This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-983

In the Matter of the Welfare of:
A.L.F., Minor Child.

Filed February 1, 2000
Affirmed
Randall, Judge

Carlton County District Court
File No. J7-96-50319

Nathaniel Stumme, P.O. Box 3004, Duluth, MN 55803 (for appellant Cindy Fetters)

Dennis Genereau, Jr., Assistant Carlton County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent Carlton County)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the district court's order terminating her parental rights to her child. Appellant alleges that (a) the county failed to demonstrate that it had made reasonable efforts to correct the conditions resulting in the child’s CHIPS adjudication and (b) the district court failed to make adequate findings. We affirm.

FACTS

Appellant Cindy Fetters gave birth to A.L.F. on May 28, 1996. At the time of A.L.F.'s birth, appellant was married to Scott Fetters (Fetters), but Fetters is not A.L.F.'s biological father. The identity of A.L.F.'s biological father has not been determined, and his parental rights were terminated by default. Appellant gave birth to three other children before A.L.F. At the time of trial, one of those children was living with his biological father, and the other two children were in long-term foster care.

Before A.L.F.'s birth, the district court awarded Carlton County temporary custody of A.L.F. Two to three days after her birth, A.L.F. was placed in foster care. The county then sought a Child in Need of Protection or Services (CHIPS) adjudication for A.L.F., premised on the fact that appellant was married to, and living with, Fetters, a convicted sex offender. In 1986, Fetters pleaded guilty to three counts of incest against three of his minor siblings. In December 1993, the district court found that there was clear and convincing evidence that Fetters had sexually abused one of appellant's other children.

The district court adjudicated A.L.F. a CHIPS in May 1997. In July 1997, a Carlton County social worker petitioned for the termination of appellant's parental rights. The district court granted the petition in an order filed May 10, 1999.

D E C I S I O N

In reviewing termination-of-parental-rights decisions, the appellate court must consider (a) whether the district court's findings address the statutory criteria and are supported by substantial evidence and (b) whether the district court's findings are clearly erroneous. In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). In all termination cases, the child's best interests are the paramount concern. Id. It is presumed that it is in the child's best interests to be placed in the biological parent's custody, and the petitioner bears the burden of demonstrating that placement with a biological parent is not in the child's best interests. In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988). If the district court finds clear and convincing evidence that at least one of the conditions in Minn. Stat. § 260.221 (1998)[1] exists, the court may terminate parental rights. Minn. Stat. § 260.241, subd. 1 (1998).

I. Reasonable Efforts

Appellant asserts that the county failed to prove that it made reasonable efforts to correct the conditions that led to A.L.F.'s CHIPS adjudication. See Minn. Stat. § 260.221, subd. 1(b)(5) (permitting termination of parental rights where court-directed reasonable efforts failed to correct conditions leading to CHIPS determination).

A.L.F. has resided outside of appellant's home since A.L.F.'s birth in May 1996. A CHIPS petition was granted when the district court determined that A.L.F. was in need of protection or services because she "reside[d] with or would [have] reside[d] with a perpetrator of domestic child abuse." Minn. Stat. § 260.015, subd. 2a(2)(iii) (1998). Because the court had previously determined that there was clear and convincing evidence that Scott Fetters had sexually assaulted A.L.F.'s half-brother, and because Fetters had pleaded guilty to incest with three of his minor siblings, he fulfilled the definition of a domestic child abuser. Id., subd. 24(2) (1998) (stating domestic child abuse includes "subjection of a minor family or household member by an adult family or household member to any act which constitutes" criminal sexual conduct in the first, second, third, or fourth degrees). Appellant's parental rights were terminated pursuant to Minn. Stat. § 260.221, subd. 1(b)(5), after the district court concluded that reasonable efforts had failed to correct the conditions leading to the CHIPS determination.

"Reasonable efforts" are defined by statute as

the exercise of due diligence by the responsible social service agency to use appropriate and available services * * * to eliminate the need for removal and reunite the family. * * * The social service agency has the burden of demonstrating that it has made reasonable efforts or that provision of services or further services for the purpose of rehabilitation and reunification is futile and therefore unreasonable under the circumstances.

Minn. Stat. § 260.012(b) (1998). The "reasonable efforts" requirement, at a minimum, necessitates that the social services agency provide services that would assist in alleviating the conditions that caused the dependency determination. In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

The county needed to demonstrate only that reasonable efforts to correct the conditions that led to the CHIPS adjudication failed. See Minn. Stat. § 260.221, subd. 1(b)(5) (stating court may terminate parental rights if reasonable efforts failed to correct conditions leading to CHIPS determination). This is presumed where (a) the child has, by court order, lived outside the home for more than one year within a five-year period after the CHIPS determination, (b) conditions leading to the CHIPS determination are unlikely to be corrected within the reasonably foreseeable future, and (c) the social services agency made reasonable efforts to rehabilitate the parent and reunite the family. Id., subd. 1(b)(5)(i)-(iii).

