This opinion will be unpublished and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

C6-02-268

C8-02-269

 

 

In the Matter of the Welfare of:

R.L.H. and W.H.H., Jr.,

a/k/a B.H.

 

Filed September 23, 2002

Affirmed

Robert H. Schumacher, Judge

 

Stearns County District Court

File Nos. J90151984 and J59751376

 

Sharon Grewell Benson, Benson Law Office, P.O. Box 661, St. Cloud, MN 56302 (for appellant father)

 

Roger S. VanHeel, Stearns County Attorney, Jacqueline M. Schuh, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent county)

 

Thomas E. Kramer, Kramer Law Office, P.O. Box 2132, St. Cloud, MN 56302 (for guardian ad litem)

 

Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant father challenges the termination of his parental rights, arguing the record does not support the court's findings that he neglected his parental duties, was palpably unfit to participate in the parent-child relationship, failed to correct the conditions leading to the out-of-home placement, and that the children were neglected and in foster care. Appellant also argues the record does not support the finding that termination is in the best interests of the children. We affirm.

FACTS

This appeal is from an order terminating appellant's parental rights to R.L.H. and W.H.H., Jr., a/k/a B.H. R.L.H. was born on July 16, 1996, and B.H. was born on July 31, 1993. Both are children with special needs. R.L.H. has been diagnosed with Reactive Attachment Disorder, Post-Traumatic Stress Disorder, and Fetal Alcohol Effects, resulting in behavioral and educational problems. B.H. has been diagnosed with Attention Deficit Hyperactivity Disorder and Generalized Anxiety Disorder, resulting in behavioral and educational problems.

On August 19, 1997, CHIPS petitions were filed for R.L.H., B.H., and their two older siblings. The children were placed in foster care. On November 24, 1997, the court adjudicated all four children as children in need of protection or services, finding that the children were without proper parental care because of the emotional, mental, or physical disability, or state of immaturity of the children's parents, guardian, or other custodian. On October 21, 1998, the court ordered permanent placement of the four children with appellant W.H.H., Sr., with a transfer of physical and legal custody, subject to compliance with additional disposition terms and conditions as set forth in the court's November 5, 1998, order.


On August 22, 1999, all four children were removed from appellant's home because of physical abuse suffered by the youngest child, R.L.H. On October 23, 2000, the court vacated the permanent placement order and ordered respondent Stearns County Human Services to file petitions to terminate parental rights to the four children. On October 30, 2000, Stearns County filed the first termination of parental rights (TPR) petitions on R.L.H. and B.H. and their two older siblings, B.M.B. and B.W.B.

The first termination trial for all four children commenced on March 7, 2001, with Stearns County seeking to terminate the parental rights of the children's mother as well as three fathers, including appellant W.H.H., Sr., who is the father of R.L.H. and B.H. By order dated April 23, 2001, the court granted termination of the parental rights of the children's mother and of the fathers of R.L.H.'s and B.H.'s two older siblings, but denied termination of appellant's parental rights to R.L.H. and B.H. The court granted appellant six months to comply with a disposition order, cooperate with services, and reunify with R.L.H. and B.H. At the disposition review hearing on November 7, 2001, the court ordered Stearns County, for the second time, to file petitions to terminate appellant's parental rights to R.L.H. and B.H.

On November 16, 2001, Stearns County filed the second set of TPR petitions seeking termination of appellant's parental rights. At the initial hearing on November 20, 2001, the court found the TPR petitions stated a prima facie case on all four grounds alleged under Minn. Stat. 260C.301, subd. 1(b)(2), 1(b)(4), 1(b)(5), and 1(b)(8) (2000). The second termination trial was held on December 10-13, 2001, and December 18, 2001. At the conclusion of Stearns County's case in chief, appellant moved for a directed verdict.

The court took the motion under advisement. By order dated January 16, 2002, the court denied appellant's motion for a directed verdict and granted Stearns County's petitions to terminate appellant's parental rights to R.L.H. and B.H. The court issued findings of fact, conclusions of law, and orders terminating appellant's parental rights to each child and granting termination on all grounds alleged. This appeal followed.

D E C I S I O N

Appellant argues that the court's findings were not supported by substantial evidence.

When a trial court's findings in a termination case are challenged, appellate courts are limited to determining 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). The statutory criteria for termination of parental rights are found in Minn. Stat. 260C.301 (2000). "Only one criterion needs to be proven to support termination." In re Welfare of M.H., 595 N.W.2d 223, 227 (Minn. App. 1999) (citation omitted). The court made extensive findings as to the four criteria Stearns County offered in support of its petitions.

The first criterion, Minn. Stat. 260C.301, subd. 1(b)(2) (Supp. 2001), which allows for termination of parental rights if the 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, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child's physical, mental, or emotional health and development, if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.

