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In the Matter of the Welfare of the Children of: D. F. and D. F.: CHILD | TERMINATION OF PARENTAL RIGHTS : Discretion of judge as to revocation of conditional stay of voluntary Termination of Parental Rights

STATE OF MINNESOTA
IN COURT OF APPEALS
A07-2239
In the Matter of the Welfare of the Children of:
D.F. and D.F., Parents.
Filed July 8, 2008
Affirmed
Wright, Judge
Hennepin County District Court
File Nos. 27-JV-06-5570, 27-JV-05-2496
Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County
Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for
respondent Hennepin County Human Services and Public Health Department)
Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public
Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants
D.F., D.F.)
Jody M. Alholinna, El-Ghazzawy Law Offices, 701 Fourth Avenue South, Suite 300,
Minneapolis, MN 55415 (for respondent guardian ad litem)
Angela F. Bailey, Assistant Public Defender, 317 Second Avenue South, Suite 200,
Minneapolis, MN 55401 (for respondent Z.C.)
Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Wright,
Judge.
S Y L L A B U S
When evaluating a motion to revoke a conditional stay of a voluntary termination
of parental rights, the district court must determine whether any of the conditions of the
stay have been violated. If any of the conditions of the stay have been violated, the
district court must exercise its discretion, in light of the childs best interests, to
determine whether the violation warrants revocation of the stay. When granting the
2
motion to revoke a conditional stay of a voluntary termination, the district court must
enter a voluntary termination of parental rights.
O P I N I O N
WRIGHT, Judge
Appellants challenge the district courts decision revoking the stay of their
voluntary termination of parental rights and terminating their parental rights. Appellants
argue that (1) the district court erred by revoking the stay and terminating their parental
rights for good cause and (2) they were deprived of procedural due process. We affirm.
FACTS
In July 1995, Z.C. was born to mother, who was unmarried at the time.1 Mother
subsequently married father. Mother and father have two children together, S.F. and
M.F., who were born in September 1998 and December 2004, respectively.
Father was arrested on July 22, 2005, for allegedly sexually abusing mothers two
minor sisters. Although father was never criminally charged, the arresting officers
observed illegal drugs and drug paraphernalia in the home that mother and father shared
with the children. The officers also observed that the interior of the home was filthy and
uninhabitable.
On July 27, 2005, Hennepin County Human Services and Public Health
Department (the county) filed a petition alleging that Z.C., S.F., and M.F. were children
in need of protection or services (CHIPS). Following an emergency protective-care
1 Z.C.s father, who voluntarily terminated his parental rights on June 13, 2007, is not a
party to this appeal.
3
hearing, the district court ordered protective care, including case plans for mother and
father and out-of-home placement of the children.
On April 14, 2006, the county filed a termination-of-parental-rights (TPR) petition
pertaining to the three children. The county alleged that the parental rights of mother and
father should be terminated because (1) the parents had substantially, continuously, or
repeatedly refused or neglected to comply with the duties imposed on them by the parentchild
relationship; (2) following the childrens placement out of the home, reasonable
efforts under the direction of the district court had failed to correct the conditions leading
to the childrens placement out of the home; and (3) the children were neglected and in
foster care.
On September 25, 2006, mother and father voluntarily waived their right to a
CHIPS trial and admitted the allegations in the CHIPS petition. At the same hearing,
they waived their rights to a TPR trial and agreed to a voluntary termination of their
parental rights under Minn. Stat. 260C.301, subd. 1(a) (2006). The TPR petition was
amended to include Minn. Stat. 260C.301, Subd. 1(a), as a statutory ground for a
voluntary termination of parental rights, and mother and father each filed an affidavit
with the district court consenting to the voluntary termination of parental rights.
To demonstrate good cause for the voluntary termination of their parental rights,
as required under section 260C.301, subdivision 1(a), mother and father admitted that
(1) their chemical dependency makes them unable to care for the children appropriately;
(2) they were provided services to assist them but did not take advantage of the services
until recently; (3) they did not complete their case plans; (4) they did not correct the
4
conditions that led to the childrens out-of-home placement; (5) the children have been in
foster care for 14 months; and (6) it is in each of the three childrens best interests to
terminate the parental rights of mother and father. Based on these admissions, the district
court found clear and convincing evidence that there was good cause to terminate the
parental rights of mother and father and that termination is in the childrens best interests.
The district court ordered the voluntary termination of the parental rights of mother and
father.
