This opinion will be unpublished and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

C1-01-765

 

In the Matter of the Children of:

G. and G. S. Parents.

 

 

Filed December 26, 2001

Affirmed

Willis, Judge

 

Goodhue County District Court

File No. J00050049

 

 

Charles J. Lee, 910 Main Street, Suite 203, Red Wing, MN  55066 (for appellant G.S.)

 

Stephen N. Betcher, Goodhue County Attorney, Cynthia McIntosh, Assistant County Attorney, 454 West Sixth Street, Red Wing, MN  55066 (for respondent County)

 

Considered and decided by Willis, Presiding Judge, Anderson, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            In this termination-of-parental-rights proceeding, appellant father argues that (1) the evidence did not show that he is palpably unfit to be a party to the parent-child relationship; (2) the district court erred by staying the termination of his parental rights; and (3) the district court erred by concluding that he did not comply with his case plan and by concluding that the county made reasonable efforts to rehabilitate him and to reunite his family.  We affirm.

FACTS

            On November 25, 1998, Goodhue County received a report from Fairview Red Wing Hospital that appellant’s wife, G.S., had been admitted with premature contractions the previous night and that G.S. admitted that she had consumed a 12-pack of beer and three shots of vodka the day before.

            In early December, a county caseworker met with G.S. and appellant.  G.S. admitted to continued alcohol use during her pregnancy.  Later that month, G.S. delivered a baby girl.  At the time of the delivery, mother tested positive for cocaine and marijuana, and the baby tested positive for cocaine. 

            That same month, the county filed child-protection petitions for appellant and G.S.’s newborn child and their one-year-old child, alleging that they were in need of protection or services.  On January 4, 1999, both children were adjudicated in need of protection or services and placed outside the home until appellant secured a place to live and reliable transportation. 

During January 1999, G.S. was unavailable because she was alternately in jail, at the St. Peter Treatment Center in connection with commitment proceedings related to her chemical usage, and in a crisis unit for chemical-dependency and mental-health issues.

            In February 1999, appellant secured an apartment and a car, and the county placed both children with him.  Appellant agreed to a case plan with the county that provided, in part, that he would (1) establish a home and have an adequate, steady income; (2) submit to random drug tests; and (3) participate in and follow the recommendations of the Colvill Family Center parenting program.

            In March 1999, appellant lost his job.  During that month, his caseworker received a call from personnel at G.S.’s halfway house reporting that it appeared that appellant had been drinking when he brought the children for a visit.  Following this incident, the caseworker requested that appellant present himself for a drug test, but he missed his scheduled appointment.  Two weeks later, appellant tested negative for alcohol and narcotics.

            On June 18, 1999, appellant was arrested for, and later pleaded guilty to, driving while intoxicated.  Appellant testified at the termination hearing that G.S. had come to his residence and stolen money; although appellant had been drinking, he put his children in his car and pursued G.S.  An officer stopped appellant, and appellant was arrested for driving while intoxicated.  As a result of the arrest, the county placed the children in emergency foster care.

            A new case plan was established for appellant, but it was postponed while he served a four-month sentence, from July to November 1999, for a previous felony-theft conviction.  When he was released, appellant agreed to the new plan, which provided that he would (1) comply with any district court order regarding his DWI conviction; (2) remain law-abiding; (3) submit to random breath tests and urinalyses; (4) participate in family counseling and follow the recommendations of the Colvill Family Center parenting program; (5) cooperate with his caseworker; (6) have only supervised visitation with his children; and (7) submit to a psychiatric evaluation. 

            Appellant did not meet the requirements of his case plan: He had difficulty keeping a job or maintaining a residence, and he lived in various motels and stayed for a short time with G.S., who had recently tested positive for cocaine use.  Between November 1999 and January 2000, appellant was late for all but one of the scheduled child visitations he attended, and he missed some visitations altogether.

            Appellant did complete a chemical-dependency evaluation, but he started treatment a week later than scheduled, without notifying his caseworker of the delay.  Appellant began missing meetings and quit treatment altogether less than two months into the program.  At the time he left, his discharge documents indicated that his prognosis was poor.  Appellant’s caseworker repeatedly attempted to contact him but could not because appellant had failed to provide her with his home address or a telephone number.

After leaving the program, appellant admitted to alcohol use, which was a violation of his DWI probation.  He received a 30-day sentence, and the district court ordered another chemical-dependency evaluation, which appellant failed to attend. 

            On March 23, 2000, the county petitioned to terminate G.S.’s and appellant’s parental rights.  On July 10, 2000, the district court terminated G.S.’s parental rights and also terminated appellant’s parental rights but stayed the order as it related to appellant on the conditions that appellant (1) submit to an immediate urinalysis to test for chemical usage; (2) attend all scheduled visitations on time; (3) maintain steady employment and not lose employment through any fault of his own; (4) consistently maintain a suitable residence; (5) refrain from using alcohol; (6) have no contact with G.S. other than that necessary to effectuate a marital dissolution; and (7) start and complete an out-patient chemical-dependency program. 

