This opinion will be unpublished and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
In the Matter of the Welfare of:
T.T.E., A.J.G., and H.E.G., Children.
Affirmed in part, reversed in part, and remanded
Gordon W. Shumaker, Judge
Stearns County District Court
File Nos. J20052030, J40052031, J60052032
Michael G. Blee, Blee Law Office, Ltd., 1529 West St. Germain, P.O. Box 801, St. Cloud, MN 56301 (for appellant father of A.J.G. and T.T.E.)
Thomas E. Kramer, P.O. Box 2132, St. Cloud, MN 56303-2132 (for respondent mother)
David Buchin, 16 Ninth Avenue North, St. Cloud, MN 56303 (guardian ad litem)
Roger S. Van Heel, Stearns County Attorney, Theresa M. Kehe, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for appellant Stearns County Human Services)
Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
The district court granted a petition to terminate a father’s parental rights and denied a petition to terminate the mother’s rights. The father appeals, arguing that there was insufficient evidence of any requisite statutory factor. The county appeals the denial of its petition to terminate mother’s parental rights, arguing that the evidence supports the termination. The substantial evidence clearly and convincingly shows that father and mother are palpably unfit to continue as parents of their children. Therefore, we affirm as to the father, reverse as to the mother, and remand for proceedings consistent with this decision.
This appeal arises out of proceedings for the termination of parental rights to three children: A.J.G., age six; H.E.G., age four; and T.T.E., age two and one-half. Respondent Brandi Ewers is the natural mother of all three children. Appellant Phetsamone Sarady is the natural father of A.J.G. and T.T.E. H.E.G.’s father is unknown. Sarady and Ewers, who never married, had another child, S.S. She died when she was two and one-half months old.
In early January 1999, Ewers was living in Sarady’s mobile home in Benton County. Residing with her were A.J.G.; H.E.G.; S.S.; Ewers’ sister, Debi; and Debi’s three children, all under age four. T.T.E. had not been born yet, and Sarady was in jail.
The mobile home was crowded and dirty. The adults allowed spoiled food and small objects that posed a safety threat to children to accumulate on the floor. There had been no hot water in the home for two months, and there was no telephone.
On January 4, 1999, a county public-health nurse went to the residence for a home visit. Ewers did not allow her to enter the mobile home or to see the children. Later that day, Ewers noticed that S.S. was not breathing, and she ran to a neighbor’s house to call 911.
When law-enforcement officers arrived, they had S.S. transported to the hospital by ambulance, and they placed the other children in protective custody. A city housing inspector then condemned the mobile home.
S.S. died on January 6, 1999. Although physicians noted that S.S. was malnourished, they were not able to diagnose the specific cause of death or to relate the infant’s death either to Ewers’ conduct or to the condition of the mobile home.
On January 7, 1999, Benton County filed CHIPS petitions as to A.J.G. and H.E.G. Ewers admitted that the children were in need of protection and services. The district court entered a dispositional order on May 5, 1999, and on September 1, 1999, ordered the permanent placement of the children with their maternal grandparents. In March 1999, Ewers obtained an order for protection against Sarady.
Despite the order for protection, Ewers and Sarady were together in August 1999, and Ewers became pregnant with T.T.E. Prior to T.T.E.’s birth on April 20, 2000, Ewers moved to Stearns County and Sarady had been sent back to jail.
When Ewers’ parents separated in the summer of 2000, they returned A.J.G. and H.E.G. to Ewers without prior court approval.
In September 2000, Ewers was living in a mobile home with A.J.G., H.E.G., T.T.E.; her sister, Crystal; a cousin; and Ewers’ new boyfriend. On September 30, 2000, Ewers brought H.E.G. to the hospital emergency center for possible ibuprofen ingestion. Physicians observed that H.E.G. had bruises below both eyes, behind her ears, and on her thighs, and that hair was missing from the top of her head. Medical personnel reported suspected child abuse to authorities.
On October 5, 2000, Stearns County filed a petition to terminate all parental rights to A.J.G., H.E.G., and T.T.E.
The district court conducted a trial in January 2001, and on February 12, 2001, ordered the termination of Sarady’s parental rights to A.J.G. and T.T.E. and the unknown father’s parental rights to H.E.G. The court denied the petition to terminate Ewers’ parental rights. The court concluded that Sarady is palpably unfit to be a parent to A.J.G. and T.T.E., and that it is in the children’s best interests that Sarady’s parental rights be terminated. As to Ewers, the court concluded that the county had failed to prove by clear and convincing evidence that Ewers is palpably unfit to be a parent and that it is not in the children’s best interests that her parental rights be terminated. Both Sarady and Stearns County have appealed.