But because mother and father were making a last minute attempt to engage in
services, the parties agreed to stay the voluntary termination of parental rights to give
mother and father a chance to engage in their case plans. In an order dated October 9,
2006, the district court stayed the voluntary termination of parental rights for 90 days and
directed that a TPR order be entered automatically at the end of the 90-day period, unless
the district court extended the timeline for an additional 90-day period, dismissed the
proceedings, or entered the TPR order before the expiration of the 90-day period. The
district court also ordered mother and father to comply with their case plans.
As part of their court-ordered case plans, mother and father were both required to
(1) participate in couples counseling and family therapy; (2) demonstrate sobriety by
submitting to drug testing three times per week; (3) participate in one Alcoholics
Anonymous (AA) or Narcotics Anonymous (NA) group per week, provide evidence of
participation by submitting signed attendance forms, and obtain a sponsor; (4)
demonstrate both active participation in all therapies and evidence of positive changes in
behavior as a result of participation; (5) obtain safe and suitable housing; and
5
(6) participate in the childrens individual therapy as recommended by their therapists
and follow their therapists recommendations. Fathers case plan also required him to
complete a psychosexual evaluation, follow all resulting recommendations, and complete
aftercare and halfway-house treatment through the chemical-dependency treatment
program in which he was enrolled. Mothers case plan also required her to participate in
individual psychotherapy, complete a chemical-dependency assessment, and follow the
resulting recommendations. Consistent with the parties agreement regarding the stay,
the district courts order delineated specific actions that would constitute violations of the
stay and advised that [f]ailure to comply with the case plan may result in the immediate
termination of parental rights of the violating parent.
On October 2, 2006, seven days after the parties agreed to the conditions of the
stay, mother tested positive for methamphetamine. On December 6, 2006, respondent
guardian ad litem moved the district court to revoke the stay with respect to mother based
on her positive drug-test results. The county took no position regarding the guardian ad
litems motion. The district court stayed the TPR order for an additional 90-day period
and scheduled a hearing on the guardian ad litems motion for January 2007. Because of
scheduling conflicts, the parties were unable to appear until March 23, 2007.
In light of the expiration of the second 90-day period on March 12, 2007, the
guardian ad litem withdrew her motion to lift the stay based on mothers drug use,
concluding that it was moot. The guardian ad litem and the county then moved the
district court to enter the TPR order with respect to both mother and father based on the
expiration of the 90-day period during which mother and father were ordered to comply
6
with the conditions of the stay. The county alternatively sought an evidentiary hearing
addressing the best interests of the children. Mother and father sought an evidentiary
hearing to address on the merits whether the stay should be revoked. The district court
declined to enter the voluntary TPR order based on the expiration of the 90-day period
and extended the stay to permit an evidentiary hearing on the merits.
The parties disputed the appropriate scope of the hearing. Although the parties
agreed that the best interests of the children were within the scope of the hearing, they
disagreed as to whether the existence of statutory grounds for termination of parental
rights should be addressed. Over the objections of mother and father, the district court
permitted the parties to address the grounds for involuntary termination of parental rights
alleged in the original TPR petition. A comprehensive eight-day evidentiary hearing was
held in March, June, and July 2007.2
Following the hearing, the district court revoked the stay of the voluntary
termination of parental rights and ordered the parental rights of mother and father
terminated. In support of its decision, the district court made extensive findings of fact
addressing fathers sexual abuse of mothers sisters; each parents drug abuse; the
childrens environment and welfare; the best interests of the children; each parents
compliance with the applicable case plan; and each parents compliance with the
conditions of the stay. The district court concluded that overwhelming evidence
demonstrates that it is in the best interests of the children to terminate the parental rights
2 Z.C. testified briefly in chambers on March 23, 2007. The remainder of the evidentiary
hearing was held in June and July.
7
of mother and father. The district court found clear and convincing evidence that good
cause exists to enter a voluntary termination of the parental rights of mother and father
at the present time. Finding that mother and father had violated the conditions of the
stay, the district court lift[ed] the stay and enter[ed] a voluntary termination order.
The district court also made findings regarding grounds for an involuntary
termination of parental rights. Reasoning that In re Welfare of P.R.L., 622 N.W.2d 538,
543 (Minn. 2001), seem[s] to indicate that the court can revoke the stay if it finds that
any statutory ground alleged in the petition, not just the statutory ground relied upon for
the stayed order, exists at the time, the district court addressed the three statutory
grounds for involuntary termination alleged in the original TPR petition. Finding clear
and convincing evidence to support each of those grounds, the district court concluded
that, based on one voluntary ground and three involuntary grounds, terminating the
parental rights of mother and father was justified.
