This opinion will be unpublished and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

A03-1555

 

In the Matter of the Child of:

R.S. and R.F., Parents.

 

Filed April 6, 2004

Affirmed

Randall, Judge

 

Mower County District Court

File No. J1-03-50418

 

 

Matthew J. Arthurs, P.O. Box 6243, Rochester, MN 55903 (for appellant-mother R.S.)

 

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

 

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal in this termination of parental rights proceeding, appellant mother argues that she overcame the statutory presumption against her parental fitness created by the prior termination of her parental rights to other children.  She argues the “gravest” conditions prompting the prior termination did not exist at the time of trial in this matter.  We conclude appellant did not overcome the presumption of palpable unfitness, and we affirm.

FACTS

            Appellant, R.S., and R.F.[1] have never been married.  They cohabitated for many years and have three children in common.  The couple’s parental rights to their first two children, R.R.F. II and K.O.F., were involuntarily terminated in November 1997.

Prior to termination of those parental rights, appellant lived with R.F. in a house that was described as “extremely cluttered” and a “hazardous living condition.”  During this time, Mower County Human Services (MCHS) provided appellant and R.F. services in an effort to enhance their parenting skills.  Eventually, appellant was required to move out of R.F.’s house and into a shelter.  After receiving the services, professionals determined that the couple’s parenting skills remained “below a level of marginally acceptable competence.”  Professionals believed that appellant and R.F. might never be able to reach minimum competency levels in the reasonably foreseeable future.  Parental rights to R.R.F. II and K.O.F were subsequently terminated.  This appeal involves the termination of appellant’s parental rights concerning R.R.F., the couple’s third child. 

            Before becoming pregnant with of R.R.F., appellant moved back into R.F.’s house.  Appellant discovered she was pregnant some time in 2001, but she remained in R.F.’s house until late in her pregnancy.  Shortly before giving birth to R.R.F., appellant moved out of R.F.’s house and into an apartment. 

After the birth of R.R.F., MCHS filed a termination of parental rights alleging that the parents were palpably unfit.  The termination action was dismissed after district court intervention, and instead a CHIPS action was initiated.  The CHIPS action was deemed “one last chance” for the parents to better their situation and parenting skills.  At this time, R.R.F. remained in appellant’s home and R.F. was allowed supervised visits twice a week.  Both parents were ordered to cooperate with MCHS and participate in services in order to enhance their parenting skills and relationship with their child.  These services were identical to those provided during the termination proceedings of the first two children.

            While under MCHS supervision, appellant received almost daily contact with in-home parent support aide and regular in-home visits from a public health nurse, family therapist, social worker, and a guardian ad litem.  Although appellant was receiving aid, she continued to have problems maintaining a safe and clean environment for R.R.F.  Twice during this period, she was ordered by the district court to clean her home and make it safe for an infant. 

            R.F.’s home remained uninhabitable and in-home visitation was never an option.  In addition to participating in services to improve his parenting skills, R.F. was ordered to undergo sex offender therapy, but he failed to comply with this order.  He also failed to participate in many of the services because those services were aimed at making appellant’s residence safe for R.R.F.  R.F. did not take advantage of the services made available to him.  He either missed or arrived late to all the meetings.      

            After a period of over nine months, MCHS found that appellant’s home continued to be unclean and unsafe for R.R.F., and MCHS initiated termination proceedings against appellant and R.F.  R.R.F. was removed from appellant’s care and placed in foster care along with his two older siblings.  Appellant and R.F. were given supervised visits with R.F. at appellant’s home. 

            During the termination proceedings, various professionals testified.  The current guardian ad litem, Ms. Coulson, recommended termination of parental rights, stating that she was concerned about the home and safety of the child.  The previous guardian ad litem, Ms. Taylor, testified to specific child-safety concerns such as easy access to a second story patio, coins and medicine within reach of an infant located on the counter, and the lack of child gates in the home and child locks on the lower cupboards.  Ms. Taylor believed that problems in the prior termination proceedings remained problems in this case. 

Ms. Losee, the public health nurse, also testified.  Losee stated that many times it was the public health aide that cleaned the home, not appellant.  As to the supervision of the child, Ms. Rossiter, the in-home therapist, stated that 90% of the time, it was she who would supervise R.R.F.  Finally, Ms. Wagner of MCHS testified that appellant gave up on the services provided and made no progress in her parenting skills.  Ms. Wagner stated that the present circumstances and outcome are similar to those at the time of the 1997 termination of parental rights.  All the above professionals recommended the termination of parental rights. 

After hearing testimony, the district court issued an order terminating appellant’s and R.F.’s parental rights.  The district court determined that neither appellant nor R.F. had produced evidence sufficient to overcome the presumption set forth in Minn. Stat. § 260C.301, subd. 1(b)(4) (2002), that they are palpably unfit parents.  R.F., the father, did not appeal.  This appeal by R.S., the mother, followed.

D E C I S I O N

1.         Palpable Unfitness

            Appellant argues that the district court erred when it determined she had not rebutted the statutory presumption of palpable unfitness.  Appellate courts review the record to determine whether the findings are supported by substantial evidence and are not clearly erroneous.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). 

