In the Matter of the Children of:  M.T. and H.V. and In the Matter of the Children of: M.T. and D.H.H.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-64

 

 

In the Matter of the Children of:  M.T. and H.V.

and In the Matter of the Children of:

M.T. and D.H.H.

 

 

Filed August 24, 2004

Affirmed Willis, Judge

 

Mower County District Court

File Nos. J6-03-50303, J0-03-50491, J2-03-50492

 

Matthew John Arthurs, P.O. Box 6243, Rochester, MN  55903 (for appellant H.V.)

 

Patrick Flanagan, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney, 201 First Street NE, Austin, MN  55912 (for respondent Mower County Human Services)

 

Ann Coulson, 1001 18th Street SW, Austin, MN  55912 (guardian ad litem)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant father challenges the district court's order terminating his parental rights to his two children.  Appellant argues that his due-process rights were violated when he was not made a party to the proceeding as to one of the children until the day of trial, that the petition for termination of parental rights with regard to that child failed to state facts that would support termination of appellant's parental rights, and that termination of his parental rights as to both children is not in the best interests of the children.  Because we conclude that appellant's due-process rights were not violated, the petition meets the statutory criteria, and the record supports the district court's determination that termination of appellant's parental rights is in the best interests of the children, we affirm.

FACTS

M.T. is the mother and appellant H.V. is the father of a daughter, J.T., who was born August 16, 1993, and a son, B.V., who was born November 11, 1996.[1]  The record does not show that the parents ever married.  When this proceeding was initiated as to B.V. in May 2003 and as to J.T. in July 2003, appellant's paternity of J.T. had not been legally established.  But DNA testing conducted in July 2003 established with 99.99 percent certainty that appellant is J.T.'s biological father, and appellant admitted paternity on the first day of the trial of the consolidated proceedings.   

Appellant and M.T. met in 1992, in San Diego, California, and, after their children were born, lived there together with the children until appellant and M.T. separated in 2000.  The children then lived with appellant in San Diego until September 2001, when appellant and M.T. moved into separate residences in Austin, Minnesota.  After moving to Austin, B.V. lived with appellant, and J.T. lived with M.T.

In April 2002, Austin police were notified that B.V. was alone in a van parked in downtown Austin; appellant was found drinking in a nearby bar.  B.V. was placed on a 72-hour protective hold, and a maltreatment report was filed with Mower County Human Services (MCHS).  MCHS determined that there was no need for further protective services, and B.V. was returned to appellant's home.         

A second maltreatment report was filed in June 2002, when B.V. was found riding his bicycle unattended late at night near the Austin municipal swimming pool.  MCHS removed B.V. from appellant's home and placed him with M.T.  MCHS determined that because B.V. was no longer in appellant's home, no further protective services were needed.

Later in the summer of 2002, appellant was convicted of felony third-degree burglary and domestic abuse for a prior incident in which M.T. was the victim.  He received a 15-month stayed sentence for the burglary charge and a one-year stayed sentence for the domestic-abuse charge.  The conditions of appellant's probation included completion of anger-management training, abstaining from alcohol and other mood-altering drugs, random chemical testing, and no contact with M.T. without the permission of his probation officer.  Appellant violated his probation in early October 2002 by consuming alcohol.  Appellant's probation was not revoked, but he was required to spend 60 days in the Mower County jail and to complete a chemical-dependency assessment and any recommended chemical-dependency treatment.

Also in early October 2002, a third maltreatment report was filed after B.V., who was not supposed to be in appellant's custody, was found left alone in a van late at night in the parking lot of the Hormel Foods plant in Austin while appellant worked the night shift.  MCHS placed B.V. in emergency foster care and filed a petition alleging that he was a child in need of protection or services (CHIPS) with regard to both appellant and M.T.  A subsequent MCHS investigation revealed that appellant had physically abused his children.  Following proceedings on the CHIPS petition, the district court placed B.V. in the care of M.T., contingent on M.T. obtaining suitable daycare for the child; M.T. was unable to do so, and B.V. remained in foster care.  Case plans were prepared for both parents.  Appellant's case plan required him to complete anger-management and parenting classes, submit to a chemical-dependency assessment and successfully complete any recommended treatment, and submit to a psychological evaluation and undergo any recommended counseling. 

The psychologist who evaluated appellant reported that (1) appellant suffered from significant depression, anxiety, and social isolation requiring treatment, but appellant refused treatment; (2) appellant received little pleasure from being a parent and saw parenting as a chore; (3) there was a lack of appropriate bonding between appellant and his children due in part to appellant's alcohol use; and (4) appellant knew that his alcohol use negatively affected his relationship with his children.  Nevertheless, appellant continued to use alcohol.  

