This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-751

 

In re the Matter of the Children of:

G.F., Parent.

 

Filed January 13, 2004

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File Nos. J8-03-051188 / J9-01-069579

 

Christopher O. Obasi, 5740 Brooklyn Boulevard, Suite #220, Brooklyn Center, MN  55429 (for appellant G.F.)

 

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

 

James H. Gaffney, Jr., 4209 West 44th Street, Edina, MN  55424 (for guardian ad litem)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant G.F. challenges the district court’s order terminating her parental rights to C.M., N.F., and S.S.  Appellant argues that (1) the district court’s findings do not provide a basis for the statutory criteria for termination; (2) the findings are not supported by substantial evidence that is clear and convincing; and (3) termination is not in the children’s best interests. 

            Because there is substantial evidence that appellant has repeatedly neglected to comply with her parental duties and to correct the underlying conditions that led to the out-of-home placement, despite the reasonable efforts of respondent Hennepin County Children, Family, and Adult Services Department, and because, based on the record, termination of appellant’s parental rights is in the best interests of the children, we affirm.

D E C I S I O N

            The district court’s decision terminating parental rights is reviewed to determine whether (1) the findings support the statutory criteria; (2) substantial evidence supports the findings, which are not clearly erroneous; and (3) the evidence is clear and convincing.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  Parental rights are terminated only for serious reasons, but only one statutory criteria need be proven.  In re Welfare of P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  This court will not overturn the findings of the district court, which is presumed to stand in a superior position when assessing credibility, unless the findings are clearly erroneous.  In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).  Although there is a presumption that the natural parent is a fit and suitable person to care for the child, the paramount consideration is the best interests of the child.  Minn. Stat. § 260C.001, subd. 2 (2002); A.D., 535 N.W.2d at 647-48. 

            Where it is not reasonably foreseeable that placement with the parent can or will occur, and the responsible social service agency has made reasonable efforts to reunite the family, termination is appropriate.  Minn. Stat. § 260C.001, subd. 3(1) (2002); A.D., 535 N.W.2d at 647.  Evidence must address conditions existing at the time of the hearing; termination is appropriate only if it “reasonably appears that the condition of dependency or neglect will continue for a prolonged, indeterminate period.”  In the Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn. App. 1996) (quotation omitted), review denied (Minn. Mar. 18, 1997). 

            The district court here found four statutory grounds for termination:  Minn. Stat. § 260C.301, subd. 1(b)(2), (5), (7), (8) (2002).[1]

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

            Parental rights may be terminated where a 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] reasonable efforts by the social service agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable.

 

Minn. Stat. § 260C.301, subd. 1(b)(2).  Termination under this subdivision is based on an ongoing pattern of inability to meet basic needs of the child and an apparent inability to do so in the foreseeable future.  See In re Welfare of J.D.L., 522 N.W.2d 364, 367 (Minn. App. 1994). 

            The petition here alleged that the children were in need of protective services because of possible physical abuse, neglect based on lack of food and stable housing, possible chemical dependency, and lack of parental care based on appellant’s mental or emotional condition or immaturity.  Appellant’s case plan consisted of five primary goals: (1) maintain sobriety; (2) participate in parenting education; (3) obtain safe housing; (4) complete an anger management class; and (5) attend all medical and educational meetings for the children. 

            1.         The district court found that appellant (a) failed to comply with the requirement that she submit urinalyses (UAs) as requested and missed UAs are considered positive; (b) tested positive for alcohol in September 2002, and was considered to have been drinking during one visit with C.M. in September 2002; (c) tested positive for cocaine during her fourth pregnancy and during the birth of this child in May 2002; and (d) failed to complete chemical dependency treatment.  Further, a social worker testified that although appellant completed the primary program at Park Avenue, her failure to complete the prescribed aftercare is considered to be a failure to complete the program. 

            2.         The district court found that despite multiple referrals, including programs at Freeport West and Project Rebound, appellant never successfully completed a parenting program.  The district court acknowledged that appellant completed portions of several programs, but never completed any one program.  The court specifically found that although appellant participated in a parenting program while incarcerated, that program did not satisfy this requirement. 

            3.         The district court found that appellant had secured housing, but also that “multiple incarcerations . . . led to instability in her housing situation.”  For this reason, the district court’s finding that appellant failed to maintain suitable housing is not clearly erroneous and is supported by the record.