Mother and father moved for a new trial, which the district court denied. This
appeal followed.
ISSUES
I. Did the district court err by revoking the stay and terminating the parental rights of
appellants for good cause?
II. Were appellants deprived of procedural due process?
8
ANALYSIS
I.
Generally, our review of an order terminating parental rights is limited to
determining whether the district courts findings address the statutory criteria, whether
those findings are supported by substantial evidence, and whether they are clearly
erroneous. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001) (involuntary
termination); In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (voluntary
termination). Because the district court is in a superior position to observe the witnesses
during trial, its assessment of witness credibility is accorded deference on appeal. In re
Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). But we will 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). And we will affirm the district
courts termination of parental rights if at least one statutory ground for termination is
supported by clear and convincing evidence and termination is in the childs best
interests. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).
Mother and father do not challenge the district courts finding that termination is
in the childrens best interests. Rather, they argue that they complied with the
conditions of the stayed voluntary termination of parental rights . . . and therefore, there
is no good cause to enter the termination. But their argument conflates two distinct
issues: (1) whether there was a sufficient evidentiary basis to establish the existence of a
statutory ground to terminate their parental rights and (2) whether there was a sufficient
evidentiary basis to establish a violation of the conditions of the stay.
9
A stay of a TPR order is without specific authority in statute or rule. P.R.L., 622
N.W.2d at 543; accord In re Welfare of Children of B.J.B., 747 N.W.2d 605, 609 (Minn.
App. 2008) (discussing P.R.L. in context of due-process challenge to stay of involuntary
termination of parental rights). Similarly, no statute or rule authorizes the revocation of
such a stay or provides guidance as to when revocation is permissible. We recently held
that revocation of a stay requires a sufficient evidentiary basis to establish the existence
of conditions that satisfy a statutory ground for termination of parental rights when the
revocation occurs. B.J.B., 747 N.W.2d at 610 (citing P.R.L., 622 N.W.2d at 544-45).
Although a statutory ground is necessary for the district court to revoke the stay, the stay
would be meaningless if its revocation were not premised on the parents failure to
comply with the conditions of the stay. Cf. P.R.L., 622 N.W.2d at 544 (expressing
concern that a stay engenders in child and parent the hope of reunification based upon
anticipated compliance with the conditions of the stay by a parent who has so steadfastly
failed to comply with case plans that it has been found to be in the best interests of the
child to have the parents rights terminated). Therefore, when considering a motion to
revoke a stay, a district court not only must determine whether a statutory ground for
terminating parental rights exists, it also must address the parents compliance with the
conditions of the stay to determine whether revocation of the stay is warranted. We
address each issue in turn.
10
A.
The statutory bases for terminating parental rights are divided into two types,
voluntary and involuntary.3 Minn. Stat. 260C.301, subd. 1(a), (b) (2006) (addressing
voluntary and involuntary terminations, respectively). A voluntary termination requires a
parent to consent to the termination for good cause. Id., subd. 1(a). Thus, the statutory
ground for terminating the parental rights of mother and father was established in
September 2006 when each parent admitted to a factual basis to establish good cause for
a voluntary termination under section 260C.301, subdivision 1(a), and consented to the
voluntary termination of their parental rights. Although a voluntary termination of
parental rights may be rescinded if it is the result of fraud, duress, or undue influence, cf.
D.D.G., 558 N.W.2d at 484 (discussing final voluntary termination of parental rights),
neither mother nor father has sought to rescind the voluntary termination of parental
rights. Rather, they argue that they substantially complied with the conditions of the stay,
thereby eliminating the good-cause basis that they previously admitted. But even if
substantial compliance with the conditions of a stayed voluntary termination of parental
rights has the effect that mother and father purport, the record reflects that they did not
substantially comply. Each parents violations of the conditions of the stay amply
3 In all termination proceedings, whether voluntary or involuntary, the paramount
consideration is the childs best interests. Minn. Stat. 260C.301, subd. 7 (2006)
(making childs best interests paramount consideration in any proceeding under Minn.
Stat. 260C.301); D.D.G., 558 N.W.2d at 484 (stating in context of voluntary
termination that in all termination cases, our paramount concern is for the childs best
interests). Because mother and father do not challenge the district courts finding that
termination of their parental rights is in the best interests of each child, the validity of the
district courts best-interests findings is not before us.
11
demonstrate the continuing existence of the good-cause basis for terminating their
parental rights that they admitted in September 2006. Thus, the district courts finding
that good cause exists to terminate the parental rights of mother and father is not clearly
erroneous.
B.