D E C I S I O N
A district court cannot order the termination of parental rights unless it is proved by clear and convincing evidence that at least one statutory ground for termination exists. In re Welfare of D.D.K., 376 N.W.2d 717, 720 (Minn. App. 1985). The court must also find that termination would be in the child’s best interests. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (citations omitted).
The statutory ground for termination at issue as to both Sarady and Ewers is palpable unfitness to be a parent. The court may terminate all rights of a parent to a child if it finds that the 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).
Our review of a district court’s findings of fact in a termination-of-parental-rights proceeding is limited to determining whether the findings address an appropriate statutory criterion, are supported by substantial evidence, and are not clearly erroneous. In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). We review the evidence to ascertain whether it clearly and convincingly supports the termination. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).
The district court found that both Ewers and Sarady had engaged in consistent patterns of specific conduct that adversely affected the children. However, the court determined that Ewers would be able in the reasonably foreseeable future to care appropriately for the children and that Sarady would not achieve the requisite degree of parental fitness.
Thus, an order terminating parental rights is appropriate only if it appears that the condition of dependency or neglect will continue for a prolonged, indefinite period of time, and such an order must be supported by clear and convincing evidence.
In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) (citations omitted). We must also carefully consider the relevant conditions that exist at the time of trial and not rely solely on past history. In re Welfare of S.Z., 547 N.W.2d at 893 (citations omitted). This is not to say that a parent’s past history is irrelevant for it sometimes can provide a basis for projecting the parent’s likely conduct for the reasonably foreseeable future. Matter of Welfare of A.D., 535 N.W.2d at 649. We give considerable deference to the district court on issues of credibility because of its superior position to assess such issues. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted).
Before discussing the actions the court took as to Ewers and Sarady, we note that most of the dispositive facts were either admitted or undisputed. Therefore, the facts have been clearly and convincingly established.
I. Findings as to Brandi Ewers
On the date of deceased S.S.’s medical emergency, Brandi Ewers was living in what the district court characterized as a “trash house.” S.S. was malnourished. Ewers would not allow a nurse into the home to observe S.S. and her siblings. Although S.S. was at the 25th percentile for height and weight when she was born, 79 days later she was below the 5th percentile. At that point she was “noticeably thin and there were visible folds of skin, which show that shortly before her death she was not thriving and was losing weight.”
During the period of her decline, S.S. was on medical assistance and Ewers could have brought her to see a doctor without cost. She did not do so. Ewers also could have requested nursing, in‑home counseling, and case-management services. She did not do so.
Ewers became pregnant with H.E.G. after a “one‑night stand.” She failed to seek any prenatal care during the first six months of her pregnancy. After H.E.G. was born, she was diagnosed with a hearing loss and hearing aids were prescribed. Ewers removed the hearing aids against medical advice, telling a nurse that H.E.G. did not need hearing aids. H.E.G. was also legally blind, but when Ewers brought H.E.G. to the hospital she did not think it necessary to bring the child’s glasses. In September 2000, H.E.G.’s ears were bleeding. Ewers did nothing about that condition until a nurse urged her to have H.E.G. examined. Ewers also missed appointments for medical care for H.E.G.
After the district court entered a CHIPS dispositional order in April 1999, Ewers failed to comply with requirements that she complete a psychological evaluation, have a parenting assessment, and participate in individual therapy. She did complete a chemical assessment after failing to attend three or four appointments. In May 1999, Ewers admitted her inability to parent.
At the suggestion of a social worker, Ewers obtained an order for protection against Sarady but then admitted that she allowed Sarady to violate the order at least five times without reporting the violations to the police.
Before the court placed the children with Ewers’ parents, Ewers was told that she would have to go to court to get the children back. The guardian ad litem explained the law to her. Despite this knowledge, Ewers accepted the return of the children when her parents separated, did not seek court approval, and lied to a county child-protection worker about the placement status of A.J.G. and H.E.G. Additionally, before the placement of the children, Ewers had failed to cooperate with the reunification plan. In particular, she did not complete a psychological evaluation or parenting assessment, and she failed to schedule or keep medical appointments for the children, to provide safe and stable housing for them, and to maintain steady employment.
As of the time of trial, the court found that, although Ewers had made some changes for the better, “she still has much to do before there can be any realistic expectation that reunification can be achieved.”
She did get a job and began purchasing a suitable mobile home. When T.T.E. was born, however, Ewers had not arranged for medical assistance for her and had not obtained a crib for her to sleep in. Although the condition of the mobile home was acceptable for an infant, Ewers missed four home visits in May 2000 because of work and missed a two‑month, well‑baby medical checkup in June 2000 because, despite telling a nurse otherwise, Ewers had not arranged for medical assistance yet. At the time, Ewers had a financial worker who could have helped her apply for medical assistance.
