In the Matter of the Welfare of the Children of: C. M. M. and A. J. M., Parents ( 2023 )

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA
IN COURT OF APPEALS
A23-0802
In the Matter of the Welfare of the Children of:
C. M. M. and A. J. M., Parents.
Filed December 26, 2023
Affirmed
Cochran, Judge
Steele County District Court
File No. 74-JV-22-2070
Mallory K. Stoll, Ashley K. Morelli, Blahnik, Prchal & Stoll, PLLC, Prior Lake, Minnesota
(for appellant C.M.M.)
Julia A. Forbes, Steele County Attorney, Tazio N. Lombardo, Assistant County Attorney,
Owatonna, Minnesota (for respondent Minnesota Prairie County Alliance)
Julie A. Nelson, Owatonna, Minnesota (guardian ad litem)
Considered and decided by Slieter, Presiding Judge; Cochran, Judge; and
Larson, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant-mother challenges the district court’s decision to terminate her parental
rights to two minor children. Appellant argues that the district court (1) violated her right
to due process when it proceeded by default after she failed to appear for trial, (2) erred in
its findings regarding whether the responsible social-services agency made reasonable
efforts toward reunification, and (3) abused its discretion when it found that clear and
convincing evidence supports at least one statutory basis for termination. We affirm.
FACTS
Appellant-mother C.M.M. (mother) and father A.J.M. (father) are the parents of two
minor children: Child B, born in October 2013, and Child S, born in January 2021. Child B
and Child S are the subject of the petition to terminate parental rights at issue in this case.
Mother also has an older child, Child L, born in January 2007. Child L, who has a different
father than the two younger children, was the subject of a separate permanency petition.
All three children lived with mother except as specified below.
Respondent Minnesota Prairie County Alliance (MNPrairie), a human-services
agency for Dodge, Steele, and Waseca counties, became involved with mother and father
following reports stemming from father’s domestic abuse of mother and mother’s chemical
dependency. 1 The first report of domestic abuse followed an incident in summer 2017
during which father “essentially held [mother] hostage.” MNPrairie became aware of the
incident because Child L escaped the home while the incident was occurring, ran to her
daycare provider, and called 9-1-1. Shortly thereafter, MNPrairie received multiple reports
that Child L and Child B had not been in school or daycare for several days. They also
received reports that mother often left the children home alone while she went out to use
drugs or to drink. After receiving the reports, a social worker followed up with a visit to
1
The facts in this section are drawn from the record, including the exhibits and testimony
received at trial. All incidents occurring before January 2021, when Child S was born,
involve only Child L and Child B.
2
mother’s apartment in November 2017 at around 11:30 a.m. on a school day. It took
mother several minutes to answer the door. The social worker observed that neither child
was dressed, and Child B was wearing a full, soiled diaper. Mother spoke with the social
worker and admitted that she had been using cocaine in the home. Mother also stated that
she recently spent as much as $40-100 per day on cocaine. And mother admitted that her
drug use was affecting her parenting by making her less motivated to care for the children
and preventing her from paying the bills.
From 2018 through 2020, MNPrairie received several more reports alleging that
mother was neglecting and endangering her children as a result of her drug use. In
November 2019, the police found Child B, who was six years old at the time, walking down
the road barefoot in pajamas one-half mile from where mother and the children were
staying. During an investigation into the incident, one officer recalled a similar event
occurring in May 2018, when he found the same child walking along a county road in a
diaper and a t-shirt. A few months later, in April 2020, mother told a friend that she had
not slept for days due to her heavy cocaine use. Mother could not remember much of what
happened during that period. According to a MNPrairie social worker, mother entered an
inpatient drug-treatment program after that “relapse” but did not complete the program.
On June 23, 2020, MNPrairie filed a motion for immediate custody and a Child in
Need of Protection or Services (CHIPS) petition for Child B and Child L, citing concerns
about the children’s health, safety, and welfare in light of the parents’ chemical
dependency, mental-health issues, and violent relationship. Following an Emergency
Protective Care hearing, the district court determined that the children were in need of
3
protective services and granted temporary custody of the children to MNPrairie for
placement in foster care. More than one year later, in August 2021, the district court
dismissed the CHIPS petition and returned Child B and Child L to mother’s custody.