 

The court made extensive findings in support of its conclusion that appellant has substantially, continuously, or repeatedly neglected his parental duties. The court specifically found that appellant

had the ability to find appropriate housing during the disposition period and failed to do so, and now his progress is too little, too late, and the court doubts his sincerity.

 

[Appellant's] failure to provide suitable and stable housing for the children during the disposition period severely impeded his progress with the in-home parenting professionals, public health nursing services, daycare services, and parenting classes. [Appellant's] failure to obtain suitable and stable housing and his failure to progress with service providers ultimately resulted in his failure to successfully reunify with these children.

 

The second criterion is provided for in Minn. Stat. 260C.301, subd. 1(b)(4) (Supp. 2001):

[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. It is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing that the parent's parental rights to one or more other children were involuntarily terminated.

 

Again, the court made extensive findings in support of its conclusion that appellant is palpably unfit to be a party to the parent and child relationship. The court received testimony and records from Dr. Norma Taylor, the therapist for both R.L.H. and B.H. for over three years, from Randall Bundy, appellant's therapist, and from other professionals, including the children's teachers, social workers, and in-home parenting skills professionals. The court specifically found Dr. Taylor to be "a qualified and credible witness."

Based on the testimony and records, the court found that appellant had a lack of concern for the children's physical safety, had difficulty relating to the children in a way that would foster their emotional development, showed no real interest in the special needs of the children, denied that the children had special needs, could not properly parent the children, exhibited a consistent lack of commitment to the children and reunification, failed to contact the children's teachers as ordered, was not interested in receiving in-home parenting services, and was not motivated to implement suggestions on how to deal with the children. The court found that the children were victims of abuse and neglect and that there was evidence that appellant "has yet to acknowledge any indirect responsibility for [R.L.H.'s] physical abuse or a plan to avoid another incident in the future." The court concluded, as evidenced by the records of Bundy and Dr. Taylor, that appellant

expresses no negative feelings toward the only other possible perpetrator of the abuse to his daughter, the male live-in babysitter. His lack of concern about how she was injured or by whom is disturbing * * * . This fact makes it clear that [appellant] is not in the position he needs to be in order to protect [R.L.H. and B.H.] from future abuse, nor is he in a position to provide [R.L.H.] the support she needs as a result of the injuries, emotionally or otherwise.

 

and also that appellant's

lack of nurturing and parenting skills, especially in light of the children's special needs * * * are an unfortunate condition of [appellant's] that he has been and will continue to be unable to remedy in the reasonably foreseeable future despite the reasonable efforts of Stearns County Human Services.

 

The third criterion, Minn. Stat. 260C.301, subd. 1(b)(5) (Supp. 2001), allows for termination of parental rights if the court finds that

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.

 

The court again made extensive findings in support of its conclusion that reasonable efforts under the direction of the court failed to correct the conditions leading to the children's out-of-home placement. The court found that from 1992 through 2001, services offered to appellant and his family members included homemaker services, in-home parenting skills workers, individual therapists, psychological evaluations, chemical dependency evaluations, urinalysis testing, transportation services, daycare assistance, supervised visits, Share the Spirit Toys, foster care, money management services, respite care, voluntary placements of the children, public health services, housing referral services, case management services, food stamps, supervised visits, vocational rehabilitation services, special education services, support groups, and individual and family therapy for reunification.

The court concluded that the services provided were relevant to the safety and protection of the children, adequate to meet the needs of the children and the family, available and accessible to appellant, consistent, timely, and realistic and that appellant's compliance with the services was necessary to achieve reunification.

Based on the evidence, the court concluded that appellant "has substantially failed to comply with this court's disposition order," and "[m]inimal compliance is insufficient to support reunification." The court set forth appellant's failures to comply in detail and concluded that appellant's

failure to meet the most basic and essential requirements of this court's disposition order provides additional evidence to support termination of parental rights. The current evidence further corroborates previous evidence of [appellant's] neglect of his children.

 

The court is aware that a different interpretation may be placed upon some of the facts. However, the evidence suggests that [appellant] has only very recently made attempts to comply with this court's disposition order. * * * To reunify [appellant, R.L.H., and B.H.] would leave [the] children in a cold, unstable relationship with a father who is not equipped to help them with their special needs that are the product of their lifetime of neglect, and with little assurance of necessary shelter, as well as food, clothing and other support.

 

The fourth criterion, Minn. Stat. 260C.301, subd. 1(b)(8) (Supp. 2001), which allows for termination of parental rights if the court finds "that the child is neglected and in foster care." The court made findings in support of its conclusion that the children are neglected and remain in foster care.

[Appellant] effectively had eight (8) months since the last trial to get proper housing, learn to deal with the severe abuse that he sustained as a youth, learn parental skills and comply with court-ordered services. He failed to substantially comply in a timely manner, and [R.L.H. and B.H.] remain neglected and in foster care. They have now been in placement over half their lives.