In March 2003, M.T. was able to find suitable daycare for B.V., and B.V. was again placed in her home.  But on April 25, B.V.'s daycare provider called MCHS to report that B.V. had been at daycare for 24 hours and that M.T. had not called to explain why she had not picked him up.  MCHS again placed B.V. in foster care.  A subsequent MCHS investigation showed that, unknown to M.T., both children had been sexually abused by an acquaintance of M.T.'s who, also unknown to her, was a registered sex offender.  MCHS removed J.T. from M.T.'s home and placed her in foster care.  

On May 9, 2003, MCHS filed a termination-of-parental-rights (TPR) petition, seeking to terminate both M.T.'s and appellant's parental rights to B.V.  In June, MCHS arranged for the genetic testing that ultimately showed a 99.99 percent likelihood that appellant is J.T.'s biological father.  On July 24, before the results of the genetic tests were known, MCHS filed a petition seeking to terminate both M.T.'s and appellant's parental rights to J.T.  The petition noted that J.T.'s biological father was unknown but that "there is a possibility" that appellant is her father and that appellant had undergone genetic testing to establish whether he is the father.  At an August 4 admit/deny hearing on both petitions, the TPR files were consolidated.  Both M.T. and appellant, who was present and represented by counsel at the hearing, entered denials to the petitions.

Between October 2002 and June 2003, appellant's compliance with his case plan had been poor, but in late June 2003, his compliance improved.  He began to participate in anger-management and parenting classes and began outpatient chemical-dependency treatment.  But on September 19, appellant again violated his probation by consuming alcohol.  The district court revoked appellant's probation and committed him to the commissioner of corrections for 15 months. 

The TPR trial regarding both children began on October 1, 2003.  Appellant was not served with a summons and the TPR petition regarding J.T. before trial.  But on the first day of trial, appellant admitted his paternity of J.T., the district court adjudicated him to be the father of J.T., and the district court ruled that appellant had standing to proceed in the TPR trial as to both B.V. and J.T.  On December 12, the district court issued an order terminating appellant's and M.T.'s parental rights to both children.  This appeal follows. 

D E C I S I O N

I.

            Appellant argues that the district court "erred by terminating [his] parental rights to J.T. where Appellant was neither served with nor made a party to a termination petition as required by the Minnesota Rules of Juvenile Procedure."  Specifically, appellant argues that because he was not served with a summons and the TPR petition regarding J.T., he was not made a party to the proceeding as it related to J.T. until he admitted paternity at trial.  Therefore, appellant claims, he lacked standing until the day of trial to assert his procedural due-process rights, including the right to move for dismissal under Minn. R. Juv. P. 51.04(c) (2003).[2]  He contends that the district court should have continued the trial until he had been properly served and made a party to the TPR proceeding as it related to J.T.  The district court rejected this argument, concluding that appellant had participated as a party throughout the proceedings because he appeared and entered a denial at the admit/deny hearing, appeared and was represented by counsel at all stages of the proceeding, and presented evidence and cross-examined witnesses at trial. 

Resolution of this issue requires interpretation of the Minnesota Rules of Juvenile Procedure.[3]  The interpretation of court rules is a question of law reviewed de novo.  Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 662 N.W.2d 125, 128 (Minn. 2003). 

Appellant is mistaken in contending that the court's failure to serve him with a summons and the TPR petition regarding J.T. deprived him of party status to the proceeding regarding J.T.  Because Minn. R. Juv. P. 57.01, subd. 3 (2003), expressly provides that a child's presumed father is a party to a TPR proceeding regarding the child, service is not necessary to make that person a party to a TPR proceeding.  SeeIn re Welfare of J.R., Jr., 655 N.W.2d 1, 2-3 (Minn. 2003) (holding that because guardian ad litem is a party to a juvenile-protection matter under the provisions of Minn. R. Juv. P. 57.01, appellant mother failed to perfect her appeal from order terminating her parental rights when she did not serve timely notice of appeal on children's guardian ad item, in violation of the requirement of Minn. R. Juv. P. 82.02, subd. 3 (2002), that notice be timely served on "all parties"); see also Minn. R. Juv. P. 57.02(a) (2003) (providing that a party to a juvenile-protection matter "shall have the right to . . . receive notice pursuant to Rule 69," suggesting that party status attaches independently of service of notice); State v. Sax, 231 Minn. 1, 5, 16, 42 N.W.2d 680, 683, 689 (1950) (recognizing that person's status as a party in certain actions can be designated by statute based on person's relationship with the issues of the action). 