Mother’s youngest child, Child S, was born while the two older children were in foster care
and was living with mother when the two older children rejoined the household.
In December of 2021, four months after the first CHIPS petition was dismissed,
MNPrairie received a report of educational neglect. The report alleged that Child B, who
has special learning needs, had 20 unexcused absences from school. The report also
alleged that the absences were affecting his ability to learn and retain skills. The child was
eight years old at the time. According to the report, mother had not returned any calls from
the school secretary regarding the child’s attendance or from a special education teacher.
When a social worker followed up with a visit to mother’s apartment at around 10:00 a.m.
on a school day, the social worker had to knock for 15-20 minutes before one of the
children opened the door. Mother and the three children had been asleep. Mother admitted
that she was struggling with her mental health and promised to take steps to address the
issue.
A few days later, MNPrairie received another report that the same child, Child B,
was not in school. When a social worker called mother’s phone to follow up, the child
answered. While the social worker was speaking with the child, she could hear Child S,
who was 11 months old at the time, in the background. The child eventually gave the
phone to mother, who sounded as if she had just woken up. A similar incident occurred
the following week, when a social worker visited mother’s apartment in the afternoon and
4
discovered that Child B and Child L were not in school. Mother was disheveled and
admitted that her mental health was preventing her from bringing the children to school.
Mother also admitted to relapsing on cocaine. She denied using at home, but the oldest
child, Child L, told the social worker that she found cocaine in mother’s bedroom after she
suspected that mother had relapsed.
On December 22, 2021, MNPrairie filed a new CHIPS petition and a motion for
immediate custody of the three children, based on concerns about mother’s inability to care
for the children due to her chemical dependency and mental-health issues. The district
court granted the motion, determined that the children were in need of protective services,
and ordered them to be temporarily placed in the custody of MNPrairie while they awaited
placement in foster care. Shortly thereafter, MNPrairie placed the children in foster care.
While the children were in foster care, MNPrairie worked with mother to address the
concerns that led to the out-of-home placement of the children.
Approximately one year later, on December 28, 2022, MNPrairie filed a petition to
terminate the parental rights of mother and father. After several unsuccessful attempts to
serve mother with the summons and petition, MNPrairie filed a motion for service by
publication. The district court granted the motion, and the summons and notice of the
admit/deny hearing were published in a local paper on three separate dates.
By an order dated January 5, 2023, the district court relieved MNPrairie of its duty
to make any further efforts to reunify the family in the CHIPS case after finding that
continued reasonable efforts would be futile. The district court made the futility finding at
the request of MNPrairie after it reported that mother had been discharged from chemical
5
health programming, was using cocaine again, was not engaging in services offered by
MNPrairie, and “her visits had been detrimental to the children.”
The district court held an admit/deny hearing in the termination-of-parental-rights
(TPR) case on March 22, 2023, and a pretrial hearing on April 26, 2023. Mother and father
appeared at both hearings with their respective counsel. At the admit/deny hearing, mother
and father entered denials to the petition.
The district court scheduled a TPR trial for May 2, 2023. Mother was aware of the
trial date and knew that failure to appear in person could result in a default order
terminating her parental rights.
On May 2, 2023, mother and father did not appear for trial, but both of their
attorneys were present. MNPrairie requested that the case proceed by default. Father’s
attorney did not object to the request, but mother’s attorney did. Mother’s attorney stated
that he had made several attempts to contact mother by phone and email since the pretrial
hearing approximately two weeks earlier but had not been able to reach her. The attorney
then stated that given his lack of contact with mother, he was not prepared to go to trial and
requested a continuance.
The district court denied the request for a continuance. The district court noted that
both mother and father were well aware of the trial date. The district court stated that the
history of the case and the underlying CHIPS matters supported proceeding by default,
particularly given how long the children had been in out-of-home placement.
