This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1433

 

 

In the Matter of the Welfare of:

R.S., R.S., and C.S.

 

 

Filed February 13, 2001

Affirmed

Toussaint, Chief Judge

 

 

St. Louis County District Court

File No. J299651913

 

 

Arthur M. Albertson, 101 Second Street, Suite 100, Duluth, MN 55802 (for appellant mother)

 

Alan L. Mitchell, St. Louis County Attorney, Julie A. Baumgarten, Assistant County Attorney, 320 West Second Street, Suite 403, Duluth, MN 55802 (for respondent St. Louis County)

 

John G. Fillenworth, 309 Board of Trade Bldg., Duluth, MN 55802 (for father)

 

Lawrence B. Stauber, Jr., 1011 E. Central Entrance, Duluth, MN 55811 (guardian ad litem)

 

 

            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

 

            This is an appeal from the termination of appellant’s parental rights.   Because the district court did not err in concluding that (1) appellant is palpably unfit to be a party to the parent-child relationship; (2) reasonable efforts have failed to correct conditions that led to placement of the children outside the home; (3) the children were neglected and in foster care; and (4) termination was in the children’s best interests, we affirm.

FACTS

            Appellant completed treatment for alcoholism in 1990.  She married in 1991 and had the three children who are the subject of these proceedings.  Beginning in 1996, the family’s social worker found appellant and her husband intoxicated numerous times, with appellant sometimes passed out, including while she was caring for the children.  Appellant resisted many offers for treatment by the social worker, repeatedly failed to comply with relapse prevention plans, and, even when she did receive treatment, resumed drinking afterwards.  She and her husband denied having a drinking problem, asserting that appellant’s problems were caused by depression.

            The children reported problems with violence and anger in the home.  In addition, in 1997, appellant’s oldest son, who is not a subject of these proceedings, alleged that appellant’s husband physically abused him frequently.  After this son discussed killing his mother and siblings and actually set fire to the family home, he was permanently removed from the home and an aunt assumed custody.

            In October 1998, appellant attended a 90-day treatment program, although her husband continued to drink.  The children, who were placed in foster care, exhibited many problems when they arrived at their foster home.  They were described as being very needy, and they engaged in behavior such as head banging, rocking, and very aggressive fighting and swearing.  The oldest child suffered from selective mutism, the middle child was very angry and would not socialize, and the youngest had severe tantrums, an exaggerated startle response, and delayed speech development.  The two younger children soiled their clothes and their beds. While in foster care, the children’s behavior, attitude, and sense of security had improved substantially.

            The county filed a CHIPS petition in November 1998, which appellant and her husband admitted.  Their case plan required them to attend Alcoholics Anonymous (AA), aftercare, and other programs.  Although they did not comply fully, the children were returned to their home in March 1999.

            The parents continued drinking.  Meanwhile, the older children failed to attend school, and the children exhibited poor hygiene and wore filthy clothing, with the youngest often smelling strongly of urine.  The children’s condition deteriorated significantly, and they reverted to the behavior they had displayed prior to being placed in the foster home.  The children were returned to the foster home in May 1999, where their condition once again improved.

            In August 1999, the social worker developed a new case plan.  Although she warned appellant and her husband that failure to comply would lead to a petition for termination of parental rights, they did not follow the plan.  In October 1999, after telling her social worker she was drinking and suicidal, appellant was hospitalized.  In November 1999, although the social worker offered to work with appellant and her husband on another case plan, they failed to participate and otherwise refused to comply with the plan.  Although they agreed to take daily breath tests to detect alcohol, they did not comply with this requirement either.

            The county filed a petition to terminate the parental rights of appellant and her husband in November 1999.  At the hearing, a psychologist diagnosed appellant with a long history of alcohol dependence with continued use of alcohol and long-standing cognitive limitations, but determined the information was inconclusive as to whether she was presently experiencing depression.  The psychologist determined that appellant lacked insight into the risk her behavior posed to her children and concluded that she would have to demonstrate behavioral change before the children could safely be returned.

            The children’s therapist noted that their condition improved markedly when placed in foster care.  She cautioned that any more disruptions could lead to permanent, long-term psychological effects.  While she recognized that all three children have a bond with their parents, she believed that providing them with safety and stability, which was not available in the parents’ home, was more important and that a return to the parents’ home would be dangerous to their well-being.

