This opinion will be unpublished and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

A03-1506

 

In the Matter of the Child of: J.J. and B.L., Parents.

 

Filed April 20, 2004

Affirmed

Minge, Judge

 

Mower County District Court

File No. JX-03-50417

 

 

Paul R. Spyhalski, P.O. Box 818, Austin, MN 55912 (for appellant)

 

Patrick Flanagan, Mower County Attorney, Jonathan Olson, Assistant County Attorney, 201 First Street Northeast, Austin, MN 55912 (for respondent Mower County)

 

Alice Snater, 803 Tenth Street Southwest, Austin, MN 55912 (guardian ad litem)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant father B.L. challenges the termination of his parental rights to J.L., arguing that the record does not support the district court’s findings.  Because we conclude the district court’s findings are not clearly erroneous, we affirm.  The mother does not appeal the termination of her parental rights.

FACTS

 

            Appellant B.L. is the father and J.J. is the mother of J.L., a six-year-old girl.  Although appellant and J.J. were not married, appellant periodically lived together as a family with J.J., J.L., and J.J.’s younger daughter.  The family has been involved with human services agencies in the states of Iowa and Minnesota.  In September 2000, when J.L. was two years old, a child-in-need-of-assistance petition was filed in Iowa.  At that time, the court placed J.L. with appellant.  The Iowa district court held several review hearings throughout 2001, and each time found that J.L. needed assistance and, when appellant was found to be homeless, eventually switched custody from appellant to J.J.

Appellant and J.J. have had difficulty maintaining a stable home.  The problems include chemical dependency, psychological problems, lack of parenting skills, unemployment, attendant poverty, and homelessness.  The Iowa court instructed appellant and J.J. to undergo psychological evaluations, random UAs, and improve their respective situations in several specific behaviors.  The Iowa social services agency found that appellant failed to understand the need for stability in his child’s life, used chemicals, and was unemployed.  The agency recommended that appellant obtain employment, attend A.A., cooperate with social services, and meet J.L.’s needs.  The Iowa social services agency noted that both parents had been working with a child and family resource specialist to improve their parenting skills and to establish a more stable home for the child.  At a review hearing in the fall of 2001, the court warned that parental rights might be terminated, and ordered both parents to completely abstain from use and possession of all controlled substances and to participate in programs to improve the home setting.

In December 2001, the Iowa court placed J.L. and her sister with a maternal aunt who lived in Minnesota.  At that time, appellant was in jail.  When appellant was released on January 19, 2002, he lived in Iowa.  Although he did not have a vehicle, he both called and emailed the children regularly and visited them in Minnesota when he could find a ride.  The children remained in the custody of their aunt from December 2001 until May 2002.

            In February 2002, a permanency plan was created by the Iowa officials concerning the out-of-home placement of J.L.  The plan identified family-centered therapy, psychosocial evaluations, and case-supervision services designed to establish a permanent reunification of the family.  Both parents were to sign a contract of expectations as well as work with the public social services agency to improve their parenting ability and to curtail their use of controlled drugs.  Appellant agreed to these arrangements in March 2002.

            In May 2002, J.J. obtained custody of J.L. and moved to Austin, Minnesota.  Approximately three months later, J.L.’s aunt reported that she found J.L. with a neighbor and the other child home alone.  J.L. was returned to the aunt’s care and the situation was reported to Mower County Human Services (MCHS).  Sometime later, J.L. returned to living with J.J.  In October 2002, appellant found employment and moved in with the children and J.J. in J.J.’s home.  By March 2003, MCHS closed its file regarding J.J., reporting that J.J. was now enthusiastic about being free from chemicals, was employed, and was “doing okay.”  Approximately one month later, appellant checked into the Stress Center in Austin stating that he could not handle J.J.’s behavior, and upon release, he returned to Iowa.

            In May 2003, J.J. was arrested for driving under the influence.  Police again removed J.L. and placed her with her maternal aunt.  J.L. has not lived with appellant since that time.  Subsequently, J.L.’s aunt told MCHS that she would be unable to keep the children for an extended period, and MCHS took custody of J.L.  At an emergency hearing, the court ordered that the child remain out of her parents’ home with visitation granted to the parents; thereafter the court found J.L. to be a child in need of protective services.  At this time, appellant moved back into J.J.’s home, but continued to use marijuana regularly.  Appellant’s case plan was developed and signed in May and June of 2003. 

