This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-926

C7-00-954

 

In the Matter of the Welfare of:† K. J. R. H., Child.

 

Filed December 12, 2000

Affirmed

Peterson, Judge

 

Morrison County District Court

File No. J79850132

 

Michael G. Blee, Blee Law Office, Ltd., 101 South Seventh Avenue, Suite 110, St. Cloud, MN 56301 (for appellant mother)

 

Conrad I. Freeberg, Morrison County Attorney, Morrison County Government Center, 213 Southeast First Avenue, Little Falls, MN 56345 (for respondent Morrison County)

 

Timothy R. Reuter, Kelm Law Offices, P.A., 1287 Second Street North, Suite 101, P.O. Box 368, Sauk Rapids, MN 56379 (for appellant father)

 

Peter Vogel, Rosenmeier, Anderson & Vogel, 210 Northeast Second Street, Little Falls, MN 56345 (Guardian ad litem for K.J.R.H.)

 

††††††††††† Considered and decided by Toussaint, Presiding Judge, Crippen, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† In this appeal from a judgment granting a petition for permanent placement of K.J.R.H., appellants mother and father challenge the trial courtís findings that (a) mother failed to comply with her case plan and correct the conditions that led to the childís out-of-home placement; and (b) it is in the childís best interests to live with motherís sister.† We affirm.

FACTS

††††††††††† K.J.R.H was born on August 15, 1991, to appellant mother Jennifer Hirsch, n/k/a Jennifer Rasinski, and appellant father Milan Szczodroski.† Father initially denied paternity, but he was adjudicated the father on August 3, 1994.† Mother was the childís primary caretaker.† Father did not live with mother and the child.†

††††††††††† On June 14, 1994, respondent Morrison County filed a CHIPS petition alleging that mother left the child alone while she joined friends at a bar, and the child was heard crying and knocking on a neighborís door while mother was away.† Mother admitted these allegations and the child was returned to mother.†

††††††††††† On July 7, 1994, Morrison County Social Services prepared a case plan for mother that required a chemical dependency evaluation, psychiatric services, abstention from alcohol and illegal drugs, and random chemical testing.† On July 20, 1994, the court adopted the case plan and adjudicated the child as in need of protective services.

††††††††††† In September 1994, Morrison County requested a formal review of the CHIPS petition based on motherís failure to submit to chemical dependency and diagnostic evaluations, and because mother left the child at Michelle Lickteigís (motherís sister) home and returned the next day intoxicated.† Following the review hearing, a temporary dispositional order allowed mother to retain custody subject to her abstention from alcohol and illegal drugs, submission to random testing, and completion of a chemical-dependency evaluation.

††††††††††† On November 30, 1994, custody of the child was transferred to Lickteig because mother admitted to alcohol consumption and failed to complete a chemical-dependency evaluation.† A December 20, 1994, order required mother to complete the earlier case plan in order to gain visitation and custody rights.

††††††††††† On April 18, 1996, pursuant to an agreement in a paternity proceeding, mother and father were awarded joint legal and physical custody of the child, but the child remained in Lickteigís home.†

††††††††††† On April 14, 1998, child protection worker Jeff Guith filed a summary of motherís progress concerning the CHIPS matter.† Guith stated that mother failed to complete individual counseling, outpatient or inpatient chemical-dependency counseling, and other services offered.† Mother also refused several times to take drug and alcohol tests and her fiancť filed an order for protection against mother on behalf of their daughter claiming that mother continued to use drugs.

††††††††††† On April 24, 1998, Morrison County filed a petition to permanently place the child with Lickteig.† Mother failed to appear for either the initial hearing on May 5, 1998, or the pretrial on August 13, 1998.† On December 31, 1998, two weeks before the originally scheduled hearing, mother applied for a court-appointed attorney, which delayed the hearing on the petition for two and a half months.