After several urgings by a nurse, Ewers took T.T.E. to the doctor for a checkup and shots. Doctors diagnosed sleep apnea in T.T.E. and prescribed a monitor. Ewers did not think the baby needed the monitor when Ewers was nearby, and she did not use it. This was contrary to a nurse’s instruction. On June 30, 2000, when a nurse paid a home visit, she found T.T.E. limp, and Ewers had a difficult time arousing the baby. Throughout the relevant period, Ewers “has been unable to live alone and care for her children.”
After continual urging by county personnel, Ewers underwent a diagnostic assessment by a social worker in August 2000. The social worker noted that Ewers “appeared to be in the process of developing some sense of the consequences of her choices” and that she needed to look realistically at “her ability and competence to manage the lives of three children * * * .” The court found that the social worker recommended psychotherapy “but thought insight may not produce many results.” As of September 26, 2000, Ewers had not followed up with further visits to the social worker or to a mental-health center.
In December 2000, a psychologist performed a parenting assessment of Ewers. The court found:
Although Ms. Ewers knew that the parenting assessment was an important part of this case, she overslept and was an hour and a half late for the parent‑child observation appointment with Dr. Gross on December 14, 2000. She was twenty minutes late for her December 24, 2000 appointment with Dr. Gross. Her tardiness is consistent with her established pattern of not keeping important appointments that affect her and her children.
Dr. Gross reported that people who have experienced the types of trauma that Ewers has experienced are impaired in their ability to set boundaries, which leaves them vulnerable to repeat physical and emotional assault. Dr. Gross stated that treatment is essential and that such people possibly, but not inevitably, could “inflict[ ] hurtful behavior on to another * * * .”
Finally, Dr. Gross gave conflicting opinions as to how long it would take for Ewers to successfully satisfy his recommendations for treatment, support, and protective measures. One time he said it would take six months and another time one year. In either case, Dr. Gross opined that Ewers’ success would be possible only “if she follows [Dr. Gross’s] recommendations specifically” and that Dr. Gross “expressed doubt * * * that she would be successful, although perhaps the pending termination trial might motivate her.”
At trial, Ewers testified that she had “changed her attitude about her need for counseling.” The court did not believe her:
This court doubts the sincerity of that change and questions her commitment. On January 12, 2001, Ms. Ewers told [a social worker] that if she does not regain custody of her children at the conclusion of this proceeding she will not follow through with treatment recommendations.
The court then found that Ewers said she would make an appointment at a mental-health center with an unnamed person recommended by a friend rather than with the health-care professional Ewers’ social worker recommended. This statement caused the court to doubt her sincerity:
While there is nothing wrong per se with those remarks, they suggest to this court that Ms. Ewers’ words speak louder than her actions and create doubt in the sincerity and depth of her commitment to change her condition and ability to parent for the best interest of her children.
The court then expressly rejected the possibility of rehabilitation within six months and indicated that Ewers probably would not comply with Dr. Gross’s recommendations:
It is unlikely that Ms. Ewers will follow through on Dr. Gross’s recommendations and if she does try it will take longer than six months to achieve reunification. A year is a more realistic estimate if she fully cooperates with Dr. Gross’s recommendations.
Finding that the county “must prove a consistent pattern of specific conduct or specific conditions * * * that appear will continue for a prolonged, indefinite period, and that are permanently detrimental to the welfare of the children,” and that the children have not been harmed by Ewers’ lapses, the court concluded that her mental-health condition will not render her unfit to parent the children for the foreseeable future. The court also concluded that
[a]lthough Brandi Ewers has made some progress in terms of acquiring a suitable mobile home and holding down a job, she has not addressed her underlying problems despite the opportunities and resources available to her. Now the odds of her success and the shortness of time are against her.
Although we are sensitive to the enormity of a decision to terminate a parent’s rights to a child, and even though we commend the district court for its thoroughness and conscientious spirit, we respectfully disagree with its conclusion that the termination of Ewers’ parental rights is not appropriate.
The record is replete with evidence that free child care and medical services have been available for the Ewers’ children since the times of their respective births and that, but for the persistence of nurses and social workers, Ewers would not likely have availed herself of any of those services. Despite the court‑ordered placement of her children outside her home, the death of one child under suspicious circumstances, and the apparent battering of another child, she has made negligible progress in rehabilitating herself so that she can be a fit parent. The district court’s finding attests to her lack of progress: “Ms. Ewers is no more psychologically ready to parent the children than she was in 1999 when she agreed to the permanent placement of the children.” The court did not believe that she is sincere about wanting counseling and about committing to the changes needed for her to be a fit parent. The record virtually compels the conclusion that Ewers is not likely to achieve parenting fitness in the reasonably foreseeable future.
