State of Minnesota, Respondent, vs. James Alexander Gilligan, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA 
IN COURT OF APPEALS
C2-00-988

In the Matter of the Welfare
of the Child of: M.J.L.

Filed February 16, 2001 
 Affirmed 
 Crippen, Judge

Clay County District Court
File No. J39951003

Richard Edward Edinger, P.O. Box 1295, Fargo, ND 58107 (for appellant M.J.L.)

Lisa N. Borgen, Clay County Attorney, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent Clay County Social Services)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Holtan, Judge.

U N P U B L I S H E D   O P I N I O N

GARY L. CRIPPEN, Judge

Appellant M.J.L. challenges the sufficiency of the evidence for one of the critical issues addressed by the trial court in an order terminating appellant's parental rights. She further contends that the trial court erred in accepting evidence and making findings on appellant's parenting experience preceding a 1997 North Dakota trial court determination that her rights could not be terminated under North Dakota law. Because there is sufficient evidence to support the challenged findings of the trial court and because the facts preceding the July 1997 determination were not the basis for the current termination order, we affirm.

FACTS

On May 7, 1993, appellant M.J.L. gave birth to C.M.L. In February 1998, appellant and C.M.L. moved to Moorhead, Minnesota, from North Dakota. In March 1999, C.M.L. was admitted at Prairie Psychiatric Hospital for uncontrollable behavior. Clay County Social Services became involved after C.M.L. was admitted for the third time, and on April 2, 1999, after C.M.L. was admitted for the fourth time, she was removed from appellant's custody.

In June 1999, the trial court held that C.M.L. was "a Child in need of protection or services." Early in August 1999, the trial court ordered that C.M.L. remain in the custody of Clay County Social Services and that appellant (1) receive supervised visitation with C.M.L.; (2) participate in mental health services; (3) participate in therapeutic support at Lakeland Mental Health Center; and (4) participate in setting up a case plan.

From April through September of 1999 appellant had only one supervised visit with C.M.L. because she did not want to follow the supervision demands set by the court. Appellant resumed visitation on December 14, 1999; but she has refused to acknowledge the case plan. In addition, notwithstanding the fact that appellant has been diagnosed with bi-polar disorder, borderline personality disorder, narcissistic avoidant personality, and depression, she has stopped taking her prescribed medications.

On December 29, 1999, the state filed a petition to terminate appellant's parental rights. After eight days of testimony at trial proceedings held in March and April, the trial court terminated appellant's parental rights. The court premised its ruling on Minn. Stat. § 260C.301, subd. 1(b)(5) (Supp. 1999), which allows for termination when,

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.

Specifically, the trial court found that reasonable efforts had failed because appellant did not substantially comply with the trial court's orders and the case plan. This appeal followed.

DECISION

Sufficiency of the evidence

"In a termination proceeding, a petitioner has the burden of proving that there is a statutory ground for termination by clear and convincing evidence." In re Welfare of Clausen, 289 N.W.2d 153, 155 (Minn. 1980) (citation omitted).

[T]his court will continue to exercise great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result in accordance with statutory grounds.

Id. at 156 (quotation omitted). The reviewing court gives considerable deference to the trial court's decision because a trial 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) (citation omitted).

Appellant's challenge on the sufficiency of the evidence is confined to the statutory consideration that the parent has "not substantially complied" with the court's order and the case plan. [1] The court made an ultimate finding that substantial compliance had not occurred, adding that

unfortunately, those efforts have been unsuccessful and futile as [mother] has acted unreasonabl[y] in refusing to cooperate with Social Services during the period of time that [daughter] has been in the custody of Clay County Social Services.

The record supports this finding.

The trial court's order on August 3, 1999, required that appellant participate in setting up a case plan. Although a plan was in place in July 1999, appellant never approved it in spite of numerous requests by the county.

The order (as well as the case plan) required that appellant participate in therapeutic support through the Lakeland Health Center and in mental-health services. Appellant has been diagnosed with psychological conditions and behavioral disorders that relate to conduct contributing to the removal of C.M.L from appellant's home. But appellant's therapist at the Lakeland Health Center testified that appellant had no contact with her between April and September 1999. Appellant's first appointment for therapy at Lakeland was on September 14, 1999, and they met approximately six more times, with no contact after late October 1999. Although appellant was placed on medication to control her mental disorders, including her anger, she admits she is not currently taking her medications.

