This opinion will be unpublished and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

C2-00-1980

 

 

 

In the Matter of the Children of:

P.E., Parent, R.W., Jr., Parent.

 

 

Filed July 10, 2001

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. JX9962459

 

 

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

 

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

 

Gerald MB Chester, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for guardian ad litem)

 

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Anderson, G. Barry, Judge.


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

SCHUMACHER, ROBERT H., Judge

Appellant P.E. (mother) challenges termination of her parental rights to S.R.W. and D.R.W., arguing that there were unexplored alternatives to termination and that termination is not in the children's best interests. We affirm.

FACTS

Mother is a single woman who is the mother of N.L.P., born February 15, 1983; D.D.W, born August 3, 1988; S.R.W., born July 5, 1990; and D.R.W., born October 25, 1991. The adjudicated father of D.D.W. is R.W., Jr. There is no father of record for the other three children.

Mother and her children have had previous child-protection involvement, dating back to 1991, when the three oldest children were first found to be children in need of protection services (CHIPS). Mother has a significant mental-health history; she was sexually and physically abused as a child, and has a history of repeated victimization throughout her adult life. According to a 1999 psychological evaluation, she has poor understanding of social norms and difficulty making common-sense judgments. Mother has a history of domestic abuse at the hands of several men. The children have been present during many incidents of violence in the home and were significantly traumatized as both witnesses and to victims of physical abuse.

The instant proceeding arises from sexual abuse to D.D.W., which came to light in the summer of 1999 in Connecticut. Eleven-year-old D.D.W. had traveled to Connecticut with mother's boyfriend, who left D.D.W. with his mother and sister. The sister took D.D.W. to a pediatrician because D.D.W.'s underpants were stained with blood. The pediatrician diagnosed a type of venereal wart, and D.D.W. disclosed that her maternal uncle had been sexually molesting her. D.D.W. said that she had reported the sexual abuse to her mother when it first started happening, but that her mother told her to ignore it.

D.D.W. was taken to a sexual-abuse clinic where she was examined on July 27, 1999. D.D.W. provided a clear history of sexual abuse by her maternal uncle that had occurred on numerous occasions over the last several years. The physical examination revealed large venereal warts on and around her anus, which had been present for several months or longer and were caused by a virus transmitted by sexual contact. It was recommended that D.D.W. be placed in protective foster care.

On July 28, 1999, D.D.W. was interviewed at the sexual-abuse clinic. D.D.W. described abuse by her maternal uncle starting at the age of seven or eight. She described both vaginal penile penetration and anal penile penetration. She reported being tied to a bed and having her legs and wrists tied with rope; she described one incident during which she was gagged. D.D.W. reported that she told her mother about the abuse and her mother said she would "kick my ass for saying that." When contacted to inform her of the sexual abuse, mother called the child a "liar" and "bitch."

During her interview, D.D.W. became tearful and had great difficulty when she described physical abuse by her mother. She reported being beaten by her mother over her entire body. She stated that her mother hit her with her hand, fist, belts, extension cords, and broomstick. She reported that her mother also beat her sister. She stated, "my mom whooped me and my sister, my mom said she wishes we was dead, she said when we was babies she should have thrown us in the dumpster."

A social worker employed by the Connecticut Department of Children and Families made a report to the Minneapolis Police Department. Based on the report, N.L.P., S.R.W., and D.R.W. were removed from the home and placed on a 72-hour hold. After a CHIPS petition was filed, the court found probable cause on the petition, continued the children in out-of-home placement, and issued an order for D.D.W. to be returned to Minnesota.

On August 3, 1999, a Minneapolis police sergeant interviewed mother. Mother expressed disbelief that her brother had been the perpetrator of the abuse and spontaneously supplied information suggesting that her boyfriend had a sexually transmitted disease. The sergeant testified that it appeared to him that mother was implicating her boyfriend in the abuse of her daughter.

On August 18, 1999, D.D.W. disclosed that her mother's boyfriend had also sexually abused her. D.D.W. was interviewed by Connecticut Department of Children and Families a second time on September 30, 1999. D.D.W. reported that her mother's boyfriend had sexually abused her and told her to keep it a secret. During the interview, D.D.W. gave a physical description of her mother's boyfriend's genitals that lent credence to her testimony. Medical records confirm that he had been treated for venereal warts on April 15, 1999.

On September 16, 1999, a termination petition was filed. The matter came for trial in June and September 2000 in Hennepin County Juvenile Court. Counsel for respondent Hennepin County Department of Children and Family Services (Children and Family Services) stated that it was seeking long-term foster care for N.L.P. and D.D.W. and termination of parental rights for S.R.W. and D.R.W. D.D.W.'s father defaulted by failing to appear. Mother testified on her own behalf. On October 13, 2000, the trial court issued its termination order.