            Appellant testified that she has been attending a partial hospitalization program, where she receives medication and treatment for depression.  She contends that depression, not drinking, was the source of her problems, and that she had been drinking only to cover up her depression.  She testified that she had not consumed alcohol for the past seven or eight months.[1]  Appellant denied that she had a drinking problem, that her drinking affected her children, or that the social worker had found her passed out in her home.

            The district court terminated the parental rights of appellant and her husband to the three children.  Only the mother challenges the decision through this appeal.

D E C I S I O N

            A district court may terminate parental rights “only for grave and weighty reasons.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted).  An appellate court may review such a decision to determine “whether the trial court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.”  Id. (citation omitted).  The children’s best interests are paramount.  Id.; Minn. Stat. § 260C.301, subd. 7 (Supp. 1999).

I.

            The district court found that appellant suffers from a severe alcohol problem. Appellant contends in effect that this determination is clearly erroneous and not supported by the evidence because; (1) she demonstrated the root of her problems was depression; (2) she received effective treatment for her condition; and (3) that, as of the date of her testimony, she had been sober some seven or eight months.  She supported her claims with her own testimony and a record of her attendance at the partial hospitalization program.

            In rejecting appellant’s arguments, the district court cited appellant’s failed treatment programs, the social worker’s numerous reports of appellant’s intoxication during home visits between 1996 through 1999, and the adverse effect her condition had on her children.  The district court specifically rejected appellant’s argument that the partial hospitalization program was effective in treating her condition, citing licensed psychologist Dr. Carolyn F. Phelps’s testimony that such programming might make appellant feel better while she participates, but does not effectively address her drinking and parenting problems.  Noting that appellant relapsed after each previous treatment intervention, sometimes very quickly, the district court found it very unlikely that appellant could maintain her sobriety on a long-term basis, because she denies having a problem with alcohol and her husband continues to drink.

            The record reveals that appellant presently suffers from a severe alcohol problem that has not yet been treated successfully.  The district court’s decision not to credit appellant’s testimony that the source of her difficulties was depression, not alcoholism, and that she was being successfully treated, in light of all of the evidence to the contrary, is not clearly erroneous.

II.

            The court must determine that at least one of several conditions is present before it can address whether termination of parental rights is in the children’s best interests.  Minn. Stat. § 260C.301, subd. 7.  The district court found three conditions were met:  (1) that appellant was palpably unfit as a parent for her children; (2) that reasonable efforts under the direction of the court failed to correct the conditions that led to the placement of the children outside of the home; and (3) that the children were neglected and in foster care.  See Minn. Stat. § 260C.301, subd. 1(b)(4), (5), (8) (Supp. 1999) (setting out conditions).

            We first address whether, after the children were placed outside the home, “reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child[ren]’s placement.”  Minn. Stat. § 260C.301, subd. 1(b) (5).  There is a presumption that reasonable efforts have failed upon a showing that (1) the children have resided out of the parental home under court order for 12 of the preceding 22 months; (2) the court has approved a case plan; (3) “conditions leading to the out-of-home placement have not been corrected,” based on a showing that the parent has not “substantially complied with the court’s order and a reasonable case plan;” and (4) the social services agency made reasonable efforts to “rehabilitate the parent and reunite the family.”  Minn. Stat. § 260C.301, subd. 1(b)(5).

            Appellant contends that: (1) the conditions leading to the removal of the children were corrected because she successfully participated in the partial hospitalization program and had been sober for some seven months; (2) given her cognitive limitations, the county’s plan was not reasonable; and (3) it was not until she entered the partial hospitalization program to treat depression that she made progress.  But this argument is premised on the assumption that depression, not alcoholism, was the source of her difficulties.  There is sufficient evidence in the record to support the district court’s decision that there were reasonable efforts to correct the conditions leading to the children’s placement.

            Next, appellant argues that she lost trust in her social worker, because the social worker both attempted to reunify the family and commenced termination proceedings.  See In re Welfare of D.C., 415 N.W.2d 915, 920 (Minn. App. 1987) (Huspeni, J., dissenting) (expressing concern as to whether a caseworker could continue efforts to assist in reunification of a family and at the same time pursue termination proceedings).  But the court found the social worker met with appellant and her family repeatedly, long before the petition for termination was filed, and that appellant and her husband repeatedly refused to correct the conditions leading to the termination proceeding.

