This opinion will be unpublished and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

C7-01-396

 

 

In the Matter of the Welfare of:

P.G.R., Child.

 

 

Filed September 18, 2001

Affirmed

Peterson, Judge

 

 

St. Louis County District Court

File No. J300650096

 

 

Mark C. Jennings, 301 West First Street, Suite 309, Duluth, MN  55802 (for appellant mother)

 

Joanne Vavrosky, 403 Government Services Center, 320 West Second Street, Duluth, MN  55802 (for respondent St. Louis County Social Services)

 

John Fillenworth, 301 West First Street, Suite 309, Duluth, MN  55802 (for respondent father)

 

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

 

Jean E. Johnson, 394 Lake Avenue South, Duluth, MN  55802 (guardian ad litem for child)

 

 

            Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

PETERSON, Judge

Appellant-mother challenges the termination of her parental rights for palpable unfitness, arguing that the district court failed to make adequate findings regarding the county’s efforts to reunify the family and improperly admitted privileged psychological and psychiatric information into evidence.  Mother also contends that the termination of her parental rights was contrary to the child’s best interests and that the evidence was insufficient to support the termination of her parental rights.  We affirm.

FACTS

            P.G.R., the subject of this proceeding, is the youngest of mother’s four children.  Legal and physical custody of the two oldest children, R.S., born in 1992, and D.K., born in 1993, was transferred to their father in 1996.  Visitation by mother was suspended at the same time and has never been resumed.  Mother’s third child, C.M.S., was born January 1, 1997.  A California court removed C.M.S. from her care in June 1997, and visitation with him has also been suspended.

            Mother has a chemical-dependency problem with both alcohol and marijuana.  She testified at trial that she has been in and out of chemical-dependency treatment since 1979.  Between 1993 and P.G.R.’s birth, mother went through treatment in Minnesota at least four times.  She was placed in detox twice in 2000.  She also went through treatment in Oregon once in about 1993.

Mother admitted drinking quite a bit while pregnant with C.M.S.  Mother admitted using marijuana while pregnant with P.G.R., and the record contains evidence that she continued to use marijuana on a regular basis up to the time of trial.  Joann Zarins, a social worker for St. Louis County, testified that she met with mother twice in April 2000 and that mother admitted relapsing into binge drinking lasting five or six days at a time after P.G.R.’s birth.  Mother told Zarins that the longest she had maintained sobriety following P.G.R.’s birth was for three or four weeks.

In January 2000, Marilyn Borich, a social worker for St. Louis County, developed an out-of-home placement plan setting forth goals for mother to meet to obtain custody of P.G.R.  The goals included being chemical free, maintaining stable mental health, maintaining violence-free relationships, and achieving parental stability to allow for a positive relationship and visitation with P.G.R.  Borich believed that for several months before the September 2000 trial, mother had avoided violent relationships and alcohol.  But at trial, mother expressed some interest in having a relationship with C.M.S.’s father, with whom she had previously been involved in an abusive relationship.  Mother also testified that she last drank alcohol two months before trial.  Borich opined that mother’s mental-health issues had not been resolved and that, despite extensive counseling on parenting, mother’s mental illness and/or chemical-dependency issues prevented her from achieving sustained progress on parenting.  Borich did not believe that mother, at any point in the foreseeable future, would be able to assume custody of P.G.R. and, therefore, recommended that mother’s parental rights be terminated.

In July 2000, James Morrison, a child-protection worker for St. Louis County, developed a case plan for mother setting forth six goals for mother to meet.  Mother refused to comply with the first one, submitting to urinalysis testing for marijuana and alcohol.  The second goal required mother to consult with a psychiatrist and follow treatment recommendations.  Mother advised Morrison that she was unwilling to take prescribed medications but refused to provide further information regarding psychiatric treatment, stating that it was none of Morrison’s business.  Mother did comply with requirements to participate in a community support program, not associate with violent individuals, and provide food, clothing, and shelter to demonstrate that she could provide for P.G.R.  The final goal required mother to follow a supervised visitation program determined by social services.  Morrison testified that visitation was inconsistent because mother sometimes became angry and out-of-control (swearing and yelling) with visitation supervisors about the way this case was being handled and alleged sexual-abuse issues regarding her two daughters, R.S. and D.K.  At the time of trial, visitation had been resumed with Morrison supervising.  Morrison testified that during the most recent visit, mother behaved appropriately with P.G.R. and although she had some issues with Morrison, she spoke in a controlled manner and did not yell.  Morrison did not believe that mother would be in a position to care for P.G.R. on a full-time basis without regular supervision in the foreseeable future due to her ongoing mental-health and chemical-dependency problems.