At the hearing, mother testified that she was living with her fiancť and their daughter.† She stated that she had been off drugs and alcohol for more than a year.† The guardian ad litem testified that he was surprised by motherís positive change.† In a June 22, 1999, order, the court found that neither parent had the capacity to assume custody of the child.† The court concluded, however, that the county failed to prove by clear and convincing evidence that the conditions that led to the out-of-home placement of the child had not been corrected.† The court further concluded that the best interests of the child would be served by reuniting the child with her mother within a period not to exceed 180 days and that as a condition to receiving custody, the parents should comply with case plans prepared by Morrison County Social Services.†

The court continued the petition for permanent placement for 180 days and instructed the county to develop case plans for mother and father.† The court ordered that the case plans require at a minimum that the parents abstain from using alcohol or illegal drugs, be randomly tested for use of alcohol or illegal drugs, adhere to the visitation schedules in their case plans, and commit no acts that constitute grounds for a CHIPS petition.† If either parent complied with the case plan, after 180 days, the permanent-placement petition would be dismissed.† If both parents failed to comply, upon proof of noncompliance at a hearing, the permanent-placement petition would be granted.

Following a January 28, 2000, contested hearing, the court made findings of fact about motherís compliance with the case plan adopted after the June 22, 1999, order.† In a May 1, 2000, order, the trial court found that (1) the condition that led to the childís out-of-home placement was motherís chemical dependency; (2) the June 22, 1999, order required mother to comply with a case plan that included a chemical-dependency evaluation, submission to random testing, and abstention from alcohol and illegal drugs; (3) mother participated in a chemical-dependency evaluation on June 29, 1999, but the evaluator did not make a recommendation regarding treatment because the evaluator did not believe that mother was being truthful; (4) on August 3, 1999, mother passed a urine test for alcohol and illegal drugs; (5) on August 9, 1999, Guith found five marijuana plants, three to five feet tall, growing in motherís garden; (6) the court did not believe motherís testimony that she was unaware of the plants; (7) after discovering the plants, Guith requested that mother submit to a second chemical-dependency assessment, and mother refused; (8) Guith directed mother to submit to blood tests for marijuana on June 25, August 2, August 12, August 27, and September 3, 1999, but mother refused to submit to testing until September 16, 1999; (9)† mother submitted to blood tests on September 16 and December 22, 1999, and results from both tests were negative, but the results have minimal relevancy regarding motherís chemical dependency in light of her refusals to submit to testing when requested; (10) motherís testimony that she abstained from alcohol and illegal drugs was not credible; (11) although mother participated in individual counseling and in-home counseling, she still has significant emotional and mental health issues that affect her ability to parent; and (12) motherís chemical dependency has not been corrected.

The court found that mother did not substantially comply with the case plan prepared for her pursuant to the courtís June 22, 1999, order and permanently placed the child with Lickteig.

D E C I S I O N

A county may petition a juvenile court to establish a basis for the juvenile court to order permanent placement of a child.† Minn. Stat. ß 260C.201, subd. 11(b) (Supp. 1999)[1]; In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996).† If the trial court decides not to return the child to the home, it may permanently place the child in the custody of a relative if it is in the best interests of the child.† Minn. Stat. ß 260C.201, subd. 11(e)(1) (Supp. 1999).† ď[T]he county must prove the allegations of the petition for permanent placement by clear and convincing evidence.Ē† A.R.G.-B., 551 N.W.2d at 261.†

[A] reviewing court determines on appeal whether the trial courtís findings address the statutory criteria and are supported by ďsubstantial evidence,Ē or whether they are clearly erroneous.

Id. (citation omitted).†

The evidence and its reasonable inferences must be viewed in the light most favorable to the prevailing party.† We will not overturn the trial courtís findings of fact in support of a permanent placement decision unless they are clearly erroneous, regardless of whether the findings are based on oral or documentary evidence.

 

Id. at 261-62 (citation omitted).

The parentsí appeals focus on the courtís finding that: (1)  mother did not comply with her case plan and correct the conditions that led to the out-of-home placement, and (2) placement with Lickteig is in the childís best interests.† Fatherís brief addresses only the courtís decision not to return the child to mother, it does not challenge the decision not to return the child to father.