            4.         The district court found that appellant failed to complete anger management programming, despite referrals from both respondent and the probation officer handling her criminal conviction for assault.  Appellant was referred to both EastSide Neighborhood Services and the Rage to Roses program, but failed to complete either one.  The district court noted that “[h]ad [appellant] successfully completed the offered services, she would have been able to address this issue which has had a direct impact on her ability to parent effectively.” 

            5.         The district court found that appellant missed or was inconsistent with visitation, or failed to follow the rules for visitation, or demanded visitation at inappropriate times or settings, and failed to attend necessary services for C.M.’s special needs. 

            The district court noted that respondent has made reasonable efforts to assist appellant in fulfilling her case plan, providing supervised and unsupervised visitation, programming and alternate programming when the original program was not completed, UAs, chemical dependency evaluations and treatments, psychological evaluations, medical, psychological, and other evaluations and therapy for C.M., shelter and foster care, and meetings to resolve visitation and other issues.  Additionally, respondent provided bus fare and transportation services and some in-home services to accommodate appellant.  Although appellant argues that fulfilling both the child protection case plan and the terms of her probation were too burdensome, in actual fact, several of the requirements were identical or complemented one another.

            The extensive record here supports the district court’s findings.  The district court did not err by concluding that appellant was and will be unable to offer her children the stable and nurturing environment necessary to provide for their physical, mental, and emotional well-being, particularly in view of the substantial special needs of C.M.

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

            This subdivision permits termination where a parent, operating under a case plan, has failed to correct the conditions leading to an out-of-home placement. There is a presumption that a failure to correct conditions occurs if a parent has not substantially complied with the case plan despite reasonable efforts of the social service agency.  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii)-(iv).

            From the beginning of appellant’s involvement with respondent, there were several basic problems:  (1) S.S. was positive for cocaine at birth, indicating that appellant was using cocaine; (2) appellant assaulted her neighbor, demonstrating a problem with anger; and (3) when appellant was arrested for the assault, the children were discovered in an apartment where there was no food, the children were dirty and unkempt, and the baby’s diapers had not been changed, demonstrating problems with parenting.  Appellant was ordered to complete chemical dependency treatment, an anger management course, and a parenting course.  Although she completed part of each of these, she failed to fully complete any of the programs.

             Appellant continues to show signs of chemical dependency, including the birth of a second child who tested positive for cocaine, a positive UA in September 2002, and an incident during visitation with C.M. when she appeared to be intoxicated.  Appellant has failed to complete an anger management program, despite several opportunities and the fact that it was ordered as part of her criminal probation.  The failure to complete was based on poor or sporadic attendance, which resulted in her termination from the programs.

            Appellant participated in some parenting programming.  Although she apparently completed a program while incarcerated, it was not the required program, nor was it of the same intensity as the required program.  Her failure to complete parenting programming is based on poor or sporadic attendance.  Appellant has shown little insight into the problems of C.M. and has participated sporadically in conferences, medical appointments, psychiatric evaluations, and visitation.  Appellant was initially given the opportunity for supervised visitation; if the supervised visits were made and successful, appellant was to be offered an additional unsupervised visit per week.  Appellant did not participate in the supervised visitation to the degree that would have permitted the unsupervised visits.  

            It is presumed that a parent has not corrected the underlying condition where it can be shown that the parent has not substantially complied with the case plan.  Minn. Stat. § 260C.301, subd. 1(b)(5)(iii); P.R.L., 622 N.W.2d at 544.  Appellant failed to correct the three conditions that led to the original out-of-home placement, despite respondent’s provision of reasonable services to correct these conditions.  The district court’s findings support termination under this subdivision and are based on substantial, clear, and convincing evidence.

III.   Minn. Stat. § 260C.301, subd. 1(b)(8)

            This section states that termination is permitted when a child is neglected and in foster care.  “Neglected and in foster care” is defined as a child

[w]ho has been placed in foster care by court order; and . . . [w]hose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and . . . [w]hose 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[.]

 

Minn. Stat. § 260C.001, subd. 24 (2002).  Several factors must be considered in making the finding that a child is neglected and in foster care, including:  (1) the length of the out-of-home placement; (2) the parent’s effort to correct the condition necessitating removal; (3) regularity of visitation; (4) maintenance of regular contact with the agency or foster placement; (5) appropriateness and adequacy of services provided or offered; (6) whether additional services would correct the condition; and (7) the nature of the efforts made by the agency to reunite the family.  A.D., 535 N.W.2d at 648. 