Under Minn. Stat. § 260C.301, subd. 1(b)(4) (2002),

[I]t is presumed that a person 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.  

 

Once it has been determined that a parent is presumed palpably unfit because their parental rights to one or more other children have been involuntarily terminated, in subsequent termination of parental right cases the parent has the burden of rebutting the presumption.  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).  The parent must produce evidence that “affirmatively and actively demonstrate[s] her or his ability to successfully parent a child” and establishes that any prior unfitness no longer exists.  Id. at 251.

Appellant argues that the circumstances and surroundings involving the termination of her children in 1997 have significantly changed to the extent that she is no longer palpably unfit.  In appellant’s 1997 termination case, she was found unfit where her house was cluttered with garbage, an untreated sex offender lived in the home, she lived in a shelter for a period of time, and she willfully and repeatedly did not cooperate with social services.   Appellant states she presently no longer lives in the garbage house, no longer lives with an untreated sex offender but in fact lives in her own apartment, and has substantially cooperated with services.  She argues that the court erroneously failed to consider these changes and instead focused its decision on her cooperation with social services. 

We disagree.  Appellant may have slightly improved her prior conditions, but she erroneously places much of her argument on this point and fails to understand the importance of “affirmatively and actively” demonstrating her ability to parent.  Evidence shows that appellant’s efforts at improving her parental ability and relationship with her child wilted and deteriorated over time.

Although appellant had received identical services in the past, the county again provided parental services to her.  These services were designed to improve appellant’s parenting skills and her relationship with R.R.F.  A public health nurse, a parent support aide, a family therapist, and a guardian ad litem provided in-house services.  Nevertheless, the district court found that despite these services, appellant was unable to maintain a safe and clean living environment for R.R.F. (twice she was ordered to clean her home in order to provide a safe environment for her child).  The district court also found that appellant could not offer adequate supervision of R.R.F., and she did not properly interact with R.R.F.  The district court further determined that appellant did not attend parenting classes on a regular basis, has unresolved financial difficulties, and has refused any further in-home daily assistance. 

Also of note, appellant requested that the parent support aide stop visiting her home eight months into the in-home services.  After the in-home parent support aide stopped visiting at appellant’s request, the cleanliness and safety of the home suffered dramatically.  County professionals found hazards unfit for a child in the house such as open access to a second-floor patio; access to kitchen garbage; books, medicine and coins on the counter within reach of a child; climbing hazards; clutter in the child’s room; and access to household chemicals.  This evidence demonstrates that appellant fails to recognize the importance of the services provided to her.  Appellant’s actions do not resemble an “affirmative and active” conscious when it comes to improving her parental skills.

Appellant also contends that she has “substantially cooperated with services.”  We disagree.  The record reflects that appellant (1) requested the parent support aide stop her in-home visits; (2) regularly missed or arrived late for supervised visits; and (3) has not completed parenting classes as recommended in the CHIPS proceeding.  Appellant also failed to adhere to court disposition review orders and twice was ordered to clean her apartment to an acceptable level.  Accordingly, we conclude that appellant failed to substantially cooperate with services.

As to appellant’s argument that the district court failed to emphasize the changes in appellant’s circumstances surrounding the prior termination of parental rights and appellant’s present situation, it is apparent that the district court did in fact consider these changes.  The district court recognized that appellant was provided virtually identical services and education as was provided to her previously.  The fact that these services were again provided, in the words of the district court, shows that “unfortunately, either through lack of capacity, or lack of willingness, neither parent has improved.”

Appellant has somewhat improved the prior conditions of unfitness (Minn. Stat. § 260C.301, subd. 1(b)(4) places the burden on appellant to prove that she is no longer an unfit parent) but has failed to affirmatively demonstrate her ability to parent R.R.F.  Appellant did not overcome the presumption set forth in Minn. Stat. § 260C.301, subd. 1(b)(4) (2002).  The district court did not error when it terminated appellant’s parental rights.

2.         Best Interests

 The district court found the best interests of R.R.F. require that the parental rights of appellant be terminated.  The child’s best interests are “the paramount consideration” in every termination case.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  When determining whether the termination of parental rights is in the best interests of the child, the court must balance three factors: (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.V., 492 N.W.2d 1, 4 (Minn. App. 1992).

We agree with the district court that the best interests of R.R.F. require the termination of R.S.’s parental rights.  For a child to be nurtured and educated, he must be guided by parents who can meet his needs, both mentally and physically.  R.R.F. has flourished while in foster care.  He has overcome his developmental delays, bonded with siblings and peers, and is now in a stable and nurturing home.  The lack of R.R.F.’s attachment to appellant, appellant’s lack of motivation in becoming a better parent, and the results of foster care show that it is in the best interests of R.R.F. to terminate the parental rights.        

The district court correctly determined that appellant did not overcome the presumption of palpable unfitness described in Minn. Stat. § 260C.301, subd. 1(b)(4).  It was in the best interests of R.R.F. when the district court terminated appellant’s parental rights. 

Affirmed.



[1]  R.F. is the father of the child at issue, R.R.F.  He did not appeal termination, and there is no issue as to R.F.