During the period of the stay, appellant continued to be late for or miss his scheduled child visitations.  Appellant also failed to attend two therapy sessions, failed to maintain weekly contact with his caseworker, and, although steady employment was also a condition of the stay, he quit or was terminated from two jobs in four months.

            Between July 10, 2000, and March 27, 2001, the district court held five separate hearings on the county’s requests to vacate the stay of termination.  On March 29, 2001, the district court issued an order vacating the stay.  This appeal followed.

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).  Courts presume that a natural parent is a fit and suitable person to be entrusted with the care of his child and that it is usually in the best interests of the child to be in the custody of a natural parent.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).

            When the district court’s findings are challenged, “appellate courts [determine] 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).  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.  See In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998).

I.

            Appellant argues that the district court erred in finding that there was clear and convincing evidence to support the termination of his parental rights on the ground that he is “palpably unfit” to be a party in the parent-child relationship.  Parental rights may be terminated if a court 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.”  Minn. Stat. § 260C.301, subd. 1(b)(4) (2000). 

            Although the district court found that “[i]t may take years, if ever, before [appellant] has stabilized his life and matured sufficiently to become a good parent[,]” this finding was not used in a palpable-unfitness analysis.  The district court did not terminate appellant’s parental rights on the ground of appellant’s palpable unfitness.  The district court instead based the termination of his parental rights on the ground that reasonable efforts, under the direction of the court, had failed to correct the conditions leading to the children’s out-of-home placement.  See Minn. Stat. § 260C.301 subd. 1(b)(5) (2000).  Therefore, we do not address appellant’s argument that he is not palpably unfit to be a party to the parent-child relationship.

II.

            Appellant argues that the district court erred in staying the termination of his parental rights.  But appellant raises this issue for the first time on appeal, and the argument is, therefore, waived.  See D.D.G., 558 N.W.2d at 485.  In any event, if the district court erred in staying the termination, the error extended the existence of appellant’s parental rights, so we fail to see any prejudice to appellant. 

III.

Appellant argues that there was not clear and convincing evidence that reasonable efforts failed to correct the conditions leading to the children’s out-of-home placement. 

A court may terminate parental rights when

following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement.  It is presumed that reasonable efforts * * * have failed upon a showing that:

(i)        a child has resided out of the parental home under court order for a cumulative period of 12 months within the preceding 22 months * * * ;

(ii)       the court has approved a case plan required under section 260C.212 and filed with the court under section 260C.178;

            (iii)     conditions leading to the out-of-home placement have not been corrected.  It is presumed that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent or parents have not substantially complied with the court’s orders and a reasonable case plan; and

            (iv)      reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family. 

 

Minn. Stat. § 260C.301, subd. 1(b)(5).  Appellant does not argue that subdivision 1(b)(5)(i) and (ii) are not satisfied.  Rather, he asserts that the evidence was insufficient to establish the statutory presumption that the conditions leading to out-of-home placement had not been corrected because there was not a showing (1) that he did not substantially comply with his case plan or (2) that the county had made reasonable efforts to rehabilitate him and reunite the family.  See Minn. Stat. § 260C.301, subd. 1(b)(5)(iii), (iv). 

A.        Substantial compliance with case plan.

            Appellant claims the evidence did not show that he failed to substantially comply with his case plan.  See Minn. Stat. § 260C.301, subd. 1(b)(5)(iii) (providing that if parent has not substantially complied with reasonable case plan, it is presumed that conditions leading to out-of-home placement have not been corrected).  Because appellant does not argue that his case plan was unreasonable, we limit our analysis to whether he substantially complied with the plan.

            In determining whether appellant has substantially complied with his case plan, an appellate court reviews the conditions leading to out-of-home placement and whether appellant’s adherence to the plan has corrected those conditions.  See In re Welfare of P.R.L., 622 N.W.2d 538, 545 (Minn. 2001) (analyzing whether party substantially complied with case plan by considering basis for out-of-home placement and whether party’s adherence to plan corrected conditions).  Here, the district court stated that appellant’s children were placed out of the home because (1) the children lacked necessary food, clothing, shelter, education, and other required care because appellant was unable or unwilling to provide that care; (2) the children lacked the special care made necessary by their physical, mental, or emotional conditions because appellant was unable or unwilling to provide that care; and (3) the children did not have proper parental care because of appellant’s emotional, mental, or physical disability, or state of immaturity.

In the June 10, 2000, order terminating appellant’s parental rights but staying the termination, the district court found that appellant (1) had put his children in danger by driving while intoxicated with them in the car; (2) has been convicted of driving while intoxicated, receipt of stolen property, credit-card fraud, and felony theft; (3) had been incarcerated for four months because of a felony-theft conviction; (4) had violated his DWI probation by consuming alcohol; (5) refused to stay in contact with or provide contact information to his caseworker; (6) was repeatedly late for or repeatedly missed appointments, counseling, and evaluations; and (7) was repeatedly late for or missed scheduled child visitations.  The district court also noted that a chemical dependency assessment of appellant determined that he had symptoms of chemical dependency, including blackouts, withdrawal, and excessive consumption and that the guardian ad litem was aware that appellant held five different jobs and had five different residences in the year and a half preceding the termination. 

