In re J. R. R., A19-1739

CourtCourt of Appeals of Minnesota
Citation943 N.W.2d 661
Docket NumberA19-1739
Parties In the MATTER OF the WELFARE OF the CHILD OF J. R. R., Parent.
Decision Date13 April 2020

943 N.W.2d 661

In the MATTER OF the WELFARE OF the CHILD OF J. R. R., Parent.

A19-1739

Court of Appeals of Minnesota.

Filed April 13, 2020


Mary F. Moriarty, Fourth District Public Defender, David W. Merchant, Assistant Public Defender, Minneapolis, Minnesota (for appellant-child M.R.)

Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Senior Assistant County Attorney, Minneapolis, Minnesota (for respondent Hennepin County Human Services and Public Health Department)

Mary A. Torkildson, Hennepin County Adult Representation Services, Minneapolis, Minnesota (for respondent-mother J.R.R.)

Thomas J. Nolan, Jr., Nolan Law Offices, Minneapolis, Minnesota (for guardian ad litem Nancy Lange)

Considered and decided by Florey, Presiding Judge; Worke, Judge; and Larkin, Judge.

LARKIN, Judge

This is an appeal by a now 16-year-old child from the district court’s grant of his

943 N.W.2d 664

mother’s request to voluntarily terminate her parental rights to that child. The child argues that the district court failed to timely appoint counsel for him, deprived him of his right to attend and participate in hearings, and failed to make adequate findings of fact to support the termination. The child also argues that the record does not support the termination of mother’s parental rights. We have concerns regarding several aspects of this case. Two justify reversal. First, neither the district court’s findings of fact nor the record support the district court’s grant of mother’s request to voluntarily terminate her parental rights. Second, the child’s right to attend and participate in the termination hearings was not honored. We therefore reverse and remand.

FACTS

Respondent J.R.R. is the mother of appellant M.R. (the child), born in 2004, as well as the child’s siblings. The child is not enrolled as a member of an Indian tribe, and is not eligible for membership in any Indian tribe. In February 2019, respondent Hennepin County Human Services and Public Health Department (the county) received a report alleging that mother failed to provide shelter for the child by refusing to pick him up from the hospital after the two allegedly had an altercation. Mother stated that the child could not return to her home and that she wanted to terminate her parental rights to the child.

On February 22, 2019, the county petitioned the district court to adjudicate the child to be in need of protection or services (CHIPS). That day, at an emergency-protective-care hearing, the district court placed the child in the county’s custody. Present at the hearing were mother and her attorney, an attorney for the county, and someone from the guardian ad litem (GAL) program identified as a "coverage" GAL.1 Neither the child nor an attorney representing the child were at the hearing.

At the hearing, mother’s attorney stated that mother was "prepared to make a CHIPS admission," with the "expectation that the case moves forward towards permanency" because mother was "open to" exploring a voluntary termination of her parental rights to the child. The district court stated that it would appoint a GAL for the child.

The district court, by order filed March 14, 2019, adjudicated the child CHIPS. Additional hearings in the CHIPS case occurred on May 1, 2019, and July 8, 2019. While a "coverage" or "covering" GAL attended each of these hearings, a GAL specifically appointed for the child attended neither hearing. Similarly, counsel for the child attended neither hearing. At the July 8, 2019 hearing, mother’s attorney stated that mother wanted to move to Texas and that "the only thing" keeping her in Minnesota was the juvenile-protection case. At that hearing, the district court, per mother’s request, directed the county to "move forward with permanency forthwith" and scheduled a hearing for August 16, 2019, on the expected permanency petition.

After the July 8, 2019 hearing, the attorney for the county "tracked down" a public defender, "asked [the public defender] if she could represent the child," and the

943 N.W.2d 665

public defender met with the child. On July 23, 2019, five months after the district court announced from the bench that it would appoint a GAL for the child, and four months after the district court adjudicated the child CHIPS, the district court signed an order appointing a GAL for the child.

On July 31, 2019, the county petitioned to terminate mother’s parental rights. The termination-of-parental-rights (TPR) petition alleged that mother neglected the child because she refused to pick him up from the hospital and refused to let him return home. The petition asserted that termination was in the child’s best interests because (1) returning the child to his mother or father was "not possible within the foreseeable future," (2) the child "would be free to be adopted," (3) the child’s "need for permanency and other interests outweigh the interests of either parent or child in continuing the parent-child relationship," and (4) "[t]ermination of [mother’s] parental rights and adoption [of the child] is the preferred permanency option for a child that cannot return home." The petition asked the district court to terminate mother’s parental rights both voluntarily under Minn. Stat. § 260C.301, subd. 1(a), and involuntarily under Minn. Stat. § 260C.301, subd. 1(b) (2018).

On August 16, 2019, the district court held an admit/deny hearing on the TPR petition. Mother, mother’s attorney, and the attorney for the county attended. The child’s attorney and his GAL believed that the hearing was set for August 21, 2019, and therefore did not attend the hearing on August 16, 2019. The child also did not attend. At the hearing, the county reported that it had "a settlement ... [for] which [mother] ha[d] voluntarily executed the paperwork." Mother’s attorney confirmed that a settlement had been reached, noting that mother had executed an affidavit of voluntary termination of her parental rights.

Under Minn. Stat. § 260C.301, subd. 1(a), a district court must find "good cause" to grant a parent’s request to voluntarily terminate that parent’s parental rights. Mother’s affidavit consolidates its discussion of "good cause" and the child’s best interests. The sum total of that discussion states, "I believe that it is in the best interest of my child ... that I voluntarily consent to terminate my parental rights and that there is good cause to do so."

At the hearing, after being sworn in, mother waived her trial rights and entered an admission to the TPR petition. The following exchange occurred between mother and her attorney regarding the child’s best interests and the existence of good cause to voluntarily terminate mother’s parental rights:

Q: And you believe that this is what is in the best interest of both you and your son, because you cannot keep him under control, you don't have the tools to keep him in your home and provide parenting for him safely, because he's not under your control; is that correct?

A: Yes.

Q: And that would be good cause for you to voluntarily terminate your rights, correct?

A: Yes.

Mother’s attorney stated that the child’s GAL was absent because of confusion about the hearing date, and both the attorney for the county and mother’s attorney asked the district court to leave the record open to allow input from the child’s attorney and the child’s GAL. The district court agreed to do so.

On September 3, 2019, the district court held a second hearing in the TPR case.

943 N.W.2d 666

The attorney for the county, mother’s attorney, mother, the child’s attorney, and the child’s GAL were present, but not the child. The district court explained that, although mother executed a "voluntary termination" at the August 16, 2019 hearing, the court had left the record open for input from the child’s attorney and the GAL.

The county asserted that termination of mother’s parental rights was in the child’s best interests, noting that the child had been in out-of-home placement since February and that mother had not engaged in a case plan. The county also asserted that other permanency options were not appropriate. Specifically, the county argued that permanent custody to the county was improper because the child was then under age 16 and that temporary custody to the county was improper because that disposition required the sole basis for the transfer to be the child’s conduct, which was not the case because mother wanted to terminate her parental rights. The county asked that mother’s request to voluntarily terminate her parental rights "remain," and mother’s attorney asserted that termination was legally sound and "should stand."

The child’s attorney objected to the "termination," noting that the child was not at the August hearing, that the district court had moved forward to allow mother to move to Texas but that mother no longer intended to do so, and that, after meeting with the child, it was clear that the child "in no way" wanted the district court to terminate mother’s parental rights. The child’s attorney requested that the district court "not allow that termination to go forward" and that "this case run its course as other cases do so that [the district]...

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