Matter of Welfare of HGB, 50440.
| Citation | 306 NW 2d 821 |
| Decision Date | 19 June 1981 |
| Docket Number | No. 50440.,50440. |
| Parties | In the Matter of the WELFARE OF HGB, MAB, and DJB. |
| Court | Supreme Court of Minnesota (US) |
John P. Alexis, Arthur Cheney, St. Paul, for fathers.
Warren Spannaus, Atty. Gen., St. Paul, Thomas Foley, County Atty., and Steven C. DeCoster, Asst. County Atty., St. Paul, for County Welfare Dept.
Arthur Seaberg, St. Paul, for guardian ad litem and the children.
Considered and decided by the court en banc without oral argument.
The minor children involved herein were adjudicated dependent and neglected children on November 22, 1977. In August of 1978, a petition for termination of parental rights was filed. Joyce, the mother of the minor children, was served while incarcerated in prison in Mississippi. Counsel was appointed for her. After several continuances, the termination hearing was held without Joyce being present, although she was represented by counsel. Termination was ordered, and Joyce challenges the sufficiency of the evidence and raises due process issues. We affirm.
On July 27, 1977, the Ramsey County Welfare Department filed a petition for temporary legal custody, alleging that HG, born March 24, 1972, MA, born April 10, 1974, and DJ, born October 8, 1976, were dependent and neglected. The petition alleged that their mother, Joyce, had emotional or mental disabilities, had been hysterical and angry in her contacts with a social worker, had suffered nervous breakdowns, and had lived with a known pimp who had been convicted of assault and theft; that the alleged fathers of the children did not provide them with care or support; that their mother moved frequently and at times had no permanent home; that she had failed to provide medical follow-up care for HG and immunizations for the children; that the children were left without supervision on June 23, 1977, at which time they were picked up by the police and placed in an emergency shelter; that the mother made no contact with the welfare department about the children until June 30, 1977; and that she had failed to cooperate with the welfare department in its attempts to help her in planning for her children. At the hearing on this petition, the children were placed in temporary legal custody, and the matter was continued until September 22, 1977. It was thereafter continued until November 22, 1977.
On that date, appellant was represented by an attorney from LARC and the children by a court-appointed guardian ad litem. The admitted father of one of the children agreed to permit the welfare department to remain in custody, but appellant opposed it. After the hearing, it was adjudicated that the children were dependent and neglected. The court ordered that the legal custody be continued after finding that the children were without proper parental care because of the faults and habits of appellant; she lived with a man who had a record of several convictions, including assault; the children were without necessary subsistence or other care required for their health and morals because their mother moved frequently, did not provide them with proper immunizations and dental care, and left them alone and without food; the mother had been convicted of prostitution in August 1977 and arrested for it in October 1977; she had not visited the children since their placement in foster care on August 31, 1977; and she had failed to cooperate with the welfare department in its attempts to help her in planning for them. The court also found HG to be disturbed in social-emotional adjustment and in need of a stable home environment. Legal custody of the children remained in the welfare department to February 16, 1978.
On February 16, 1978, the matter was continued until April 13, again on that day to May 11, 1978, and the mother was ordered to cooperate with the welfare department in all recommendations until that time. On May 11, a similar order was entered, and the matter was continued to August 10. On August 10, appellant's counsel was permitted to withdraw, and the matter was then continued to October 5, 1978.
On August 24, 1978, the welfare department petitioned for termination of the parental rights of appellant and of the alleged fathers of the children for their failure to give them necessary parental care (failure to support financially, to visit, and to correct the conditions which had led to the determination of neglect and dependency). It represented that the mother had abandoned the children and that her whereabouts was unknown since March 2, 1978. The court ordered that notice of the hearing be served by publication pursuant to Minn. Stat. § 260.231, subd. 3 (1978). On September 1, 1978, and on October 5, 1978, the court ordered the matter continued until November 1, 1978, to procure service upon appellant.
On September 26, 1978, appellant telephoned Mrs. Elizabeth Burkinshaw, a social worker for the welfare department, from a jail in Mississippi, asking her about the children and saying that she (appellant) was going to prison shortly. At the hearing scheduled for November 1, appellant's attorney requested a continuance until December 27, at which time appellant's attorney informed the court that appellant contested the petition for termination of her rights and requested that she be returned to Minnesota for the trial. Prior to that date, the court also had received a letter from appellant, stating that she "would like to have this matter with my children be put off until I'm able to come back and defend myself after I'm released from prison." At the hearing on December 27, the matter was continued again, supposedly until February 26, 1979.
At the next hearing, which took place on March 5, 1979, appellant's attorney moved for continuance again, informing the court that appellant "is eligible for parole in the latter part of May." Alternatively, he asked to be allowed to withdraw because he could not put on an effective defense. The motion for continuance was opposed by the county attorney who said that the parole hearing apparently was one to determine whether she would become eligible for parole; that her going to Mississippi where she had committed the crimes was entirely her doing; and that if she could not be present at the hearing, it was due to "her own free actions down in Mississippi." The county attorney urged that the ages of the children and the period they had been in foster care made it crucial that the hearing proceed rather than be continued because of the possibility of a parole. The court agreed, denying the alternative motion, and the trial proceeded.
The testimony of social workers established that following placement of the children in foster care on August 31, 1977, appellant made no visits to them, made no calls to inquire about them, and sent no presents or cards to them prior to the hearing on November 14, 1977. Following the dependency and neglect determination on that date, appellant missed an appointment set up with her attorney by her social worker to discuss goals for return of the children to her custody. She came to another appointment, and the goals were discussed: the need for regularly visiting the children; for finding suitable housing; for establishing financial stability; and for participating in a parent-effectiveness training program. Appellant was urged to keep regular contact with the social worker. One visit was arranged in December at the welfare office because of earlier threats by appellant to remove the children from the state and because of her hysterical behavior in talking with the social worker. At that meeting, a man with whom appellant lived, allegedly a pimp convicted of assault and theft, came with her to the visit. This proved upsetting to HG who told the social worker that she had been beaten by this man. A second visit was arranged for December 21, but appellant did not come, calling to say that she had overslept.
On January 12, 1978, appellant called the social worker from the workhouse, asking about the children and saying that she would be out in 30 days, would no longer associate with the man, and would work on the goals set for her. Edwin Holt, a Hennepin County Welfare Department social worker also working with appellant, went to see her at the workhouse to offer her assistance with transportation if needed and with references to mental agencies. Appellant told Holt that she would call him, but never did. Holt made a visit to her apartment on February 22 and found that she was again living with the man. Appellant listened to Holt review the goals and seemed optimistic about attaining them. She broke an appointment for February 28, at which time future visitations were to be scheduled, and she was to be taken to see the children at their foster homes. On March 2, appellant visited the children with a social worker and on March 6 and March 20 went by herself to see them. At the last meeting, she offered to bring a dress and some Easter baskets to HG and DJ a few days later, but did not come. An appointment to "sign a contract about goal areas" was set up for April 13, but appellant did not keep it. Her whereabouts thereafter was not known until September 26, and certified letters sent her by the social workers were being returned during that period. On September 26, as stated, appellant telephoned Mrs. Burkinshaw.
A child psychiatrist diagnosed MA as hyperkinetic, thought multiple placements were more harmful to such children than to others, and said they need permanence and stability in their emotional and affectional life. A child psychologist said that HG had been very anxious when first seen in September 1977, that her intelligence had been on the borderline range but that she had improved steadily in foster care, and that her intellectual growth had been steady. The child psychologist said that anxiety in a child often results from uncertainty and lack of security in early years, that HB still suffers greater anxiety than a...
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