This opinion will be unpublished and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

C8-00-1479

C0-00-1492

 

 

In the Matter of the Welfare of the Children of:

C.J.D. and K.D., Parents.

 

 

Filed April 17, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. J599060814

 

 

Leonardo Castro, Fourth District Public Defender, Renee J. Bergeron, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant child L.D.)

 

Leonardo Castro, Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellants C.J.D. and K.D.)

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County Department of Children and Family Services)

 

James H. Gaffney, Jr., 4209 West 44th Street, Minneapolis, MN 55424 (for guardian ad litem)

 

 

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

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

SCHUMACHER, ROBERT H., Judge

Mother, father and eldest child's consolidated appeals challenge the district court's decision terminating mother and father's parental rights. We affirm.

FACTS

Following several petitions for protective orders filed by both mother C.J.D. and father K.D. against each other, respondent Hennepin County Department of Children and Family Services filed a petition for children in need of protective services (CHIPS) in October 1998. According to the county's petition, the parents had significant chemical addiction, domestic abuse, and mental health issues, which were interfering with their parenting responsibilities to their three minor children. The court adjudged the children in need of protective services, the children were placed outside the home, and case plans for both parents were developed.

In a March 1999 order, the district court determined that neither parent had substantially complied with his or her case plan and continued out-of-home placement for the children until the time the parents made "significant improvement" and substantially complied with the case plans. By April 15, 1999, mother had not started her mental health therapy despite repeated reminders. Father tested positive for cocaine on June 8, 1999, and failed to provide urinalysis samples on several prior requests. Because of the parents' lack of progress, the county filed a petition for termination of parental rights on July 2, 1999.

At the hearing on the termination petition, all parties agreed to a voluntary termination. Both parents waived their right to a trial. The district court terminated their parental rights but stayed the termination for six months and imposed conditions for reunification.

On March 2, 2000, the county filed a motion to revoke the mother's stay based on reports that she was abusing cocaine and seen with a boyfriend who had previously abused her and with whom she was ordered to have no contact pursuant to the conditions of the stay. The court denied the motion.

On May 5, 2000, while drinking with this same abusive boyfriend, mother was assaulted by a third party and suffered a fractured skull. The record indicates she was taken to a hospital where she was subsequently diagnosed with chemical dependency and type II bipolar disease. According to her psychiatrist, she enrolled in a treatment program, received medication, and began complying with the conditions of the stay.

On May 11, 2000, the county filed a motion to revoke the stay for both parents. At a June 26, 2000, hearing, L.D., the eldest child, who was represented by separate counsel throughout the proceedings, argued that she was not adoptable and did not want her parents' parental rights terminated. She requested the court place the children in long-term foster care because she was over the age of 12, and she and her siblings needed to stay together. Both mother and her psychiatrist acknowledged that mother was not able to care for her children at that time. The court also heard testimony that father, who was incarcerated on February 17, 2000, had difficulty obtaining furloughs to attend the required programs, but he had six months to complete the conditions and had not yet done so.

The district court revoked the stay citing the parents' palpable unfitness and its overriding concern for the children's need for permanency. The court found that long-term foster care was not in the children's best interests because there was "no identified home" for the children and they were all adoptable. Thus, the court terminated mother and father's parental rights. The appeals of mother, father, and L.D. have been consolidated on appeal.

D E C I S I O N

"Parental rights are terminated only for grave and weighty reasons." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). We presume that the natural parents are suitable to be entrusted with the care of their children and that it is in the children's best interest to be in the natural parents' care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).

The party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidence. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). While only one criterion needs to be proven to support termination, the "paramount consideration" in every termination case is the child's best interests. Minn. Stat. 260C.301, subds. 1(b), 7 (2000). Although we give some deference to the district court's findings, we exercise great caution in termination proceedings and closely examine the evidence to determine whether it is clear and convincing. In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn. App. 1987); see In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (terms "substantial evidence" and "clear and convincing evidence" used interchangeably). We must determine whether the district court's termination findings address the statutory criteria, whether they are supported by substantial evidence, and whether they are clearly erroneous. M.D.O., 462 N.W.2d at 375.

The parents argue that termination was not supported by clear and convincing evidence and was inconsistent with the terms of their agreement that any termination would be voluntary. The district court terminated mother and father's parental rights on four grounds: palpable unfitness, refusal to abide by the parent-child relationship, failure to correct conditions leading to the children in need of protective services adjudication and the children are neglected and in foster care. Because only one ground is required for termination, we discuss only the parent's palpable unfitness. The district court may, upon petition, terminate all rights of parents to their children if it finds

that a 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) (2000).

