This opinion will be unpublished and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

C6-00-2128

C6-00-2140

 

 

In Re the Matter of the Children of:  N.R.M. and J.S.H.

 

 

Filed May 29, 2001

Reversed and remanded

Hanson, Judge

 

 

Chisago County District Court

File No. J7-99-50623

 

 

Peter J. Grundhoefer, Johnson, Casterton & Grundhoefer, P.A., 105 Main Street, P.O. Box 217, Center City, Minnesota 55012 (for appellant N.R.M.) 

 

Sherri D. Hawley, 1398 Myrtle Street, St. Paul, Minnesota 55119 (for appellant J.S.H.)

 

Janet A. Reiter, Assistant Chisago County Attorney, Chisago County Government Center, 313 North Main Street, Room 373, Center City, Minnesota 55012 (for respondent Chisago County) 

 

Glenn A. Boyce, Boyce Law Offices, 6349 Main Street, P.O. Box 277, North Branch, Minnesota 55945 (for guardian ad litem)

 

 

            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

HANSON, Judge

            In this consolidated appeal of the district court’s termination of their individual parental rights, appellants father and mother argue (a) the record does not support the district court’s findings on various subjects, including whether termination is in the children’s best interests; (b) the children cannot be found “neglected and in foster care” because the county failed to make reasonable efforts to reunify the family and the district court did not address whether conditions of neglect will continue in the foreseeable future; and (c) the district court improperly transferred the burden of proof to the parents, requiring them to show that the children should be returned.  Respondent county, by notice of review, argues that the district court erred in rejecting alternative grounds for termination.  We reverse and remand for further proceedings, consistent with this opinion.

FACTS

Appellants mother and father have two children: a boy born on September 20, 1997, and a girl born on September 4, 1998.  

On December 18, 1997, when the boy was three months old, Chisago County Health and Human Services (the “county”) filed a petition alleging he was a child in need of protection or services (“CHIPS”).  Appellants admitted to this petition and the boy was adjudicated a CHIPS.  On March 8, 1999, when the girl was five months old, the county filed a petition alleging she was a child in need of protection or services.  Appellants admitted to this petition and the girl was adjudicated a CHIPS.

            On September 1, 1999, the county filed a petition to terminate appellants’ parental rights to both children.  The county’s petition alleged four statutory grounds for termination:  

(1)  the parents failed to comply with the duties imposed on them by the parent/child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2) (2000);

 

(2)  the parents are palpably unfit, Minn. Stat. § 260C.301, subd. 1(b)(4) (2000);

 

(3)  the parents failed to correct the conditions leading to the children’s placement in foster care, Minn. Stat. § 260C.301, subd. 1(b)(5) (2000); and

 

(4)  the children are neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8) (2000).

 

The county’s several concerns were that appellants lacked parenting skills; the father’s home was not habitable for the children; the mother lacked family support; there were problems of anger and domestic violence; the parents abused drugs; the parents had no employment or financial means; and the parents were involved in criminal activity.  The county developed a case plan to address these concerns.  While the county offered considerable services to the parents, very little progress was made toward rehabilitation.

The father continued to be the subject of numerous complaints of domestic abuse.  He did not obtain full-time employment.  On June 21, 1999, the father was sentenced to 275 days in jail.  The charges included disorderly conduct, receiving stolen property, fourth degree controlled substance possession, fourth degree controlled substance sale, driving after cancellation, and fleeing police in a motor vehicle.  As part of the sentence, the court required the father to undergo chemical use assessment, abstain from drug and alcohol use or possession and undergo random drug testing. 

After the father’s release from jail in December of 1999, he tested positive for methamphetamines three times, within months of the termination proceedings.  On May 15, 2000, the father was again incarcerated for violation of his probation.  During his incarceration, the county arranged work-release employment for him, but he later was found in violation of the rules governing work release.  The county provided the father with supervised visitation at a county facility, but he only took advantage of about half the scheduled visits.  While the father performed some work on his house, it still was not habitable for children.

The county provided the mother with both out- and in-patient treatment for her chemical dependency, referral to a halfway house in which she could stay with the boy, whole family foster care, parenting education, counseling, therapy sessions, living skills classes and visitation with both children.  After several failures, the mother successfully completed in-patient treatment and placement was arranged for her and the boy in a halfway house.  She left within a few hours of arriving at the halfway house, before the boy arrived.

Subsequently, the mother completed the county’s 12-week aftercare program.  However, she failed to take advantage of half of the visitation opportunities provided by the county, and attended only one out of four therapy sessions.  She also failed to maintain employment from the time of the initial CHIPS petition.  The mother was convicted in Chisago County of disorderly conduct, falsely reporting a crime and theft. 

            Although the county continued to provide her with supervised visitation with the children, she disappeared for several months between the fall of 1999 and spring of 2000.  Also, in February 2000, she tested positive for methamphetamines and marijuana.  On the first day of trial, the mother had still not secured employment and was in custody on an outstanding warrant.

            While the district court ultimately ordered that appellants’ parental rights be terminated, it did so after rejecting the first three grounds in the petition and based its order solely on the fourth. 

