This opinion will be unpublished and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
In the Matter of the Child of: C.D., Mother.
Hennepin County District Court
File No. J2-03-051994
Tamika Ragland Nordstrom, Briggs and Morgan, 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Cory A. Carlson, Assistant Hennepin County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Children, Family and Adult Services Dept.)
James H. Gaffney, Jr., 4209 West 44th Street, Edina, MN 55424 (for respondent Philip Steen)
Barbara S. Isaacman, Assistant Hennepin County Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent E.D.)
Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Forsberg, Judge.*
TOUSSAINT, Chief Judge
On appeal from an order terminating her parental rights to her son, E.D., mother C.D. argues that substantial evidence does not support the district court findings that (1) she refused or neglected to comply with the duties imposed on her by the parent-child relationship despite reasonable efforts by the Children, Families and Adult Services Department (CFASD); (2) reasonable efforts failed to correct the conditions leading to out-of-home placement; (3) E.D. is a neglected child; (4) the termination of her parental rights is in E.D.’s best interests; and (5) she is unable to parent E.D. and will not have the capacity to parent E.D. in the foreseeable future. Because the district court properly applied the law and exercised its discretion, we affirm.
Appellant C.D. is the single mother of five children all of whom have had periods of out-of-home placement. Only E.D. is the subject of this parental-rights-termination proceeding.
At the time C.D.’s parental rights were terminated, E.D. was a 10-year-old who had been in C.D.’s custody less than three years of his life. He was born premature on November 29, 1992, at an Ohio hospital, and weighed about one pound. He remained hospitalized for five and one-half months. C.D. had received no prenatal care and had tested positive for cocaine just twelve days before E.D. was born. E.D. was diagnosed as hydrocephalic and suffered from respiratory, colon, and vision complications. He is presently considered a “special needs” child and has recently been diagnosed with a cognitive disorder (with prenatal exposure to cocaine, prematurity with associated medical complications, and developmental delays.)
Just before E.D. was to be released from the Ohio hospital in May 1993, C.D. reported to authorities that she had been physically abused by E.D.’s father and obtained an order for protection. C.D. continued to use drugs and to attend treatment sessions during 1993 and 1994. She would leave E.D. with relatives and not return.
In August 1993, E.D. was placed in a foster home. His brother M.D. was born early, testing positive for cocaine in February 1994. In June, an Ohio court granted a county motion to extend temporary custody of E.D., and M.D. was adjudicated dependent, neglected, and abused.
In early 1995, another motion by the county to extend custody of the boys was denied and C.D. was granted custody with orders of protective supervision. Despite the concerns of the guardian ad litem (GAL) and the fact that domestic violence had occurred in March when C.D. allowed the father into the home, protective services were terminated in June.
C.D. was arrested in August 1996. She gave her cousin, Theresa Sharp, temporary custody of the two boys, but instead they were placed with the maternal grandmother who was not fit to provide care. In the 1977 custody trial, C.D. was denied custody because she had allowed the father into the home and continued to use cocaine. In June 1997, before the county had completed its custody investigation, the maternal grandmother signed an agreement to place the boys with Sharp. The boys were adjudicated dependent and legal custody was granted to Sharp after a contested trial.
C.D. filed a petition for custody in April 1998. By the time of trial in April 1999, six-and-one-half-year-old E.D. had lived with Sharp for two years, one and one-half months, which was longer than the time he had lived with his mother.
On July 29, 1999, the Ohio district court determined that the boys should remain in Sharp’s home. In its decision, the court noted C.D.’s (1) history of drug use (positive screens in 1998 and refusal to release drug screens in 1999); (2) minimization of E.D.’s physical problems and her responsibility for them; and (3) refusal to work with social workers and the GAL because she did not like them. The court stated that this pattern of a total lack of responsibility had been ongoing for at least seven years. The court noted that the boys would prefer to live with Sharp and one of the boys did not even want visits with C.D. Sharp, according to the court, had “taken [E.D.] to all his medical specialists and has him in special education classes. Both boys are thriving in her care and have made great strides from when they were first placed with [Sharp].”
Sharp later explained that on October 7, 2000, she let E.D. and M.D. be placed with C.D. against county recommendation and her own preference. She had been “worn down by [C.D.]’s threats.”
