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STATE OF MINNESOTA IN COURT OF APPEALS A11-1576 In the Matter of the Welfare of the Child of: J. K. T. and A. M., Parents. Filed May 21, 2012 Affirmed Rodenberg, Judge Hennepin County District Court File Nos. 27JV11890, 27JV103932 William M. Ward, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, Minneapolis, Minnesota (for appellant mother) Michael O. Freeman, Hennepin County Attorney, Michelle A. Hatcher, Assistant County Attorney, Minneapolis, Minnesota (for respondent Hennepin County) Jane E. Maschka, Faegre, Baker and Daniels L.L.P., Minneapolis, Minnesota (for respondent guardian ad litem) Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and Ross, Judge. SYLLABUS When a child dies pending appeal of a final order terminating his mother's parental rights, the appeal remains ripe for review under the collateral consequences exception to the mootness doctrine. The doctrine of abatement, which has not been adopted by the Minnesota Legislature or our supreme court, does not apply to a termination-of-parental-rights appeal.

OPINION RODENBERG, Judge In this appeal, we must determine whether the death of a child pending his mother's appeal from a final order terminating her parental rights affects the appeal. We conclude that the termination order remains ripe for review because (1) the abatement doctrine advanced by appellant-mother has not been adopted by Minnesota courts or the legislature; (2) the appeal concerns appellant's constitutional rights; (3) the appeal was perfected before the child's death; (4) the district court no longer has jurisdiction to convert the involuntary termination order to a voluntary one; and (5) the appeal is not moot because collateral consequences attach to the termination order. Upon reviewing the merits of the appeal, we conclude that the district court did not err in finding that termination was warranted on four statutory grounds and was in the child's best interests. FACTS I. Background Appellant challenges the involuntary termination of her parental rights to her son, J.M. The child, who was ten years old at the time of trial, had extensive medical needs. He was developmentally delayed and suffered from numerous disorders, including congenital microcephaly, cerebral palsy, epilepsy, seizure disorder, scoliosis, asthma, and hip dysplasia. He was non-verbal and non-ambulatory. J.M.'s extraordinary medical needs demanded constant care and specialized attention. He had to be monitored twenty-four hours a day, in case a seizure impeded his ability to breathe, and his seizures had to be recorded to assist doctors in treating him. To 2

avoid falls, he had to be properly strapped into his wheelchair, and the railings on his bed always had to be kept in the upright position. His diapers had to be regularly changed to prevent sores, and the sites where tubes entered his body had to be cleaned, irrigated, and checked for infection on a frequent basis. Because J.M. carried an antibiotic-resistant strain of bacteria, his caregivers had to be particularly sensitive to preventing bed sores and other open wounds, which could become life-threatening. J.M. could not swallow, so he received his medications and nutrition through a feeding tube. A special formula had to be pumped through the tube eighteen hours per day, and his nutrition had to be carefully monitored. J.M. took multiple medications each day and needed nebulizer treatments twice per day to prevent asthma attacks. His inability to swallow posed a risk that he could choke or develop skin problems from excess saliva, so he had to be carefully positioned and kept dry. J.M.'s special needs required meticulous coordination and follow-up with numerous healthcare providers. Because he required round-the-clock care, in-home nursing and personal-care-attendant (PCA) services were essential. Additionally, at the time of trial, J.M. was scheduled to have major surgery two months later. The surgery would require him to wear a body cast for five to six weeks, and it was critical that he receive a meticulous level of care during his recovery. II. Pre-appeal procedural history A. First CHIPS petition

J.M. was first removed from appellant's care in July 2009. Police had entered the home to assist with a utility shut-off and discovered J.M. left unattended. The house was 3

strewn with detritus and garbage. J.M.'s diaper was filled with waste, and his feeding tubes and pump were covered with human waste. Based on this incident, respondentHennepin County filed a child in need of protection or services (CHIPS) petition. Appellant admitted to the allegations in the petition. After about three months in foster care, in November 2009, J.M. returned to appellant's care under protective supervision. In January 2010, appellant's in-home PCA agency discharged J.M. as a client. The agency discontinued service because appellant had been uncooperative in a number of ways. For example, she would not let nurses into the home in a timely manner, she refused necessary overnight care for the child, she was difficult to contact, and she did not cooperate with the nurses. B. Medical neglect