            First, the court concluded that the county failed to prove that appellants’ rights should be terminated for failure to comply with the duties of the parent/child relationship.  While the court concluded that appellants had failed to fulfill their duties, it rejected this ground based upon the determination that the county had failed to prove it had provided reasonable efforts to correct the conditions leading to the original CHIPS determination.  

Second, the court concluded that the county had failed to prove that the parents’ rights should be terminated as palpably unfit.  The district court noted that this ground is generally reserved for parents whose behavior rises to an extremely high level of unfitness, such as being a drug dealer.  The court concluded that because only one incident provided evidence of drug dealing by father, it could not conclude the activity rendered the father palpably unfit to parent for the foreseeable future.

Third, the court concluded that the county had failed to prove that the parents’ rights should be terminated for failure to correct the conditions leading to the child’s placement in foster care.  While the court found that the parents had not corrected the conditions leading to the children’s out-of-home placement, it concluded that the county had not proven that this failure was the fault of the parents.  The court stated that the county must make it clear how the parents could achieve the goals the county had set for them. 

Finally, the court concluded that the county had provided clear and convincing evidence that the parents’ rights should be terminated because the children are neglected and in foster care.  In this context, the court concluded:

The circumstances of the parents are such that the children cannot be returned home.  Unless the court finds the children can be returned home today, the parental rights must be terminated.

 

Both parents appeal the district court’s termination order.  The county filed notice of review, challenging the court’s rejection of the first three grounds.

D E C I S I O N

 

When reviewing a termination order, this court is "limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous."  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997) (citation omitted).  In termination cases, the paramount concern is for the best interests of the children.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).

I.

            We first address appellants’ arguments that the district court erred in terminating their parental rights.  Several of those arguments are without merit.  For example, we are satisfied that the specific findings challenged by appellants are either immaterial to the ultimate determination or were adequately supported by evidence in the record.  We are also satisfied that the evidence was sufficient to support the district court’s conclusion that the parents have not made reasonable efforts to correct the conditions that necessitated the removal of each child and that termination was in the children’s best interests.  More troubling, however, are appellants’ arguments that the district court did not properly apply the statutory criteria for termination, which requires (1) a finding that the county made reasonable efforts to rehabilitate and reunite the family, and (2) a finding that the condition of neglect will not change in the foreseeable future.

Reasonable Efforts

            The county’s duty to make reasonable efforts for family reunification applies in every case where a child in need of protection is under the court’s jurisdiction.  Minn. Stat. § 260.012 (a) (2000).  Thus, the district court was required to determine whether the county made reasonable efforts for each one of the grounds alleged in a petition to terminate parental rights.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  As to the grounds used as the basis for the district court’s order, “neglected and in foster care” is defined to mean a child “[w]hose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct * * * .”  Minn. Stat. § 260C.007, subd. 18 (2000) (emphasis added).  Factors to consider in determining neglect include “the nature of the efforts made by the responsible social services agency to rehabilitate and reunite the family and whether the efforts were reasonable.”  Minn. Stat § 260C.163, subd. 9 (7) (2000).

Here, the district court only addressed the question whether the county provided reasonable efforts to rehabilitate and reunite the family when it discussed the first grounds in the petition, whether appellants failed to comply with the duties imposed on them by the parent/child relationship.  In that context, the court concluded that the county had failed to prove that it had provided reasonable efforts.  The court, nonetheless, terminated the parents’ rights based on its conclusion that the children were neglected and in foster care.  These two conclusions are irreconcilable. 

The county asks us to correct this deficiency by reviewing the issue of the county’s efforts de novo and ruling that the county’s efforts were reasonable.  While we are tempted to do so, we ultimately are constrained by our role as an error-correcting court, and will not usurp the fact-finding functions of the trial judge.  See M.D.O., 462 N.W.2d at 375 (reversing this court’s decision that independently found parent palpably unfit, stating that this court exceeded its role as an error-correcting court); see also In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (“[this court] will not overturn the trial court’s findings of fact unless those findings are clearly erroneous.”).

The county next argues that the district court applied the incorrect legal criteria to determining whether the county had made reasonable efforts, focusing too narrowly on the quality of the county’s record-keeping practices, while disregarding evidence of the actual services provided.  The district court stated that the county’s record-keeping practices left the court “with the question of whether reasonable efforts were put forth by the agency to correct the conditions that formed the basis of the petition.”  We agree that this approach was too narrow, and was inconsistent with the paramount consideration of the children’s best interests.  The interests of the children should not be prejudiced by the poor quality of the county’s record-keeping practices.  Where the record contains sufficient evidence describing the services that the county has provided, the court should not focus on the agency’s record-keeping practices to the exclusion of that evidence. 

Our review of the record indicates that there is evidence of extensive services provided to appellants.  The father received supervised visitation, chemical use assessment and treatment programs, random drug screenings, job search assistance while he was incarcerated and reimbursement for transportation expenses.  The mother received both out- and in-patient treatment, referral to a halfway house, whole family foster care, parenting education, counseling, therapy sessions, living skills classes and visitation.