            In June 2003, appellant completed a psychological evaluation, which found he suffers from major depression, adjustment disorder, and cannabis abuse.  On June 25, 2003, termination-of-parental-rights petitions were filed.  While appellant completed his required chemical-dependency-treatment assessment and enrolled in the recommended outpatient treatment, he also tested positive for marijuana, and thereafter was only allowed supervised visits with his daughter.  Appellant cancelled one visit in June, two visits in July, and tested positive before a visit in August.  Appellant admits that he used marijuana and that he cancelled some of his visits because he knew he would test positive. 

            A parent and child assessment was completed that recommended that the parental rights of both appellant and J.J. be terminated because neither was able to parent J.L.  The report found that appellant continued to use chemicals despite the impact on the child, he frequently relied on the maternal aunt who had interim financial, transportation, and employment aid, he did not follow simple directives from the foster parent, and he failed to take his prescribed medication for his psychological conditions.

            At the time of the termination hearing, appellant was in outpatient treatment for chemical dependency and was unemployed.  J.L.’s guardian ad litem observed appellant’s visits with J.L. and testified that appellant’s continued drug use and instability were detrimental to J.L. and concluded that the parental rights of appellant should be terminated.

            MCHS and the state of Iowa have offered and provided the following services for appellant: psychological evaluations, drug testing, parenting information and assessments, visitation assistance and supervision, financial assistance for daycare and food stamps, family investment program (FIP), chemical-dependency treatment, domestic-abuse-intervention service, and in-home parenting therapy.  Appellant failed to participate in A.A., an employment program, and an agency-parenting program.  The guardian ad litem reviewed the past records and current plan and agreed no other services were appropriate, except possibly in-home services, if the child was in the home.

            In September 2003, after a trial, the district court terminated the parental rights of both appellant and J.J.  In its determination, the district court relied on four of the applicable statutory criteria, finding that (1) reasonable efforts failed to correct the conditions that led to the child’s placement, Minn. Stat. § 260C.301, subd. 1(b)(5) (2002); (2) J.L. was neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8); (3) appellant substantially, continuously, and repeatedly refused to comply with the duties imposed on him by the parent-child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2); and (4) appellant is palpably unfit to be a party to the parent-child relationship, Minn. Stat. § 260C.301, subd. 1(b)(4).  The district court also determined it was in the best interests of J.L. to terminate appellant’s parental rights.  This appeal by appellant followed.  J.J. has not appealed.

D E C I S I O N

            An appellate court reviews a termination of parental rights to determine “whether the district court’s findings address the statutory criteria and whether those findings are supported by substantial evidence and are not clearly erroneous.”  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  This court “closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  Although this court defers to the district court’s findings, we exercise great caution in proceedings to terminate parental rights.  In re Welfare of A.J.C. & R.L.K., 556 N.W.2d 616, 622 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997).  Parental rights may be terminated only for grave and weighty reasons.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).

            The primary consideration in every termination case is the child’s best interests.  Minn. Stat. § 260C.301, subds. 1(b), 7 (2002).  The legislature has established nine grounds on which parental rights may be terminated.  See Minn. Stat. § 260C.301, subd. 1(b).  Parental rights may be terminated 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); see also In re Welfare of A.L.F., 579 N.W.2d 152, 154 (Minn. App. 1998).  Before terminating parental rights for neglect, the district court must find that the county has used reasonable efforts to provide rehabilitation or reunification services or that the provision of such services would be futile.  Minn. Stat. § 260.012 (a), (c) (2002); see S.Z., 547 N.W.2d at 892 (“[I]t is clear that provision of reasonable efforts must be evaluated by the court in every case.”).

I.          Reasonable efforts toward reunification

 

            Appellant argues the record does not clearly and convincingly establish that the counties provided reasonable reunification efforts to appellant.  Reasonable efforts are defined as

the 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).  At a minimum, reasonable efforts require the county “to provide those services that would assist in alleviating the conditions leading to the determination of dependency.”  In re Welfare of M.A. & J.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).  The services provided “must 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), review denied (Minn. July 6, 1990).  The social services agency has the burden of demonstrating that it has made reasonable efforts or that the provision of services would be futile.  See M.A. & J.A., 408 N.W.2d at 235-36.  “Whether the county has met its duty of reasonable efforts requires consideration of the length of time the county was involved and the quality of the effort.”  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 263 (Minn. App. 1996).

            In the present case, the district court concluded that the efforts by human services were reasonable and also that appellant’s historic unwillingness to quit using marijuana made reasonable efforts by human services to assist in this regard futile.  Appellant claims the record is not clear as to the services actually provided in Iowa.  He testified that he received no financial-planning assistance or assistance in finding suitable housing from Iowa.  In addition, appellant asserts that the only other witness to testify regarding the Iowa services testified that in-home services were “available” to appellant, but that she would need to review notes, which were not available at the hearing, in order to determine whether services were actually provided. 