            Appellant contends that she complied with the purpose of the case plan by maintaining sobriety for some six months.  The district court, however, found that the conditions were not met because appellant refused to participate in aftercare, attend AA regularly, or participate in alcohol testing in good faith.  In October 1999, just before the petition was filed, appellant had not been sober; she admitted to the social worker that she had been drinking and was suicidal, and alcohol was found in her system when she was hospitalized.  Despite appellant’s apparent short-term sobriety, the district court determined she had a severe alcohol problem that was untreated.  The district court’s determination that appellant failed to correct the conditions leading to out-of-home placement of the children and failed to comply with the court orders or case plans is not clearly erroneous and is supported by the record.

            A district court may terminate parental rights upon a finding that the parent is “palpably unfit” due to either “a consistent pattern of specific conduct” or “specific conditions” rendering the parent unfit to parent for the foreseeable future.  Minn. Stat. § 260C.301, subd. 1(b) (4).  The court must base its decision on “conditions that exist at the time of the hearing.”  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (citation omitted).

Appellant contends respondent failed to show that her present condition rendered her incapable of caring for the children in the reasonable future, citing her sobriety since October 1999 and her successful participation in a partial hospitalization program to treat her depression.  The district court rejected this argument, finding that the conditions that affected appellant were a severe alcohol problem, cognitive limitations and personality problems, and persistent problems with violence and anger in the home, and that the partial hospitalization program did not address these issues.  Even if a parent has made recent attempts to develop the ability to assume parental responsibilities and has a sincere desire to do so, the court is not compelled to find the parent is able to assume parental responsibility.  In re Welfare of J.L.L., 396 N.W.2d 647, 652 (Minn. App. 1986).

            Finally, the court determined the children were neglected and in foster care.  Minn. Stat. § 260C.301, subd. 1(b) (8).  See Minn. Stat. § 260C.007, subd. 18. (Supp. 1999) (defining term).  Appellant contends that because of the difference in the ages and needs of the children, the district court should have specifically applied these provisions to each of the children.  But the district court made numerous findings that are supported by the evidence and are not clearly erroneous.

III.

            The final issue is whether the district court erred in determining it was in the best interests of the children that appellant’s parental rights be terminated and that they be adopted.  The best interests factor is of paramount consideration.  Minn. Stat. § 260C.301, subd. 7.  The findings must address whether termination is in the children’s best interests and explain the court’s rationale.  In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996).

            Appellant contends that the district court did not make specific findings to support its conclusion that parental termination was in the best interests of the children.  She contends that because the children were bonded with their parents, and because there was evidence the parents behaved in a positive, caring way, termination was not in the children’s best interests.

As proof that termination was in the children’s best interests the district court cited the children’s behavior when they entered the foster home, their substantial progress in the foster home, and the significant deterioration in their behavior upon return to their parents’ home.  The court also relied on extensive testimony by the children’s therapist, who diagnosed the children as suffering from adjustment reaction and post-traumatic stress disorder as a result of living in their parents’ home.  The therapist cited traumatic events experienced by the children, such as when they found their mother passed out and were unable to awaken her.  The therapist believed it would be dangerous to return the children to their parents, and she was unsure whether they could rebound if yet another reunion failed.  She specifically testified that if the children returned home and the existing patterns in the family home continued, the bond that the children have with their parents would not be significant enough to override the risks to the children.

The district court also cited the appellant’s failure to visit or telephone the children consistently while they were in foster care.  Another troubling aspect was the lack of insight appellant had shown into the children’s special needs and an unwillingness to learn how to care properly for the children.  The district court made detailed findings that support its conclusion that termination was in the best interests of the children, and the findings are not clearly erroneous.

Appellant also argues that the court improperly concluded that the children’s best interests would be served by adoption into a two-parent home.  Because there is a statutory basis for termination and because termination is in the children’s best interests, the record supports the district court’s decision and this court need not address the propriety of the district court’s references to possible adoption of the children.

Affirmed.

 

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Appellant’s last hospitalization for intoxication occurred in October 1999, and appellant testified in mid-April 2000.