A.L.F. was adjudicated a CHIPS in May 1997 and has lived outside appellant's home her entire life. The condition leading to A.L.F.'s placement in foster care was a domestic child abuser's presence in appellant's household. Appellant has continually refused to live apart from Fetters. Thus, the fact that appellant's household includes a domestic child abuser is unlikely to change in the foreseeable future. Additionally, the county has made reasonable efforts to assist appellant in leaving Fetters. See M.A., 408 N.W.2d at 235-36 (stating minimum requirement for reasonable efforts is provision of services that would aid in alleviating conditions leading to dependency determination). Appellant does not dispute this fact but instead asserts that the county was required to make reasonable efforts to rehabilitate Fetters.

There is no support for appellant's assertion that the county is obligated to rehabilitate Fetters, a third party, as part of her case. Further, there is little evidence that Fetters has rehabilitated himself. Testimony at trial indicated that he started a treatment program while incarcerated for his actions against his brothers, but later withdrew from the program and recanted his admission to the crimes. Appellant's attorney made an offer of proof at trial that Fetters met with a counselor regarding Fetters's sexual misconduct for approximately two years during 1993-95. There was also trial testimony that Fetters's counselor sent A.L.F.'s caseworker a letter in June 1995, which stated that the counselor did not believe that Fetters was a potential perpetrator. This was the only evidence introduced regarding the extent or result of treatment.

Without appellant's cooperation in leaving Fetters, there is nothing else the county could have done to assist appellant in correcting the condition that led to A.L.F.'s placement in foster care. See In re Welfare of A.V., 593 N.W.2d 720, 723 (Minn. App. 1999) (stating "demand of reasonable efforts is one that is entirely constructive, aimed at saving the savable among parents having difficulty providing care for their children" (citation omitted)), review denied (Minn. Aug. 25, 1999). Because the child's best interests are paramount, and appellant rejected the one option that would have enabled her to regain custody of her child, the county's efforts were reasonable under the circumstances.[2]

II. Sufficiency of Findings

Appellant also argues that the district court did not make sufficient findings (a) addressing the nature or extent of the efforts by the county to rehabilitate appellant and reunite her with A.L.F or (b) establishing that further services would be futile and unreasonable.

In making termination decisions, the court must make specific findings

(1) regarding the nature and extent of efforts made by the social service agency to rehabilitate the parent and reunite the family;

(2) that provision of services or further services for the purpose of rehabilitation and reunification is futile and therefore unreasonable under the circumstances; or

(3) that reasonable efforts at reunification are not required as provide under section 260.012.

Minn. Stat. § 260.221, subd. 5 (1998).

Here, the district court's order did not specifically detail the efforts by the county to reunite appellant with A.L.F. The court found only that (a) Carlton County Social Services made reasonable efforts to eliminate the need for A.L.F.'s removal and to reunite her with appellant and (b) the county's efforts were unsuccessful.

Because appellant refused to leave Fetters in order to correct the condition that led to A.L.F.'s CHIPS adjudication, additional services probably would not have promoted A.L.F.'s reunification with appellant. The district court did not make a finding regarding futility, but the record and the district court's other findings support recognition of the fact that further efforts by the county would have been essentially futile under the circumstances of this case. See Minn. Stat. § 260.012(b) (stating social service agency has burden of demonstrating it made reasonable efforts or such efforts would be futile and therefore unreasonable under circumstances).

Recognizing the need for permanency in this case, we conclude that remanding for further findings would unnecessarily prolong these proceedings. See In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (recognizing because child's best interests are paramount and additional services unrealistic under circumstances, best interest not served by delaying permanent placement); see also Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (refusing to remand child-custody-modification case despite absence of required findings where supreme court concluded that based on record and district court's other findings, on remand district court would "undoubtedly" make findings complying with statute).

Affirmed.

[1] We recognize that the legislature renumbered and reorganized chapter 260 in 1999. See 1999 Minn. Laws ch. 139. Because appellant's parental rights were terminated prior to the August 1, 1999, effective date of these amendments, and because the legislature made some substantive changes to chapter 260 in 1999, we will apply the 1998 statutes to this case. See Minn. Stat. § 645.02 (1998) (stating new legislation effective August 1 following enactment, absent different date specified in act); 1999 Minn. Laws ch. 245, art. 8, § 59 (making substantive changes to Minn. Stat. § 260.221, subd. 1 (1998)).

[2] Our analysis is limited to a strict application of Minn. Stat. § 160.221, subd. 1(b)(5). Appellant does not challenge the statute's constitutionality. We decline to address potential constitutional issues.