In the Matter of the Welfare of the Children of S.O. and R.J.S., Parents.

This opinion will be unpublished and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

A04-830

 

In the Matter of the Welfare of

the Children of S.O. and R.J.S.,

Parents.

 

Filed December 14, 2004

Affirmed in part, reversed in part, and remanded Hudson, Judge

 

Hennepin County District Court

File No. J0-02-070324

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, Minnesota 55401 (for appellant parents)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, Minnesota 55415 (for respondent Hennepin County Human Services Department)

 

John M. Jerabek, Andrea K. Niemi, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, Minnesota 55402 (for respondent guardian ad litem)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this termination-of-parental-rights appeal, appellant-parents argue that the juvenile court (a) abused its discretion by denying mother's motion for a continuance; (b) incorrectly found that respondent-county made reasonable efforts to reunify the family; (c) denied appellants due process of law by terminating parental rights for a reason the county did not allege in the termination petition; and (d) made termination-related findings that are unsupported by the record.  We affirm the termination of father's parental rights, but because the juvenile court abused its discretion by denying mother's motion for a continuance, we reverse the termination of mother's parental rights and remand for proceedings not inconsistent with this opinion.

FACTS

Appellants are parents of three children, including twins.  The twins are the subjects of this proceeding.  Mother also had an older child.  Mother voluntarily terminated her parental rights and consented to adoption of that child.  Both mother's voluntary termination of parental rights and her voluntary consent to adoption occurred after the county had significant involvement with the family.  Immediately after the twins were born on July 30, 2003, they were placed in the interim custody of the county.  The county amended its then-existing petition to terminate appellants' parental rights to the twins' sibling to include the twins, and appellants agreed to a continuation of their previous case plan. 

            Mother's severe depression requires psychotropic medications and her instability has prompted her discharge from, or failure to satisfy, various treatment programs.  After not visiting her psychiatrist for an extended time, mother saw the psychiatrist on January 9, 2004.  To stabilize her mood, he prescribed lithium for her. 

On the morning of the January 22 trial, mother's attorney received a letter that mother had solicited from her psychiatrist.  It stated that mother had started taking lithium in an attempt to stabilize her mood and that the full effect of the lithium would not be known for several weeks.  Both in chambers and in the courtroom, mother requested a continuance to ascertain the impact of the lithium.  To support her request, she offered the psychiatrist's letter.  The county opposed the motion, stating it was mother's burden to show she was not competent to proceed.  The juvenile court denied mother's motion (a) because the letter did not address whether the lithium would affect mother's participation in the case or her competency generally; (b) noting mother had previously had several unsuccessful medication changes; (c) stating that adding lithium was not novel; and (d) permitting mother to solicit another competency-related opinion from the psychiatrist.  For reasons that are not clear, no further information from the psychiatrist was submitted.

            After a trial at which much of the evidence focused on mother's mental stability and the limit it put on her ability to satisfy her case plan, the juvenile court terminated appellants' parental rights, citing the three statutory bases in the amended termination petition and an additional, unpleaded statutory basis for terminating parental rights.  This direct appeal follows.

DECISION

I

            Appellants challenge the denial of mother's motion for a continuance.  The county argues that appellants failed to preserve this issue for appeal by not moving for a new trial.  Mother's motion for a continuance was presented to the juvenile court twice, once in chambers and once in the courtroom just before trial.  To the extent the denial of the motion was a pretrial ruling, a new-trial motion is not required to preserve it for appeal.  See generally, Stockdale Bancorp. v. Kjellberg, 479 N.W.2d 438, 438 (Minn. App. 1992) (noting "[p]re-trial orders are reviewable only on appeal from a final judgment").  Alternatively, even if the denial is deemed not to be a pretrial ruling, it was not a "quick, on-the-spot decision[ ]" which, under Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003), requires a new-trial motion in order to preserve the issue for appeal. 

            A juvenile court may continue a permanency trial if the continuance is necessary "for accumulation or presentation of evidence or witnesses."  Minn. R. Juv. Protect. P. 39.02, subd. 2(a); see Minn. R. Juv. Protect. P. 39.02, subd. 2(b) (requiring best-interests findings for continuances to exceed one week in termination cases).  In deciding whether to grant a continuance to conduct discovery, a district court considers whether the moving party diligently sought the information at issue and whether seeking the information is a "fishing expedition."  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982).  A district court's continuance decision is reversed only if the district court clearly abused its discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  Also, there is a presumption that it is in a child's best interests to be in the custody of his or her parents.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  Here, mother sought a continuance to acquire information about whether the lithium added to her medications would stabilize her mood and allow her to complete her case plan.  Because the lithium was prescribed shortly before trial and because of the amount of time it would take to learn the impact of the lithium, mother's diligence is not at issue, and the question is whether her request was a "fishing expedition." 

