This opinion will be unpublished and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

C7-01-1239

 

 

In the Matter of the Child of N.J. and W.E.W.: E.D.W.

 

 

Filed February 5, 2002

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. J60154361

 

Leonardo Castro, Fourth District Public Defender, David P. Murrin, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN  55401 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 1200 Health Services Building, 525 Portland Avenue South, Suite 1200, Minneapolis, MN  55415 (for respondent)

 

Eric S. Rehm, Attorney at Law, 301 West Burnsville Pkwy., Burnsville, MN  55337 (counsel for Guardian ad Litem)

 

            Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON,Judge.

            Appellant challenges the district court’s termination of his parental rights, arguing that there was insufficient evidence of any requisite statutory factor.  We affirm.

FACTS

Appellant W.E.W. is the father of E.D.W., born on February 8, 2000 to N.J.  The day following E.D.W.’s birth, the Hennepin County Department of Children and Family Services (county) filed a child in need of protection and services (CHIPS) petition as to E.D.W.  The petition cited N.J.’s failure to control her dependence on crack cocaine and alcohol; her history of abusive relationships; and her failure to complete a court-ordered case plan in proceedings involving her four other children.  Custody of those four children was the subject of a trial for termination of N.J.’s parental rights (TPR) which began the day after E.D.W.’s birth.[1]  The district court placed E.D.W. in foster care. 

The county amended the CHIPS petition to allege that appellant also posed a risk of harm to E.D.W. because of appellant’s chemical abuse and physically abusive relationship with N.J. and because of appellant’s “serious criminal background,” including a 1992 first-degree criminal sexual conduct conviction in which the victim was the six-year-old daughter of appellant’s then-girlfriend.

The district court ordered appellant and N.J. to complete separate case plans.  Appellant’s case plan included participation in a chemical dependency program, parenting classes, anger management classes, and supervised visitation with E.D.W. 

E.D.W. was reunited with appellant and N.J. for 20 days in December 2000, but was returned to out-of-home placement when N.J. tested positive for cocaine.  The district court instructed appellant to continue regular, supervised visitation with E.D.W.

After appellant arrived for a February 2001 visit smelling of alcohol, the district court ordered a rule 25 assessment and compliance with its recommendations.  The evaluation recommended that appellant stop drinking completely and attend 12 Alcoholics Anonymous (AA) meetings.  Appellant did not attend any meetings.  When appellant arrived for a subsequent visit smelling of alcohol, the district court suspended appellant’s supervised visits. 

            On April 13, 2001, the county sought termination of the parental rights of both appellant and N.J.  When N.J. failed to appear at the admit/deny hearing, the district court terminated her parental rights by default. 

            At the TPR trial, a county child protection worker who referred appellant to chemical dependency treatment and counseling just after E.D.W.’s birth testified that appellant never contacted the treatment center.  The worker stated that appellant had violated his court-ordered case plan by failing to stay in regular contact with her.  She also testified that appellant and N.J. were still in contact and possibly residing together, despite the danger N.J.’s continuing cocaine use posed to E.D.W. and despite the termination of N.J.’s parental rights by default.  The worker opined that it was in E.D.W.’s best interests to terminate appellant’s parental rights so that E.D.W. could be put up for adoption.

            The county worker who coordinated appellant’s supervised visits with E.D.W. testified that of 12 scheduled visits, appellant attended six, and that of those six, appellant was twice required to leave because he smelled of alcohol.  The visit coordinator also testified that save for the 20-day unification, E.D.W., then 15 months old, had continuously resided with the same foster family.

            Appellant’s anger management and chemical dependency counselor testified that appellant received a “guarded” prognosis upon completion of treatment because of continuing anger management problems.  The counselor testified that appellant never availed himself of the counselor’s offer to return for further treatment.  Appellant’s parenting educator and visitation supervisor testified that although appellant had come “a long way toward being a positive parent,” appellant’s short temper remained a concern, and appellant had abruptly refused to continue his parent training. 

