This opinion will be unpublished and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

A03-1214

 

 

In the Matter of the Child of:

B.K. and C.G., Sr., Parents.

 

 

Filed February 17, 2004

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. J9-02-070256, 244689

 

Leonardo Castro, Fourth District Public Defender, Melissa Haley, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant B.K.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Children, Family and Adult Services Dep’t)

 

Eric Rehm, 202 American Bank Building, 301 West Burnsville Parkway, Burnsville, MN 55337 (for Guardian ad Litem)

 

            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant B.K. challenges the district court order terminating her parental rights, arguing that the order is not supported by sufficient evidence in the record.  We affirm.

FACTS

            C.G. was born to appellant on January 31, 1999.  Appellant was not married when C.G. was conceived or born.  C.G., Sr., C.G.’s adjudicated father, has never appeared at any of the court proceedings concerning his son and there is no evidence that he has ever provided for C.G. or been involved in his parenting.  C.G., Sr.’s parental rights were terminated by order entered in the district court on June 19, 2003.

Shortly after C.G.’s birth, appellant was referred to the Parent Support Project (PSP), a division of Hennepin County Adult Services, because of concerns that appellant’s developmental disability, emotional illness, and history of drug and alcohol abuse might impair her parenting abilities.  In 1996, appellant was diagnosed with mild mental retardation, major depressive disorder, recurrent schizophrenia disorganized type, alcohol abuse, and psychosocial stress factors.  The county had additional concerns about appellant’s parenting abilities because her five older children, born between 1986 and 1995, had all been placed in the child-protection system in Cook County, Illinois; the reported finding of Cook County was that appellant had neglected the children and failed to protect them from a sexually abusive partner. 

            In February 1999, PSP began assisting appellant with basic self-care skills, personal psychological and physical development, interpersonal skills, and childcare skills.  In June 2001, C.G.’s pediatrician referred him for a speech and language evaluation that revealed “significant delays in receptive and expressive communication and articulation skills.”  He was subsequently referred to Early Childhood Special Education (ECSE) classes after an assessment disclosed significant developmental delays. 

            PSP filed its closure report in March 2002, which stated that although PSP typically assists clients for between 12 and 16 months, it worked with appellant for three years because her “progress in parenting areas was either minimal or non-existent.”  The report stated that appellant “was never consistent in managing the concrete tasks of maintaining a safe home for herself and [C.G.]” and that appellant’s participation in C.G.’s special education services “was minimal at best [and that she often] would sleep through the meetings with the teachers.”  The report further stated that (1) appellant failed to keep the apartment clean and that garbage was typically dispersed throughout the apartment; (2) C.G., then three years old, regularly urinated and defecated on the carpet in the apartment because appellant allowed him to remove his diaper and wander around the apartment; (3) appellant continued to demonstrate difficulty in understanding written and spoken English; (4) appellant had severe problems making financial decisions and setting spending priorities; (5) appellant appeared to suffer from depression and frequently fell asleep during the day; and (6) with respect to child-raising, appellant “appears unable” to meet C.G.’s needs and “unable to teach and role model important concepts like self-regulation and internal limit setting.” 

In April 2002, the Community Involvement Program (CIP), which assists individuals with developmental disabilities, began providing appellant with in-home support that included cleaning appellant’s apartment, doing her laundry and grocery shopping, and providing special-education tutoring to C.G. 

In December 2002, a CIP worker filed a report of suspected child maltreatment with the Child Protection Services (CPS) of the Hennepin County Children Family and Adult Services Department (CFASD).  The report stated that appellant “has no control” over C.G., that C.G.’s safety and hygiene continued to present problems for appellant, that trash was strewn throughout the apartment within a week of appellant moving in, that C.G.’s school had reported that he was arriving at school dirty and dressed inappropriately for the cold weather, and that appellant refused to seek medical attention for C.G.’s swollen glands.  When CPS visited appellant’s apartment to investigate the report, appellant refused to meet with them; she subsequently “fired” the CIP staff who were assisting her and refused to send C.G. back to his special education classes. 

Appellant’s Disability Services Division (DSD) worker reported to CPS that appellant was not “able to provide the necessary supervision and childcare for her son who is presently in a neglectful situation,” that “there were real concerns regarding [C.G.’s] well being because of the lack of supervision on the part of [appellant],” and that appellant “lacks the ability to adequately supervise and provide the appropriate parental involvement that is necessary for her son to have a safe home environment.”  The DSD worker reported that, despite receiving “support and community resources at the highest level possible,” appellant “has continued to deteriorate in her independent living skills and her parenting skills.”  The DSD worker stated that C.G. had recently left the apartment during the day without appellant’s knowledge and walked through a busy parking lot to a small grocery store in a strip mall next to their apartment complex.  A contemporaneous DSD report described a recent incident in which C.G. had broken a glass table in the apartment and cut his foot on the broken glass that remained on the floor for days afterward. 

