This opinion will be unpublished and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

C3-01-749

CX-01-781

 

In the Matter of the Welfare of:  A.W. and D.W., Children.

 

Filed October 30, 2001

Affirmed

Amundson, Judge

 

Ottertail County District Court

File No. J4-00-50758

 

Mark. S. Stolpman, Ottertail County Public Defender, P.O. Box 131, Fergus Falls, MN 56538; and

 

Allen R. Haugrud, 125 South Mill Street, Fergus Falls, MN 56538 (for appellant)

 

Barbara R. Hanson, Ottertail County Attorney, Ottertail County Courthouse, 121 W. Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

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

U N P U B L I S H E D  O P I N I O N

AMUNDSON, Judge

            In this consolidated appeal from a termination-of-parental-rights proceeding, appellant mother alleges (a) application of the presumption favoring termination created by Minn. Stat. § 260C.301, subd. 1(b)(4) (2000), when a parent has had parental rights to a child previously terminated involuntarily, is unfair when, as here, the previous termination occurred eight years ago; and (b) the record does not show that mother is palpably unfit to parent the children.  Appellant father alleges that the prior termination of his parental rights was voluntary, and so the district court incorrectly applied the presumption favoring termination to him.  We affirm.

FACTS

This is an appeal from the termination of parental rights of Pam Dollison and Bobby Whitlock  to their children, A.W., born April 6, 1997, and D.W., born March 29, 1999.  Both Dollison and Whitlock had children from previous relationships.  Dollison’s rights as to her three previously born children were terminated in 1993.  Whitlock’s rights as to his previously born child were terminated in 1989.

In June 1997, the Otter Tail County Department of Social Services (the county) received a report alleging maltreatment of A.W., who was then an infant.  A social worker found that no maltreatment had occurred but that protective services were necessary.  When the parents refused to accept a voluntary protective services plan, a petition was filed alleging that A.W. was a child in need of protective services.  After the parents agreed to protective services, adjudication of the petition was stayed to allow the parents to pursue them.  They received in-home services and participated in parental- capacity evaluations performed by Dr. Edward Schmidt, a licensed psychologist.  Although little evidence was available concerning the parents’ follow-through with the recommendations of the parental-capacity evaluation, a representative from the county reported that the requirements of the agreed-upon protective services plan had been met.

In April, 1999, when D.W. was about a week old, he was admitted to Lake Region Hospital for failure to thrive.  He was admitted again about three months later with an upper respiratory infection and increasing respiratory distress.  A chest x-ray revealed an old healing rib fracture, which pediatrician Dr. Larry Eisinger stated was likely caused by squeezing of the child’s torso with excessive force.  Dr. Eisinger testified that, immediately following such injury, the child would be in pain every time he took a breath.  Neither parent was able to provide any explanation for the fracture.  As a result of this incident, a child-maltreatment report was filed with the county; the maltreatment report was substantiated, and a petition was filed alleging that D.W. was in need of protective services.

This petition was amended to allege inadequate housing because, from April, 1999, until January, 2000, the parents lived with the children in a small hotel room without cooking facilities and where the bathroom plumbing was not always functional.  In January 2000, the petition was adjudicated.  The county again provided protective services to the parents. 

In April 2000, the county received a child-maltreatment report regarding cigarette burns on the chest and chin of D.W.  The child was taken for medical treatment and the examining doctor observed that the chest burn went into the subcutaneous tissue.  The doctor reported that the parents were not consistent in describing how the injury occurred and that the burns did not appear to be the result of an accident.  He reported that he suspected that the child had been intentionally burned by a cigarette. 

The January 2000 dispositional order for D.W. was then modified to provide for his out-of-home placement, and a petition was filed alleging that A.W. was also a child in need of protective services.  An adjudication was entered, and A.W.’s custody was transferred to the county for out-of-home placement, with twice-weekly supervised visitation.   

             Following the out-of-home placement, yet another plan for protective services was developed, including expectations that the parents would address home-management and parenting issues, establish safe and stable housing, maintain employment, and participate in parental-capacity and chemical-dependency evaluations.  In the follow-up parental-capacity evaluation, Dr. Schmidt found Dollison’s intellectual functioning on the low end of average, with reduced common sense judgment.  Schmidt further reported that although Dollison had an improved perception of her children and showed satisfactory parenting skills, she was not able to approach parenting from a common sense perspective and experienced situational anger because the children had been taken from her.  Dr. Schmidt found that Whitlock had a slightly higher level of intellectual functioning but was still very low on verbal reasoning and common sense, with a serious learning disability.  Although he had made some improvement in his parenting skills, in overall parental capacity he was functioning in the very low end of the low average range.  Whitlock was also diagnosed with a mixed personality disorder with significant traits of paranoia, suspiciousness, and projection of blame; his prognosis for change was guarded.

On November 15 petitions for the termination of both parents’ parental rights were filed.  After a hearing, the district court granted the petitions, concluding that both parents had failed to rebut presumptions of palpable unfitness to be a party to the parent-child relationship.  The court found that they had been resistant to change and were angry and hostile toward service providers, stating that they would begin to cooperate only if the children were returned to them.  The court found clear and convincing evidence that the parents were palpably unfit. 