            Appellant testified that he had an ongoing relationship with N.J., but that he was willing to supervise contact between E.D.W. and N.J., and that he would not leave E.D.W. with N.J. or allow N.J. to use cocaine in E.D.W.’s presence.  He acknowledged that he had refused to follow his rule 25 recommendations or seek additional recommended anger management counseling.  He testified that the longest amount of time he had ever spent alone with his daughter was eight hours. 

            E.D.W.’s guardian ad litem testified that it would be in E.D.W.’s best interests to stay in foster care and not be reunited with her father. 

            The district court terminated appellant’s parental rights, citing four independent statutory bases: (1) Minn. Stat. § 260C.301, subd. 1(b)(2) (2000), because appellant did not comply with the duties imposed upon him by the parent-child relationship; (2) Minn. Stat. § 260C.301, subd. 1(b)(4), because he was palpably unfit to parent; (3) Minn. Stat. § 260C.301, subd. 1(b)(5), because he failed to correct the conditions leading to the CHIPS adjudication; and (4) Minn. Stat. § 260C.301, subd. 1(b)(8), because  E.D.W. was neglected and in foster care.  The court also concluded that terminating appellant’s parental rights was in E.D.W.’s best interests.  This appeal followed.

D E C I S I O N

 

            A district court may terminate parental rights if the petitioning party proves 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 statutory criteria are found in Minn. Stat. § 260C.301, subd. 1 (2000).  The court must also find that termination would be in the child’s best interests.  Minn. Stat. § 260C.301, subd. 7; In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

            On review of the district court’s findings terminating parental rights, this court determines “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). 

            When terminating appellant’s parental rights to E.D.W., the district court was required to consider the conditions at the time of trial, the conditions leading to the out-of-home placement, and appellant’s prospective ability to care for E.D.W.  See Minn. Stat. § 260C.301 (providing that the district court must examine conditions leading to the out-of-home placement); In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (stating that the district court must consider conditions existing at the time of trial).  A parent’s past history can be a useful basis for projecting the parent’s likely conduct for the reasonably foreseeable future.  See S.Z., 547 N.W.2d at 893.  An order for TPR is only appropriate when it “appears that the condition of dependency or neglect will continue for a prolonged, indefinite period of time.”  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995) (citations omitted).  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).

            Here, most of the dispositive facts were either admitted or undisputed. Therefore, those facts have been clearly and convincingly established.

            The four statutory grounds for termination at issue here are (1) refusal or neglect to comply with the duties imposed by the parent-child relationship under Minn. Stat. § 260C.301, subd. 1(b)(2); (2) palpable unfitness to parent, under Minn. Stat. § 260C.301, subd. 1(b)(4); (3) failure to correct the conditions leading to the CHIPS adjudication under Minn. Stat. § 260C.301, subd. 1(b)(5); and (4) Minn. Stat. § 260C.301, subd. 1(b)(8), E.D.W.’s being neglected and placed in foster care.   

1.         Refusal or neglect to Comply with the Duties Imposed by the Parent-Child Relationship

 

            Appellant argues that all evidence of failure to comply with parental duties pointed solely to N.J.  We do not agree.

            Parental rights may be terminated if the trial court finds

that the parent has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship [and] reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition.

 

Minn. Stat. § 260C.301, subd. 1(b)(2).

            The district court found that appellant maintained a relationship with N.J., E.D.W.’s mother, despite the danger that N.J.’s ongoing chemical dependency posed to E.D.W. and despite appellant’s duty as a parent to protect E.D.W. from such risks.  Appellant’s continued contact with N.J., despite his assertion that her failings alone pose a danger to E.D.W. and caused the child’s removal, is good evidence of his ambivalent commitment to protecting his child.

            The district court found that appellant proved repeatedly unable to honor regularly scheduled visitation appointments with E.D.W. and that appellant was unable to explain why he missed the appointments or why he repeatedly arrived at other visits smelling of alcohol. 