When deciding whether revoking a conditional stay of a voluntary termination of
parental rights is warranted, a district court must first determine whether the parent has
complied with the conditions of the stay. If the conditions of the stay were violated, the
district court must then assess whether the violation warrants revocation. Because
revoking the stay results in terminating parental rights, this action may be ordered only
when it is in the best interests of the child. See D.D.G., 558 N.W.2d at 484 (stating in
context of voluntary termination of parental rights that paramount concern in all TPR
proceedings is childs best interests); cf. In re Tanghe, 672 N.W.2d 623, 625-26 (Minn.
App. 2003) (observing in context of involuntary termination of parental rights that if
contrary to childs best interests, termination is inappropriate even when statutory ground
for termination exists). Whether termination of parental rights is in a childs best
interests is a decision that rests within the district courts discretion. Tanghe, 672
N.W.2d at 625-26. Therefore, when the district court finds that a parent has violated the
conditions of a stay, the decision whether to revoke the stay based on that violation is a
matter committed to the district courts discretion. And we will not reverse the district
12
courts decision to revoke a conditional stay of a voluntary termination of parental rights
absent an abuse of that discretion.4
Here, the district court found multiple violations of the conditions of the stay that
are supported by the record. The record demonstrates that mother violated the terms of
the stay by (1) testing positive for drug use and submitting a diluted drug-test sample;5
(2) failing to demonstrate participation in NA; (3) failing to demonstrate that she had
obtained a sponsor; (4) precluding the verification of her purported sponsor by revoking
her permission to release the information; and (5) failing to demonstrate a positive
change, as made evident by her failure to acknowledge the effects of her drug use on her
children.
The record similarly demonstrates that father violated the conditions of the stay by
(1) failing to demonstrate participation in NA; (2) failing to demonstrate that he had
obtained a sponsor; (3) precluding verification of his purported sponsor by revoking his
permission to release the information; (4) preventing therapists from accurately assessing
his need for treatment by providing false information on the psychosexual evaluation and
manipulating the evaluation process; and (5) failing to demonstrate a positive change, as
4 We observe that the nature of the termination of parental rights, i.e., voluntary or
involuntary, does not change when a stay is revoked. Thus, for example, if the district
court revokes a stay of a voluntary termination of parental rights, it must enter a
voluntary TPR order.
5 Although mother argues that a violation of the stay cannot be based on her positive drug
test, we are not persuaded. Mother agreed on the record to the conditions of the stay, see
Minn. R. Juv. Prot. P. 19.03 (permitting parties to agree on the record to terms of a TPR
settlement), and later admitted that she was aware when taking the methamphetamine that
led to the positive drug-test results that a single positive test result could lead to
termination of her parental rights.
13
made evident by his manipulation of the psychosexual evaluation, ongoing angermanagement
problems, and denial of his chemical dependency. Moreover, the record
amply demonstrates that both parents violated a district court order issued while the stay
was in effect that prohibited them from having visitation with the children without prior
written approval from the district court.
Mother and father contend that the district courts findings regarding violations of
the conditions of the stay are clearly erroneous because some witnesses testified that
mother and father had complied with the court-ordered case plan. But [t]he weight to be
given any testimony, including expert testimony, is ultimately the province of the factfinder.
In re Welfare of Children of J.B., 698 N.W.2d 160, 167 (Minn. App. 2005).
And there is ample evidence in the record to support the district courts finding that
mother and father violated the conditions of the stay.
Finally, mother and father argue that, even if they did not comply with all of the
conditions of the stay, the district courts decision to revoke the stay and terminate their
parental rights was improper because they complied with the bulk of the [case] plan.
This argument also is premised on a challenge to the district courts credibility
determinations, which are the province of the district court. See In re Welfare of M.D.O.,
462 N.W.2d 370, 374-75 (Minn. 1990) (stating that fact-finding is domain of district
court, which is in a superior position to assess witness credibility). After assessing the
weight and credibility of the evidence, the district court found that mother and father
violated the conditions of the stay. This finding is well supported by the record. Thus,
based on the record before us, which establishes each parents multiple violations of the
14
terms and conditions of the stay, the district courts decision to revoke the stay and enter
the voluntary termination of parental rights was not an abuse of discretion.
II.
We next address two due-process challenges to the district courts decision raised
by mother and father. Whether a parents due-process rights have been violated in a TPR
proceeding is a question of law, which we review de novo. In re Child of P.T., 657
N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).