As a threshold matter, the trial court must determine whether the conditions that led to the out-of-home placement have been corrected so that the child can return home.† If not, the trial court must then determine what permanent placement option is consistent with the childís best interests.

 

Id. at 262 (citation omitted).

Mother acknowledges that when reviewing permanent placement, the issue is whether the conditions requiring out-of-home placement have been corrected. She contends that the conditions that led to out-of-home placement had been corrected when the court found in June 1999 that if she continued to maintain the lifestyle that she testified to at the permanent-placement hearing, there is a substantial probability that the child could be returned to her home in six months.† She argues that the issue before the court in January 2000 was whether she complied with the prior order and case plan, and that the trial court incorrectly determined that she had not.

Mother argues that several of the findings in the May 1, 2000, order are clearly erroneous.† She argues first that the finding that Guith found five marijuana plants growing in her garden is clearly erroneous because Guithís claim that the plants were marijuana was not substantiated.† But even if Guithís testimony that he saw marijuana plants in motherís garden is treated as providing only his opinion about the type of plants he saw, a court has broad discretion in deciding whether to admit opinion testimony.† Sabasko v. Fletcher, 359 N.W.2d 339, 344 (Minn. App. 1984), review denied (Minn. Mar. 21, 1985).† Guith testified that he has seen marijuana growing in the past and that he has attended training regarding marijuana.† This testimony provided a basis for the trial court to admit and find credible Guithís opinion that the plants were marijuana plants.† See Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (this court defers to trial courtís credibility determinations).

Mother and father argue that the trial courtís finding that mother refused to submit to a second chemical-dependency evaluation is clearly erroneous because her initial evaluation did not require a follow-up visit.† But mother and father ignore the courtís finding that Guith requested that mother submit to a second chemical-dependency evaluation after he found the marijuana in her garden, and she refused.†

Both parents also argue that there was not substantial evidence to support the trial courtís finding that mother failed to substantially comply with the court-ordered case plan.† Although there is evidence that mother complied with some of the requirements of her case plan, there is also evidence that she failed to comply with other requirements of the case plan.† For instance, the case plan provided for services from the county, and mother used some of these services, including in-home and individual counseling.† But although mother completed counseling with one therapist, she failed to participate in additional counseling despite the therapistís encouragement to do so.† As a result, mother has made progress in counseling, but the therapist testified that she still has significant emotional and mental health issues that affect her ability to parent.

Similarly, the case plan required abstinence from illegal drugs and alcohol, and mother passed the drug and alcohol tests that she took.† But mother refused drug and alcohol testing on numerous occasions, and the trial court specifically found that the tests mother passed have minimal relevancy regarding her chemical dependency in light of her repeated refusals to submit to testing when requested.† The trial court also specifically found that motherís testimony that she abstained from alcohol and illegal drugs was not credible.† Given this credibility determination and the conflicting evidence regarding motherís drug and alcohol tests, the trial court could conclude that mother had not abstained from illegal drugs and alcohol.

We conclude that there was substantial evidence that mother failed to comply with the case plan developed after the June 22, 1999, order.† See Vangness, 607 N.W.2d at 473 (requiring evidence to be considered in light most favorable to findings and accounting for deference to credibility decisions and trial courtís role as factfinder).†††

Father argues that the trial court erred by not dismissing the petition for permanent placement because the conditions that gave rise to the petition have been corrected.† Father contends that Guithís testimony that mother did not presently pose a danger to the child and was able to give the child proper care demonstrates that mother has corrected the conditions that gave rise to the CHIPS petition.† Father fails to acknowledge, however, that the Guith testimony he cites was in response to questions on cross-examination that specifically addressed conditions during motherís visitation with the child, not her current ability to parent.† When Guith was later asked whether mother had resolved the conditions that gave rise to the original CHIPS petition, he stated that she had not.† Guith also testified that mother had not complied with her case plan.† Guithís answers to two questions on cross-examination do not demonstrate that the trial courtís finding that mother has not remedied the conditions that gave rise to the CHIPS petition was clearly erroneous.