Also, in December 2002, the Hennepin County Children and Family Services Department (CFSD) filed a Petition for Children in need of Protection or Services (CHIPS) based on the report filed with the CPS.  The CHIPS petition alleged that (1) appellant’s home was consistently observed to be filthy, with trash, cigarettes, and dishes strewn throughout, despite thrice-weekly cleanings by the CIP staff; (2) appellant neglected to seek medical attention for her son’s ringworm, an associated fungal infection causing lumps on the boy’s neck, or a cut on C.G.’s foot caused by stepping on the broken glass in the apartment; (3) C.G. frequently arrived at school unwashed, wearing dirty clothes, and underdressed for the weather; (4) CIP staff clean appellant’s home, take her grocery shopping, do her laundry, and take her and C.G. to medical and dental appointments; (5) several social workers assisting the family believed that appellant “has continued to deteriorate in her independent living skills and her parenting skills.”  The petition described appellant’s developmental disabilities, emotional disorders, history of substance abuse and dependence, and her history of child neglect. 

Following a hearing, the district court found probable cause that a protection matter existed but allowed C.G. to remain home on the condition that appellant complete a case plan that required her to (1) complete a psychological assessment and follow all recommendations; (2) cooperate with in-home services provided by CIP; (3) maintain a sanitary condition in her home; (4) cooperate with C.G.’s Developmental Disabilities Services; (5) and cooperate with Child Protection workers.  The district court also appointed a guardian ad litem.

At a February 2003 hearing, the CFSD reported that appellant had failed to cooperate with the services and programs ordered at the December hearing and reported “a chronic pattern of problems since the last hearing which compromises [C.G.’s] health, safety, and welfare.”  The district court ordered that C.G. be immediately placed out-of-home.  The court issued an amended case plan incorporating the previous plan and adding (1) another psychological evaluation of appellant; (2) supervised visits with C.G.; and (3) sleep-disorder testing. 

In April 2003, the CFSD filed a petition to terminate appellant’s parental rights pursuant to Minn. Stat. § 260C.301, subds. 1(b)(2) (refusal or neglect to comply with the duties imposed by the parent-child relationship), 1(b)(4) (palpable unfitness to be a party to the parent-child relationship), and 1(b)(5) (failure of reasonable efforts to correct the conditions leading to out-of-home placement) (2002). 

The petition alleged that C.G. suffers from global developmental delays including “his speech, motor skills, cognitive abilities and almost all aspects of his functioning.”  The petition reported that C.G. received developmental disability (DD) services and “waivered services, which are offered to only a select number of DD clients, based upon their need.”  The petition alleged that despite these services, appellant “did not view [C.G.] as having any disabilities and stated that although the school said he has learning problems, she knows he is smart.”

The petition further alleged that C.G.’s school reported that he continued to come to school unbathed, with dirty diapers and dirty clothes when he was in his mother’s care, and that he had recently arrived at school with cuts and bruises that appellant was unable to explain.  The petition stated that although C.G.’s doctor had determined that C.G. had elevated blood lead levels, enlarged lymph nodes, and may be affected with fetal alcohol syndrome, appellant had refused to sign releases for the child to be seen at Minneapolis Children’s Hospital and permission had to be obtained by court order. 

As to appellant’s case plan, the petition alleged that (1) despite a March 2003 diagnosis of longstanding depression, appellant continued to deny she was depressed and refused medication; (2) despite her physician’s observation that she may suffer from a sleep disorder, possibly related to her depression or “excessive weight,” appellant denied any problems with sleep and refused to participate in a sleep-disorder study; (3) CIP had discontinued services to appellant in March 2003 because C.G. was no longer in the home and because appellant was “very uncooperative and [was] not making any progress”; (4) appellant’s apartment was only cleaned up when CIP workers came to clean it; (5) appellant was not cooperating with DD services and other educational services offered to C.G. and was “belligerent, threatening and resistant” in her meetings with child-protection workers; (6) appellant was consistently inappropriate in her supervised visits with C.G., which had “deteriorated” to the point where appellant would alternately “taunt,” “tease,” and ignore her son.  The petition reported that at the visits, C.G. either did not want to leave his foster mother when he arrived or “tried desperately to leave the room and go to his foster mother” when he saw her through a glass door during the visit.  The petition stated that despite receiving services “at the highest possible level” from CIP since PSP closed its case with her, appellant’s “functioning has continued to deteriorate.” 

Prior to the termination hearing, the GAL submitted a report stating that appellant was demonstrably unable to comply with the case plan ordered by the district court, that appellant “doesn’t understand the seriousness of Child Protection’s concerns about her parenting abilities,” that appellant lacked the “crucial intellectual skills relevant to parenting,” and that appellant does not appear to have “the capacity to correct the behaviors that would enable her to be an adequately functioning parent to her son.”  The GAL reported that according to C.G.’s foster mother, C.G., age four, was not toilet trained, compulsively focused on eating and food, had significant distraction issues at school, and exhibited significant attachment issues.  The GAL reported that although a recent developmental assessment of C.G. indicated that he did not meet the criteria for fetal alcohol syndrome, C.G. “has significant developmental delays in functioning and significantly impaired intellectual functioning” and “will need special services for health and education and help in functioning in daily living in society.”  The GAL recommended termination of appellant’s parental rights. 

