This opinion will be unpublished and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

A15-0183

In the Matter of the Welfare of the Children of:

E. M. U. and W. H. H., Parents.

Filed July 20, 2015

Affirmed

Kirk, Judge

Anoka County District Court

File Nos. 02-JV-13-1440, 02-JV-14-1012

Patricia A. Zenner, Stillwater, Minnesota (for appellant E.M.U.)

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County 

Attorney, Anoka, Minnesota (for respondent Anoka County)

Judi Albrecht, Eagan, Minnesota (guardian ad litem)

Alisha Olmstead, Ramsey, Minnesota (guardian ad litem)

Considered and decided by Kirk, Presiding Judge; Schellhas, Judge; and Johnson, 

Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

Appellant-mother challenges the district court’s order terminating her parental 

rights. We affirm.
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FACTS

Appellant-mother E.M.U. is the biological mother of fourteen-year-old N.J.U. and 

two-year-old B.M.H.-U. N.J.U.’s father is deceased, and B.M.H.-U.’s father is W.H.H. 

E.M.U. and W.H.H. divorced in September 2013.1 

A five-day trial was held in December 2014, where E.M.U. was present and 

represented by legal counsel. On January 16, 2015, the district court issued amended 

findings of fact and conclusions of law, finding that there was clear and convincing 

evidence supporting the termination of E.M.U.’s parental rights to B.M.H.-U. under 

Minn. Stat. § 260C.301, subds. 1(b)(1), (2), (4), (5), (6), (8) (2014). The district court 

ordered N.J.U. to be placed in long-term foster care. The district court’s post-trial 

findings of fact are summarized below.

In October 2013, B.M.H.-U. was hospitalized for a blood and urinary tract

infection and E.M.U. and N.J.U. stayed with B.M.H.-U. in her hospital room. Hospital 

staff observed that E.M.U. failed to provide appropriate care to B.M.H.-U. Staff 

repeatedly found B.M.H.-U. in a wet diaper or covered in feces while E.M.U. slept 

through multiple loud alarms indicating that B.M.H.-U. was in need of immediate care. 

E.M.U. also failed to comply with staff instructions on how to feed B.M.H.-U. 

On October 17, Anoka County Social Service (ACSS) placed a 72-hour police 

hold on B.M.H.-U., and a few days later filed a child-in-need-of-protection-or-services

petition regarding B.M.H.-U. and N.J.U. On December 10, the district court adjudicated

 

1 On January 16, 2015, the district court terminated W.H.H.’s parental rights to 

B.M.H.-U. 
3

B.M.H.-U. in need of protection or services and transferred custody of the child to the 

county while N.J.U. was allowed to remain at home with E.M.U. under protective 

supervision by the county. The district court ordered E.M.U. to cooperate with countyreferred services including a parenting assessment, assistance from a public health nurse, 

a psychological evaluation, and in-home services. E.M.U. agreed to cooperate with the 

service providers.

During the next several months, E.M.U. met with numerous county-referred 

service providers who separately documented their concerns about her parenting abilities. 

The county conducted a parenting assessment indicating that E.M.U.’s mental health was 

a significant concern, as it negatively impacted her ability to parent her children. The 

assessment recommended that if E.M.U.’s mental health did not stabilize, the county 

should consider alternative placement options for B.M.H.-U. A mental-health 

practitioner who met weekly with E.M.U. for approximately six months to assist E.M.U. 

in improving her parenting skills testified at the termination-of-parental-rights trial that 

she believed that E.M.U. needed long-term psychiatric care, and that she was unable to 

parent B.M.H.-U. on a daily basis. An evaluator who completed an attachment 

assessment of B.M.H.-U.’s relationship with E.M.U. concluded that B.M.H.-U. was at 

tremendous risk for future developmental problems if she was returned to E.M.U.’s care. 

The evaluator also noted that N.J.U.’s relationship with E.M.U. was emotionally 

incestuous. The evaluator recommended that both children be permanently placed

outside of E.M.U.’s custody. E.M.U. also completed a psychological evaluation and the 

psychologist diagnosed E.M.U. with schizotypal personality disorder and unspecified 
4

attention deficit hyperactivity disorder. In light of this mental-health diagnosis, the 

psychologist characterized E.M.U.’s prognosis as “poor.” 