Father argues that mother did not complete chemical testing because of her inability to pay for the testing.† But Guith testified that he offered mother a voucher to pay for the blood test, and she refused.

Father also argues that because mother has another minor child, and there is no current CHIPS petition concerning that child, mother has corrected the conditions that led to the out-of-home placement.† But motherís ability to care for her other minor child, although relevant, does not, by itself, demonstrate that she has corrected the conditions that led to the out-of-home placement.†

Father argues that the trial court relied on motherís past behavior and not on her present ability to parent.† Although the trial courtís order identifies past conditions, the courtís decision is not based on these conditions.† The findings of fact in the May 1, 2000, order focus predominately on motherís failure to comply with the case plan created after the June 22, 1999, order.†

The trial court did not clearly err when it found that the condition that led to the out-of-home placement, motherís chemical dependency, has not been corrected.

To determine the appropriate permanent placement option, the trial court

must be governed by the best interests of the child, including a review of the relationship between the child and relatives and the child and other important persons with whom the child has resided or had significant contact.

 

Minn. Stat. ß 260C.201, subd. 11(f) (Supp. 1999).† A trial courtís findings regarding the best interests of the child will not be overturned unless clearly erroneous.† A.R.G.-B., 551 N.W.2d at 261-62.

The trial court found that the child has lived with the Lickteigs since November 1994 and that the child does not likely remember living with anyone other than the Lickteigs.† The court also found that the child has a regular schedule, is consistently disciplined, and receives love and encouragement from Lickteig and her husband, and she feels safe and secure with them; Lickteig and her husband love the child and she is fully integrated into their family.† The trial court found that the child is doing well, but the uncertainty caused by the placement proceedings has been detrimental to her.† She has been diagnosed with an adjustment disorder and shows signs of anxiety.† Finally, the trial court found that it would not be in the best interests of the child to continue the placement proceeding in the hope that her parents will comply with the case plans, and it is in her best interests to allow her to live with the Lickteigs.†

Our review of the record persuades us that the trial courtís finding that it is in the childís best interests to be permanently placed with Lickteig is supported by substantial evidence and is not clearly erroneous.

Mother argues that Minn. Stat. ß 260C.201 required the trial court to address the best interests factors listed in Minn. Stat. ß 518.17 (1998) and that the trial court did not do so.† In determining the childís best interests in a permanent placement decision, the court ďshall follow the standards and procedures applicable under this chapter, chapter 260, or chapter 518.Ē† Minn. Stat. ß 260C.201, subd. 11(e)(1) (emphasis added).† The statute does not require the court to make detailed findings regarding the factors listed in Minn. Stat. ß 518.17.† Cf. Welscher v. Myhre, 231 Minn. 33, 38, 42 N.W.2d 311, 314 (1950) (interpreting ďorĒ to be disjunctive).† The trial courtís best interests findings address the factors listed in Minn. Stat. ß 260C.193, subd. 3(b) (Supp. 1999), which governs custody awards in the CHIPS context.† Moreover, as has been noted in the context of adoption, Minn. Stat. ß 518.17, subd. 1 ďdefines a childís best interests as Ďall relevant factorsí including, and hence not limited to, those listed therein.Ē† In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn. App. 1998).†

Affirmed.



[1] The county brought its petition on April 24, 1998, under Minn. Stat. ß 260.191, subd. 3b (Supp. 1997).† The relevant provisions of chapter 260 were replaced by chapter 260C.† See In re Welfare of A.R.M., 611 N.W.2d 43, 47 n. 1 (Minn. App. 2000).† Chapter 260C clarified and reorganized the law, but it did not substantively change the law.† Id.† Because 260C took effect on August 1, 1999, before the trial courtís order was issued, this case is analyzed under chapter 260C.† Id.