            Because the lithium's effect would become known, mother's request was not a "fishing expedition" in the sense that there was doubt about whether the information in question could be obtained.  Also, the propriety of terminating parental rights depends "to a great extent upon the projected permanency of the parent's inability to care for his or her child."  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quoting In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995)); see In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (stating termination evidence must address conditions at time of trial and show inability of parent will continue for sustained, indeterminate period).[1]  And this record shows that mother makes significant progress on her case plan when her mood is stable.  Therefore, mother's request was not a "fishing expedition" in the sense that the information obtained would not be relevant to her ability to care for the children.  Thus, the remaining question is whether mother's request was a "fishing expedition" because there was an insufficient likelihood that the information she would obtain would be favorable enough to her to allow a denial of the petition to terminate her parental rights. 

            The record shows that when mother's mood is stable, she has significant success with her case plan: (a) the county admitted that mother's progress on her case plan was repeatedly stunted by her cyclical depression; (b) the juvenile court found mother's progress on her case plan significantly increased when her mood was stable; and (c) it is undisputed that by the second day of trial, two months after mother started taking lithium, she had resumed visitation with the twins and regular appointments with her psychiatrist, corrected several of the conditions prompting the termination proceeding, and started intake proceedings at Chrysalis. 

            Moreover, in denying the continuance, the juvenile court properly noted that mother's prior medication changes had not stabilized her mood, and that the psychiatrist's letter did not address mother's competency as a witness.  But the juvenile court did not address the fact that the letter failed to mention the impact of lithium on mother's stability.  Nor did it address the fact that, because mother solicited the letter, and because her attorney was unaware of the change in mother's medication until receiving the letter on the morning of trial, counsel did not have time to solicit an opinion from the psychiatrist or any other health provider on the impact lithium would have on mother's stability.  Thus, the trial court denied the continuance because the record lacked the evidence the continuance would have allowed mother to collect, and because the psychiatrist did not predict the effect of the lithium on mother, despite the fact that the psychiatrist had not been asked to make that prediction. 

            Further, while the juvenile court stated that it would accept further evidence from the psychiatrist regarding mother's competency and the lithium's effect, for reasons that are unclear, no such evidence was presented.  The failure to submit such evidence does not favor mother.  On this record, however, and especially in light of the progress mother made on her case plan when stable, we conclude that this fact cannot be dispositive of the termination decision, or independently fatal to the continuance request.  See Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988) (noting courts try to avoid punishing party for failing not attributable to party); see also In re Welfare of J.J.L.B., 394 N.W.2d 858, 862 (Minn. App. 1986) (stating, in termination proceedings, county has burden to show parent unable to care for children for the foreseeable future), review denied (Minn. Dec. 17, 1986).  Therefore, on the unique facts of this record and in light of the fact that the continuance would have allowed acquisition and presentation of evidence having a significant possibility of advancing the best interests of the children by allowing their continued placement with a parent, we conclude that the juvenile court abused its discretion by denying the continuance, and remand for the juvenile court to reopen the record and to receive and consider evidence on the impact of the lithium on mother's ability to parent now and in the reasonably foreseeable future.

II

Appellants argue that the record lacks substantial evidence to support the finding that the county made reasonable efforts to reunify the family as required by Minn. Stat. § 260.012(a), (b) (2002).  See In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990) (requiring substantial evidence to support a finding that reasonable efforts were made), review denied (Minn. July 6, 1990).  We reject this argument.  The record contains substantial evidence to support the finding that mother received, among other things: parenting classes, a parenting assessment, in-home visits from a public health nurse and Genesis II staff, supervised visitation, and financial assistance.  Similarly, father received a parenting assessment, parenting groups, in-home visits from a public health nurse, supervised visitation, financial assistance, and a psychological evaluation to help him identify his responsibilities to his family. 

III

            The county petitioned to terminate appellants' parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4), (5), and (8) (2002).  The juvenile court terminated appellants' parental rights on these bases.  It also terminated parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) (2002), finding that appellants failed to abide by the duties of the parent-child relationship.  Appellants argue that use of an unpleaded basis to terminate parental rights violated their right to due process of law.  Questions of procedural due process are reviewed de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999). 

