This opinion will be unpublished and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
Children of: V.M.A. and L.E.A., II,
Filed September 14, 2004
Washington County District Court
File No. J-82-19403Y
Sherri D. Hawley, Walling, Berg & Debele, P.A., Suite 1100, 121 South Eighth Street, Minneapolis, Minnesota 55402 (for appellant-father L.E.A., II)
Gregory J. Schmidt, Suite 510, 1600 University Avenue, St. Paul, Minnesota 55104 (for respondent-mother V.M.A.)
Doug Johnson, Washington County Attorney, Janet A. Reiter, Assistant County Attorney, Washington County Government Center, 14949 – 62nd Street North, Box 6, Stillwater, Minnesota 55082 (for respondent Washington County)
Kathleen Vanderwall, Washington County Government Center, 14949 – 62nd Street North, Box 3802, Stillwater, Minnesota 55082 (guardian ad litem)
Jean Evans, 15335 Ravenna Trail, Hastings, Minnesota 55033 (intervenor)
Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s order terminating his parental rights to his two children and argues that the social services agency failed to make reasonable efforts to reunite appellant with his children. Appellant also argues that there is insufficient evidence to conclude that (1) he has failed to comply with his parental duties, (2) he is palpably unfit to be a party to the parent-and-child relationship, and (3) reasonable efforts have failed to correct the conditions that led to the children’s placement out of the home. Because we find that the trial court’s findings are supported by substantial evidence and are not clearly erroneous, we affirm.
On May 16, 2003, appellant met with Sarah Amundson, a social worker with the county, to discuss the county’s out-of-home placement plan (placement plan). The plan delineated four goals, which appellant would need to meet in order to obtain custody of his children. The first goal indicated that appellant must meet the emotional and physical needs of his children, which required appellant to secure adequate housing, participate in supervised visitation, and complete a parenting assessment and follow any recommendations. The second goal provided that appellant would identify and meet his mental-health needs, which required appellant to complete a psychological evaluation and follow any recommendations. The third goal required that appellant remain law abiding; and the fourth goal required that appellant abstain from use of all mood-altering chemicals. Appellant signed the placement plan.
On June 11, 2003, Amundson met with appellant, and she noted that appellant was late for the meeting and was hostile toward her. Amundson testified that appellant had a difficult time recognizing that his daughter needed care. Amundson reminded appellant to complete his psychological evaluation, and appellant argued that he had not been told he had to complete psychological testing, though he had signed the placement plan, which required appellant to complete a psychological evaluation.
On June 13, 2003, Dr. Scott Fischer conducted a psychological evaluation of appellant. Dr. Fischer noted that the number of documented police contacts involving appellant reveals limited problem-solving ability and a lack of stability. Dr. Fischer also noted a number of areas where appellant showed deficits in parenting skills. Dr. Fischer noted that appellant “has considerable difficulty meeting the demands of adult life, including work, relationships and caring for his children.” Dr. Fischer also noted that appellant would benefit from taking part in a parenting-education program and cultivating a relationship with a male mentor.
Based on this final recommendation, appellant contacted his uncle, Gene Allen, to serve as his mentor. At trial, Allen testified that Amundson instructed him to talk with appellant by phone once a week and meet in person once a month. Allen also testified that appellant contacted him once or twice in August and September, twice in October, and two or three times in November. The contacts did not focus on parenting skills, and Allen testified that he never met face-to-face with appellant.
On June 16, 2003, the trial court held a CHIPS hearing. The children’s mother failed to appear at the hearing and a default judgment was entered against her. Appellant entered an admission to the petition and the trial court accepted the county’s recommendations and adopted the placement plan. The trial court ordered appellant to participate in supervised visitation, participate in a parenting assessment, and follow all recommendations of the order. The placement plan required appellant to take part in parenting education, attend all of the children’s scheduled doctor appointments, and complete a psychological assessment and comply with its recommendations. The placement plan provided for supervised visitation with the children; appellant attended approximately 75% of all scheduled visits with his children.
Deena McMahon performed the parenting assessment, which included observing appellant interact with the children during a supervised visit. McMahon was scheduled to observe appellant at a subsequent visit, but appellant failed to appear for that visit. McMahon attempted to contact appellant, but appellant did not return McMahon’s calls. Appellant testified that he called his social worker to get McMahon’s phone number so he could reschedule the appointment, but his social worker did not provide him with McMahon’s number.