            The district court also found that reasonable efforts by the county failed to correct the conditions that formed the basis of the CHIPS petition, entirely because of appellant’s continuing unwillingness to resolve issues identified in his chemical dependency and anger management counseling.  Although appellant made some progress in the anger management and parenting education programs, the district court found that appellant had failed to get additional professional anger management help, as suggested by counselors in both programs.  The court found that appellant failed to cooperate with the referral suggested immediately following E.D.W.’s birth, and that appellant refused to comply with the recommendations of his rule 25 assessment, even when his visits with E.D.W. were contingent on compliance. 

            Despite appellant’s claim that only N.J. failed to comply with her parental duties, there was substantial evidence that appellant refused or neglected to comply with his parental duties, and the district court’s findings on this issue were not clearly erroneous.

2.         Palpable Unfitness to Parent

            The district court determined that appellant is palpably unfit to care for E.D.W.  Appellant argues that he complied with his case plan, was appropriate in visits with E.D.W., and that his parental rights should not be terminated because of N.J.’s chemical dependency, which led to E.D.W.’s removal on January 11, 2000.

            Parental rights may be terminated upon a showing

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.

 

Minn. Stat. § 260C.301, subd. 1(b)(4).

            The district court found that appellant had a continuing chemical dependency problem that interfered with his ability to parent E.D.W., that appellant had an ongoing anger management problem that interfered with his ability to parent E.D.W., and that appellant had missed a significant number of regularly scheduled visits with E.D.W.  The court noted that in light of appellant’s continuing refusal to comply with treatment recommendations, there was no reasonable likelihood that respondent would successfully complete his case plan or correct the conditions leading to the CHIPS finding, in the reasonably foreseeable future. 

            The court also took judicial notice of appellant’s 1992 first-degree criminal assault conviction involving the six-year-old daughter of appellant’s then-girlfriend, and the January 29, 1999 fifth-degree assault charge against N.J., who at the time was nine months pregnant with E.D.W.  While the court must consider the parent’s present ability to care for the child, see Chosa, 290 N.W.2d at 769 (requiring contemporaneous findings), the parent’s past conduct is also relevant.  See Minn. Stat. 260C.301, subd. 1(b)(4) (court considers duration and nature of pattern of conduct or conditions). 

            The district court’s findings on appellant’s palpable unfitness were not clearly erroneous.

3.         Failure to Correct the Conditions Leading to the CHIPS Adjudication

            The district court found that appellant resisted and refused reasonable efforts to require that he seek treatment for chemical dependency and anger management.  Appellant argues that he completed his case plan, and that N.J., and not he, failed to correct the conditions leading to E.D.W.’s removal by N.J.’s continued cocaine use.  Appellant also challenges the reasonableness of the court-ordered case plan, arguing that after E.D.W. was removed because of N.J.’s failings, the district court unreasonably required appellant to undergo a rule 25 chemical dependency evaluation in order to “force him into unnecessary counseling.” 

            Parental rights may be terminated 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.

 

Minn. Stat. § 260C.301, subd. 1(b)(5).

            A presumption exists that reasonable efforts have failed when (1) in more than 12 of the preceding 22 months, the child has resided out of the parental home under court order; (2) a court-approved case plan has been filed; (3) conditions leading to the out-of-home placement have not been corrected; and (4) the social services agency has made reasonable efforts to rehabilitate the parent and reunite the family.  Id.  It is presumed that the offending conditions have not been corrected upon a showing that the parent has not “substantially complied” with the court’s orders or the case plan.  Id.  “Reasonable efforts” at rehabilitation consist of services that “go beyond mere matters of form so as to include real, genuine assistance.”  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990) (citation omitted), review denied (Minn. July 6, 1990).

            The district court found that these criteria were met here:  E.D.W., at the time of trial, was 15 months old, but had already spent more than 12 months in foster care, and a reasonable court-approved case plan had failed to correct the conditions leading to the child’s removal.  The district court found that appellant failed to comply with the referral following E.D.W.’s birth, failed to resolve remaining anger management problems after anger management and parent training programs, and refused to comply with the rule 25 recommendation that he attend AA meetings.

