rights, but it is a factor that the district court may consider along with the other evidence offered in a TPR case.  In re Welfare of A.Y.J., 558 N.W.2d 757, 761 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  The district court did not terminate appellants' parental rights solely because appellants were incarcerated; it determined that appellants' parental rights should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(2) (2004), because appellants "have substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon them by the parent and child relationship"; under Minn. Stat. § 260C.301, subd. 1(b)(4), because appellants "are palpably unfit to be a party to the parent and child relationship"; under Minn. Stat. § 260C.301, subd. 1(b)(5), because "following a determination of the child's need for protection or services, reasonable efforts, under the direction of the Court, have failed to correct the conditions leading to the determination"; under Minn. Stat. § 260C.301, subd. 1(b)(8), because "the child is neglected and in foster care"; and under Minn. Stat. § 260C.301, subd. 1(b)(7), because "the child was born to a mother who was not married to the child's father when the child was conceived or when the child was born, and there is no person entitled to notice of an adoption hearing under § 259.49 and no person who has filed a notice of intent to retain parental rights under § 259.52." 

            Appellants argue that because the county failed to prove that the child was maltreated, neglected, or abused or that the criminal activity that lead to appellants' incarceration was directed at the child or related to the day-to-day activities of parenting, the sole rationale for terminating their parental rights was their incarceration for crimes totally unrelated to their ability to parent.  But this argument is based on the premise that the county failed to prove any statutory basis for terminating parental rights, which is a separate argument made by appellants that we will address separately.

IV.

            Appellants argue that the county failed to prove by clear and convincing evidence any of the statutory grounds for termination and that termination is in the child's best interests.  Parental rights may only be terminated "for grave and weighty reasons."  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  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).  "Termination of parental rights will be affirmed as long as at least one statutory ground for termination is supported by clear and convincing evidence 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); seeMinn. Stat. § 260C.301, subd. 1(b) (providing grounds for termination of parental rights); Minn. Stat. § 260C.301, subd. 7 (2004) (providing that best interests of child is paramount consideration).

            On appeal from an order terminating 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) (citing M.D.O., 462 N.W.2d at 374-75).  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).  But we "closely inquire into the sufficiency of the evidence to determine whether it was clear and convincing."  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).           

            Appellants argue that the evidence of their past behavior relied on by the district court was stale and irrelevant.  Appellants contend that this "ancient history" was "improperly admitted over the parents' objection."  But, as we have already discussed, the evidence regarding appellants' past behavior was included in exhibits that were received without objection.  And to the extent that appellants objected to the testimony regarding mother's history of chemical dependency, the grounds were foundation, not relevance.

            The evidence offered in support of a TPR petition must address conditions existing at the time of the hearing.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  "When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent's inability to care for his or her child."  S.Z., 547 N.W.2d at 893 (quotations omitted).  It must appear likely that the conditions leading to termination will continue for an indefinite and prolonged period.  P.R.L., 622 N.W.2d at 543.  But although the evidence must address current conditions, this does not mean that the parents' past conduct is irrelevant.  Some of the statutory grounds for termination require the court to examine past conduct.  See Minn. Stat. 260C.301, subd. 1(b)(4) (providing that in determining whether parent is palpably unfit, court considers duration and nature of pattern of conduct or conditions).  In order for a district court to predict a parent's future ability to parent the child, the court must consider current conditions in the context of the history and patterns of the parent's conduct.  See S.Z., 547 N.W.2d at 893-94 (discussing father's history of mental illness as it relates to current and future ability to parent).  Therefore, the district court properly considered appellants' history when determining whether to terminate their parental rights. 

            The district court concluded that appellants' parental rights should be terminated on the statutory ground that appellants are palpably unfit to be a party to the parent-and-child relationship.  Parental rights may be terminated upon a showing

that a parent is palpably unfit to be a party to the parent and child relationship because of 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). 

            The district court found that appellants "have demonstrated a consistent pattern of criminal conduct and chemical dependency that renders them unavailable to parent [the child] in the foreseeable future."  Appellants have both been incarcerated for a significant portion of the child's life as a result of their recent criminal behavior.  Their recent criminal behavior is part of a pattern of illegal activity that has occurred over a lengthy period.  Father has been convicted of controlled-substance and criminal-sexual-conduct offenses.  When he was arrested after leaving the child in the care of relatives, police detected a strong odor of alcohol coming from his vehicle and saw several open cans of beer in plain sight on the floor of the vehicle.  There was also an open can of beer in the vehicle that was ice cold and three-fourths full.  During the inventory search of the vehicle, police found paraphernalia for using marijuana and a firearm, which father was prohibited from possessing because he is a felon.  Possession of the firearm is the offense for which father was incarcerated at the time of the trial on the termination petition.  During the presentence investigation for that offense, father acknowledged that if he had not been arrested when he was, he might have been involved in chemical use that evening.

            Presentence investigations conducted in connection with father's past offenses indicated that father had a long-term problem with alcohol and drug addiction and that his use of drugs contributed to his offense behavior.  In light of father's past offenses, father's conduct during the offense for which he is currently incarcerated supports the district court's finding that the current offense indicates that father "is a re-offense danger and that [the child] would be at risk in his care and custody."  The evidence supports the inference that father's long-term problem with alcohol and drug addiction and the criminal behavior associated with father's use of drugs and alcohol continued to exist at the time of the termination hearing.

            Mother also has a history of drug use.  She met father in a treatment program.  Mother previously transferred custody of her two older children to a relative because she was unable to care for them as a result of her drug use.  And mother stated to a county worker in May 2004 that she intended to undergo chemical-dependency treatment while she was incarcerated.  This evidence supports the district court's finding that although there is not evidence of mother's chemical health during the period between the child's birth and mother's arrest 14 months later, "[i]t is reasonable to conclude that chemical health has been and continues to be a serious problem for [mother]."  Furthermore, the incident that led to mother's current incarceration, bank robbery, occurred while mother was responsible for the child's care; it was not conduct in mother's past.      