In January 2014, E.M.U. and N.J.U. became homeless. With the assistance of 

E.M.U.’s case manager, E.M.U. and N.J.U. relocated to a transitional housing complex 

for individuals with mental illness. But shortly after they moved in, housing staff notified 

E.M.U.’s case manager about their concerns regarding E.M.U.’s odd behaviors, which 

included E.M.U. reporting hearing and seeing things that were not real. In April 2014, 

E.M.U. agreed to go to the hospital for a mental-health evaluation and N.J.U. was placed 

on a police hold and in foster care. After an emergency hearing, the district court 

concluded that N.J.U. continued to be a child in need of protection or services and 

continued his placement in foster care. 

While hospitalized, E.M.U. was diagnosed with borderline personality disorder. 

In her discharge report, her psychiatrist recommended that she participate in an extensive 

dialectic behavioral theory (DBT) program, visit a therapist and psychiatrist, avoid 

alcohol, drugs, and visit a pain specialist. But E.M.U.’s mental health continued to 

degenerate. Approximately one week after being discharged from the hospital, E.M.U. 

received opioid drugs for pain management at a different hospital. From April through 

September, E.M.U. failed to attend all but one session of DBT therapy. On April 28, 

police and an ambulance were dispatched to E.M.U.’s residence after E.M.U. was 

reportedly knocked unconscious when a box spring fell on her head. E.M.U. reported to 

ACSS that the incident negatively impacted her memory and that she could not remember 
5

appointments and previous conversations. E.M.U. continued to seek and obtain opioid 

pain medications for a variety of physical ailments from various hospitals. 

On August 13, Anoka County filed a petition to terminate E.M.U.’s parental rights

to both children. One week later, E.M.U. attempted to commit suicide. E.M.U. was 

placed on a 72-hour hold and was transported to the hospital where a staff psychiatrist

determined that E.M.U. was at high risk for further suicide attempts and recommended 

civil commitment. During her stay, E.M.U. attempted to cut herself with a plastic knife. 

The hospital petitioned for commitment. A licensed psychologist who completed a courtordered examination of E.M.U. opined that she could be released to her sister’s care and 

that she could be considered a candidate for a stay of commitment to access 

recommended psychiatric and therapeutic services. 

On September 16, the district court held a hearing on the hospital’s petition for 

judicial commitment and found that E.M.U. was mentally ill with diagnoses of mood 

disorder, not otherwise specified, and borderline personality disorder. The district court 

stayed E.M.U.’s civil commitment for six months on the following conditions: that 

E.M.U. follow the recommendations of her treatment team; schedule and attend 

appointments with a psychiatrist as recommended by the treatment team; take all 

prescribed medication; schedule and attend DBT therapy and any aftercare treatment; 

refrain from using alcohol or mood-altering chemicals; and submit to one provider for 

medical medications and one provider for psychiatric medications. 

One month later, the district court revoked its stay of commitment, finding that 

E.M.U. violated its conditions by twice failing to show up for group treatment, failing to 
6

take her medications as prescribed, and not attending her individual therapy or psychiatry 

appointments. The district court concluded that E.M.U. satisfied the statutory criteria for 

civil commitment and ordered her to be committed to the Commissioner of Human 

Services for treatment. The district court ordered E.M.U. to remain hospitalized pending 

an opening at a designated facility. 

The psychiatrist who tended to E.M.U. while she was civilly committed testified at 

trial that she continued to report unsubstantiated medical issues to hospital staff, had

“boundary issues” with other patients, and displayed hyper moods and intrusive 

behaviors. A mental-health worker, who was assigned to manage E.M.U.’s stay of 

commitment, testified at trial that E.M.U. had physically assaulted a nurse and was

restrained after hospital staff attempted to separate her from a male patient on the ward. 

The mental-health worker testified that E.M.U. was “constantly having to be reminded 

about her behaviors and [was] not controllable.” 

At the time of trial, B.M.H.-U. and N.J.U. had been in foster care for

approximately 14 months and eight months, respectively. On October 9, 2014, the 

guardian ad litem reported to the district court that both children were doing well in foster 

care. B.M.H.-U. was “developing a strong attachment and bond” with her foster parents, 

no longer suffered from the constant medical problems she had experienced under 

E.M.U.’s care, and was developmentally “on track” according to her pediatrician. N.J.U. 

was getting along with his peers at school and in his foster home and was no longer 

focused on germs or other health concerns as he had been while in E.M.U.’s care. 