 

The court concluded that appellant was unwilling and indifferent to meeting the goals of the out-of-home placement plans and did not have the present ability to fulfill his parental responsibilities to the children. The court stated:

Based upon the quality and quantity of services provided to [appellant and the children], and the lack of compliance by [appellant] with the prior and current court orders and case plans and services offered, and based upon [the children's] needs for permanence, it is unlikely that any additional services provided to [appellant] would be successful toward reunification either now or in the reasonably foreseeable future. * * * Further services would be futile.

 

Appellant argues that the court committed reversible error by terminating his parental rights. He claims that he did not know that he was required to comply with the court's disposition order. This claim is not supported by the record.

The court issued a disposition order allowing temporary legal and physical custody of R.L.H. and B.H. to remain with Stearns County Human Services until such time as appellant complied with the disposition terms and the case plan. The disposition order was for a period of six months. Review hearings were regularly held before the court to monitor appellant's progress. At the September 2001 hearing, Stearns County brought to the court's attention appellant's lack of progress on several of the conditions that were court ordered, including the case plan. The court warned appellant that they were six weeks away from the end of the disposition period and that his failure to comply with the court-ordered conditions was jeopardizing his parental rights. The court specifically warned appellant that "unless you get a stable job, you are not going to be able to provide a home, and if there is not a home, you are not getting the kids back." The court further warned appellant, "it seems to me unless you have shown remarkable turn around here and really good progress by November 1 it's time to file a TPR petition again," and "if the picture doesn't look any better in November than it does now, [appellant], you are going to lose the kids."

At the trial on December 10, 2001, Beth Avery, the social worker who met with appellant almost weekly, testified that she explained to appellant each term and condition of the court's disposition order and case plan, and that appellant signed the case plan. Avery also testified she believed that appellant understood each term of the court's disposition and that there was no time during the course of the six months when she was unsure if appellant understood the terms and conditions of the disposition. Avery testified that she was not aware of any disability that would have prevented appellant from understanding the terms of the court's disposition.

Avery testified, in view of the entire disposition, that in her opinion appellant had not complied with the terms and conditions of the court's disposition order. She also testified that in her opinion Stearns County Human Services had exhausted efforts to reunify the children with appellant. Avery recommended that the court terminate appellant's parental rights to R.L.H. and B.H. and testified that the immediate plan for the two children was to pursue adoptive placement with their siblings.

Appellant argues that he "substantially complied with the relevant provisions of the disposition order." He contends that based on his "substantial efforts and progress with the disposition plan, his parental rights should not have been terminated by the court." He claims that at no time did he refuse to participate in any service. The court found that appellant "frequently maintained that he did not need the services offered by Stearns County and ordered by this court," that appellant

repeatedly demonstrated that he was not interested in following this court's order as evidenced by the testimony of Dr. Taylor, Mr. Bundy, the children's teachers, the social worker, the reports and records, and by [appellant's] own testimony during this trial and that appellant gave this court inadequate excuses as to why he failed to comply with the terms and conditions of this court's disposition order.

 

The court noted in its findings that "the court doubts [appellant's] sincerity." In contrast, the court specifically found Dr. Taylor to be "a qualified and credible witness." On review, "[c]onsiderable deference is due to the district court's decision because a district court is in a superior position to assess the credibility of witnesses." In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996) (citation omitted). The record contains the 726-page transcript of the testimony that was presented to the court over the course of the five-day trial. The court was able to observe each witness testify and was in the best position to make credibility determinations.

Appellant argues that the children's best interests are not served by terminating his parental rights. The court made adequate findings in support of its conclusion that the termination of appellant's parental rights is in the best interests of the children. In termination proceedings, "the best interests of the child must be the paramount consideration," provided that "at least one condition in subdivision 1, clause (b), [is] found by the court." Minn. Stat. 260C.301, subd. 7 (2000). Here, the court found four statutory grounds for terminating appellant's parental rights. The court noted in its findings:

The court is convinced that [appellant] feels a duty to [the children] * * * . But that is not enough. * * * [I]n view of [the children's] special needs and need for permanence, and [appellant's] lack of reliable, nurturing parenting ability, this court must conclude that these children's needs outweigh the expressed interest of [appellant], and that termination of [appellant's] parental rights is in their best interest.

 

The court found that the children are both special needs children who require stability, consistency, nurturing, and permanency after years in foster care. The court found that the children's medical, educational, and developmental needs are being met in foster care, school, and therapy, and that appellant "does not have the ability and dedication to provide for their needs." The court found that the "children are thriving with their foster parents." The court also found that the guardian ad litem

recommended termination of [appellant's] parental rights in the best interest of the children based in large part upon [appellant's] apparent lack of motivation, personal initiative, and assimilation of what he has learned into his lifestyle.

 

The record supports the court's finding that the termination of appellant's parental rights is in the best interests of the children. We conclude that the court's findings address the statutory criteria, are supported by substantial evidence, and are not clearly erroneous.

Affirmed.