In November 2000, C.D. moved with her five children from Ohio to Minneapolis. E.D. attended two schools before being transferred in January 2001 to Lucy Laney School’s for its special education program. Dottie Brown, school social worker, testified that the school had received reports from the Ohio schools that E.D. needed special education. He had been in first grade for 21 days before C.D. withdrew him from the Ohio schools. Nevertheless, C.D. had told the Minneapolis schools that second grade was the correct placement for him. E.D. qualified for “Student Needing Alternative Placement,” which is, according to Brown, “for students who are in a very, very low percentile compared to their peers academically.”
Brown testified that she first encountered C.D. in November 2001 when E.D. allegedly stole a cell phone. C.D. “stopped the teacher in the hallway outside of the classroom with E.D., and she was yelling and saying that [E.D.] was a liar, and he was a thief, and that she was tired of have [sic] him doing things like that and she wasn’t going to have that.” C.D. wanted the school to conduct a criminal psychological evaluation of E.D., but the school did not conduct such evaluations.
After several uneventful months, E.D. was brought to the office of the school nurse on March 5, 2002. His two middle bottom teeth were cracked and portions of them were missing. He was upset that he was in the nurse’s office because his mother had told him not to go there. The dentist who saw E.D. the next day stated that C.D. insisted on accompanying E.D. into the room, answered all of the dentist’s questions, and accused E.D. of lying all the time. Just over one week later, E.D. came to school with a red and swollen ear with a scab over a three-quarter inch cut and a bruise on his neck. On April 10, the investigating social worker observed that E.D. had several scars on his arms, scabs on the right side of his neck, and two wide scratches and swelling on his left forearm. When the social worker spoke with E.D.’s sister that day, the sister said that C.D. hits E.D. with a belt every day.
Following these reports, on April 16, the Children, Families and Adult Services Department (CFASD) filed a Children In Need of Protection Services (CHIPS) petition on all of the children. In June, E.D. was removed from C.D. based on allegations of emotional abuse by C.D. observed by county workers during family visits.
On July 1, 2002, E.D. was placed with his great aunt but the next day she asked to have him removed due to C.D.’s reaction. E.D. then lived in a non-relative foster home until July 3, 2003, when he was returned to Sharp on an interim basis.
On November 27, 2002, the juvenile court determined that E.D. was a child in need of protective services. The court determined that he had been a victim of verbal, emotional and physical abuse by his mother and medically neglected. The court also found that C.D. had not treated E.D. for his special needs and she had not engaged in recommended therapy. The CHIPS order placed E.D.’s legal custody with CFASD and set five requirements in C.D.s case plan:
(1) Rage to Roses Anger Management,
(2) African American Family Services (AAFS) Parenting,
(3) psychological assessment,
(4) individual therapy with Emmitt Parks with Dialectic Behavior Therapy assessment and therapy to follow, and
(5) cooperate with the Children, Family, and Adult Services Department.
C.D. was allowed supervised visits only when E.D.’s therapist allowed them.
On February 4, 2003, the county petitioned to terminate C.D.’s parental rights. The petition noted that C.D. “has presented herself to be fairly compliant with her case plan, but despite her completion of case plan tasks, the conditions that have led to [E.D.]’s out of home placement still exist.” For example, C.D. “attends the required therapy sessions, but has failed to actively participate in therapy and is not meeting therapeutic goals.”
The court trial on the petition to terminate C.D.’s parental rights to E.D. spanned four months from May 28 to August 18, 2003. The county called eleven witnesses, C.D. called eight, and the GAL testified. On September 22, the court issued a twenty-nine-page order terminating C.D.’s parental rights and ordering that the county not seek placement of E.D. with any of the child’s relatives except Theresa Sharp. This appeal followed.
The district court’s decision to terminate parental rights is reviewed to determine whether the findings (1) address the statutory criteria; (2) are supported by substantial evidence; and (3) are clearly erroneous. In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). 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); In re Welfare of A.D., 535 N.W.2d 643, 647-48 (Minn. 1995). 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. See Minn. Stat. § 260C.001, subd. 3 (2002).
When considering a petition to terminate parental rights, the district court need only determine that the party petitioning for termination has proven, by clear and convincing evidence, one of the nine statutory criteria. Minn. Stat. § 260C.301, subds. 1(b), 7 (2002); see also In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). But the petitioner must show that the conditions justifying termination exist at the time of trial and will continue for an indefinite period of time. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). Upon a showing by clear and convincing evidence to terminate parental rights, the district court’s order must make “clear and specific” findings that conform to the statutory requirements. Id. When reviewing orders terminating parental rights, some deference is given to the trial court’s findings. In re Welfare of A.H., 402 N.W.2d 598, 603 (Minn. App. 1987). The appellate court should, however, closely inquire into the sufficiency of the evidence to determine if the evidence supporting termination is clear and convincing. Id.