E.M.U. appeals.
7

D E C I S I O N

I. E.M.U.’s due-process rights were not violated when the district court 

addressed bases for termination of her parental rights not pleaded in the 

petition.

“[P]arental rights may be terminated only for grave and weighty reasons.” In re 

Welfare of Child of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004). Minn. Stat. 

§ 260C.301, subd. 1(b) (2014), states that “[t]he juvenile court may upon petition, 

terminate all rights of a parent to a child . . . if it finds that one or more of the [statutory 

grounds for termination] exist.” The “best interests of the child” are the “paramount 

consideration” in a termination of parental rights proceeding. Id., subd. 7. 

“Whether a parent’s due process rights have been violated in a termination 

proceeding is a question of law, which this court reviews de novo.” In re Welfare of 

Children of B.J.B., 747 N.W.2d 605, 608 (Minn. App. 2008). “[T]ermination of parental 

rights cannot be based on a statutory ground that was not included in a petition to 

terminate parental rights.” In re Welfare of Child of B.J.-M., 744 N.W.2d 669, 673 

(Minn. 2008). 

E.M.U. argues that her due-process rights were violated because the county only 

alleged two grounds for terminating her rights under Minn. Stat. § 260C.301, subds. 

1(b)(4) and 1(b)(5). But the district court found that there was clear and convincing 

evidence to terminate her parental rights under these two statutory provisions and

additional subdivisions of the statute. 

We conclude that because the district court found clear and convincing evidence 

supporting at least one statutory provision alleged in the county’s petition, E.M.U.’s due-
8

process rights were not violated by the district court’s inclusion of additional grounds 

supporting the termination of E.M.U.’s parental rights. See In re Welfare of Child of

T.D., 731 N.W.2d 548, 556 (Minn. App. 2007) (holding that, although the district court 

erred in finding additional statutory grounds for terminating parental rights not alleged by 

the county, “because at least one statutory ground supports termination in this case, . . .

the error does not affect our decision to affirm the termination of T.D.’s parental rights”).

II. The district court did not err by finding clear and convincing evidence that 

E.M.U. is palpably unfit to parent.

Whether to terminate parental rights is discretionary with the district court. In re 

Welfare of R.D.L., 853 N.W.2d 127, 136 (Minn. 2014). Similarly, whether a specific 

statutory basis for terminating parental rights is present in a particular case is a decision 

that is also discretionary with the district court. See In re Welfare of J.R.B., 805 N.W.2d 

895, 899-902 (Minn. App. 2011) (explaining the process the district court goes through 

when determining whether a statutory basis for terminating parental rights is present in a 

particular case and that this decision is discretionary with the district court), review 

denied (Minn. Jan. 6, 2012); see Minn. Stat. § 260C.301, subd. 1(b) (2014) (listing 

statutory bases for terminating parental rights).

The petitioning county bears the burden of proving grounds for termination by 

clear and convincing evidence. In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 

1999). On appeal, we review the record to determine whether the district court applied 

the appropriate statutory criteria and made findings that are not clearly erroneous. In re 

Welfare of D.L.R.D., 656 N.W.2d 247, 249 (Minn. App. 2003). A finding is clearly 
9

erroneous when “it is either manifestly contrary to the weight of the evidence or not 

reasonably supported by the evidence as a whole.” In re Welfare of Children of T.R., 750 

N.W.2d 656, 660-61 (Minn. 2008) (quotation omitted). We grant the district court’s 

decision considerable deference because the “court is in a superior position to assess the 

credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).

A district court may terminate parental rights to a child if the court finds that the 

parent 

is palpably unfit to be a party to the parent and child 

relationship because of a consistent pattern of specific 

conduct before the child or of specific conditions directly 

relating to the parent and child relationship either of which 

are determined by the court to be of a duration or nature that 

renders the parent unable, for the reasonably foreseeable 

future, to care appropriately for the ongoing, physical, mental, 

or emotional needs of the child.