On August 8, 2003, appellant met with Amundson and Barbara Chase, a county social worker. Chase, who was to provide appellant with parenting education, gave appellant a list of resources. Chase also provided appellant with her business card and scheduled a subsequent meeting to take place on August 14, 2003. On August 14, Chase moved the meeting up an hour by leaving a voicemail for appellant on the morning of the meeting. Chase then waited for twenty minutes outside of appellant’s home, but appellant did not show up for the appointment. After the missed appointment, Chase attempted to contact appellant. Appellant returned her call one month later, however Chase could not reach appellant to return his call. Chase sent a letter to appellant at his home scheduling another meeting for September 17, 2003. Appellant did not appear for that meeting or call to cancel. Appellant contends that he tried to locate other parenting classes, but funding issues caused many of the classes to be discontinued and the remaining classes conflicted with the jail time he knew he had to serve in the fall in connection with his recent conviction of possession of stolen property.
On September 26, 2003, the county filed a termination-of-parental-rights petition (petition). The petition alleged five statutory bases for termination of the rights of both parents, three of which were specific to appellant. Trial was held on December 29 through 31, 2003, and continued on January 2 and 6, 2004. The children’s mother failed to appear for trial and her parental rights were terminated.
Amundson testified that appellant had not satisfied the court’s order, nor did he comply with the requirements of the county’s placement plan. Amundson noted that appellant does not have suitable housing; he failed to comply with the recommendations from the psychological evaluation; he did not obtain parenting education and failed to work with Chase; he failed to address parenting issues with his mentor; he missed a scheduled doctor’s appointment; and he did not fully complete the parenting assessment.
McMahon testified that the children appear healthy and well cared for in their placement with appellant’s aunt and uncle. McMahon noted that the children have a healthy attachment to their provider, appellant’s aunt, and they are developmentally on track. McMahon testified that appellant appeared to lack the basic knowledge to care for the children and was unable to care for both children simultaneously. McMahon described appellant as having an “apathetic indifference” towards his circumstances, and noted appellant was a “very reluctant, involuntary client.” McMahon noted that rehabilitating appellant would take considerable time. Moreover, the amount of time necessary to teach appellant parenting skills was overshadowed by children’s potential to thrive in foster care. McMahon concluded that termination of parental rights was appropriate.
Kathleen Vanderwall, the guardian ad litem, testified that termination of parental rights is in the best interests of the children. Vanderwall testified that while no identifiable physical harm could be predicted, the confusion of transferring physical and legal custody is not in the best interests of the children because it does not provide them with long-term emotional stability.
Evans, appellant’s aunt, testified, “I do not feel that a transfer of custody would be in the best interest of the children.” Evans noted that if a transfer of custody “were to happen I feel that there would be more conflict between family than there is now or has been.” Evans also noted that termination of appellant’s parental rights “would give these children a chance to have a family and get on with their lives, [and] have a sense of belonging.” Evans also testified, “I would love to adopt the children.”
On February 4, 2004, the trial court filed its order terminating appellant’s parental rights pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2), (4), and (5) (2002). The trial court also found that termination of parental rights of both parents is in the best interest of the children. This appeal follows.
An appellate court reviews a termination of parental rights to determine whether the trial 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). We inquire 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). 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).
Reasonable efforts to reunify the children with appellant
Appellant argues that the county did not make reasonable efforts to reunite him with his children. Every CHIPS intervention requires a case plan that reflects the reasonable efforts of the agency to facilitate reunification of the child with the family, and termination is appropriate when those reasonable efforts fail. In re Child of: E.V., 634 N.W.2d 443, 446 (Minn. App. 2001). “Reasonable efforts” is defined by the statute 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 . . . reunite the family.” Minn. Stat. § 260.012(b) (2002). “‘[R]easonable efforts,’ by definition, does not include efforts that would be futile.” In re Welfare of the Children of R.W., 678 N.W.2d 49, 56 (Minn. 2004). The social services agency has the burden of demonstrating that it has made reasonable efforts or that the provision of services would be futile. Id. 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., 408 N.W.2d 227, 235‑36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). The services “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).
