In re M. M. G.

1

In the Matter of the Welfare of the Children of: M. M. G. and L. T. S., Parents.

No. A23-0280

Court of Appeals of Minnesota

August 7, 2023

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Cottonwood County District Court File Nos. 17-JV-22-60 17-JV-20-49

Jennifer L. Thompson, JLT Law &Mediation, Litchfield, Minnesota (for appellant mother M.M.G.)

Nicholas Anderson, Cottonwood County Attorney, Windom, Minnesota (for respondent Des Moines Valley Health and Human Services)

Carma Nordahl, Sheldon, Iowa (guardian ad litem)

Considered and decided by Johnson, Presiding Judge; Worke, Judge; and Smith, John, Judge.

Smith John, Judge ^[*]

We affirm the district court's order terminating parental rights (TPR) because the district court did not: (1) abuse its discretion in ruling that a statutory basis existed to terminate appellant's parental rights, (2) violate appellant's due-process rights by holding a TPR hearing in appellant's absence when appellant failed to appear for the scheduled hearing.

FACTS

In late September 2020, the Des Moines Valley Department of Health and Human Services (the agency) filed a petition with the district court alleging that the nine-year-old child (child) of M.M.G. (appellant-mother) and L.T.S. (father) was a child in need of protective services (CHIPS) because the child was habitually truant.^[1] See Minn. Stat. § 260C.007 subd. 6(14) (2022). In early November 2020, the district court adjudicated the child in need of protective services.

On January 26, 2022, child was placed into the agency's emergency protective custody pursuant to a court order. Testimony in subsequent proceedings and subsequent case plans indicate that child was removed because there were concerns for child's safety and appellant's chemical dependency issues. At the time of removal, the assigned social worker asked appellant to come to the agency's office to meet with him and provide a urinalysis sample (UA). Appellant came to the office several hours later that day, but only to drop off a few items for child. She refused to meet with the social worker and claimed she was unable to provide a UA on such short notice. The social worker proposed an appointment for the following day when appellant could provide a UA. Appellant agreed, but failed to show the next day.

The district court held an emergency protective care (EPC) hearing on January 28 and February 2, 2022, which resulted in an order that child remain in the agency's protective custody. Appellant appeared at the January EPC hearing but failed to appear at the February hearing, despite appellant requesting the latter hearing and being served notice of it. Following these hearings, the district court found that the evidence and the CHIPS petition presented a prima facie case that: (1) child's health, safety and welfare would be endangered by being released back to appellant; (2) child was in surroundings or conditions that endangered child's health, safety, and welfare, requiring the agency to take custody of and assume responsibility for child's care; (3) there were no other reasonable efforts the agency could take to safely return child home; (4) appellant's continued custody would be contrary to child's best interests; (5) out-of-home placement was in child's best interests; and (6) there was no less restrictive alternative. The district court found that supervised visitation with child was in child's best interests, and ordered that visitation occur at the reasonable discretion of the agency in consultation with the guardian ad litem (GAL). The district court ordered appellant to complete a chemical use assessment (CUA) and parenting capacity assessment (PCA), and to follow all recommendations therefrom. The district court also ordered the agency to file with the court and serve upon the parties an out-of-home placement plan (case plan) outlining "appropriate and available services to be offered to [appellant] and the child" and specifying conditions appellant must "mitigate and the behavioral change(s) necessary for the child to be returned to the day-to-day care of [appellant]."

After multiple unsuccessful attempts to contact appellant by phone or at her residence,^[2] the social worker made a case plan in consultation with his supervisor and GAL and filed it with the district court on March 10, 2022.^[3] The social worker was able to discuss some terms with appellant about the case plan over the phone after it was filed, but struggled to get appellant to meet in person to "go through it individually." During these discussions, appellant objected to the agency's requirement that she provide UAs to meet with child in person.^[4] The case plan also required appellant, in relevant part, to undergo a CUA and PCA.

In describing appellant's pattern of behavior during this time, the social worker testified^[5] that appellant would

typically respond or reach out to me when she wanted something and ask to meet or to have a visit with [child], and then she would go-I guess I would just call it-she went cold. You wouldn't hear from her. She wouldn't respond to texts. It was very difficult to have communication when she wouldn't reply on a regular basis.

Although appellant was offered up to two supervised face-to-face visits with child weekly, appellant refused to ever provide UAs (a total of 23 refusals), with the result that she has never seen child in-person since his removal.

Between removal and the TPR hearing, the social worker traveled to appellant's residence at least 20 times to contact appellant, who never answered the door. No one from the agency ever succeeded in reaching appellant at her residence. On one occasion, the social worker made an appointment to meet with appellant at her residence. She canceled the appointment by text message while the social worker was on his way to meet her, claiming that she needed to "go to the DMV." The social worker investigated and discovered that appellant never went to the DMV. On another occasion, appellant and GAL scheduled a meeting. The social worker and GAL traveled to appellant's residence at the scheduled time and appellant was not there. While standing at appellant's door, they observed appellant driving toward her residence, but she accelerated and sped away when she saw them. Appellant did not respond to their calls or texts. One week later, the social worker traveled to appellant's residence to meet with her. Appellant was not there, but on the social worker's way out of town, he found himself driving behind appellant and followed her to a gas station. He asked her to provide a random UA, which she refused, explaining it would test positive for marijuana. Appellant also admitted at this time that marijuana was not the only drug in her system, but did not disclose which other drugs were. The social worker wrote appellant a handwritten note at this time detailing next steps she could take to comply with her case plan. The first requirement was to call the social worker the next day, which appellant did not do.

On April 1, 2022, after the pattern of appellant's failure to show up to scheduled appointments at the agency became clear, the district court ordered appellant to appear in person every Wednesday afternoon at the agency to meet with the social worker. This requirement was announced during a review hearing and written into an order so that appellant would not be confused about when and where the visits were to occur. This order also required appellant to use the social worker and assigned GAL as "collateral contacts" such that the information resulting from any CUA or PCA appellant completed would be released to the social worker and GAL. Appellant never appeared in person on a court-ordered Wednesday at the agency.

The agency initially arranged for child to be available for in-person visits on Wednesdays at the agency. The agency picked child up from school and prepared to bring him to the agency, but if appellant didn't show, the agency drove child to his foster home instead. Because child normally took the bus to his foster home on Wednesdays, it took child only two or three weeks to infer that on days the agency picked him up from school and dropped him off at the foster home, appellant had missed a scheduled visit. Child's foster parents told the social worker that on several Wednesdays when appellant failed to show, they heard child crying in his room with the door shut and one time praying for appellant to visit him. To avoid child's disappointment after missed visits, the agency changed the visitation plan to phone and video visits, up to two times a week, and appellant was required to schedule these visits during the week beforehand. Subsequent to this change, appellant had around six to eight phone or videocalls with child.

Appellant told the social worker that she was depressed, cried daily, had irregular sleep patterns, struggled to get out of bed, and wanted to see a therapist. The social worker provided referrals for therapists in the area, but appellant failed to follow up. The social worker repeatedly instructed appellant to stay in contact with him, told her several times that she needed to comply with the case plan, and told her that if she didn't take compliance "seriously" that "she could lose her [parental] rights."

Appellant completed a CUA telephonically. The social worker and GAL never saw the contents of this assessment because appellant did not give the assessor permission to release the assessment information to the social worker or GAL. The agency, which was responsible for ordering a PCA, never ordered one because according to the social worker, such assessments require an assessor to observe, in-person, a parent...