Here, appellant was J.T.'s presumed father because the record shows that J.T. resided with him from the time she was born until they moved to Minnesota in 2001.  See Minn. Stat. § 257.55, subd. 1(d) (2002) (providing that "presumed father" includes man who receives child into his home and openly holds that child out as his own).  Therefore, despite not being served with a summons and the TPR petition regarding J.T., appellant was a party to the proceeding as it related to that petition and had standing to exercise his rights as a party.

            Additionally, the fact that appellant was not served with a summons and the TPR petition regarding J.T. is of no consequence here.  Under Minn. R. Juv. P. 69.02, subd. 2, the court must serve each party to a TPR proceeding with a summons and a copy of the TPR petition.  But under Minn. R. Juv. P. 69.02, subd. 6, "[s]ervice is waived by voluntary appearance in court."   A person makes an appearance by taking or consenting to any step in a proceeding that assumes that jurisdiction exists or continues.  Slayton Gun Club v. Town of Shetek, Murray County, 286 Minn. 461, 467, 176 N.W.2d 544, 548 (1970).  Thus, by appearing at the admit/deny hearing in August 2003 and entering a denial to the petition regarding J.T., appellant voluntarily appeared in court with regard to that petition, thereby waiving service of process. 

Further, because appellant was on notice of the contents of the TPR petition regarding J.T. at the time of the admit/deny hearing, his claim that he was denied the right to move for dismissal under Minn. R. Juv. P. 51.04(c) fails.  Minn. R. Juv. P. 51.01, subd. 3 (2003), allows parties to make oral motions during juvenile-protection hearings, and Minn. R. Juv. P. 71.02, subd. 5 (2003), requires the admit/deny court to hear any motion challenging the sufficiency of a petition.  Therefore, appellant had the opportunity at the admit/deny hearing to orally move the court for dismissal under Minn. R. Juv. P. 51.04(c), but he failed to do so.[4]   

We note that although the petition regarding J.T. states that the child's father is unknown, the petition also specifically states that "there is a possibility" that appellant is J.T.'s father and that appellant had undergone genetic testing to determine whether he is J.T.'s father.  Moreover, the petition states that the county sought to have appellant's parental rights to J.T. terminated.  Therefore, appellant was clearly an interested party, and the court should have served him with a summons and the TPR petition as soon as the petition was filed.  See Minn. R. Juv. P. 69.02, subd. 2 (2003) (requiring the court in a juvenile-protection matter to serve any "person whose presence the court deems necessary to a determination concerning the best interests of the child").  But because the record shows that appellant attended and entered a denial at the August 2003 admit/deny hearing in which the files regarding J.T. and B.V. were consolidated, was present at all subsequent proceedings in this matter, and was represented by counsel throughout the proceedings, we find no violation of appellant's due-process rights.  

II.

            Appellant does not claim that the evidence presented at trial was insufficient to establish a statutory ground for the termination of his parental rights to J.T.; he argues instead that the TPR petition itself regarding J.T. "did not make any allegation that would tend to support the county's request to terminate appellant's parental rights to J.T."  We conclude that the petition was adequate.

A TPR petition must include a statement of facts that, if proved, would support the termination of parental rights.  Minn. Stat. § 260C.141, subd. 1(b)(1) (2002); Minn. R. Juv. P. 70.02, subd. 1(a).   The petition must also include "the statutory grounds on which the petition is based, together with a recitation of the relevant portion of the subdivision(s)."  Minn. R. Juv. P. 70.02, subd. 1(f) (2003).  To determine the adequacy of a petition for termination of parental rights, the district court must examine the contents of the petition to determine if the petition meets the requirements of Minn. R. Juv. P. 70.02.  Matter of Welfare of S.F., 482 N.W.2d 500, 502 (Minn. App. 1992).  The district court must assume that the facts alleged by the petitioner are true.  Id.

The TPR petition regarding J.T. includes an allegation that each parent is

palpably unfit to be a party to the parent and child relationship because of . . . specific conditions directly relating to the parent and child relationship . . . which are . . . 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) (2002).  In support, the county alleged facts that, if proved, would show that previous conduct by appellant, including one occasion in which appellant had left J.T.'s brother in a van while appellant was "out drinking," had resulted in child-neglect charges being filed against appellant, that appellant had previously admitted that a child in his care was "without required food, clothing, shelter or other required care," and that appellant had problems with anger management and chemical dependency.   