            As required by Minn. R. Juv. P. 74.05, the district court also addressed the nature and extent of the efforts made by the county to rehabilitate the parents and reunite the family.  The court found that the services did not include in-home therapy to address the anger experienced by both parents, and that the county had failed to show that providing counseling services was not realistic under the circumstances.  As a result, the court found that the county did not use due diligence to use appropriate and available services to meet the needs of the children and their parents.  The court also declined to determine that further services for rehabilitation would be futile.  However, the court concluded that reasonable efforts were not required because the county had presented clear and convincing evidence that each parent’s rights to other children had been terminated involuntarily.   This appeal followed.

D E C I S I O N

Parental rights may be terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  The natural parent is presumed to be fit and suitable to be entrusted with the care of his or her child, and it is presumed that it is in the child’s best interests to be in that parent’s care.  In re Welfare of Clausen,289 N.W.2d 153, 156 (Minn. 1980).  Therefore, the party petitioning for termination must prove one or more of the statutory grounds by clear and convincing evidenceIn re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied(Minn. July 24,1991).  On appeal, this court examines whether the district court’s termination findings adequately embrace 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).

Minn. Stat. § 260C.301, subd. 1(b)(4) (2000), provides that parental rights may be terminated if a parent is found to be palpably unfit to be a party to the parent-child relationship.  A finding of palpable unfitness may be made when 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 ongoing physical, mental or emotional needs of the child. 

Id.  It is presumed that a parent is palpably unfit to be a party to the parent-child relationship with one child upon a showing that the parent’s parental rights to one or more other children were involuntarily terminated.  Id. The parent then has the burden of rebutting the presumption of palpable unfitness.

I.

Dollison contends that, because the termination of parental rights to her previously- born children occurred eight years ago, the district court’s presumption that she was currently an unfit parent was unfair.   At one time, the presumption operated only if there had been a termination within a three-year period immediately prior to an adjudication that the child was in need of protection or services.  Minn. Stat. § 260.221, subd. 1(b)(4)(ii) (1996).  But this provision was repealed in 1997.  Laws 1997, c. 239, art 6, § 29.  This court generally presumes that amendments to statutory language are intended to change the meaning of the statute.  Rockford Tp. v. City of Rockford, 608 N.W.2d 903, 908 (Minn. App. 2000).   The current governing provision,  Minn. Stat. § 260C.301, subd. 1(b)(4) (2000), sets no time limit on the presumption, and the appellant-mother has provided no other rationale for negating the presumption in this case.  Therefore, the district court properly applied the presumption that Dollison was palpably unfit. 

Dollison next argues that insufficient evidence was presented to establish her palpable unfitness.  However, we conclude that substantial evidence supports the district court’s determination.  The record supports the district court’s finding that, when D.W. was hospitalized as an infant, the treating doctor found a healing rib fracture that neither parent could explain.  Neither parent could recall a time when the child experienced the pain that would certainly accompany a fracture of this kind.  Likewise, the evidence supports the finding that a few months later, D.W. was seriously burned by a cigarette, and Dollison’s description was inconsistent with the injury, which did not appear to be the result of an accident.  These findings provide clear and convincing evidence of a consistent pattern of conduct that renders a parent unable to care appropriately for a child.

Finally, Dollison contends that she should have another opportunity to parent the children because the district court found that the county had not made reasonable efforts for rehabilitation.  In every termination-of-parental-rights case, the district court must make separate findings concerning the efforts made by the social service agency to rehabilitate the parents and reunite the family.  Minn. R. Juv. P. 74.05, subd. 3(b)(1). The district court noted that it could not find that providing anger counseling and in-home therapy would have been unreasonable under the circumstances.  But once the court determines that a termination of parental rights petition has been filed stating a prima facie case that the parents’ rights to another child have been involuntarily terminated, reasonable efforts for rehabilitation and reunification are not required.  Minn. Stat. § 260.12 (a) (2000).  Because the rights to Dollison’s other three children were terminated involuntarily, a showing of reasonable efforts for reunification and rehabilitation was not required here.

II.

Whitlock argues that the district court erroneously found the 1989 termination of his parental rights as to his previously born child to be involuntary.  Therefore, he reasons, the presumption that he was palpably unfit to be a parent to A.W. and D.W. should not apply.  We disagree.  The 1989 petition was initially filed as an involuntary petition.  The district court, in its findings supporting the 1989 termination order, found that the child had been placed in foster care because of the parents’ inability to provide basic childcare and because of physical abuse of the child.  Whitlock had not obtained the goals of a family reunification plan, had not established a stable residence, maintained steady contact, or maintained a relationship with his son.  Whitlock’s ultimate consent to terminating his parental rights in the face of such evidence did not change the basic nature of that proceeding to a voluntary termination.

The child’s best interests remain the paramount consideration in every parental- termination case.  M.D.O.,462 N.W.2d at 375.  In this instance, the district court properly found that the best interests of these children required termination because of a clear and consistent pattern of conduct which evinced that the parents were unable to care for the children’s physical, mental, and emotional needs.  Broken bones and cigarette burns are often inconsistent with suitable parental care.  Given both parents’ longstanding history of difficulty with parenting issues, it is unlikely that further services would successfully resolve these issues.  The Minnesota Supreme Court, with respect to termination of parental rights, has noted: “While judicial caution in severing the family bonds is imperative, untoward delay of the demonstrated inevitable is intolerable.”  In re Welfare of J.J.B., 390 N.W.2d 274, 280 (Minn. 1986).  That maxim supports our determination here.  

            Affirmed.