                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0062

                In the Matter of the Welfare of the Child of: H. M. T., Parent

                                     Filed June 20, 2016
                                          Affirmed
                                       Hooten, Judge

                              Hennepin County District Court
                                 File No. 27-JV-15-3941

Mary F. Moriarty, Chief Hennepin County Public Defender, Mark D. Nyvold, Special
Assistant Public Defender, Fridley, Minnesota (for appellant H.M.T.)

Michael O. Freeman, Hennepin County Attorney, Cory A. Carlson, Senior Assistant
County Attorney, Minneapolis, Minnesota (for respondent county)

Shirley A. Reider, St. Paul, Minnesota (for guardian ad litem)

         Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and Jesson,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         In this appeal from an order terminating her parental rights, appellant argues that

the district court clearly erred by finding that she failed to rebut the presumption of palpable

unfitness to parent because she was not allowed sufficient time to complete her case plan

and attain sobriety. We affirm.
                                           FACTS

       On April 2, 2014, appellant H.M.T.’s parental rights were involuntarily terminated

with respect to two of her children. The district court found that H.M.T. “cannot parent

the children due to chemical dependency issues.” The district court concluded that H.M.T.

neglected her parental duties, that she was palpably unfit to be a parent, that reasonable

efforts to correct the conditions had failed, and that the children were neglected and in

foster care. The district court further ruled that it was in the best interests of the children

to terminate H.M.T.’s parental rights. Nothing in the record shows that H.M.T. ever

appealed this termination of her parental rights.

       H.M.T. subsequently became pregnant again and contacted her former child

protection worker to inquire about how the previous termination of her parental rights

would impact her pregnancy. H.M.T. was referred to Project Child, which helps expectant

mothers maintain sobriety during pregnancy and ensures that they receive prenatal care.

However, her involvement with Project Child was inconsistent. H.M.T. admitted to using

drugs during the pregnancy, and drug tests showed that she had used methamphetamine

and marijuana.

       In July 2015, H.M.T. gave birth to C.A.T., who is the subject of this proceeding.

C.A.T. tested positive for amphetamines and cannabinoids after his birth.             Because

H.M.T.’s parental rights to her other children were previously involuntarily terminated, the

Hennepin County Human Services and Public Health Department (the county) was

required to immediately file a petition to terminate her parental rights to C.A.T. See Minn.

Stat. § 260C.503, subd. 2(a)(4) (2014). The county petitioned the district court to terminate


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H.M.T.’s parental rights to C.A.T., alleging that H.M.T. was palpably unfit to parent.

Because of the previous involuntary termination of H.M.T.’s parental rights, she was

presumed palpably unfit to be a party to the parent-child relationship. See Minn. Stat.

§ 260C.301, subd. 1(b)(4) (2014). Also because of the previous termination of H.M.T.’s

parental rights, the district court relieved the county of its duty to make reasonable efforts

to prevent the removal of C.A.T.

       Despite the fact that the district court did not require the county to make reasonable

efforts, the county offered H.M.T. a case plan. The focus of the plan was H.M.T.’s

chemical dependency. She was supposed to enter treatment on July 17, but she did not.

She ultimately entered treatment on July 28, but she left on July 30. She returned the

following day, only to leave again on August 2. H.M.T. was supposed to submit to

urinalysis for the county, but she never did. She did submit to urinalysis for Washington

County probation on September 2 and 17, and the county learned that, despite H.M.T.’s

denial that she was using drugs, she tested positive for THC, amphetamines, and

methamphetamines.      As part of her case plan, H.M.T. was offered in-home parenting

education, supervised visits with C.A.T., and a mental health assessment, but she chose not

to utilize these services. H.M.T.’s case plan also required her to maintain safe and suitable

housing, but she remained homeless throughout the duration of her case plan.

       On October 1, 2015, the district court held a termination of parental rights trial.

H.M.T. did not appear but was represented by counsel at the trial. Due to H.M.T.’s failure

to appear, the county requested to proceed by default. The district court granted the motion

to proceed by default and heard the foregoing evidence. C.A.T.’s court-appointed guardian


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ad litem also testified at the trial that terminating H.M.T.’s parental rights is in the best

interest of C.A.T.