In the March 29, 2001, order vacating the stay, the district court found that appellant (1) continued to consume alcohol despite the case-plan prohibition; (2) on more than one occasion, drank alcohol before a scheduled child visitation; (3) continued to be late for or to miss scheduled child visitations despite his case plan’s emphasis on regular and prompt visitation; (4) engaged in deceptive conduct with a foster parent and with the court; (5) failed to stay in contact with his caseworker as required by his case plan; (6) failed to provide his caseworker with necessary information; (7) failed to attend psychological therapy on a regular basis; and (8) failed to maintain steady employment and was on his third job in the preceding four months.  Appellant does not dispute these findings, but he alleges that he nevertheless substantially complied with his case plan, and, therefore, there was no clear and convincing evidence showing that the conditions leading to the out-of-home placement of his children had not been corrected.  We disagree. 

At the March 27, 2001, hearing on the termination of appellant’s parental rights, when asked to comment on appellant’s progress, his caseworker testified that

[n]othing has changed.  Nothing has changed in the two years I have been working with him.  I have three case plans.  All of them essentially address the same thing.  And there has been no change.  He doesn’t have stable employment.  He doesn’t have a stable apartment.  Right now he doesn’t have a car. He doesn’t have a driver’s license.  He doesn’t have a phone.  My question is what would be happening to these little girls right now if he had them?

 

Further, when asked whether appellant had shown a willingness or desire to meet the goals of his case plan, the children’s guardian ad litem also testified that appellant “tended to focus on other situations.” 

Based on the record before us, we conclude that the district court did not err in determining that appellant failed to substantially comply with his case plan.

B.        County’s reasonable efforts.

            Appellant argues that the county did not make reasonable efforts to rehabilitate him and to reunite the family.  In determining whether a social services agency’s efforts were reasonable, this court looks to the “quantity and quality of assistance provided.”  See In re Welfare of A.H., 402 N.W.2d 598, 604 (Minn. App. 1987); see also Minn. Stat. § 260C.301, subd. 1(b)(5)(iv) (providing that reasonable efforts to reunify the family must have been made before parental rights may be terminated under this statute). 

            “Reasonable efforts” are defined as:

[T]he exercise of due diligence by the responsible social services agency to use appropriate and available services to meet the needs of the child and the child’s family in order to prevent removal of the child from the child’s family; or upon removal, services to eliminate the need for removal and reunite the family. 

 

Minn. Stat. § 260.012(b) (2000).

 

            When determining whether reasonable efforts have been made,

 

the court shall consider whether services to the child and family were:

            (1)relevant to the safety and protection of the child;

            (2)adequate to meet the needs of the child and family;

            (3)culturally appropriate;

            (4)available and accessible;

            (5)consistent and timely; and

            (6)realistic under the circumstances.

 

Minn. Stat. § 260.012(c) (2000).  The district court is only required to make findings “on the basis of” these factors.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  A determination of whether efforts are “reasonable” also requires consideration of the length of time the county has been involved with the family, as well as the quality of effort given.  In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1996) (citation omitted).

            Here, a child-protection action was initiated in December 1998.  In March 2001, the district court found that the county had made reasonable efforts to assist appellant over the preceding two years and three months.  Appellant was offered rule 25 assessments, which establish criteria for the appropriate level of chemical-dependency care.  See Minn. R. 9530.6600-.6655 (1999 & Supp. II 2000).  The county encouraged appellant to attend Alcoholics Anonymous and obtain a sponsor.  He also was offered parenting classes, psychiatric evaluations, and multiple referrals for psychological and chemical-dependency care.  In January 2000, the county provided appellant with chemical-dependency treatment; he quit the program after less than two months.  Although the county gave him an opportunity to re-enter the program, he declined to do so.  The county also provided foster care for appellant’s children and facilitated appellant’s visitation, including changing visitation locations to accommodate appellant.       

            Appellant argues that the county failed to help him find and maintain employment.  But, at the March 6, 2001, hearing, appellant’s caseworker testified that “[appellant] never has a problem finding a job.  His problem is keeping a job and there is nothing I can do to make him keep a job.”  The district court found that appellant had failed to cooperate with his caseworker; the record shows that appellant did not provide contact information when he changed residences, and often his caseworker could talk with appellant only when she happened to see him on the street.

            The demand that a social services agency make reasonable efforts is aimed at rehabilitating parents who can be rehabilitated.  See S.Z., 547 N.W.2d at 892 (recognizing that in some cases further efforts will be futile and, therefore, unreasonable).  We find clear and convincing evidence to support the district court’s conclusion that the quantity and quality of the assistance provided showed that the county made reasonable efforts to rehabilitate appellant and to reunite the family.

            There was clear and convincing evidence to support the district court’s conclusions that (1) appellant did not substantially comply with a reasonable case plan and (2) the county made reasonable efforts to rehabilitate appellant and to reunite the family.  The district court did not err in terminating appellant’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5).

            Affirmed.

           



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.