The district court concluded that termination of C.D.’s rights was appropriate because (1) she neglected duties imposed by the parent/child relationship; (2) the conditions leading to out-of-home placement have not been corrected; and (3) E.D. is neglected and in foster care.
1. Neglect of Duties
Termination of parental rights may be appropriate when the parent
substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon [her] 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 [she] 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.
Minn. Stat. § 260C.301, subd. 1(b)(2).
The court concluded that C.D. failed to exercise appropriate control needed for E.D.’s physical, mental, or emotional health and development. The findings supporting abuse derived from the CHIPS order: C.D. physically abused, medically neglected, and emotionally abused E.D.
With regard to the physical abuse, C.D. was found to have hit E.D. in the mouth with a remote control device breaking his teeth and to have used a hair clipper to seriously scratch E.D.’s neck. With regard to medical neglect, there was no evidence at the CHIPS hearing that E.D. had received medical care while in Minnesota. The September 2002 letter from a pediatric nurse indicates that he was in the health center three times, but not for a general health examination. When E.D. finally had a physical examination while in the care of his foster parent, he failed vision and hearing screenings (even wearing his glasses), and was diagnosed with multiple dental caries, a heart murmur, a nonpalpable left testicle, low height and weight, and nocturnal enuresis, encopresis, and problems with small motor skills. His doctor referred him to cardiology, urology, and audiology clinics.
Many sources supported the finding of emotional abuse. In addition to school social worker Dottie Brown’s testimony, the court also cited Dr. Soler and Therapist Sherrill. The court also found that E.D. shut down emotionally before interactions with C.D. Multiple witnesses heard C.D. loudly and angrily call E.D. a liar, put him down, and blame him for the family’s troubles.
C.D. continues to challenge the physical abuse finding in the CHIPS order. Dr. Hewitt, a licensed psychologist, however, noted in her report that E.D.’s “statements, plus the quality and content of his disclosure more closely fits the pattern of an abuse history vs. no abuse history.” She also noted that it would be difficult for a person of E.D.’s cognitive abilities to have fabricated consistently the story he told of the abuse.
C.D. argues that the “only” basis for the finding was that C.D. continues to deny abusing E.D. She states that “[a]dmitting to committing abuse is not a factor determinative of whether [C.D.] has complied with the duties of the parent/child relationship.” Many sources observed C.D.’s refusal to cooperate and her insistence that E.D., the county, or the school were to blame. They suggest that C.D. was not taking responsibility for or understanding all of the sources of E.D. and her own problems. As Dr. Hewitt reported, E.D. needs a caretaker who understands the long-term effects of premature delivery, possible drug exposure, and cognitive limitations. His caretaker also must recognize E.D.’s long-term need of multiple resources and treatment teams and must cooperate with them. See J.S., 470 N.W.2d at 702 (stating that parent’s failure to work with agency constitutes refusal to comply with duties imposed by parent-child relationship).
There was ample basis for the finding that C.D. was not providing the care and control necessary for E.D.’s emotional and physical health as a special needs child. See A.H., 402 N.W.2d at 603 (noting that “special needs” is factor often considered when terminating parental rights). The district court’s factual findings that C.D. had not complied with the duties of the parent-child relationship were supported by substantial evidence.
2. Failure to Correct Conditions
A termination of parental rights may be based on a finding 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.” Minn. Stat. § 260C.301, subd. 1 (b)(5). A presumption that reasonable efforts have failed is set by statute upon a showing of certain factual circumstances. Id. C.D. argues that there is no presumption that she has failed reasonable efforts because she has substantially complied with the case plan.
The district court concluded that C.D. had failed to comply with two of the five requirements of the case plan: C.D. failed to complete individual therapy and C.D. was not cooperative with the CFASD. The court also noted that the dialectic behavior therapy (DBT) assessment, which was included in the individual therapy requirement, was suspended by the court with the expectation that C.D. would engage in “substantial individual therapy” to address her personality disorder.