       The district court terminated H.M.T.’s parental rights, concluding that she is

palpably unfit to be a party to the parent-child relationship and that it is in C.A.T.’s best

interests to terminate H.M.T.’s parental rights. H.M.T. moved for a new trial or to vacate

the default findings, and the district court denied the motion. H.M.T. appeals.

                                     DECISION

       H.M.T. argues that the district court clearly erred by finding that she did not rebut

the presumption that she is palpably unfit because she was not given adequate time to

complete her case plan and attain sobriety. “We review the termination of parental rights

to determine whether the district court’s findings address the statutory criteria and whether

the district court’s findings are supported by substantial evidence and are not clearly

erroneous.” In re Welfare of Children of S.E.P., 744 N.W.2d 381, 385 (Minn. 2008). “We

give considerable deference to the district court’s decision to terminate parental rights.”

Id. “[T]ermination of parental rights is always discretionary with the juvenile court.” In

re Welfare of Child of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014).

       A district court may terminate parental rights if “a parent is palpably unfit to be a

party to the parent and child relationship.” Minn. Stat. § 260C.301, subd. 1(b)(4). A parent

is presumed to be palpably unfit “upon a showing that the parent’s parental rights to one

or more other children were involuntarily terminated.” Id. “[T]he parent has the burden

of rebutting the presumption of palpable unfitness.” In re Welfare of Child of D.L.D., 771

N.W.2d 538, 543–44 (Minn. App. 2009) (quotation omitted). To rebut the presumption,


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“the parent needs to produce only enough evidence to support a finding that the parent is

suitable to be entrusted with the care of the children.” R.D.L., 853 N.W.2d at 137

(quotation omitted). A district court’s determination of whether a parent has rebutted the

presumption of palpable unfitness is a finding of fact, which is reviewed for whether it is

supported by substantial evidence and is not clearly erroneous. See D.L.D., 771 N.W.2d

at 544 (“Yet the district court concluded [that the parents] failed to rebut the statutory

presumption of palpable unfitness. Having reviewed the record evidence, we conclude that

the district court’s findings are supported by substantial evidence and are not clearly

erroneous.”).

       Here, because H.M.T.’s parental rights to her other children were previously

involuntarily terminated, she is presumed to be palpably unfit to parent, and she had the

burden of rebutting that presumption. The district court determined that H.M.T. failed to

meet that burden. H.M.T. defaulted in the proceedings, and the district court found that

she therefore did not provide any evidence that she “addressed the issues necessary to

properly parent her child.” The district court also found that H.M.T. is palpably unfit

“because of her inability to address her very serious chemical dependency.” The district

court found that during the pendency of this case, H.M.T. “ha[d] not successfully engaged

in treatment[] and ha[d] demonstrated a consistent pattern of chemical dependency of a

duration that renders her unable to care for the needs of her child.” The district court further

found that H.M.T. had “not established any period of sobriety[] or shown a desire to get

sober.”




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       H.M.T. argues that the district court clearly erred by finding that she failed to rebut

the presumption that she is palpably unfit because, given her “severe meth addiction,” it

should have been foreseeable to the district court and the county that H.M.T. would initially

refuse treatment and would need more time to complete her case plan. H.M.T.’s argument

is unpersuasive, however, because her argument assumes that she desired to get treatment

and become sober so that she could become fit to parent her child. Substantial evidence in

the record supports the district court’s finding that H.M.T. showed no desire to attain

sobriety. The evidence established that she used drugs before, during, and after her

pregnancy. She delayed going into treatment after the county filed the petition and offered

her a case plan. When she finally did go into treatment, she failed to remain and did not

return after leaving a second time. And, she failed to utilize any services offered to her as

part of her case plan. The district court therefore had substantial evidence in support of its

finding that H.M.T.’s “actions more strongly suggest that she is unable or unwilling to

engage in treatment than that she has an actual interest in treatment.” Critically, H.M.T.

failed to appear at her trial to offer any evidence to the contrary. Because substantial

evidence supports the district court’s finding that H.M.T. failed to rebut the presumption

that she is unfit to be a party to the parent-child relationship, the finding is not clearly

erroneous.

       Affirmed.




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