The parent-child relationship is among the fundamental rights protected by the
constitutional guarantees of due process. B.J.B., 747 N.W.2d at 608. Due process
requires reasonable notice, a timely opportunity for a hearing, the right to counsel, the
opportunity to present evidence, the right to an impartial decision-maker, and the right to
a reasonable decision based solely on the record. Humenansky v. Minn. Bd. of Med.
Examrs, 525 N.W.2d 559, 565 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).
The applicable due-process standard in a TPR proceeding resides in the guarantee of
fundamental fairness. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388, 1394-
95 (1982); B.J.B., 747 N.W.2d at 608. Although the amount of process due in a
particular case varies with the unique circumstances of that case, prejudice as a result of
the alleged violation is an essential component of the due process analysis. In re
Welfare of Child of B.J.-M., 744 N.W.2d 669, 673 (Minn. 2008) (citations omitted).
A.
Father argues that his due-process rights were violated because the district court
found that he violated the conditions of the stay in part because he failed to admit that he
15
sexually abused mothers sisters. Father maintains that an admission of this nature was
not required under the court-ordered case plan. But father did not present this argument
to the district court during the evidentiary hearing or in his new-trial motion. And
generally we will not address constitutional issues that were not raised before the district
court. In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999); cf. Alpha Real
Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310-11 (Minn.
2003) (permitting review of substantive questions of law not raised in posttrial motions
but properly raised during trial). By failing to raise this argument before the district
court, father has waived it on appeal.
Regardless of any procedural defects, however, fathers claim is without merit
because he failed to demonstrate prejudice. Although the district court made several
findings pertaining to fathers denial that he had sexually abused mothers sisters, those
findings were not the sole basis for the district courts determination that father violated
the conditions of the stay. As addressed above in Section I.B., mother and father were
aware that revocation of the stay and termination of their parental rights could result from
failing to comply with any condition of the stay. They failed to comply with several.
Thus, even if the district court erred by relying on fathers refusal to admit committing
the sexual abuse, the district courts reliance on ample other grounds for revoking the
stay renders any such error harmless because the essential element of prejudice has not
been met.
16
B.
Mother and father also argue that, because the district court made findings of fact
and conclusions of law pertaining to grounds for an involuntary termination of parental
rights in addition to addressing the grounds for revoking the stay of their voluntary
termination of parental rights, they were deprived of due process. This argument is
unavailing. Due-process guarantees preclude the termination of parental rights based on
a statutory ground that was not included in a petition to terminate parental rights. B.J.-
M., 744 N.W.2d at 673. Here, it is undisputed that the petition, which identified
section 260C.301, subdivision 1(a) (voluntary termination of parental rights for good
cause), as a statutory ground for terminating parental rights, complied with this
requirement. Thus, as mother and father concede, entry of a voluntary termination of
parental rights would not violate their right to due process.
When determining whether a termination of parental rights was voluntary or
involuntary, we look to the record as a whole, rather than relying solely on the
characterization by the district court. A.S., 698 N.W.2d 190, 195 (Minn. App. 2005),
review denied (Minn. Sept. 20, 2005); In re Welfare of Child of W.L.P., 678 N.W.2d 703,
712 (Minn. App. 2004). Here, mother and father affirmatively represented to the district
court that they agreed to voluntarily terminate their parental rights; and both signed
affidavits giving their consent. See W.L.P., 678 N.W.2d at 712 (requiring parent to take
some affirmative steps to voluntarily terminate). The petition was amended to include
section 260C.301, subdivision 1(a), as a statutory ground for a voluntary termination of
parental rights. And the district court concluded its findings by stating: [T]he Court lifts
17
the stay and enters a voluntary termination order. The record demonstrates that it was
the intent of mother, father, and the district court that the parental rights of mother and
father be voluntarily terminated. And the voluntary termination of parental rights was
accomplished by the district courts order.
Although the district courts findings and conclusions regarding involuntary TPR
grounds were not pertinent to the motion to revoke the stay, any error in making these
findings is harmless. See In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App.
1997) (refusing to reverse termination of parental rights for harmless error); cf. State v.
Cannady, 727 N.W.2d 403, 405 (Minn. 2007) (applying harmless-error analysis to
due-process argument).
D E C I S I O N
The consent of appellants to the voluntary termination of their parental rights for
good cause was an adequate statutory ground for terminating their parental rights after
revoking the stay. Because the record supports the district courts finding that appellants
violated the conditions of the stay, the district court did not abuse its discretion by
revoking the stay and terminating appellants parental rights under Minn. Stat.
260C.301, subd. 1(a) (2006). Nor did the district court violate appellants due-process
rights in doing so.
Affirmed.
 

 
 
 

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