The district court found that C.D. did not engage in substantial individual therapy. As noted in the findings, the CHIPS order had stated that C.D. “needs to engage in significant therapy.” C.D. was also privy to a psychologist’s report diagnosing her with a personality disorder and reports indicating that her own mental health had to improve before she would have the skills and insight needed to parent E.D. After C.D. attended five sessions with a clinical social worker, he wrote to the court and the county that C.D.’s primary focus during the sessions was to “vent,” which he did not think was a good use of therapy time. He also stated that “forced” intervention is generally not recommended. The court found that the letter did not support the conclusion that C.D. had met the requirement of individual therapy.
Related to C.D.’s lack of cooperation in therapy is the evidence of C.D.’s historical and continued lack of cooperation with support service providers up to the time of trial. See In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987) (noting that unwillingness to cooperate with plan also supports conclusion that present conditions will continue for prolonged, indeterminate period). The court specifically addressed C.D.’s offer of letters showing her cooperation with and contribution to the community. Nevertheless, the court found that the letters and testimony dealing specifically with C.D.’s parenting of E.D. were more relevant and compelling and C.D.’s demeanor and manner during trial reflected continued lack of cooperation.
C.D. also urges this court to consider James Peasley’s, an Associate Marriage and Family Therapist’s, testimony. She argues that Peasley respected her parenting style and CFASD did not. She contends that CFASD failed to consider “the possibility that [her] parenting methods are legitimate and effective as long as they do not result in abuse or neglect.” This argument disregards the fact that C.D. was found to have abused and neglected E.D. It also disregards the reports revealing that C.D. emotionally abused E.D. despite the effects it had on his mental and physical health. The record reflects C.D. directed her other children to ignore E.D. during family visits and often berated and blamed E.D. in his presence. Moreover, the court specifically found Peasley less credible than other witnesses available at trial.
The record contains substantial evidence that C.D. did not substantially comply with the case plan because she did not meaningfully comply with the requirement of individual therapy and she did not cooperate with support services.
3. Neglected and in Foster Care
Parental termination may be warranted when a child is neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(8). “Neglected and in foster care” means that the parent’s “circumstances, condition, or conduct are such that the child cannot be returned to them” and “despite the availability of needed rehabilitative services, [the parent has] failed to make reasonable efforts to adjust the circumstances, condition or conduct.” Minn. Stat. § 260C.007, subd. 24 (2002).
The court found that visitation was halted and then only supervised visitation resumed due to C.D.’s conduct during visitation and the effect that C.D. had on E.D. E.D.’s fear of his mother and visitation militated against returning him to her. Although there was some recent evidence that C.D. had decided that she would no longer blame E.D. and that E.D. had responded less negatively toward C.D., it appeared that E.D.’s increased comfort level was due to his understanding that he would be living with Sharp.
C.D. contends that the evidence does not support the finding that she failed to make reasonable efforts to become a better parent to E.D. The court found that C.D. took steps to comply with the case plan, but did not substantially comply due to her conduct at the therapy sessions and her uncooperative behavior with support services.
C.D. argues that “CFASD workers allowed their dislike for [C.D.’s] behaviors toward them to cloud their reasoning and judgment regarding [C.D.’s] ability to parent E.D.” The record contains many instances of service providers and therapists attempting to work with E.D. while C.D. would interfere and stifle their work with negative actions toward him, them, or others. While C.D.’s behavior might have affected their judgments, if the behavior negatively impacted E.D., it was relevant to E.D.’s care. Due to E.D.’s ongoing need to rely on support services, it was clear that C.D.’s cooperation with support services was critical to E.D.’s care and well-being.
The substantial evidence showed that C.D.’s own conduct prevented the functioning of a parent-child relationship.
4. Best Interests
Upon a finding that one of the conditions for termination is met, the court must then determine whether the best interests of the child support termination of the parent’s rights. Minn. Stat. §260C.301, subd. 7. Where the interests of the parent and child conflict, the interests of the child are paramount. Id. In findings covering three broad “interrelated” areas, attachment, special needs, and E.D.’s preference, the court concluded that it was not in E.D.’s best interests to be reunified with C.D.