The trial court found that D.D.W. was the victim of sexual abuse by her maternal uncle and by her mother's boyfriend. The court found that mother was aware of the sexual abuse of D.D.W., but did not take appropriate steps to protect her. The trial court found that D.D.W. gave specific accounts to her therapist of physical abuse she endured from her mother, recalling "whoopings" that continued throughout her life.

The court found that the children had various special needs, including developmental disabilities, post-traumatic stress disorder, oppositional-defiance disorder, and attention-deficit disorder. The trial court found mother has demonstrated an inability to provide for the many special needs of her children. During supervised visitation with the children, mother had been very volatile and unpredictable in her behavior. During a July 11, 2000 visit, mother became upset with D.R.W. and then upset with staff when they attempted to calm her down. Mother said to D.R.W., "I need to take you into the bathroom, take your pants down, and tear you up."

The trial court found that numerous supportive services had been offered to mother and her children since 1991. Despite the services, mother has shown minimal progress over the years in her ability to provide for the health and safety of her children, with repeated instances of abuse and neglect. The trial court stated that the court was hopeful that contact among the siblings could continue in the future and believes that continued contact would be beneficial to all. But the court found that permanency in the form of long-term foster care for N.L.P. and D.D.W. and termination of parental rights for D.R.W. and S.R.W. are ultimately in the children's best interests.

The trial court concluded that there was clear and convincing evidence that the parental rights of mother to D.R.W. and S.R.W. should be terminated because (1) she substantially, continuously and repeatedly refused or neglected to comply with the duties imposed upon her by the parent-child relationship; (2) she is palpably unfit to be a party to the parent-child relationship; (3) D.D.W. experienced egregious harm in her care, which is of a nature, duration, or chronicity that indicates a lack of regard for the child's well-being, such that a responsible person would believe it contrary to the best interests of the child or of any child to be in the parent's care; and (4) the children are neglected and in foster care. Mother appeals from the termination of her parental rights to S.R.W. and D.R.W.

D E C I S I O N

When a trial court's findings in a termination case are challenged, appellate courts are 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). On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses." In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted). This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

The trial court found that four different statutory grounds for termination were met by clear and convincing evidence, including palpable unfitness and egregious harm. Mother does not argue with the trial court's findings regarding her ability to parent. Rather, mother argues the record shows that there were unexplored alternatives to termination and that termination is not in the children's best interests.

1. Mother argues that the record is insufficient to establish that the alternatives to termination were fully explored. When a child is in an out-of-home placement beyond a specific period of time, Children and Family Services must move to establish permanency for that child. Minn. Stat. 260C.201, subd. 11 (2000). The statute provides several permanency options, including (1) transfer of permanent custody to a relative, (2) termination of parental rights and adoption, and (3) long-term foster care. Id., subd. 11(e)(1)(3). The statute provides that "transfer of legal custody and adoption are preferred permanency options for a child who cannot return home." Id., subd. 11(e)(3). The child-placing agency is required to make special efforts to recruit a foster family from among the child's relatives. Minn. Stat. 260C.215, subd. 1 (2000).

In this case, Linda Schlitchte of Children and Family Services testified that no relatives were identified as suitable or willing to assume care and custody of the children. Mother points out that the testimony was not clear as to whether or not a "kinship study" had been prepared. Nonetheless, Schlitchte testified that no relatives had been identified as suitable. This testimony alone is sufficient to show that transfer to a relative was adequately pursued.

Mother further argues that Children and Family Services did not make special efforts to recruit a foster-care placement where the children could reside together. The county argues that any other placement would have been contrary to D.D.W.'s best interests and that placement of all four children together in one home was not possible at the time of trial. Although placement with siblings is favored, the best interests of all the children is the overriding concern. The record does not establish that the county's placement efforts were lacking.

2. Mother argues that the evidence showed that termination was not in the best interests of the children. "[T]he best interests of the child must be the paramount consideration." Minn. Stat. 260C.301, subd. 7 (2000).

Mother argues that she and her children are bonded to each other and that it is not in their best interests to sever their connections. The parent-child bond is a factor to be considered in evaluating whether termination of parental rights is in the best interests of the child. In re Welfare of M.P., 542 N.W.2d 71, 75 (Minn. App. 1996). Here, the record readily supports the trial court's finding that mother was unable to provide for the many special needs of her children. The trial court acknowledged that the children and their mother felt love for each other but nonetheless found that termination was in the children's best interests. The evidence supports the trial court's determination.

Mother argues that termination is not in the children's best interests because of "the reality of non-adoption." But the supreme court has explained that evidence of adoptability is not relevant to the child's best interests. In re Welfare of J.M., 574 N.W.2d at 722-23. Mother states that

it is clear that the best interests of S.R.W. and D.R.W. will be served by long-term foster care with one of their siblings who is twelve or older, and not by termination of appellant's parental rights.

 

While long-term foster care may have been a permissible disposition, the record does not support the claim that the trial court erred in determining that termination was in the best interests of S.R.W. and D.R.W.

Affirmed.