As to the court’s finding that Ewers’ lapses and conduct did not harm the children, we believe the record is to the contrary. Although the cause of S.S.’s death remains inconclusive, a mother whose child experiences a drastic weight loss over 1 ½ months and either fails to recognize the condition or fails to obtain medical help, has clearly harmed the child. A mother who defies medical advice regarding the necessity of hearing aids for one child and a sleep apnea monitor for another clearly puts those children in jeopardy of their health and safety. A mother who repeatedly misses or fails to schedule medical appointments for babies and young children places the children at risk for the unchecked development of diseases and medical conditions that could cause great harm.
There is almost nothing in this record to suggest that Ewers understands the nature and importance of providing proper care for her children. Her lack of insight, history of neglectful conduct, and insincerity about a commitment to take steps to change amply support a projection that she is not likely to change. Furthermore, such neglectful conduct, lack of insight, and disinclination to improve cannot be said to be in the children’s best interests.
Therefore, we hold that the county has proved by clear and convincing and substantial evidence that Brandi Ewers is palpably unfit to be the parent of A.J.G., H.E.G., and T.T.E., that she will not achieve the requisite fitness within the reasonably foreseeable future, and that the termination of her parental rights is in the children’s best interests. Thus, the district court’s order and judgment denying the county’s petition for termination must be reversed.
Because of this holding, we need not address the county’s contention that Minn. Stat. § 260C.201, subd. 11 (2000), and Minn. Stat. § 260C.301, subd. 1(b)(4) (2000), are in conflict.
II. Findings as to Phetsamone Sarady
Minn. R. Civ. App. P. 128.02 requires that an appellant state in his brief the precise legal issues upon which the appeal is brought. Sarady fails to state any issue in his brief. But we glean from his brief that he claims as specific errors the district court’s failures to require a reunification plan that would include him and would provide for special assistance for him so that he could comply with the plan; to apply a standard of permanent unfitness; to determine that further services would be futile in transforming him into a fit parent; to consider the conditions existing at trial instead of emphasizing his past history; and to credit the testimony of certain witnesses over other witnesses.
The district court found that Sarady is palpably unfit to parent A.J.G. and T.T.E. because of his pattern of assaults and abuses and because of his long-term mental-health and chemical-dependency problems and his rejection of efforts to treat those problems. The court found that the nature and duration of Sarady’s conduct and conditions render him unable, for the reasonably foreseeable future, to provide appropriate parental care to his children. Finally, the court found that a termination of Sarady’s parental rights would be in the children’s best interests.
Sarady admits that he has a history of serious criminal offenses against Ewers and one child and a history of mental-health problems.
In fact, the evidence adduced at the trial of this matter in January 2001 clearly and convincingly shows that, since his emigration from Laos in 1990, Sarady has developed a substantial history of criminal convictions for assaults, incarcerations, failed chemical-dependency treatments, and failed anger-management efforts.
When Sarady first came to the United States he lived in Connecticut. At some point in his life he became chemically dependent. He underwent treatment three times in Connecticut, but he continued to use crack cocaine.
In 1993, he suffered a permanent brain injury in an automobile accident. This left him with cognitive deficits and impairments of attention span and memory. He also has problems with reading and language skills and sometimes experiences major depression. Presumably because of his brain injury, Sarady has been prone to irritability and anger and to express that anger sometimes in a violent way.
Sarady met Ewers in 1995. Although they never married, they had three children together and lived together periodically. Sarady admits that when he lived with Ewers he would hit her on a daily basis for no particular reason. Some of these assaults occurred in the presence of A.J.G. and H.E.G. By 1998, Sarady had been convicted of one felony assault, two gross-misdemeanor assaults, two misdemeanor assaults, and one disorderly conduct offense. All but one incident involved Ewers as the victim. Even when Ewers obtained an order for protection against Sarady, he violated it at least five times. Ewers testified that Sarady also sometimes assaulted one of the children.
In addition to Sarady’s three chemical-dependency treatment experiences in Connecticut, there have been four additional treatment efforts in Minnesota. In September 1997, the court committed him to the hospital as mentally ill and dangerous to himself after he tried to commit suicide. He was provisionally discharged from the hospital to enter Vinland Treatment Center, a facility specializing in treating patients with head injuries and substance-abuse problems. He did not cooperate with the Vinland program and left in October 1997 without having completed treatment. Vinland reported that Sarady lacked motivation to obtain treatment and showed no desire to change his negative attitude.