            The record reflects, however, that in addition to this witness’s testimony, the district court had before it exhibits that referenced the services that were provided in Iowa.  For example, exhibit four, dated April 9, 2001, states that there were certain family services and family-based therapy that were being provided.  Exhibit eight, part of the Iowa court file, was also admitted, which is a psychological evaluation involving appellant.  The record also reflects that certain financial and day-care assistance were provided to appellant.  Further, appellant admitted that in-home services were provided by a child and family resource specialist while appellant had custody of J.L.  In addition, the guardian ad litem testified, after viewing the same documents that the court had in front of it, that she could not think of any services that were missing that had not already been provided.

            Jacqueline Dietz, a MCHS social worker, testified that further services were offered in May 2003 in Minnesota.  Specifically, she stated the following:

I set up the parenting assessment.  I told them both to go up to the Parenting Resource Center to sign up for parenting classes . . . . I did UAs on both of them.  I had worked with the relative search idea in searching out people from [J.J.’s] relatives for possible placement.  And I had worked with the foster care system . . . .

 

Dietz also confirmed that appellant had services in Iowa.  She based this conclusion on information that she received from the Iowa case manager and on the Iowa material that was in the district court record.

            Appellant asserts that the services offered were unreasonable because the only services provided other than the alleged Iowa services were those offered during the last 60 days before disposition.  He asserts that after his psychological evaluation was completed and counseling was recommended, he began counseling, but the 60-day period between disposition and trial did not afford him adequate opportunity to use the service.  Similarly, appellant states that he completed a chemical-abuse evaluation and was two weeks into the seven-week outpatient program at the time of the hearing.

            But the record reflects that appellant has used drugs throughout J.L.’s entire life.  The record also reflects that when J.J.’s condition overwhelmed him, he left the home for extended periods, often leaving J.L. with J.J. despite the acknowledged danger to the child.  At the time of the termination hearing, appellant was still struggling with his marijuana addiction.  There were several times within the two months prior to the hearing that appellant chose to skip visits with J.L. because he knew he would fail the UAs.  There were other times that when appellant did show for the visits, he failed the UAs, therefore requiring the visits to be supervised.  Appellant has been on notice of his need for services and reunification since as early as April 2001 when the Iowa court ordered him to abstain from all chemical use.

            The length of time the child care agency has been working with a parent and the quality of its effort are considerations that determine whether the state has met its duty of reasonable efforts.  Id.  After reviewing all of the exhibits, along with the testimony, we conclude the record supports the district court’s conclusion that efforts by the public agencies to correct conditions leading to the petition for termination were reasonable and that appellant’s demonstrated unwillingness to put his child’s needs before his own made these efforts futile.

            We next consider whether the district court clearly erred in concluding that the efforts of the public agencies to assist appellant failed to correct the conditions leading to the children’s out-of-home 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 six months [within the preceding 22 months] unless the parent has maintained regular contact with the child and the parent is complying with the out-of-home placement plan;[[1]]

   (ii)  the court has approved the out-of-home placement plan . . .;

   (iii)  conditions leading to the out-of-home placement have not been corrected . . .; 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).

            The parties dispute that the requirements of paragraphs (i), (iii), and (iv) have been met.  For clarity, we will discuss them in reverse order.  The rehabilitation and reuniting efforts required by paragraph (iv) have been discussed, and we conclude that the district court properly determined that the public agencies made reasonable efforts to correct the conditions and reunite appellant with his child. 

With respect to paragraph (iii) regarding conditions leading to out-of-home placement, the termination-of-parental-rights statute presumes that such conditions 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[.]”  Minn. Stat. § 260.301, subd. 1(b)(5)(iii).  To correct these conditions, appellant had committed to abstaining from chemicals, submit to UAs, seek and maintain employment, obtain housing, cooperate with family-centered services, keep up visitations with his daughter, and cease contact with individuals who were using chemicals.  Appellant’s case plan further stated that he would (1) complete a psychological evaluation and follow recommendations, (2) cooperate with an in-home family evaluation, (3) complete a chemical-dependency evaluation, and (4) abstain from mood-altering chemicals.