During the default hearing, MNPrairie called two MNPrairie social workers to
testify about their involvement with the family. The children’s guardian ad litem (GAL)
6
also testified. The district court also received multiple documents into evidence, including
several documents from related district court files, the futility order, and hundreds of pages
of case notes from various MNPrairie professionals who had worked with the family over
the years.
With respect to mother, the social workers and GAL testified that mother was
incapable of caring for the children because she was either unable or unwilling to remain
sober, unable to manage her mental health, and had a violent relationship with father. The
witnesses testified that mother had been offered many services, including
chemical-dependency and mental-health treatment, but that none had resolved her
underlying issues. The witnesses specifically noted mother’s history of entering drug-
treatment programs and leaving by choice or because of behavioral issues. One social
worker also testified that mother had become increasingly absent in recent months,
attending less than half of her scheduled visits with the children and almost none of their
medical appointments. The witnesses agreed that mother’s parental rights should be
terminated.
Following this testimony, the district court granted MNPrairie’s petition to
terminate the parental rights of mother and father. In its final order, the district court found
that the parties had received adequate notice of the scheduled trial and that proceeding by
default was proper under the Minnesota Rules of Juvenile Protection Procedure. The
district court also found that MNPrairie had made reasonable efforts to reunify the family
in the CHIPS case and that the agency was not required to make additional reasonable
efforts in this case because the provision of such efforts was futile. The district court then
7
concluded that MNPrairie had proven by clear and convincing evidence that four statutory
grounds supported termination of parental rights and that termination would be in the best
interests of the children. See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8) (2022).
Mother appeals.
DECISION
Parental rights may be terminated only “for grave and weighty reasons.” In re
Welfare of Child. of B.M., 845 N.W.2d 558, 563 (Minn. App. 2014) (quotation omitted).
A district court may involuntarily terminate parental rights when (1) at least one statutory
ground for termination is supported by clear and convincing evidence, (2) the responsible
social-services agency made reasonable efforts to reunify the parent and children or such
efforts were not statutorily required, and (3) termination is in the children’s best interests.
Minn. Stat. §§ 260C.301, subds. 1(b), 7, 8, .317, subd. 1 (2022); see also In re Welfare of
Child. of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008).
On appeal from a decision to terminate parental rights, we review the district court’s
factual findings for clear error and “its determination of whether a particular statutory basis
for involuntarily terminating parental rights is present for an abuse of discretion.” In re
Welfare of Child. of J.R.B., 805 N.W.2d 895, 901 (Minn. App. 2011), rev. denied (Minn.
Jan. 17, 2012). “We give considerable deference to the district court’s decision to terminate
parental rights.” S.E.P., 744 N.W.2d at 385. “But we closely inquire into the sufficiency
of the evidence to determine whether it was clear and convincing.” Id.
Mother challenges the termination of her parental rights to the children on several
grounds. First, mother argues that the district court violated her right to due process by
8
proceeding by default after mother failed to appear for the TPR trial. Second, mother
contends that the district court erred in its determination regarding the reasonableness of
reunification efforts by MNPrairie. Finally, mother argues that the district court abused its
discretion by concluding that a statutory basis supported termination of her parental rights. 2
We address each argument in turn.
I. The district court did not violate mother’s right to due process.
Mother first asserts that the district court violated her right to due process by
conducting a default proceeding on the TPR petition after mother failed to appear for trial. 3
“Whether a parent’s due-process rights have been violated in a termination proceeding is a
question of law, which this court reviews de novo.” In re Welfare of Child. of B.J.B.,
747 N.W.2d 605, 608 (Minn. App. 2008).
Before the district court, mother’s attorney did not argue that proceeding by default
would violate mother’s right to due process. 4 Because mother did not present her
2
Mother is not challenging the district court’s related finding that termination is in the best
interests of the children.