Moreover, the record contains substantial evidence that the appellants did not regularly avail themselves of these services or comply with the requirements imposed by the county or the district court.  Thus, additional services may have been futile.  See Minn. Stat. § 260.012 (a)(3) (2000) (providing that efforts are not required where the provision of further services is futile).

            Because we agree that the district court did not apply the proper criteria in making its determination regarding the county’s reasonable efforts, we remand this determination for further consideration consistent with this opinion.

            Neglect in the Foreseeable Future

The court’s statement, that “Unless the court finds the children can be returned home today, the parental rights must be terminated,” is apparently based upon the definition of “Neglected and in foster care,” contained in Minn. Stat. § 260C.007, subd. 18:

“Neglected and in foster care” means a child * * * (b) Whose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them * * * .

 

To the extent this provision supports the interpretation that the court must terminate unless the children could be returned on the last day of trial, it is in conflict with the generally accepted standard that

Evidence relating to termination must address conditions that exist at the time of the hearing, * * * and it must appear that the present conditions of neglect will continue for a prolonged, indeterminate period.

 

In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980); see also In re Welfare of M.A. and J.A., 408 N.W.2d 227, 233 (Minn. App. 1987) (“We recognize the need for permanency in children’s lives.  However, there is no legal basis for granting termination solely because the child cannot be returned immediately to the parental home.”) (citation omitted) review denied (Minn. Sept. 18, 1987).  Likewise, the statutory factors imply a “foreseeable future” standard.  Minn. Stat. § 260C.163, subd. 9(2) (2000) (consideration should be given to “the effort the parent has made to adjust circumstances, conduct, or conditions that necessitates the removal of the child to make it in the child’s best interest to be returned to the parent’s home in the foreseeable future * * *.”) (emphasis added).

It is important to note, however, that past performance may establish that the conditions will exist for a prolonged and indeterminate time.  In re Welfare of H.K., 455 N.W.2d 529, 533 (Minn. App. 1990) (holding that parent’s unwillingness to comply with court order indicates conditions would not change for prolonged and indeterminate time), review denied (Minn. July 6, 1990); In re Welfare of P.R.L., 622 N.W.2d 538, 545 n.8 (Minn. 2001) (holding that a long history of the parent’s conduct, despite several orders from the district court telling parent to cease the conduct, “suffices to meet any such requirement that might exist.”).

Upon remand, the district court should reconsider this issue under the foreseeable future standard.

II.

            The county argues that the district court applied the wrong statutory criteria in finding that appellants were not palpably unfit.  The district court appears to have applied a standard that is more severe than contemplated under the statute.  The court assumed that this allegation “is typically involved where parents have been found to use children to steal, or the children are living in a brothel * * * .”  The statute and the caselaw do not require such a severe showing to establish that a parent is “palpably unfit.” 

One is palpably unfit to be a party to the parent and child relationship where there is

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 on-going physical, mental, or emotional needs of the child. 

 

Minn. Stat. § 260C.301, subd. 1 (b)(4) (2000).  See, e.g., In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (father who was unable to conquer chemical addiction and had a history of domestic abuse was palpably unfit), review denied (Minn. Mar. 29, 1995); In re Welfare of J.D.L., 522 N.W.2d 364 (Minn. App. 1994) (father who canceled visitation, showed inadequate parenting skills and failed to offer plans to change his behavior was palpably unfit); In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (father’s alcohol and drug abuse, incarceration and failure to maintain a relationship with the child was palpably unfit); and In re Welfare of E.L.H., 356 N.W.2d 795, 797 (Minn. App. 1984) (father who rejected county’s efforts to help overcome drinking, who quit going to chemical dependency counseling and who never established a home suitable for the child or contributed to the child’s support was palpably unfit).

Here, both parties suffer from long-term substance abuse and have been involved in related criminal activities.  The father has been frequently accused of domestic violence.  Both have several criminal convictions and have been incarcerated during significant portions of their children’s lives.  The evidence of these facts could support a conclusion that they were palpably unfit.

While we conclude that the district court applied the improper criteria for evaluating whether appellants were palpably unfit, we are again mindful that the district court’s separate conclusion, that the county had not made reasonable efforts to rehabilitate and reunite the family, would also stand as a bar to terminating parental rights on this ground.  S.Z., 547 N.W.2d at 892. 

Upon remand, the district court should also reconsider this ground for termination.

C O N C L U S IO N

After a careful review of the record, we conclude that the district court’s conclusions fail to apply the proper statutory criteria.  The statute requires that before terminating parental rights for any reason, the district court find either that (1) the county provided reasonable efforts to rehabilitate and reunify the family, but those efforts led to no significant improvement in the mother or father’s ability to parent the children, or (2) that provision of further services for the purpose of rehabilitation and reunification would be futile and not realistic under the circumstances.

            Alternatively, if the district court finds that the county failed to provide reasonable efforts, and that further services might be effective to bring about lasting parental adjustment and the children’s return to their parents within the foreseeable future, the district court shall implement a new case plan to correct the parents’ current circumstances, conduct and conditions sufficient to reunify the family. 

            Reversed and remanded.