            The record demonstrates that appellant did not comply with the major portion of his commitments or case plan.  Appellant refused to abstain from chemicals.  While he did undergo a chemical-dependency evaluation, he delayed entering a treatment program until after significant prodding, and he admits to still using marijuana.  Appellant also refused to keep some of the visits with his daughter because he knew he would fail the drug tests.  In addition, appellant has failed to maintain employment.  While appellant argues that he was attempting to address the drug problem, and that he was not given reasonable time to do so, the record indicates that the district court ordered appellant to abstain from drug use as early as 2001.  Appellant had ample opportunity to seek help prior to the termination hearing.

            Paragraph (i) requires that for termination the child must have resided outside the parents’ home for six of the preceding 22 months.  Minn. Stat. § 260C.301, subd. 1(b)(5)(i).  For children age eight and older, the requirement is 12 out of the preceding 22 months and the word “cumulative” is used.  Id.  Appellant asserts that Minnesota law neither requires nor allows cumulating of out-of-home-placement time for a child under age eight.  Appellant contends that his daughter’s time in placement was therefore less than 180 consecutive days and the presumption of failure does not apply.

Nothing in the language of the statute prohibits applying a cumulative period for a child under age eight.  Certainly the policy of the law is to protect the youngest of children, and stability and continuity of parental contact is no less important for younger children.  Thus, we determine that aggregating time for younger children is allowed.  Here, the record reflects that J.L. resided out of the parental home under court order from December 2001 until May 2002, and again from May 2003 until September 2003.  This is a cumulative period of over eight months within the preceding 22 months, and therefore the presumption applies.

            Because it is presumed that reasonable efforts have failed, and because the record contains clear and convincing evidence that the conditions leading to J.L.’s out-of-home placement were not corrected and that reasonable efforts have been made by the social services agencies to rehabilitate appellant and reunite the family, the district court did not err in its determination that reasonable efforts have failed to correct the conditions leading to the out-of-home placement of J.L.  Since the record clearly and convincingly supports the district court’s determination that appellant’s parental rights to J.L. should be terminated under Minn. Stat. § 260C.301, subd. 1(b)(5), one of the grounds for terminating appellant’s parental rights, we do not address the alternative statutory grounds found by the district court.  We have reviewed the record, however, and conclude that there is clear and convincing evidence that J.L. was neglected and in foster care, that appellant substantially, continuously, and repeatedly refused to comply with his parental duties, and that appellant is palpably unfit to be a party to the parent-child relationship.

II.        Best interests of J.L.

            Although we have concluded that statutory criteria for termination have been met, termination of appellant’s parental rights is precluded unless it is in J.L.’s best interests.  See Minn. Stat. § 260C.301, subd. 7 (stating that if a basis for termination exists, the child’s best interests are paramount); In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996) (noting that even if basis for termination exists, termination is not mandatory if termination would not be in child’s best interests), overruled in part on other grounds by In re Welfare of J.M., J.M. & M.M., 574 N.W.2d 717, 722-24 (Minn. 1998).  The three factors that guide us in reviewing the district court’s conclusion that termination is in the best interests of the child are:  “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving 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).  There is a presumption that the natural parent is suitable to be entrusted with the care of his or her child and that it is in the child’s best interests to be in the natural parent’s care.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).

            The district court determined that it is in J.L.’s best interests to terminate appellant’s parental rights because appellant is unable to put J.L.’s welfare above his own, and separating J.L. and her younger sister is contrary to the interests of both children.

            It is undisputed that J.L. recognizes appellant as a parent, and that she and appellant have an interest in maintaining the parent-child relationship.  But the record reflects that J.L. has suffered developmental delays due to a dramatic lack of parenting.  In her report to the county, its consulting social worker stated that “[t]he child appears to be anxious when separated from her caretaker.  This likely stems from abandonment issues of the past and not knowing if the caretaker will return.”  The record also reflects that J.L. has made developmental progress in her foster home.  She is able to identify some letters and trace/write letters, read simple words, color in the lines, and draw a human figure, among other things.  The consulting social worker testified that because appellant could not be licensed for foster care, he could not be a foster parent for J.L’s younger sister, and that therefore, the children would be separated unless his parental rights were terminated.  Both the guardian ad litem and the consulting social worker concluded that it is in J.L.’s best interests for parental rights to be terminated and for J.L. and her sister to find an adoptive home.

            Meeting J.L.’s health needs, including shelter, nutrition, and mental and emotional stability, outweighs any interests that J.L. and appellant may have in maintaining a parent-child relationship.  Further, finding a permanent home for J.L. weighs in favor of terminating appellant’s parental rights.  Therefore, we conclude the district court did not err in determining that termination of appellant’s parental rights is in J.L.’s best interests.

            Affirmed.



[1] This standard applies to termination of appellant’s parental rights to J.L. who was under the age of eight at the time of the CHIPS petition.