At the termination hearing, appellant’s case manager testified that despite the “wealth of services” made available to appellant since before C.G.’s birth to assist her with parenting, appellant was not “able to appropriately and safely care for [C.G.] now or in the near future.”  Appellant testified that C.G. had never wandered away from the apartment and that C.G. was fed, safe, and supervised while he was in the apartment with her.  The court received evidence including reports and case notes from the social service providers that had worked with appellant and C.G., medical and educational reports concerning C.G., the GAL’s report, and medical reports concerning appellant. 

The district court found that, despite Hennepin County’s reasonable efforts to correct the conditions that led to C.G.’s out-of-home placement, appellant had not corrected those conditions.  The court concluded that clear and convincing evidence supported the termination of appellant’s parental rights for the statutory reasons asserted in the termination petition and that it was in C.G.’s best interests to do so.  This appeal follows.

D E C I S I O N

            On appeal from an order terminating parental rights, we consider whether the district court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  We will “closely inquire into the sufficiency of the evidence to determine whether the evidence is clear and convincing.”  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).

            The district court may terminate parental rights only if clear and convincing evidence establishes that at least one statutory ground for termination exists and that termination is in the best interests of the child.  See Minn. Stat. § 260C.317, subd. 1 (2002); In re Welfare of A.L.F., 579 N.W.2d 152, 154 (Minn. App. 1998); see also Minn. Stat. § 260C.301, subd. 1(b) (2002) (enumerating statutory grounds for termination).  An order terminating parental rights “must explain the district court’s rationale for concluding why the termination is in the best interests of the children.”  In re Welfare of D.T.J., 554 N.W.2d 104, 110 (Minn. App. 1996); see also Minn. R. Juv. P. 76.05, subd. 1(a) (requiring that disposition order shall include “a statement explaining how the disposition serves the best interests of the child”). 

            Here, the district court concluded that clear and convincing evidence existed that parental rights should be terminated pursuant to Minn. Stat. § 260C.301, subds. 1(b)(2) (refusal or neglect to comply with the duties imposed by the parent-child relationship), 1(b)(4) (palpable unfitness to be a party to the parent-child relationship), and 1(b)(5) (failure of reasonable efforts to correct the conditions leading to out-of-home placement) (2002). 

Appellant first argues that statutory grounds for terminating her parental rights are not present because evidence of her limited intellectual functioning, “without more,” is insufficient to justify termination.  In support, appellant cites to the holding in In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996), that “[m]ental illness, in and of itself, is not sufficient basis for the termination of parental rights.”  The record does not support appellant’s contention that the district court relied exclusively or even disproportionately upon the uncontroverted evidence that she is intellectually impaired.  The record demonstrates that the district court took appellant’s limitations into account in assessing the propriety and utility of social services made available to her, including PSP and CIP services, and there is substantial evidence in the record to support the district court’s finding that despite those services, appellant’s progress with respect to parenting was “minimal or non-existent.”  See id. (stating that if, despite the reasonable efforts of social-service providers, “the parent remains permanently unable to care for the child, the rights are to be terminated” (quotation omitted)). 

Appellant next argues that her depression and sleep problems are insufficient to support a conclusion that she is palpably unfit to parent C.G. within the meaning of Minn. Stat. § 260C.301, subd. 1(b)(4), which defines palpable unfitness as “a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship.”  The record demonstrates that the district court did not rely exclusively on appellant’s possible sleep disorder and diagnosed depression in reaching its conclusions concerning her palpable unfitness to parent.  The court did consider appellant’s refusal to accept treatment for her mental illness or participate in a sleep-disorder study in assessing appellant’s compliance with her case plan and the prospects that appellant’s parenting skills might improve in the foreseeable future.  But the court also credited other record evidence that appellant had an ongoing, and apparently increasing, inability to appreciate the complexities and challenges of parenting C.G. as he got older.  The court’s conclusion that appellant would be unable, for the reasonably foreseeable future, to care appropriately for C.G.’s physical, mental, or emotional needs is supported by the record.

Appellant argues that no reasonable or sufficiently personalized efforts were made to correct the conditions that led to C.G.’s out-of-home placement.  But the district court made specific findings, supported by voluminous evidence in the record, listing the many social and community-service agencies and departments that had assisted appellant since before C.G.’s birth and provided her with extensive, individualized assistance with virtually every aspect of her daily life, including parenting.  The district court’s finding that these efforts led to little discernible improvement in appellant’s parenting skills is amply supported by the record.  Although appellant asserts that she should have been offered treatment for depression and her sleep disorder, the record demonstrates that she refused these services when they were offered to her in early 2003. 

Finally, appellant argues that the record does not support the district court’s conclusion that termination is in C.G.’s best interests.  The record before the district court is clear that appellant’s parenting skills and willingness to accept parenting assistance have steadily declined even as C.G.’s needs have increased.  The record also shows that sustained and intense intervention ultimately had little salutary effect on appellant’s ability or desire to provide for C.G.’s basic daily needs.  Substantial evidence in the record supports the district court’s finding that termination was in C.G.’s best interests.

            Affirmed.