            Again, appellant’s efforts have been sporadic and unsustained, marked by partial attempts to comply with the case plan, followed by failure to complete what has been required of her.  In the words of the district court,

[appellant] has consistently failed to demonstrate an ability to focus on the real challenges facing her children and her ability to function as their parent.  Despite the services provided, [appellant] continues to be unable to focus on readily apparent tasks needed to meet her children’s needs.  Her lack of insight into the problems her children face indicates an inability to effectively parent now and in the foreseeable future.

 

            Based on the record before us, the district court’s findings are based on substantial, clear, and convincing evidence and support the statutory grounds for termination under this subdivision. 

IV.  Best Interests

            In any termination decision, the best interests of the child are the most important considerations.  Minn. Stat. § 260C.001, subd. 2 (2002).  While acknowledging that termination is ordered only for

grave and weighty reasons . . . parental rights are not absolute and should not be unduly exalted and enforced to the detriment of the child’s welfare and happiness.  The right of
parentage is in the nature of a trust and is subject to parents’ correlative duty to protect and care for the child.

 

  P.T., 657N.W.2d at 583 (quotation omitted). 

            Two of respondent’s social workers testified that termination is in the best interests of the children, based on (1) appellant’s inability or unwillingness to complete her case plan; (2) appellant’s lack of understanding of C.M.’s substantial special needs; and (3) the effect appellant’s erratic behavior has on N.F. and S.S.  The guardian ad litem, a retired pediatrician who spent time with appellant and the children, both separately and together, testified that termination is in the best interests of these children, because appellant could not complete her case plan, effectively parent C.M., maintain sobriety, and keep her children safe. 

            The district court concluded that appellant would be unable to effectively parent her children because of (1) repeated incarcerations due to her noncompliance with probation; (2) her chemical dependency; (3) her inability to focus on the children’s needs or to put their interests beyond her own immediate desires; (4) her failure to take responsibility for the negative impact her behavior had on the children; and (5) the damaging instability that is a direct consequence of her behavior.  The district court determined that it would be in the children’s best interests to terminate appellant’s parental rights because these factors preclude her from offering them effective parenting.  This conclusion is supported by findings based on substantial, clear, and convincing evidence.

            The findings and conclusions of law of the district court are based on detailed findings that are supported by the record before this court.  There is substantial evidence that supports the order for termination under all three statutory grounds.  We affirm the district court’s order for termination.

V.  Post-trial Motions

            Appellant made several post-trial motions, which were denied by the district court and included in her notice of appeal.  Appellant’s motion to remove the district court judge was filed more than 15 days after the termination order and is thus untimely.  See Minn. R. Juv. P. 80.01, subd. 2.  Further, a presiding judge may not be removed without an affirmative showing of prejudice on the part of that judge.  Minn. R. Juv. P. 43.07, subd. 3(b).  Appellant has failed to make such an affirmative showing of prejudice.

            Appellant moved to stay enforcement of the termination order pending appeal.  According to Minn. Stat. § 260C.415, subd. 1 (2002), the order of the district court will stand pending appeal, unless the reviewing court, in its discretion, stays application of the order.  This court previously denied a stay of enforcement in an order dated July 8, 2003.  No new evidence has been submitted that would cause us to question this order.

            Appellant also moved for a new trial.  A party is permitted to ask for a new hearing within 15 days after a final order, where new evidence has been discovered.  Minn. Stat. § 260C.411 (2002).  The evidence appended to appellant’s motion consisted of affidavits from her mother and sister, both of whom testified at trial, and a hand-written affidavit from C.M.’s father, who failed to appear at trial.  None of these affidavits raises new evidence that was not available at the trial.  The district court did not err in denying this motion.

            Affirmed.

 



[1] Appellant argues in her brief that the district court erred by finding grounds under Minn. Stat. § 260C.301, subd. 1(b)(4).   The district court, however, did not base its decision on this part of the statute.  Further, we need not specifically address termination under subdivision 1(b)(7), which deals with the rights of the unknown fathers of N.F. and S.S., because appellant has not challenged the court’s decision under this subdivision.