When mother met with Zarins in April 2000, she requested outpatient treatment.  Zarins referred her to the women’s outpatient program at the Center for Alcohol and Drug Treatment.  The program refused to accept her due to conflicts between mother and other women in the program.  The center considered placing mother in their outpatient program for people with mental-health problems but concluded that it would be ineffective in dealing with her children and family issues and chemical-dependency problem.  Zarins then referred mother for one-to-one therapy at the center, but she refused to attend.

At trial, mother displayed a negative attitude about addressing her chemical-dependency problem.  When asked whether she thought she needed treatment, mother denied having a problem and claimed that it was an accusation made up during a divorce proceeding.  When asked whether she intended to stop using marijuana, mother replied, “I have no life. * * * You people and the guys at child protection have taken my life.”  Mother claimed that she would stop using marijuana if P.G.R. was returned to her.

            Dr. Carolyn Phelps, a clinical psychologist, performed a psychological evaluation of mother in May 2000.  Phelps concluded:

            1.  [Mother] has significant chemical dependency and mental health problems, which have persisted for at least the last ten years, which heretofore are unresolved, which have contributed to the termination of her visitation rights from her three oldest children, who were removed from her care, and which would affect her ability to provide adequate, appropriate and safe care to her infant son, [P.G.R.]

 

            2.  [Mother] evidences significant deficits in parenting knowledge.

 

            3.  Attending parenting groups has not, in the past, resulted in appropriate follow through of learned information in any practical sense that rendered her children anymore safe in her care.

 

            4.  Chemical dependency and psychological problems interfere with the appropriate application of parenting knowledge.  She does not exhibit sufficient emotional or behavioral control for unsupervised visits at this point in time.

 

            5.  Positive changes [mother] has made in curtailing alcohol use and taking prescribed psychotropic medications have resulted in insufficient improvement in her mental health status such that her child is unlikely to be at any less risk in her care now than when removed from her care in January 2000.  These changes also are insufficient to produce the requisite changes which would make parenting a viable option, or unsupervised visitation a viable option.

 

            6.  [Mother] has been given ample opportunity in the past six years to address issues which have negatively affected her ability to parent adequately, to no meaningful effect.  She consistently has failed to comply with court directives, and shows no appropriate motivation to address as yet, unresolved issues cited above.  In fact, repeated encouragement is needed by outreach workers for [mother] to continue on her medication, and she has stated that she has no intention of making requisite changes, such as abstaining from marijuana use.  Simply extending her Social Service plan in time is not likely to effect the desired change.

 

            7.  Court ordered treatment is not likely either to effect the desired change.  Even with abstinence from cannabis use, and appropriate follow through of psychiatric and psychological intervention services, it is not clear that sufficient change ever could occur to render [mother] a safe, effective and appropriate parent, given her mental health problems.  Prognosis regarding [mother’s] ability to parent is poor regardless of treatment intensity or compliance.

 

Phelps’s conclusions are consistent with those of Dr. Jeffrey Sawyer, a psychiatrist who evaluated mother in January 1999 in connection with a court proceeding concerning C.M.S.

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) (citation omitted).  On appeal of a termination of parental rights,

the appellate court must 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.   “Although this court defers to the trial court’s findings, we ‘exercise great caution in termination proceedings.’”  In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997).

            In a termination proceeding, the child’s best interests must always be the primary consideration.  M.D.O., 462 N.W.2d at 375.  The party petitioning to terminate parental rights must prove the existence of a statutory ground 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).  The existence of a single statutory ground is sufficient to support a termination.  In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984).

            1.  The district court terminated mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(4) (2000), which permits termination of parental rights if the court 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.

 

The district court is required to make specific findings “regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family.”  Minn. Stat. § 260C.301, subd. 8(1) (2000).  In a proceeding under Minn. Stat. § 260C.301, subd. 1(b)(4),

[t]he petitioning party must prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.

 

M.D.O., 462 N.W.2d at 377 (citation omitted).