Minn. Stat. § 260C.301, subd. 1(b)(4). The county “must prove a consistent pattern of 

specific conduct or specific conditions existing at the time of the hearing that appears will 

continue for a prolonged, indefinite period and that are permanently detrimental to the 

welfare of the child.” T.R., 750 N.W.2d at 661 (quotation omitted). In a termination 

case, the district court “relies not primarily on past history, but ‘to a great extent upon the 

projected permanency of the parent’s inability to care for his or her child.’” In re 

Welfare of Solomon, 291 N.W.2d 364, 368 (Minn. 1980) (quoting In re Welfare of Kidd, 

261 N.W.2d 833, 836 (Minn. 1978) (emphasis added)).

E.M.U. argues that the district court failed in its findings to account for the fact 

that her mental illness had been historically inaccurately diagnosed, but at the time of the 
10

trial she was receiving appropriate care for her mental-health issues and could parent her 

children. 

The district court concluded that E.M.U. was palpably unfit to parent because her 

borderline personality disorder diagnosis requires “lengthy residential treatment and a 

program of DBT which may encompass up to two years if [E.M.U.] is consistent and 

cooperative with treatment. In the past, she has not shown that she can consistently 

address her treatment needs on a voluntary basis.” 

The district court did not abuse its discretion when it concluded that E.M.U. is 

palpably unfit to parent B.M.H.-U. and N.J.U. E.M.U. has a long history of mentalhealth issues, including borderline personality disorder, which is defined under 

Minnesota statute as a serious and persistent mental illness under certain circumstances. 

See Minn. Stat. § 245.462, subd. 20 (2014). E.M.U.’s mental illness negatively impacted 

her ability to effectively parent B.M.H.-U. and N.J.U. At trial, the psychologist testified 

that E.M.U. had a “moderately severe” diagnosis of borderline personality disorder and 

would need at least nine to 15 months of DBT therapy after her civil commitment ended. 

The psychologist cautioned that the timeline was predicated on E.M.U. constantly 

attending her DBT therapy sessions. But E.M.U. demonstrated strong resistance to 

complying with recommended treatment. In April 2014, E.M.U. failed to follow the 

psychiatrist’s orders to attend DBT therapy. E.M.U. also violated the stay of her civil 

commitment by refusing to follow through with her recommended treatment program, 

which included continued attendance and participation in therapy and avoidance of

unprescribed prescription medication. Moreover, hospital staff reported that during 
11

E.M.U.’s civil commitment, she remained uncontrollable and displayed perseverative

behaviors relating to various medical complaints. The record supports the district court’s 

determination that E.M.U. failed to successfully address her mental-health issues during 

the pendency of the trial, and that she will continue to be unfit to parent for the 

foreseeable future. Therefore, we conclude that the district court did not abuse its 

discretion by invoking the palpable unfitness basis to terminate E.M.U.’s parental rights.

III. The district court did not clearly err by finding clear and convincing evidence 

that reasonable efforts failed to correct the conditions leading to the foster 

care placement of the children.

In a termination of parental rights proceeding, the district court is required to make 

findings of fact addressing the reasonable efforts provided by social services to reunite 

the family, or to find that such efforts would be futile. In re Children of T.A.A., 702 

N.W.2d 703, 709 (Minn. 2005); see also Minn. Stat. §§ 260.012, 260C.301, subd. 8 

(2014). In making this determination, the district court must consider numerous factors,

including the services’ relevancy to the safety and protection of the child, adequacy, 

availability, accessibility, consistency, and whether the services were realistic under the 

circumstances. Minn. Stat. § 260.012(h).

E.M.U. argues that the district court erred in not affording her the opportunity to 

parent her children following her civil commitment. E.M.U. contends that she was 

“undergoing a temporary mental-health crisis” due to her prescribed medications. In 

support of her argument, E.M.U. points to the fact that she had properly cared for N.J.U. 

up to his placement in foster care, that she functioned much better when she was not 
12

prescribed Klonopin, and that her sister and longtime friend testified at trial that she was 

a good parent prior to her recent hospitalizations. 

The district court concluded that further efforts would be futile and unreasonable 

because E.M.U. “has repeatedly refused or neglected to comply with the duties imposed 

upon the parent and child relationship” including providing the necessary care and 

control of the child’s mental, physical, and emotional development. The district court 

described reasonable efforts by ACSS, including utilizing social workers, psychologists, 

in-home services, a parenting assessment, public-health nursing, transitional housing 

staff, an attachment assessment, mental-health workers, and hospital staff. 

The district court’s determination is supported by clear and convincing evidence. 