The court also ordered appellant to have supervised visits with C.M.L. But the record indicates that from April 1999 until early December 1999 (an eight-month period), appellant had only one supervised visit with C.M.L. because she refused to follow the visitation-supervision guidelines set by the county. Once supervised visits began on a weekly basis in December 1999, appellant failed to appear on some scheduled days and did not call to reschedule.

The trial court did not err in finding that this evidence clearly and convincingly showed that appellant did not comply with the trial court's orders or the case plan.

Appellant contends that the evidence and findings of non-compliance were inappropriate because (1) there was evidence that termination of her parental rights was considered as early as three weeks after her daughter was removed from the home, and (2) she was never informed that her failure to comply with the case plan would result in termination of her parental rights. Whatever considerations were entertained by social services personnel take nothing away from the strength of the court's finding that appellant did not substantially comply with the case plan. Respecting notice, case plans expressly advised appellant that her failure to correct conditions leading to the placement of her child could lead to loss of permanent custody through termination of her parental rights. It is evident that appellant refused to have contacts with staff regarding the initial case plan, but that a copy was then delivered to her attorney for her review. Appellant has not claimed that counsel failed to advise her of the warning or other parts of the case plan.

2. Full faith and credit, and collateral estoppel

In addressing appellant's history in parenting her daughter, the trial court heard evidence and made findings regarding many circumstances leading to unsuccessful efforts to terminate her parental rights in a North Dakota proceeding decided in July 1997. Reciting the doctrine of collateral estoppel and the constitutional concept of full faith and credit, appellant challenges the trial court's use of this evidence.

Appellant has failed to identify any significant effect the trial court's reference to the early history of the case in North Dakota has had on its current conclusions. See In re Welfare of D.M.D., 438 N.W.2d 713, 715-16 (Minn. App. 1989) (finding no need to apply collateral-estoppel doctrine where termination of parental rights was premised on events that occurred in Minnesota and Wisconsin, but adjudication was based solely on Minnesota's statutes and policies). Appellant does not suggest that the early history of her relationship with her daughter in North Dakota relate to the termination grounds cited by the trial courtthat appellant had failed to correct the conditions that led to her daughter's out-of-home placementbut rather the trial court impermissibly relied on the earlier history in concluding that she is permanently unable to take care of her daughter. See In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995) (stating that in any decision terminating parental rights, the court is not to rely primarily on the past history, but rather, on the projected permanency of the parent's ability to take care of the child). But it is evident that the trial court's permanency findings were premised on circumstances that were observed in Minnesota after the family arrived in this state. The trial court found that appellant's

mental illnesses * * * are chronic conditions which do not improve in the absence of intensive medical treatment and monitoring. * * * [Appellant] has prevented any effective treatment for her mental disorders, by refusing to take her medications and also by refusing to take any personal responsibility for her own wrongful actions.

We do appreciate the possibility that the family's history in North Dakota is directly related to another critical finding of the trial court, namely that termination of appellant's parental rights is in the best interest of the child. But appellant does not dispute the fact that the record regarding the events since February 1998 independently supports the court's best-interest-of-the-child finding.

However improper it was for the trial court to accept evidence and make findings regarding the family's history in North Dakota, the choice had a harmless consequence that does not materially affect the court's vital termination findings.

Affirmed.

Dated: February 16, 2001

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

[1] The relevant statute provides:

It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan.

Minn. Stat. § 260C.301, subd. 1(b)(5)(iii) (Supp. 1999). The failure to substantially comply with the court's orders and case plan is one of the four statutory elements of a broader presumption 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.

Id., subd. 1(b)(5) (Supp. 1999). The failure to correct the conditions leading to the child's placement is one of nine statutory grounds for terminating parental rights.

It is presumed that reasonable efforts under this clause have failed upon a showing that:
(i) a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months. In the case of a child under age eight at the time the petition was filed alleging the child to be in need of protection or services, the presumption arises when the child has resided out of the parental home under court order for six months unless the parent has maintained regular contact with the child and the parent is complying with the case plan;
(ii) the court has approved a case plan required under section 269C.212 and filed with the court under section 260C.178;
(iii) conditions leading to the out-of-home placement have not been corrected. It is presumed that conditions leading to a child's out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan; and(iv) reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family. Id., subd. 1(b)(5)(i)-(iv) (Supp. 1999).