            Mother argues that the district court made insufficient findings regarding rehabilitation and reunification efforts.  The district court found:

            10.  [Mother] has received a reasonable variety and intensity of support services and opportunities for help with regard to her 4th child [P.G.R.], including the services of a psychiatrist, therapist, and outreach worker at the Human Development Center, case management from Social Services, 2 stays at Detox, referral to the Superior Babies Program, referral to the Center for Drug and Alcohol Treatment, assistance with locating housing, and visitation with the child.  For one month, from the end of May to the end of June 2000, it appeared that [mother] might make some progress, because during that time she was taking the psychotropic medication Zyprexa, prescribed by Dr. Glick.  However, [mother] terminated use of the medication against medical advice.  The reason she gave was her concern that “it was taking the edge off”, that she was thinking less about [R.S.] and [D.K.] and her obsession with regard to the alleged sexual abuse.  The exaggerated role that this obsession and delusion plays in her life and the expenditure of her energy continues unabated from five or six years ago, and she does not want to let go of this obsession.  * * * This obsession of [mother’s] continues to interfere with her ability to focus on her latest child [P.G.R.], as it did with the previous children.  During visitations, [mother] is apt to launch into a repetitive monologue about the obsession during which she gets more and more agitated.  Visitation had to be suspended for a time about two months before the trial until [mother] contracted with the social workers to focus on [P.G.R.] and stop focusing on the obsession. * * * During her Court testimony, [mother] exhibited the same monologuing and increased agitation that the social workers described as occurring during visitations.

 

            * * * *

 

            12.  Dr. Carolyn Phelps completed a psychological and parenting assessment of [mother] on May 11, 2000.  She concludes that [mother] is not motivated to address her unresolved mental health and chemical dependency issues and that “ * * *.  Even with abstinence from cannabis use, and appropriate follow through of psychiatric and psychological intervention services, it is not clear that sufficient change ever could occur to render [mother] a safe, effective and appropriate parent, given her mental health problems.  Prognosis regarding [mother’s] ability to parent is poor regardless of treatment intensity or compliance.”  Dr. Phelps, as did Dr. Sawyer, indicates that substance abuse makes it difficult to arrive at a definite psychological diagnosis, but [mother] probably fulfills diagnostic criteria for Schizoaffective Disorder and Anti-Social Personality Disorder.

 

            13.  [Mother] has significant chemical dependency and mental health problems, which have persisted for at least the last 10 years and remain unresolved.  There is inadequate motivation to change.  [Mother] has been offered numerous excellent opportunities to address her problems but has been unable or unwilling to take advantage of them.  She continues to be unemployed and without positive activities or endeavors in her life which would enable her to grow as a person or as a potential parent.  Her income consists of SSI, which is awarded based on her mental health problems.  [Mother] is unwilling to address her chemical abuse problem.  Even if [mother] succeeded in achieving sobriety, her low intellectual functioning (IQ or about 75 to 80) and her personality disorder would pose very significant obstacles to [mother] being able to gain adequate parenting knowledge and skills and the ability to apply such knowledge and skills to her child.  The mental health experts have drawn the unusually strong conclusion that [mother] can never be an appropriate parent.  In any event, [mother], at this time, is an unfit parent and this status cannot be remedied in a reasonable time with the provision of any available services.

 

The district court also made findings regarding mother’s lack of insight into monitoring her own health and into abusive relationships and the likely impact of those problems on P.G.R.

The evidence supports the district court’s findings, and those findings are sufficient to support a termination of parental rights for palpable unfitness.  See In re Welfare of R.M.M., 316 N.W.2d 538 (Minn. 1982) (terminating parental rights of a palpably unfit parent who abused alcohol and was mentally ill); In re Welfare of D.I., 413 N.W.2d 560, 565 (Minn. App. 1987) (parent who was chemically dependent and mentally ill palpably unfit); see also In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (affirming termination based on neglect when mother repeatedly refused services, attended visitation only sporadically, and exhibited volatile and aggressive manner in child’s presence); In re Welfare of J.S., 470 N.W.2d 697, 703-04 (Minn. App. 1991) (affirming termination based on neglect when social services provided individual therapy, parent-education classes, and foster-care services, but parents failed to meet goals outlined in placement plan), review denied (Minn. July 24, 1991).