            The rules require that a petition to terminate parental rights identify the statutory bases for termination and the facts supporting those bases, and that the juvenile court address whether the "grounds set forth in the petition" were proved.  Minn. R. Juv. Protect. P. 33.02, subd. 1(a), (f) (termination petitions); Minn. R. Juv. Protect. P. 39.05, subd. 3(a) (termination decisions); see Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983) (noting trial court is generally limited to basing relief on issues raised by pleadings or litigated by consent because parties need notice and opportunity to be heard before binding judgment can be rendered).  Because appellants were not given notice of, or the opportunity to be heard regarding Minn. Stat. § 260C.301, subd. 1(b)(2), and because the requirements for terminating parental rights under that provision are different from those under the pleaded bases for termination, the juvenile court improperly relied on Minn. Stat. § 260C.301, subd. 1(b)(2) to terminate parental rights. 

IV

            Appellants challenge the findings that a statutory basis exists to terminate parental rights.  On appeal from a termination of parental rights, we consider whether the juvenile court's findings address the statutory criteria, whether those findings are clearly erroneous, and whether the juvenile court's decision is supported by substantial evidence.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  The juvenile court may terminate parental rights only if clear and convincing evidence establishes both that at least one statutory ground for termination exists, and that termination is in the best interests of the child.  See Minn. Stat. §§ 260C.301, subd. 7 (stating child's best interests "must be the paramount consideration" in termination proceedings); .317, subd. 1 (2002) (requiring existence of "one or more" statutory conditions to terminate parental rights).  Appellants do not challenge the finding that terminating appellants' parental rights is in the twins' best interests. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issues not briefed are waived).  Therefore, we address only whether there is clear and convincing evidence supporting a statutory basis for termination.  See In re Children of R.W., 678 N.W.2d 49, 54 (Minn. 2004) (holding that a finding that termination is in child's best interest is insufficient to allow termination).

Appellants argue that because father substantially completed his case plan and the twins could be safely returned to his care, father's parental rights should not have been terminated.  But there is substantial evidence supporting the findings that father failed to complete his psychological evaluation, repeatedly missed scheduled visits with the twins, and participated in home-based services on only a limited basis.  Also, father admitted that he did not learn anything from the instruction he had received.  While appellants argue that a series of findings addressing father's partial completion of his case plan show termination to be inappropriate, they do not identify which statutory basis for terminating father's parental rights they are challenging or how the findings in question show that the statutory requirements for termination were not satisfied.  Cf. State v. Dep't of Labor & Indus. v. Wintz Parcel Drivers, Inc.,558 N.W.2d 480, 480 (Minn. 1997) (stating appellate courts need not address inadequately briefed issues).  Our review of the record, however, shows substantial evidence supporting the findings underlying the termination of father's parental rights.  Despite reasonable county efforts to assist him, father failed to correct the conditions leading to the determination that the twins were in need of protection or services relative to him.  Thus, termination of father's parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5) was appropriate, and we affirm that termination. 

            Because we are remanding the continuance question, we decline to comprehensively address appellants' contentions that the juvenile court improperly relied solely on mother's mental illness to terminate her parental rights, and placed too much emphasis on past events in its decision to terminate appellants' parental rights.  We note, however, that the record shows that the juvenile court did not over-emphasize mother's mental condition, or her past conduct.  It simply lacked sufficient information about her likely future conduct to terminate her parental rights.  Therefore, absent a resolution of the remand favorable to mother, termination of mother's parental rights is appropriate here.  We also note that resolving the remand in mother's favor may result in mother retaining parental rights while father's rights are terminated.  Because the record shows that mother and father reside together, on remand the analysis of mother's expected future ability to adequately parent the children must include an examination of her ability to do so in light of what, at this point, is father's continued presence in the home. 

            Because of the narrow scope of the remand and the importance of prompt resolution of termination proceedings, we encourage the district court to expedite its handling of the matter on remand. 

            Affirmed in part, reversed in part, and remanded.

[1] Two statutory bases used to terminate mother's parental rights require a future inability to care for a child.  See Minn. Stat. § 260C.301, subd. 1(b)(4) (2002) (requiring parent to be palpably unfit parent "for the reasonably foreseeable future"); In re Welfare of J.J.L.B., 394 N.W.2d 858, 862-63 (Minn. App. 1986) (stating primary factor in assessing neglect under Minn. Stat. § 260C.301, subd 1(b)(8), is whether parent's refusal or failure to participate in visitation or rehabilitative services will continue indefinitely), review denied (Minn. Dec. 17, 1986).  The district court also used Minn. Stat. § 260C.301, subd. 1(b)(5) (2002) to terminate mother's parental rights, under which reasonable efforts to correct the conditions leading to the child's out-of-home placement must have failed.  While this provision does not explicitly mention a parent's future inability to care for a child, it is self evident that, for efforts to be "reasonable," they must be given an opportunity to have effect.  Thus, judging the effect of efforts implemented at or just before trial involves assessment of whether the parent, in the future, will become able to care for the child(ren) in question.