Over a 14-month period, E.M.U. received intensive, one-on-one parenting training and 

education, but was unable to appropriately parent B.M.H.-U. N.J.U. was also negatively 

impacted by E.M.U.’s poor parenting and was academically behind after three years of 

homeschooling. In addition, E.M.U. failed to take her mental-health therapy seriously, as 

she consistently missed appointments, to the detriment of herself and her children. 

Despite the fact that Mercy Hospital staff took E.M.U. off many opioid pain medications 

and the district court stayed her civil commitment on the condition that she refrain from 

mood-altering chemicals, E.M.U. continued to seek and acquire opioid painkillers. 

E.M.U.’s history of non-compliance with treatment providers made it impossible 

for her case manager to find a treatment program willing to collaborate with her. As a 

result, E.M.U.’s mental health deteriorated to the point that she was civilly committed,

where she continued to demonstrate lack of control and mental-health issues at the time 
13

of trial. There is no statute or caselaw requiring the district court to give E.M.U. another 

opportunity to parent her child after release from civil commitment. Moreover, the 

district court found the testimony of E.M.U.’s sister and longtime friend to be not 

credible. This court defers to the district court’s credibility determinations. L.A.F., 554 

N.W.2d at 396. 

IV. The district court did not abuse its discretion by finding that it was in 

B.M.H.-U.’s best interests for E.M.U.’s parental rights to be terminated.

The district court may terminate all rights of a parent to a child on one or more of 

nine statutory grounds. B.J.-M., 744 N.W.2d at 672. Appellate courts review the district 

court’s parental-rights determination for an abuse of discretion. J.R.B., 805 N.W.2d at 

900. In analyzing the child’s best interests, “the court must balance three factors: (1) the 

child’s interest in preserving the parent-child relationship; (2) the parent’s interest in 

preserving the parent-child relationship; and (3) any competing interest of the child.” In 

re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). “Competing interests include 

such things as a stable environment, health considerations and the child’s preferences.” 

Id. “An appellate court may affirm a termination of parental rights if at least one 

statutory basis for termination is present and termination is in the children’s best 

interests.” J.R.B., 805 N.W.2d at 906. 

E.M.U. argues that there is substantial evidence in the record demonstrating that it 

is not in the best interests of the children to terminate her parental rights because she is 

able to parent when she does not suffer from mental illness. E.M.U. contends that at the 

time of trial, her mental health had stabilized and that she had agreed to short-term 
14

continued care at Anoka Metro Regional Treatment Center. E.M.U. relies on In re 

Welfare of M.A. to argue that the district court could not hold her civil commitment at the 

time of trial against her because, in her words, “the inability to return a child immediately 

to the parental home cannot provide the basis of terminating parental rights.” 408 

N.W.2d 227, 233 (Minn. App. 1987) (stating that “there is no legal basis for granting 

termination solely because the child cannot be returned immediately to the parental 

home”), review denied (Minn. Sept. 18, 1987). Moreover, E.M.U. contends that there is 

substantial evidence that she was a good mother to N.J.U. prior to her recent 

hospitalizations. E.M.U. requests that this court remand the case to the district court and 

that it continue as a CHIPS proceeding. 

The district court determined that termination of E.M.U.’s parental rights served 

the child’s best interests, stating “the [c]ourt has considered the interests of the parents 

and the child in preserving the relationship. The child’s needs for stability, safety, and 

permanency, with nurturing, competent caregivers outweighs any competing interests of 

the parents.” 

Here, the district court did not abuse its discretion in ruling that termination of 

appellant’s parental rights is in the child’s best interests. J.R.B., 805 N.W.2d at 906. 

Numerous mental-health and service providers and the children’s guardian ad litem all 

concluded from their observations that B.M.H.-U. was disattaching from E.M.U., who 

was unable to read B.M.H.-U.’s cues and could not properly parent her. Moreover, the 

evaluator who completed the attachment assessment warned that B.M.H.-U. was at 

tremendous risk if E.M.U. continued to parent her, and that N.J.U. had become 
15

emotionally disturbed while under E.M.U.’s care. At the time of trial, B.M.H.-U. was 21 

months old and had spent more than half of her life in foster care, where she was thriving 

and was no longer demonstrating the medical issues that E.M.U. insisted were present 

while under her care.

Affirmed.