3
In her principal brief, mother also argues that the district court erred when it found that
service of the TPR petition on mother by publication was proper. On reply, however,
mother acknowledges that she waived service by voluntarily appearing at the admit/deny
hearing and at a pre-trial hearing. See Minn. R. Juv. Prot. P. 53.02, subd. 4 (“Service is
waived by voluntary appearance in court or by a written waiver of service filed with the
court.”). Therefore, we need not address mother’s argument regarding service by
publication.
4
On the day of the scheduled trial, mother’s attorney opposed MNPrairie’s motion to
proceed by default based on mother’s failure to appear and he requested a continuance of
the trial date, explaining that he was not prepared to go to trial because mother had not
responded to his recent efforts to contact her. Counsel did not specifically argue that due
9
due-process argument to the district court, we conclude that mother has forfeited this
argument. See In re Welfare of Child. of Coats, 633 N.W.2d 505, 512 (Minn. 2001)
(providing that appellate courts generally “consider only those issues that were presented
and considered by the [district] court”); see also In re Welfare of Child. of D.F.,
752 N.W.2d 88, 97 (Minn. App. 2008) (concluding that parent waived a due-process
argument in a TPR appeal when the argument was not made before the district court).
But even if the argument were properly before us, mother would not prevail. A
district court is authorized to proceed by default in circumstances such as those presented
in this case. Under Minnesota law, when a parent fails to appear at trial in a
juvenile-protection proceeding after proper service (or waiver thereof), “the [district] court
may receive evidence in support of the petition or reschedule the hearing.” Minn. R. Juv.
Prot. P. 18.01. If the TPR petition then is proven by clear and convincing evidence, the
district court may grant the relief sought in the petition. Minn. R. Juv. Prot. P. 18.02.
Additionally, a judgment entered after a default proceeding “will be held void for want of
due process only where the circumstances surrounding the trial are such as to make it a
sham and a pretense rather than a real judicial proceeding.” Coats, 633 N.W.2d at 512
(quotation omitted). When a district court considers testimony and evidence supporting a
TPR petition and bases its termination decision on the statutory factors and the best
interests of the child (rather than the parent’s failure to appear), the proceeding is a “real
process necessitated a continuance. The district court declined to continue the hearing, in
part because mother was aware of the trial date.
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judicial proceeding,” not a “sham or a hoax.” In re Welfare of Child of L.W.,
644 N.W.2d 796, 797 (Minn. 2002) (quoting Coats, 633 N.W.2d at 512).
The district court did not violate mother’s right to due process by proceeding by
default after mother failed to appear. Consistent with rules 18.01 and 18.02, the district
court considered evidence and testimony in support of the TPR petition and based its
decision on the proper statutory factors. See Minn. Stat. §§ 260C.301, subds. 1(b), 7, 8,
.317, subd. 1. In other words, the district court followed proper procedure and conducted
a “real judicial proceeding,” in keeping with due process. L.W., 644 N.W.2d at 797.
We are not persuaded otherwise by mother’s argument that she was deprived of due
process because the district court did not give her attorney “an affirmative opportunity to
participate” in the default hearing “except to weigh in on whether the district court should
proceed by default.” Notably, mother’s counsel remained in the courtroom but did not
request an opportunity to cross-examine witnesses during the hearing. Nor did he ask to
present any evidence. And, under the applicable court rule, the district court was only
required to receive evidence from MNPrairie in support of the petition. Minn. R. Juv. Prot.
P. 18.01. Under these circumstances, we discern no violation of due process by the district
court. Thus, mother’s due-process argument is unavailing.
II. The district court did not clearly err in its determination regarding reasonable
efforts.
Mother next argues that the district court clearly erred in its factual findings
regarding whether MNPrairie made reasonable efforts to reunify mother with the children.
We review the district court’s reasonable-efforts determination for “clear error” because it
11
is a factual finding. In re Welfare of Child of J.H., 968 N.W.2d 593, 600-01 (Minn.