It is undisputed that mother failed to maintain her sobriety or follow an aftercare program, continued her relationship with an abusive boyfriend, and failed to continue in a program to address issues of domestic violence and abuse. Mother, however, argues that her recent dual diagnosis of type II bipolar disease and chemical dependency and consequent adherence to the conditions of the stay for a month prior to the termination demonstrate that at the time of the hearing there was no clear and convincing evidence to support termination of her parental rights. Mental illness in and of itself does not justify termination. In re J.J.B., 390 N.W.2d 274, 281 (Minn. 1986). Yet, chemical abuse, unstable relationships, and unstable housing up to the time of termination hearing support a finding that a parent is "palpably unfit." See In re Welfare of S.R.A., 527 N.W.2d 835, 838-39 (Minn. App. 1995), review denied (Minn. Mar. 29, 1995).

Mother is correct in asserting that reliance should not be placed wholly on past history but on projected permanency of a parent's inability to care for the child. See S.Z., 547 N.W.2d at 893. But when crediting a parent's current circumstances, reviewing courts have looked for significant progress in fulfilling the requirements of an assigned case plan. See In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999). A showing of merely some progress is insufficient. See In re Welfare of B.M., 383 N.W.2d 704, 708 (Minn. App. 1986), review denied (Minn. May 22, 1986). Both she and her psychiatrist acknowledged that she was not yet able to care for her children. In addition, the psychiatrist said that it would be difficult to predict exactly when, if ever, mother would be able to parent. Therefore, based on these facts, we conclude the district court's finding that mother's condition was of "such a nature that it is unlikely that in the reasonably foreseeable future she would be in a position to parent her children" was not clearly erroneous.

Father, in turn, contends that the district court erred in terminating his parental rights because he was in substantial compliance with his case plan at the time of the hearing. While father did have difficulty obtaining furloughs, he did have six months to complete the conditions of his stay. He knew at the time the conditions were set that he would be on probation and would need to coordinate attending the required programs of the stay with the probation department. The district court found that at the time of the hearing, father failed to "complete or demonstrate any gains in domestic abuse programming or anger management," and in the first month, he "showed very little motivation towards finding employment." We conclude that this finding is supported by substantial evidence and is not clearly erroneous. Thus, because we are satisfied that the district court found mother and father were palpably unfit by clear and convincing evidence at the time of the hearing, whether the parties stipulated to a voluntary termination is irrelevant.

Next, both parents argue that before terminating parental rights, the district court must find that the county has used reasonable efforts to provide rehabilitation or reunification services. See Minn. Stat. 260.012 (a), (c) (2000). In the present case, the district court found that the county had made reasonable efforts. The record indicates that the county provided the following services to mother and father: Rule 25 Chemical Health Assessments, foster care, visitation, urinalysis, Reuban Lindh Family Services Supervised Visits, domestic abuse counseling, chemical dependency treatment, individual therapy, family networks for both parents, bus cards for mother, parenting skills training, compassion workshop and walk-in counseling center for father. These services were relevant, realistic, available, accessible, adequate, appropriate, consistent and timely. Therefore, we conclude that the finding that reasonable efforts were made is supported by substantial evidence and is not clearly erroneous.

Although findings of palpable unfitness and reasonable efforts are important, the paramount consideration in all proceedings for the termination of parental rights is the best interests of the child. Minn. Stat. 260C.301, subd. 7 (2000). The parents argue termination was not in the children's best interests. Although the district court recognized the strong bond between the parents and these three children, its focus was on the children's need for permanency. The record reflects that the children were experiencing difficulties that demonstrated a need for permanency.

Both parents had missed visits with the children and often made promises to them that they did not or could not keep. The six-year-old was becoming aggressive toward the foster mother, and the eight-year-old believed the family would be reunited soon. Because neither parent was able to parent at the time of the hearing or in the near future, if ever, termination was in the children's best interests. Nothing in the record casts doubt upon the district court's conclusion that the present inability of mother and father to parent will continue for a prolonged, indeterminate period. Moreover, nothing in the record casts doubt on the children's need for permanency. Under these circumstances, the district court was correct in concluding that the overriding concern in this case is the children's need for permanency and that therefore termination of the parents' rights is in the best interests of the children.

Finally, L.D. argues that the district court ignored her request for long-term foster care. She argues she is not adoptable and long-term foster care is the only option that will keep her and her siblings together. The record does not indicate that any relatives have come forward to provide a home for the children. Indeed, the district court found that no home for long-term foster care by relatives was identified. In contrast to L.D.'s assertion that she is not adoptable, a September 20, 2000, affidavit by a county social worker states that there is an adoptive family available to adopt all three children.

Affirmed.