Here, the trial court acknowledged that there is a legitimate issue as to whether the county’s efforts to correct appellant’s shortcomings as a parent were adequate and timely. The trial court also noted, however, that appellant did not participate in parenting-education meetings; appellant did not make it easy for the agency to find him to reschedule appointments; it was appellant’s ultimate responsibility to make up meetings where he failed to attend the appointment; and appellant told several people that he had no intention of changing his present living arrangements with his parents. The trial court concluded that the county’s
efforts to provide [appellant] with services were rather tepid and half-hearted, especially after mid-August. Nevertheless, [appellant’s] receptiveness to such services was at least as ambivalent as the County’s efforts at providing them. . . . Absent sincere motivation and cooperation on [appellant’s] behalf toward the goal of reunification with his children, the County has come close enough to doing what was required of it.
The record supports the trial court’s findings that appellant has substantially and continuously refused to comply with the duties imposed upon him as a parent. Prior to the county’s involvement, appellant’s aunt provided for the children. In addition, appellant had not been consistently involved in his children’s lives, only sporadically visiting the children. There is also clear and convincing evidence that appellant has been apathetic toward his out-of-home placement plan, as he has failed to follow through with appointments, he has not sought to reschedule missed meetings, he has not returned phone calls, he has been uncooperative with many of the service providers, he did not attend all of his scheduled visits with his children, and he missed one child’s doctor appointments. We conclude that the trial court did not err in finding that appellant “completely failed the requirement to improve his parenting skills to a level where he could realistically be considered a viable candidate for the full-time care of [his] infant and toddler.” Significantly, the trial court also properly determined that appellant, “by his own conduct, is not presently willing to assume responsibility for the duties of raising his children.” Appellant brought a motion to dismiss the county’s termination petition, but he also brought a counter-petition requesting that physical and legal custody of the children be transferred to the Evanses. Plainly, appellant is not currently willing to assume responsibility for the duties of raising his children.
Regarding the county’s reunification efforts, we note that the county provided a parenting assessment, psychological assessment, parenting education, offers for transportation, and referrals for housing. We recognize that the county’s efforts to reunite appellant with his children had some shortcomings. For example, appellant missed a meeting with Chase; but on the morning of the meeting Chase left appellant a voicemail and rescheduled the meeting by moving it up an hour. It is possible that appellant did not receive this message until after the rescheduled meeting time. Chase attempted to arrange for another meeting by sending appellant a letter, which she mailed five days prior to the proposed meeting date; she received no confirmation that appellant could attend on the date and time she had chosen. But by the same token, appellant did not contact Chase to set up another meeting.
Furthermore, the trial court implicitly determined that additional efforts by the county would have been futile when it noted appellant’s “receptiveness to [the county’s] services was at least as ambivalent as the County’s efforts at providing them.” The trial court found that appellant was unwilling or unable to provide for his children’s care and that it was in the children’s best interest to remain with their aunt and uncle. The trial court’s findings are supported by substantial evidence and are not clearly erroneous. Therefore, we conclude that the trial court did not clearly err in finding that the county provided reasonable efforts to reunify the children with appellant and any additional efforts by the county would have been futile.
Termination of appellant’s parental rights
Appellant argues that there is insufficient evidence to conclude that (1) he has failed to comply with his parental duties, (2) he is palpably unfit to be a party to the parent-and-child relationship, and (3) reasonable efforts have failed to correct the conditions that led to placement.
“Termination of parental rights will be affirmed as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interest.” Children of R.W., 678 N.W.2d at 55. This court’s review is “limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.” In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).
Appellant contends that the county provided him with no real services with regard to parenting, and he was denied the opportunity to spend any significant time with his children. Minn. Stat. § 260C.301 allows termination of parental rights upon a conclusion
that the 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 the parent 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) (2002). Because appellant brought a counter-petition requesting that physical and legal custody of the children be transferred to the Evanses, the trial court noted that appellant, “by his own conduct, is not presently willing to assume responsibility for the duties of raising his children.” The trial court also found that appellant “refused to comply with his parental duties of providing necessary food, clothing, shelter, education and other care necessary for his children’s physical, mental, and emotional health and development.”