Mother next argues that the district court erred in considering evidence of her problems parenting her three older children because that conduct occurred in the past.  We disagree.  Because the conditions that caused mother to have problems parenting her three older children continue to exist, evidence of those problems is relevant to her ability to parent P.G.R.  See Maas, 355 N.W.2d at 483 (mother’s negative track record, including her demonstrated inability to care for her previous children, coupled with the uncertainty of improvement in the future, supported termination of parental rights for palpable unfitness).

Mother also contends that she should be given a meaningful opportunity to parent P.G.R. before her rights to him can be terminated.  Mother has had numerous opportunities for mental-health counseling, parenting counseling, and chemical-dependency treatment.  To the extent that mother has participated in those programs, they have not resulted in her becoming a fit parent, and the evidence supports the district court’s finding that her unfitness cannot be remedied in a reasonable time with the provision of available services.  Mother was afforded a sufficient opportunity to parent P.G.R. before her rights were terminated.  See In re Welfare of A.V., 593 N.W.2d 720, 721 (Minn. App. 1999) (when the record adequately established that parents’ disabilities caused them to be unfit parents and disabilities could not be overcome by reasonable efforts, the district court did not err by terminating parental rights without additional efforts to expose the children to the inevitable dangers of having the children cared for by their parents), review denied (Minn. Aug. 25, 1999).

            2.  Mother argues that the termination of her parental rights was contrary to P.G.R.’s best interests because mother’s relatives remain available for placement.  When a child’s natural parents are unable to care for the child, transfer of permanent custody of the child to a relative and adoption are the preferred permanency options.  Minn. Stat. § 260C.201, subd 11(2)(e)(2), (3) (2000); see also In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn. 1998) (construing permanency statute); In re Adoption of C.H., 554 N.W.2d 737, 742-43 (Minn. 1996) (addressing placement options).  Long-term foster care is a disfavored placement option.  Minn. Stat. § 260C.201, subd. 11(e)(3); J.M., 547 N.W.2d at 721.

P.G.R. has been residing with mother’s relatives, and mother argues that it is in P.G.R.’s best interests to remain there, where he can maintain his relationship with mother.  The supreme court, however, has rejected the argument that it was in the children’s best interests to remain in long-term foster care so that they could maintain a relationship with their mother when mother’s chemical dependency and mental illness made her an unfit parent and she would not be able to effectively parent her children in the foreseeable future.  J.M., 547 N.W.2d at 721.  At the time of trial, P.G.R.’s placement with mother’s relatives was essentially long-term foster care.  Although the district court did not expressly find that termination was in P.G.R.’s best interests, we can infer such a finding from the findings and conclusions that the court did make.

            3.  Mother argues that the district court improperly admitted evidence that was obtained through violations of the doctor-patient and psychologist-patient privileges set forth in Minn. Stat. § 595.02, subd. 1(d), (g) (2000).  The district court’s decision will not be reversed based on the erroneous admission of evidence unless the party asserting the error demonstrates that it was prejudicial.  In re Welfare of D.J.N., 568 N.W.2d 170, 176 (Minn. App. 1997).

Mother argues that the district court erred in admitting Phelps’s report and testimony because they were based in part on confidential communications between mother and her treating psychiatrist, Dr. Glick.  Even if mother’s communications with Glick were privileged, she has failed to establish that she was prejudiced by their disclosure.  Phelps interviewed mother and conducted psychological testing on her.  Mother does not identify any information that Phelps obtained directly from Glick or through releases provided to him that Phelps did not discover in her independent examination of mother and that was not available to Phelps through nonprivileged sources.

            Mother also objects to the admission of Sawyer’s report because it was completed more than one year before trial.  Because mother’s mental-health and chemical-dependency problems have been ongoing for at least ten years, Sawyer’s report was relevant to this case, and the district court did not err in admitting it.

            4.  Mother argues that the evidence was insufficient to support the termination of her parental rights for palpable unfitness.  Except for one, the arguments that she makes regarding sufficiency of the evidence are the same arguments that she makes regarding rehabilitation and reunification efforts.  She makes the additional argument that the termination should be reversed because the trial court made no finding of egregious harm.  But Minn. Stat. § 260C.301, subd. 1(b)(4), does not require that a child be egregiously harmed before parental rights can be terminated for palpable unfitness.

            The evidence was sufficient to support the termination of mother’s parental rights to P.G.R. for palpable unfitness.

            Affirmed.