App. 2021), rev. denied (Minn. Dec. 6, 2021). A finding is clearly erroneous when it is
“manifestly contrary to the weight of the evidence or not reasonably supported by the
evidence as a whole.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221
(Minn. 2021) (quotation omitted). “In applying the clear-error standard, we view the
evidence in a light favorable to the findings” and will not determine that the district court
clearly erred unless “we are left with a definite and firm conviction that a mistake has been
committed.” Id. (quotation omitted).
The district court made two separate findings regarding reasonable efforts toward
reunification. First, the district court found that MNPrairie made reasonable efforts toward
reunification “in the prior child protection case.” Second, the district court found that
“MNPrairie was not required to make reasonable efforts in this case because, in the
circumstances of this case, the provision of services for purpose of reunification was futile
and unreasonable under [section] 260.012(a)(7).” (Emphasis added.)
Mother does not challenge the district court’s finding that further reunification
efforts would have been futile in this case. Rather, mother argues that the district court
erred when it determined that MNPrairie made reasonable efforts toward reunification in
the previous CHIPS case. We conclude that this argument is misguided because it does
not focus on the finding that the district court made for purposes of this case.
Minnesota law requires a district court to make one of two findings before
terminating parental rights. Minn. Stat. § 260C.301, subd. 8. The district court must find
either that the responsible social-services agency made reasonable efforts to reunify the
12
family in the termination case or that reasonable efforts are not required “as provided under
section 260.012.” Id. Section 260.012, in turn, provides that reasonable efforts are not
required in certain circumstances, including when the district court determines that “the
provision of services or further services for the purpose of reunification is futile and
therefore unreasonable under the circumstances.” Minn. Stat. § 260.012(a)(7), (h) (2022);
In re Welfare of Child. of A.D.B., 970 N.W.2d 725, 730 (Minn. App. 2022).
Here, the district court found that MNPrairie was not required to make reasonable
efforts toward reunification because, in the circumstances of this case, the provision of
reunification efforts was futile and therefore unreasonable, as provided under
section 260.012. See Minn. Stat. § 260.012(h). 5 This finding is supported by the record,
which shows that mother failed to complete several drug-treatment programs, was
inconsistent in managing her mental health, failed to bring the children to school and
daycare, was inconsistent in attending visits with her children, was sometimes volatile
during these visits, and did not accompany her children to most of their medical
5
Generally, a district court may not determine that further reasonable efforts would be
futile until the responsible social services agency files a request for a prima facie
determination of futility. See A.D.B., 970 N.W.2d at 733; see also In re Welfare of Child
of P.A.T., No. A22-0012, 2022 WL 2195725, at *7 (Minn. App. June 20, 2022) (providing
that A.D.B. “stands for the proposition that a district court cannot make a posttrial finding
of futility”), rev. denied (Minn. Aug. 9, 2022). The record before us reflects that the district
court first determined that further reasonable efforts would be futile in an order in the
related CHIPS case. The district court took judicial notice of that CHIPS order in the TPR
order. On appeal, mother does not challenge the district court’s decision to take judicial
notice of the CHIPS order. Nor does she argue that the futility determination in the TPR
order is contrary to this court’s decision in A.D.B. We generally do not address issues that
are not presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988). Accordingly, we decline to consider the timing of the district court’s
futility determination in this case.
13
appointments. We therefore conclude that the district court satisfied its obligation under
section 260C.301, subdivision 8. See Kenney, 963 N.W.2d at 222 (providing that an
appellate court does not need to engage in “an extended discussion of the evidence to prove
or demonstrate” that the district court’s findings were correct (quotation omitted)). 6
III. The district court did not abuse its discretion by concluding that one or more
statutory grounds supports termination of mother’s parental rights.
Finally, mother argues MNPrairie failed to prove by clear and convincing evidence
that one or more statutory grounds supports termination of her parental rights. This
argument also is unavailing.
To terminate parental rights, the district court must find one or more statutory
grounds for involuntary termination set forth in section 260C.301 has been proven to exist.