            Finally, the district court found that following their arrests, both parents failed to demonstrate the level of interest in and concern for the child that a bonded parent would demonstrate.  Mother showed only sporadic and minimal interest in the child, and father failed to demonstrate even a minimal interest in the child.  These findings are supported by the evidence and support the determination that appellants are not able to care appropriately for the ongoing physical, mental, or emotional needs of the child.[1]

            The district court must also ensure that reasonable efforts have been made by the appropriate agency to reunite the child with the child's parents before terminating parental rights.  Minn. Stat. § 260C.001, subd. 3(1) (Supp. 2005); see Minn. Stat. § 260.012(f), (h) (Supp. 2005) (providing that reasonable efforts means due diligence in using appropriate and available services and stating courts must consider whether services were relevant, adequate, culturally appropriate, available, accessible, consistent, timely and realistic).  The district court is required to make findings regarding reasonable efforts in every case, even if the finding is that making efforts would be unreasonable or futile.  Minn. Stat. § 260C.301, subd 8 (2004); S.Z., 547 N.W.2d at 892.    

            Appellants contend that the county's efforts were not reasonable because appellants' incarceration status made it impossible for them to comply with case-plan requirements.  But the district court relieved the county of the responsibility for making reasonable efforts to provide father with a case plan for reunification, without any objection from father.  And the district court found that the county made reasonable efforts with respect to mother, but that due to her incarceration, mother was "unavailable to participate in rehabilitative services and to comply with her case plan."  The fact that mother was not available to comply with reasonable case-plan requirements supports the district court's finding that offering further services was futile.  The district court's findings are supported by the record and satisfy the district court's obligation to make findings regarding reasonable efforts.

            In any proceeding to terminate parental rights "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C .301, subd. 7.  The district court may not terminate parental rights unless it is in the child's best interests, even if other statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by J.M., 574 N.W.2d at 723-24.  But because parental rights are not absolute, they should not be enforced to the detriment of a child's welfare and happiness.  In re Welfare of Child of P.T. & A.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  Evaluating a child's best interests in termination proceedings requires the district court to balance the child's interests in preserving a parent-child relationship, the parent's interests in preserving a parent-child relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  A child's competing interests include health needs and interest in a stable environment.  Id.

            The district court concluded that termination is in the child's best interests based on its findings that no positive parent-child relationship or bond exists, the child is in need of a permanent and stable home, which appellants cannot provide in the foreseeable future, and the benefit of terminating parental rights, which frees the child for adoption, outweighs any detriment of severing the parent-child relationship.  These findings are supported by the record, and the district court did not err in determining that termination of parental rights is in the child's best interests. 

V.

            Mother argues that the termination-hearing procedures violated due process because she did not knowingly and voluntarily waive her right to testify.  At trial, mother's counsel stated that he had spoken with mother and that they proposed that opposing counsel accept a stipulation of certain facts on the record in lieu of her testimony.  When counsel for the other parties accepted the proposal, mother's counsel indicated that mother would not be testifying. 

            A party in a TPR trial has the right to present evidence, present and cross-examine witnesses, present arguments, and request sequestration of witnesses.  Minn. R. Juv. Prot. P. 39.03, subd. 2(a).  The district court is required to explain these basic trial rights to a parent who is not represented by counsel.  Id., subd. 1(f).  But mother does not cite any authority that requires the district court to determine on the record that a parent who is represented by counsel has knowingly and voluntarily waived the right to testify.  And due process does not require that a parent be physically present at a TPR trial.  A.Y.J., 558 N.W.2d at 759-60.

            Mother cites Minn. R. Juv. Prot. P. 35.03, subd. 3(a), to support her argument that the district court must determine on the record whether a party understands the right to testify before accepting a waiver.  But that rule applies when the court is accepting an admission, and mother did not admit facts; she chose to not testify while still putting the county to its burden of proving the grounds for termination.  See Minn. R. Juv. Prot. P. 35.03, subd. 3(a) (providing that before the district court may accept a party's admission of the statutory grounds set for in the petition, the court must determine whether the person understands the right to testify and other rights).  Consequently, that rule did not require the district court to determine on the record that mother knowingly and voluntarily waived her right to testify.   

VI.

            Mother argues that the district court denied her due process by refusing to grant her a new trial.  After the district court issued its TPR order, appellants moved for a new trial under Minn. R. Juv. Prot. P. 45.03(a)-(b), (g)-(h), arguing that the absence of a waiver of mother's right to testify was an irregularity in the proceedings, that the misconduct of her counsel contributed to or caused the irregularity, that the county failed to prove the statutory grounds for termination, and that the interests of justice required a new trial.

            Mother argues on appeal that based on the "significant procedural irregularities" in this case, the "judgment against her is void for want of due process."  But mother supports this argument with only a footnote that contains allegations that were not previously made and are not substantiated by the record.  And mother does not argue on appeal that she is entitled to a new trial on any of the other bases that were raised in the district court.  See Braith v. Fischer, 632 N.W.2d 716, 724 (Minn. App. 2001) (stating arguments raised for first time in reply brief are not properly before this court), review denied (Minn. Oct. 24, 2001).  Because there was no irregularity in the proceedings, the judgment is not void for lack of due process, and the district court did not violate mother's due-process rights in denying the motion for a new trial. 

            Affirmed.

[1] Because termination of parental rights will be affirmed if one statutory ground is proved by clear and convincing evidence, we will not address the other statutory grounds that the district court relied on to terminate appellants' parental rights.