These factual allegations, if proved, would support a finding that a statutory ground for termination exists.  Minnesota appellate courts have held that a parent is palpably unfit to be a party to the parent-and-child relationship when the parent is unable to control his anger and when a parent has a history of substance abuse and domestic abuse.  See, e.g., In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999) (concluding that parent who was unable to control his anger was palpably unfit), review denied (Minn. Aug. 25, 1999); In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (concluding that father with history of chemical addiction and domestic abuse was palpably unfit), review denied (Minn. Mar. 29, 1995).  The petition here meets the statutory requirements.

III.

Appellant also contends that the district court erred by concluding that termination of his parental rights was in the best interests of the children, arguing that there is "no compelling reason to believe that [appellant] will be unable to provide for his children's needs upon his imminent release from prison."[5]  Parental rights may be terminated only for grave and weighty reasons. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  Parental rights may be terminated only if clear and convincing evidence establishes that at least one statutory ground for termination exists and that termination is in the best interests of the child.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).  In any TPR proceeding, "the best interests of the child must be the paramount consideration."  Minn. Stat. § 260C.301, subd. 7 (2002).

An appellate court reviews a termination of parental rights to determine whether the district court's "findings address the statutory criteria and whether those findings are

supported by substantial evidence and are not clearly erroneous."  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  In determining the best interests of the child, the court balances the child's interest in preserving the parent-child relationship, the parent's interest in preserving the 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).   Competing interests include considerations such as a stable environment for the child and the child's health.  In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).  "Where the interests of parent and child conflict, the interests of the child are paramount."  Minn. Stat. § 260C.301, subd. 7.

Appellant's case worker, the children's guardian ad litem, and the therapist who was treating B.V. testified at the TPR trial that they believed that it was in the best interests of the children to terminate the parental rights of both appellant and M.T.  The district court found that termination of appellant's parental rights to J.T. and B.V. was in the best interests of the children because the children "are clearly served by a stable, nurturing, and protected environment.  None of these needs are met, nor will they be in the reasonably foreseeable future by reuniting the children with . . . [appellant]."  The court further found that appellant had "consistently exposed the children to . . . harm, choosing [his] needs over the needs of the children" and had "failed to provide any reasonable level of consistency in providing appropriate supervision or protection for the children."  These findings are supported by the record.  The record shows that (1) appellant had three maltreatment reports filed against him in 2002 involving B.V. being found alone out of the home late at night, including one instance when appellant left B.V. in a van while appellant drank at a bar; (2) in October 2002 and in September 2003, appellant chose to consume alcohol in violation of the terms of his probation, knowing that doing so could result in his incarceration and separation from his children; and (3) one of the therapists who treated the children testified that appellant was physically abusive toward the entire family.  The court also found that "the children have made significant progress" in their foster-home placements.  This finding is supported by the testimony of the children's therapists and a report by the guardian ad litem dated August 27, 2003. 

The record shows that the district court carefully considered the interests of the children and the parents and determined that the children's best interests were served by termination of appellant's parental rights.  Because appellant does not challenge whether a statutory ground for termination of his parental rights exists and the record supports the court's conclusion that termination of appellant's parental rights was in the best interests of the children, the district court did not err by terminating appellant's parental rights to both B.V. and J.T.     

            Affirmed.

           

[1] M.T. is also the mother of a third child, P.H., whose father is D.H.H.  M.T.'s parental rights to all three children were terminated in this proceeding.  M.T. did not appeal from the order terminating her parental rights, and D.H.H. is believed to reside in Viet Nam and did not participate in the proceeding.  

[2] Minn. R. Juv. P. 51.04(c) provides that before or at an admit/deny hearing, a party may bring a motion to dismiss a CHIPS or TPR petition for failing to allege facts that, if true, support the statutory grounds stated in the petition.

 

[3] In 2003, the Minnesota Rules of Juvenile Procedure were amended and reorganized into two separate sets of rules:  the Minnesota Rules of Juvenile Delinquency Procedure and the Minnesota Rules of Juvenile Protection Procedure.  The amendments and reorganization apply to matters filed on or after January 1, 2004.  Because the TPR petition in this case was filed in 2003, the 2003 version of the rules of juvenile procedure applies. 

[4] We further note that although appellant claims he was denied the opportunity to challenge the sufficiency of the petition regarding J.T., the record shows that he did make just such a challenge in his closing argument, but the district court implicitly rejected the claim by ordering the termination of his parental rights to J.T. 

[5] Appellant was serving a 15-month sentence for burglary when this appeal was filed.