On the attachment findings, C.D. argues that her lack of visitation and cocaine use when E.D. was an infant are irrelevant to her current ability to establish attachment. Dr. Hewitt opined, however, that early childhood contacts between parent and child are linked with later ability to attach and a parent’s own attachment history is linked to a child’s. Dr. Hewitt’s attachment evaluation indicated that the interview responses C.D. offered were most like those seen in mothers who have a “disengaged style of attachment with their children.” Dr. Hewitt observed that
[E.D.] and [C.D.] interact without fighting or arguing, but their interactions are marked by distance and avoidance from [E.D.]. This type of relationship pattern contains elements of rejection and emotional detachment between parent and child, and is not one that facilitates good emotional growth in a child. In addition [C.D.] does not appear to have an accurate perception of her son’s special needs. This misperception is a risk factor which could result in inappropriate expectations and frustrated child management. This foundation could, in turn, erupt into angry interactions.
C.D. argues that the court should not have relied so heavily on Dr. Hewitt’s opinion. She states that it was based on “a couple of interviews and an isolated observation of game playing.” Dr. Hewitt expressly states in the attachment report, however, that “it is impossible to ignore findings from the previous psychological status evaluation, the neuropsychological exam, and the impact of probable emotional and/ or physical abuse.” She also notes that she had previous involvement with E.D. and C.D. in completing a psychological evaluation on September 23, 2002 and a follow up evaluation for sexual abuse on November 4, 2002. Clearly, Dr. Hewitt had much more involvement with and access to information about E.D. than C.D. suggests.
We have previously addressed C.D.’s contention that James Peasley’s opinion on attachment was the better opinion. The court determined that Dr. Hewitt’s opinion was more detached, professional, and sound. Such a determination is within the district court’s discretion. See In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (stating that this court must defer to trial court’s weighing of testimony).
On the issue of special needs, C.D. argues that she acknowledged E.D.’s special needs and has learned a lot about E.D. and his needs through the course of this child protection matter. While C.D. showed signs of this recognition, the breadth of E.D.’s special needs suggests that her cognizance simply is insufficient. The pediatric psychoneurologist, Dr. Miller, prepared 28 paragraphs of recommendations to help E.D. make progress. In light of these extensive needs and C.D.’s lack of cooperation with the many sources needed to help E.D., the court did not err in its findings.
As for E.D.’s preference, C.D. argues that the court disregarded actual evidence from C.D. and E.D.’s siblings that E.D. consistently states that he wants to come home. C.D. cites to her own testimony that E.D. has said to her “numerous” times that he wants to come home. In contrast to C.D.’s testimony, the record is replete with evidence of E.D.’s positive reaction to his cousin Theresa Sharp, and his negative reaction to returning home to his mother. In addition to the many witnesses and reports to this effect, the court based its conclusion that E.D. does not want to return home on the testimony of child protection worker Diane Kassler, Dr. Mathieu, and Sharp. Although Kassler’s testimony at trial was that she had never had a direct conversation with E.D. about his desire to be with his family or his fondness for anyone in his family, she opined that based on her observations of C.D., C.D.’s home would put E.D. at risk for abuse and neglect. Dr. Mathieu, a psychologist, met with E.D. twelve times beginning at the end of April 2003. Dr. Mathieu indicated that E.D. spontaneously spoke about Sharp, in pretty much exclusively positive terms. E.D. told Dr. Mathieu he did not want to go home because his mom would hit him and although he would miss his siblings, he didn’t want to go home. Dr. Mathieu believed E.D. was consistent with his feelings about and genuinely anxious of returning home and that E.D. could consistently tell his siblings that he wanted to return home if he felt safe saying that. When Sharp met with E.D. during the proceedings, he told her that he wanted to live with her. There was ample additional evidence of E.D.’s preference, including the GAL’s testimony, negating C.D.’s testimony on his preference.
With ample evidence of a lack of attachment between parent and child, special needs that the parent has not been able to address, and E.D.’s clearly expressed preference, the court did not err in concluding that termination of C.D.’s rights was in E.D.’s best interests.
5. Inability to Parent in the Foreseeable Future
The evidence supporting termination and that termination is in E.D.’s best interests is substantial. Nevertheless, C.D. seems to argue that other options short of termination were available to the court. She suggests that this court remand for supervised visits with an aim to evaluate whether there is a salvageable relationship.
The court had the testimony of many witnesses that E.D. needed and had suffered from the lack of stability and permanency in his life. Based on the record, the court had substantial evidence to conclude that C.D. could not provide E.D. in the foreseeable future with a continuing, regular, and meaningful relationship under all of the circumstances.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.