We note that appellant was not financially providing for L.E.A.’s needs prior to the county’s involvement in this case when he was in the care of appellant’s aunt and uncle, even though he is physically healthy, had been employed in construction in 2002, and had previously located housing and resided independently. It also appears that appellant suffered from no major mental illness or cognitive problems that would prevent him from providing for his children.
On this record, the trial court did not err in concluding that (1) appellant “has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship”; and, as noted in the above discussion, (2) the county provided reasonable efforts to correct the conditions that formed the basis of the petition, and that further reasonable efforts would be futile.
Appellant argues that because the Evanses plan on adopting the children, the children’s living situation would not change if the trial court continued this child-protection matter to allow appellant more time to develop appropriate parenting skills. The trial court noted that this is a “close question, especially given the six-month period of time allowed under the statute between out-of-home placement of children under eight years of age, and determination of permanency.” The trial court found that appellant has not provided “much cause for optimism that he could develop the necessary skills to parent his children in [six months], or even in another year from now.” The trial court noted that
[t]o wait another six, twelve, or eighteen months in the hope that [appellant] would be ready, willing, and able to parent would subject these very young children to the substantial injustice of delayed enjoyment of a permanent family. That price is too great in light of the fact that [appellant] shows insufficient motivation to parent his children.
Minn. Stat. § 260C.301 allows termination of parental rights upon a conclusion
that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.
Minn. Stat. § 260C.301, subd. 1(b)(4).
Here the trial court correctly found that many facts suggest appellant is palpably unfit to be a party to the parent-and-child relationship. Appellant is unwilling to take on the responsibility of providing for the day-to-day care of his children in the reasonably foreseeable future, as evidenced by appellant’s counter-petition requesting that physical and legal custody of the children be transferred to the Evanses. Appellant also did not adhere to the out-of-home placement plan, as he failed to complete some of the plan’s goals, he failed to return phone calls, he missed some meetings, and he failed to reschedule missed meetings. Appellant also only attended 75% of the scheduled visits with his children.
On this record, we conclude that the trial court properly determined that appellant is palpably unfit to be a party to the parent-and-child relationship.
Again, appellant argues that he substantially complied with the placement plan and contends that the county did not make reasonable effort to correct the conditions that led to placement. Minn. Stat. § 260C.301, subd. 1(b)(5) (2002), allows termination of parental rights based upon a conclusion “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.”
The reasonableness of the county’s efforts to reunify the children with appellant is addressed at length earlier in this opinion. Based on our reasoning therein, we conclude that the trial court did not clearly err in determining that the county’s efforts were reasonable under the circumstances; and any further efforts by the county would have been futile.
Best interests of the children
Finally, appellant argues that continuing this case and allowing him to take advantage of services the county should have offered would not adversely affect the children because they would continue to live in the stable environment provided by the Evanses. Appellant contends, again, that the county rushed toward terminating his parental rights without providing reasonable efforts at reunification. But the trial court addressed each of the statutory best-interest factors and cited facts supporting the termination of parental rights with regard to each consideration. Significantly, the trial court found that transfer of custody with occasional parental contact with appellant “would be solely in [appellant’s] best interests,” and noted that the record does not indicate that the children receive any benefits from appellant’s visits. The trial court concluded that the children “would pay the price of not having a permanent and stable family with whom they can plan their future.” Therefore, “termination is in the children’s best interests.”
In any permanency proceeding, the best interests of the children are paramount. In re the Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986). We conclude that the trial court correctly determined that the children’s best interests would be served by having a permanent, stable home. As discussed throughout this opinion, appellant is currently unwilling to take on the responsibility of providing for the day-to-day care of his children in the reasonably foreseeable future. In addition, the trial court thoroughly considered and rejected the idea of continuing these proceedings. Furthermore, appellant’s aunt testified that she is willing to adopt the children, and testified, “I do not feel that a transfer of custody would be in the best interest of the children.” Appellant’s aunt also noted that a termination of parental rights “would give these children a chance to have a family and get on with their lives, [and] have a sense of belonging.”
The trial court did not clearly err in determining that the children’s best interests are served by terminating appellant’s parental rights.