While back in appellant's care, J.M. repeatedly missed medical appointments. Appellant failed to follow up with healthcare providers regarding his nutritional progress, seizure activity, and lab results, all of which were critical to J.M.'s precarious health. The child's healthcare providers and school nurse were unable to contact appellant for months at a time because her telephone numbers were often disconnected. Appellant's failure to stay in touch severely limited the health care providers' ability to properly assist with J.M.'s care. In 2009, J.M.'s pediatric neurologist, Dr. Gilles, placed him on a specialized Ketogenic diet to help control his seizures. The diet required strict adherence and regular weight checks. By February 2009, while in appellant's care and on the specialized diet, J.M.'s weight dropped from 55 pounds to 35 pounds. Dr. Gilles testified that the only 4

explanation for this drastic weight loss was medical neglect. J.M. entered what Dr. Gilles described as "starvation mode." He lost all prior progress, including his ability to show signs of communication. J.M. likely sustained permanent damage from lack of proper nutrition. According to Dr. Gilles, absent medical intervention, J.M. would have died at that point. C. Second CHIPS petition

Hennepin County received a medical-neglect report regarding J.M. in April 2010. When appellant brought J.M. to a medical appointment that month, he weighed only 45 pounds (ranking in the second percentile for his age group), and lab work indicated he had not been receiving a required seizure medication on a regular basis. J.M. was admitted to the hospital for suspected failure to thrive. Hennepin County filed a CHIPS petition and obtained an ex parte emergency protective-care order. J.M. was subsequently discharged from the hospital and placed in the foster home of a former nurse who was experienced in caring for children with special needs. Appellant waived her right to a CHIPS trial and admitted the allegations in the petition alleging J.M. to be a child in need of protective services. D. Petition for termination of parental rights

Following the second CHIPS petition, the district court ordered appellant to comply with a case plan requiring her to complete in-home parenting education, have supervised visits with J.M., and attend his medical appointments, all with the goal that she demonstrate an appropriate understanding of the child's specific medical needs. On

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February 3, 2011, Hennepin County filed a petition for involuntary termination of appellant's parental rights to J.M. Hennepin County alleged that, following J.M.'s placement in foster care, appellant did not make sufficient progress in improving the organizational and communication skills necessary to coordinate the child's care. She was unaware of J.M.'s medical appointments despite reviewing her weekly schedule with a parenting educator. J.M.'s foster mother, case workers, health care providers, and guardian ad litem all testified that appellant was very difficult to reach, and they had considerable difficulty coordinating J.M.'s medical care with her. During visits with J.M., appellant was often distracted by her younger daughter. On at least six occasions, appellant left the railings down on J.M.'s bed and then left the room. It was undisputed that leaving the railings down for even a moment could result in the child's injury or death if he fell out of the bed. Appellant failed to properly secure J.M. in his wheelchair on at least one occasion, a mistake which also could have seriously injured him. Appellant often demonstrated an insufficient understanding of the child's medical needs. For example, J.M. did not have an age-appropriate "stander," a therapeutic device necessary for improving J.M.'s bone and muscle development, because appellant refused to turn over his old standers to the insurance company. On several occasions, appellant persisted in touching J.M.'s feet and head, causing him obvious discomfort due to his hypersensitivity in those areas. J.M.'s pediatrician, Dr. Chawla, testified that appellant

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did not demonstrate a sufficient understanding of the "big picture" regarding J.M.'s medical needs. While in foster care the second time, J.M.'s health significantly improved. His weight nearly doubled, and he received round-the-clock care from his foster parents and PCA nurses. Numerous witnesses testified that J.M. received excellent care and thrived while in foster care. His foster mother, guardian ad litem, and pediatrician all testified that they did not believe appellant was capable of providing the level of care required for the child's survival. Following a six-day trial, the district court found that, although appellant completed her case plan, she failed to correct the actual conditions leading to J.M.'s outof-home placement. It further found that appellant lacked the ability to provide the high level of care necessary for J.M.'s survival. The district court found that terminating appellant's parental rights was in J.M.'s best interests. It concluded that termination was supported by clear and convincing evidence of four separate statutory grounds: (1) failure to meet parental duties under Minn. Stat.

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