Minn. Stat. § 260C.301, subd. 1(b)(1)-(9) (2022); In re Welfare of Child of R.D.L.,
853 N.W.2d 127, 137 (Minn. 2014). When reviewing a decision to terminate parental
rights, an appellate court will affirm if clear and convincing evidence supports at least one
of the statutory grounds found by the district court. In re Child. of T.A.A., 702 N.W.2d 703,
708 (Minn. 2005). If the record supports at least one statutory ground, we need not consider
whether the record supports other statutory grounds found by the district court. See id.(“Only one [statutory] ground must be proven for termination to be ordered.”).
6
To the extent there is any error in the district court’s finding regarding reasonable efforts
in the CHIPS case, that error is harmless because such a finding relates to a separate case
and therefore must be ignored. See Minn. R. Civ. P. 61 (requiring that harmless error be
ignored); Kallio v. Ford Motor Co., 407 N.W.2d 92, 98 (Minn. 1987) (“Although error
may exist, unless the error is prejudicial, no grounds exist for reversal.”).
14
In the TPR order, the district court found that clear and convincing evidence
supported four statutory grounds for termination identified in the TPR
petition: (1) substantial, continuous, or repeated refusal or neglect to comply with parental
duties; (2) palpable unfitness to care for the children; (3) failure to correct the conditions
leading to the children’s out-of-home placement; and (4) the children are neglected and in
foster care. See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8). Mother argues that the
district court abused its discretion when it concluded that MNPrairie had proven each of
these statutory grounds.
We focus our analysis on the first statutory ground set forth in MNPrairie’s
petition—failure to comply with parental duties. Under this statutory ground, a district
court may involuntarily terminate parental rights if the court finds “that the parent has
substantially, continuously, or repeatedly refused or neglected to comply with the duties
imposed” by the parent-child relationship and “either reasonable efforts by the social
services agency have failed to correct the conditions that formed the basis of the petition
or reasonable efforts would be futile and therefore unreasonable.” Id., subd. 1(b)(2). In
particular, “[t]he court must find that at the time of termination, the parent is not presently
able and willing to assume his responsibilities and that the parent’s neglect of these duties
will continue for a prolonged, indeterminate period.” In re Welfare of Child of J.K.T.,
814 N.W.2d 76, 90 (Minn. App. 2012) (quotation omitted).
In its order, the district court determined that MNPrairie proved, by clear and
convincing evidence, that mother refused or failed to comply with the duties of the
parent-child relationship. To support this determination, the district court found that
15
mother had a history of leaving the children home alone while she went out to use drugs or
drink. The district court also found that mother used drugs in the home, that one of the
children found cocaine in mother’s bedroom, and that mother sometimes used drugs for
several days in a row, causing her to lose consciousness. The district court found that
mother’s chemical dependency placed financial strain on the family and prevented her from
paying her bills. And the district court found that mother’s chemical dependency and
mental-health issues prevented her from taking the children to school and daycare and
attending to their needs. Based on these findings, the district court determined that mother
“is unwilling or unable to address her mental health and chemical health in a manner that
would allow her to meet her children’s needs.”
These findings are supported by the record. The MNPrairie social workers and GAL
testified that mother is incapable of caring for the children because she is either unable or
unwilling to maintain sobriety and manage her mental health. The social workers’ case
notes show that the agency received multiple reports that mother left the children home
alone to use drugs, and these reports are corroborated by the social workers’ testimony.
Finally, the social workers’ case notes show that the agency received multiple reports that
Child B frequently missed school, resulting in learning delays for Child B. 7 Testimony at
trial corroborates these reports. Because the record amply supports the district court’s
findings, we conclude that the district court did not abuse its discretion when it determined
that clear and convincing evidence supported termination of mother’s parental rights to
7
Child S was an infant at the time and not in school.
16
Child B and Child S based on her failure to fulfill parental duties. See Minn.
Stat. § 260C.301, subd. 1(b)(2). It is therefore unnecessary for us to consider mother’s
arguments regarding the other three statutory grounds found by the district court. See
T.A.A., 702 N.W.2d at 708.
In sum, we discern no basis to reverse the district court’s decision terminating
mother’s parental rights to Child B and Child S.
Affirmed.
17