In June 1998, as a condition of Sarady’s probation, he began outpatient treatment at the Effective Living Center. He was discharged for noncompliance in November 1998, and facility personnel reported that Sarady denied that he had a problem with chemicals or with anger and said that he did not want treatment. Finally, he entered a 30-day chemical-dependency program at Monticello Hospital in July 1999. He apparently completed that program.
After the CHIPS disposition hearing for A.J.G. in April 1999, the court ordered, among other things, that Sarady complete a psychological evaluation and follow recommendations, participate in individual therapy, complete a parenting assessment and follow recommendations, and abstain from mood-altering substances. He did not comply with any of these requirements.
In December 2000, a psychologist did complete a parenting assessment of Sarady. The psychologist noted Sarady’s psychological and chemical-abuse problems and indicated that he would need long-term treatment of about 18 months. The psychologist observed Sarady’s interaction with A.J.G. and T.T.E., noting that Sarady showed a loving relationship with the children. However, the psychologist indicated that A.J.G. appeared to try to avoid upsetting his father. The psychologist recommended that Sarady’s parental rights not be terminated, but stated that the goal for Sarady would include visitation rather than custody of the children. The guardian ad litem also recommended that Sarady’s parental rights not be terminated, but noted that Sarady has “enormous obstacles in his life” and that his “primary focus needs to be on resolving his issues rather than the day to day work of parenting these children.”
Since September 2000, Sarady has worked as a metal-press-machine operator and has been a dependable and reliable worker. He has not been involved in assaultive behavior or drug or alcohol use at work.
As to the children’s best interests, the district court found, among other things, that, although Sarady expressed love for the children and generally interacted appropriately in a controlled setting, in the home environment Sarady has demonstrated “that he is an angry, mentally unhealthy man, who will lose control of himself again.” The court also found that the children have achieved stability in foster-care placement and are happy there, and that it is “highly unlikely” that Sarady would ever have custody of the children.
We now turn to what we infer are Sarady’s allegations of error. He first contends that the district court discounted conditions existing at trial and relied instead on his past history. His salient history is ten years in duration, and it shows a consistent pattern of violent criminal activity, drug and alcohol abuse, resistance to treatment and counseling efforts, denials of problems, and failure to achieve rehabilitation. Although there has been improvement in the past year, Sarady continues to show resistance to rehabilitation efforts. Most notably, despite his repeated chemical-dependency treatments, he admitted at trial that he still drinks beer. This fact casts substantial doubt on his sincerity and supports the conclusion that his chemical abuse will continue indefinitely. If chemical dependency is one of Sarady’s core problems, as the multiple treatment interventions seem to attest, his failure to accept and to address that fundamental issue indicates that his likelihood of becoming a genuinely fit parent in the reasonably foreseeable future is negligible.
Sarady acknowledges his past failures to take advantage of rehabilitation opportunities but argues that he never before had to face the consequence of losing his children. Rather than viewing this attitude as something positive, we see it as evincing the total lack of insight that Sarady has manifested throughout his treatment history.
Sarady also complains that neither the counties nor the court ever included him in a reunification plan. Although this is apparently true, he never was the custodial parent of the children; he never sought custody; and he never qualified for custody. He occupied the role of a parent who visited with his children from time to time, and no one denied his right to visitation. Thus, there was nothing to reunify him to. His role in the family unit remained essentially the same after the CHIPS petition as it was before the petition.
Sarady also apparently suggests that the court is required to find that he is permanently unfit to be a parent before his rights can be terminated. Although permanent unfitness surely will provide a ground for termination of parental rights, the standard is otherwise. As provided by statute, if the parent is unable “for the reasonably foreseeable future” to provide appropriate care the requisite termination standard is met. Minn. Stat. § 260C.301, subd. 1(b)(4).
Sarady’s longstanding history of deleterious conduct, his attitude of denial and resistance, and his current refusal to deal fully with his chemical dependency, placed alongside his few, short-term positive gains, support the district court’s finding of a bleak prognosis that it is unlikely that Sarady will acquire parenting fitness in the reasonably foreseeable future.
His other alleged errors relate to credibility issues. Our review of the record shows nothing inherently unreliable or incredible in anyone’s testimony. Thus, we defer to the district court on the resolution of testimonial conflicts.
The facts provide substantial evidence that Sarady is palpably unfit to continue as the parent of A.J.G. and T.T.E., and that the termination of his parental rights is in the children’s best interests. Thus, the district court did not err in its findings, its conclusions, or its application of controlling law.
Affirmed in part, reversed in part, and remanded.