            Appellant argues that termination is unwarranted here because he made “substantial” progress in his case plan.  But the district court found that appellant had not addressed his unresolved anger issues in spite of repeated professional suggestion that he do so.  The record supports that anger management is a critical goal for appellant.  The district court found that appellant had not successfully completed an anger management program.  Minimal improvement is not enough to overcome the conclusion that appellant’s past problems make his future performance as a parent uncertain.  See, e.g., In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984). 

            Appellant’s argument that the case plan was unreasonable is not convincing.  Although appellant is correct to note that E.D.W. was removed to foster care after N.J. tested positive for cocaine on January 9, 2001, the rule 25 evaluation was ordered after appellant twice arrived smelling of alcohol for a scheduled visit with E.D.W.  The court subsequently suspended appellant’s supervised visits. 

            Appellant argues that since N.J.’s drug use led to E.D.W.’s most recent foster placement, the rule 25 assessment was unreasonable because it was not designed to eliminate the condition leading to the placement.  But the rule 25 assessment was ordered because of appellant’s own ongoing alcohol problem, and was not unreasonable. 

            The district court concluded that the county’s reasonable efforts to correct the conditions leading to the child’s placement failed because appellant failed to comply with the case plan.  On this record, appellant has not shown that this conclusion was clearly erroneous. 

4.         Neglect of E.D.W. and Foster Care

Minn. Stat. § 260C.301, subd. 1(b)(8) allows termination of parental rights when the child is neglected and in foster care, which is defined as a child

(a) Who has been placed in foster care by court order; and

 

(b) Whose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and

 

            (c) Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

 

Minn. Stat. § 260C.007, subd. 18 (2000).  The district court found that following E.D.W.’s out-of-home placement, reasonable efforts by the county failed to correct the conditions leading to the placement.  We agree.

5.         E.D.W.’S  Best Interests

            Even if one or more of the statutory criteria for termination are met, parental rights must not be terminated unless it is in a child’s best interests to do so.  In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).  The court must balance three factors in analyzing the best interests of the child: (1) the child’s interest in maintaining the parent-child relationship; (2) the parent’s interest in maintaining the parent-child relationship; and (3) any competing interest of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). 

            The district court found that E.D.W. needed and was entitled to permanent placement, and that despite appellant’s expressed desire to have custody of E.D.W., the child’s interests would be best served by terminating parental rights and allowing her to be adopted.  The court found that appellant was unwilling or unable to comply with the case plan and correct the conditions leading to E.D.W.’s foster placement in the reasonably foreseeable future.  The court noted that the guardian ad litem had testified that termination was in E.D.W.’s best interests.

            Appellant expressed a desire to parent E.D.W.  But where the conditions of neglect and dependency will continue for an indefinite, prolonged period of time, the child’s immediate need for a stable and permanent home outweighs the father’s desire to provide a future home.  See In re Welfare of Udstuen, 349 N.W.2d 300, 305 (Minn. App. 1984). 

Appellant has a history of problems with alcohol abuse, anger management, violent behavior, and resistance to counseling.  Notwithstanding any progress appellant may have made in his substance abuse and anger management treatment, appellant finally refused to resolve critical issues identified in his case plan to the satisfaction of his counselors. 

Equally troubling is appellant’s continuing contact with N.J. and appellant’s equivocal attitude about terminating this contact.  Appellant correctly argues that N.J.’s history of chemical dependency and abusive relationships was one cause of E.D.W.’s initial removal at birth and that N.J.’s cocaine use ended the reunification attempt.  But never once in the record does appellant express a clear will to distance himself from N.J. in order to protect E.D.W. from the serious harm posed by her mother’s lifestyle. 

The record provides substantial evidence that termination of appellant’s parental rights was justified under each statutory ground cited by the district court and was in E.D.W.’s best interests.  The district court did not clearly err in its findings, err in its conclusions, or err its application of controlling law.

Affirmed.

 

 



[1] On February 20, 2000, N.J. voluntarily terminated her parental rights to the four children.