This opinion will be unpublished and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 Welfare
of the Children of:
L.S. and J.A., Parents.
Filed November 9, 2004
St. Louis County District Court
File No. J2-03-150347
Alan L. Mitchell, St. Louis County Attorney, Joanne Vavrosky, Assistant County Attorney, 403 Government Services Center, 320 West Second Street, Duluth, Minnesota 55802 (for respondent county)
Todd E. Deal, 230 First Street South, Suite 106, P.O. Box 1253, Virginia, Minnesota 55792 (for appellant L.S.)
Susan Chiabotti, 300 Fifth Avenue South, Virginia, Minnesota 55792 (guardian ad litem)
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 trial court’s order terminating her parental rights to her two children and argues that there is insufficient evidence to conclude that (1) she is palpably unfit to be a party to the parent-and-child relationship, (2) she has neglected to comply with her duties in the parent-child relationship, (3) reasonable efforts failed to correct the conditions leading to the children’s placement, and (4) the children are neglected and in foster care. Appellant also argues that the trial court erred in determining that termination of her parental rights was in the children’s best interests. Finally, appellant argues that the trial court abused its discretion in denying her motion for a continuance. Because we find that the trial court’s findings are supported by substantial evidence and are not clearly erroneous, the trial court did not err in determining that termination of appellant’s rights is in the children’s best interests, and the trial court did not abuse its discretion in denying appellant’s motion, we affirm.
Appellant Luthera Smith is mother to eight children, the youngest two being the subject of this appeal: D.S. born March 22, 1995, and M.S. born January 1, 2000. On August 7, 2003, St. Louis County filed a petition seeking to terminate appellant’s parental rights to D.S. and M.S, alleging four statutory bases.
On January 28, 2004, the first morning of the trial, appellant’s counsel moved for a continuance based on the fact that he had not had a chance to discuss with appellant a list of potential witnesses that appellant sent to him. On January 15, 2004, appellant’s attorney requested in writing that appellant meet with him to discuss the list, but appellant did not contact her attorney until January 27, 2004, the day before the trial began. The trial court denied appellant’s motion for a continuance, indicating that there were two weeks before the trial during which she could have talked with her attorney after receiving his letter.
The trial proceeded as scheduled, and the trial court took judicial notice of the prior child protection cases involving appellant as well as two criminal files from 1999 and 2002 in which appellant admitted to child endangerment. The prior child protection cases established that appellant’s six older children were placed in foster care, primarily because of the unsanitary condition of the home. Additionally, the county had previously filed two child protection petitions on behalf of D.S., one of which also included M.S., based on the unsanitary condition of appellant’s home. Both petitions were eventually dismissed because appellant was able to adequately clean her home.
Several witnesses testified that appellant’s home is unsanitary. The witnesses testified that appellant’s home has a tremendous amount of clutter and smells of dog feces. Susan Chiabotti, the guardian ad litem, testified that she visited appellant’s home in September 2003 and that it was “cluttered.” Mary Sellars, a youth worker with Lutheran Social Services, testified that appellant’s home was filthy during her last visit in the spring of 2003, and that she noticed no change in the condition of the home from August of 2002 to the spring of 2003. During the visit, Sellars noticed dog feces on the floor, food on the counters, and that the litter box smelled. Mary Prebich, a county child protection social worker, testified that the supervised visits at appellant’s home stopped after March 2003 because the service provider, Lutheran Social Services, was no longer willing to allow its employees to visit the home due to its deplorable condition. Specifically, Prebich testified that during one recent visit, a supervisor reported that there was a dog dying in the living room that was oozing fluids from a variety of areas of its body, and that after the dog was moved the kids played where it had laid.
Even appellant’s friend, Kathy Hanson, acknowledged that appellant’s house is not sanitary. When asked if she had an opinion as to whether appellant’s parental rights should be terminated Hanson replied, “I am sitting on the fence on this one. I would like to see the kids grow up healthy and happy. And I think they could [be happy] living with their mother. On the other end of the spectrum is she would have to keep the house up because I don’t approve of that part.” Hanson also acknowledged that appellant’s home was “a disaster” at least during some period in the last year and a half.
In addition, several witnesses testified that D.S. has sexually acted out and that appellant has not appropriately acknowledged and addressed the problem. Jean Olson, a crime victim advocate with Northern St. Louis County Sexual Assault Program, testified that D.S. told her he had sexually touched three younger children and that other children had touched his private parts. Olson testified that appellant told her she did not believe D.S. had ever sexually touched other children.
Several witnesses also testified that appellant has not cooperated with social services. Catherine Cady, a county social worker, testified that in July and August of 2003 she was assigned to work with appellant to improve appellant’s parenting skills. Cady testified that appellant considered her children and home adequately clean, and thought she had no parenting issues to address. Without identifying any goals to improve, Cady testified that social services could not implement a program to help appellant. Similarly, Prebich testified that she made an out-of-home placement plan for D.S. and M.S. without appellant’s cooperation. The plan included various psychological evaluations and treatment for both D.S. and M.S. and required appellant to consistently maintain a sanitary home for six months. Prebich testified that appellant only completed some of the plan’s goals, and those goals were completed only after appellant was compelled to do so by court order. Prebich further testified that appellant gave her access to the home; but that the last time she visited the home in August of 2003, she was accompanied by a police officer because she felt uncomfortable. Prebich testified that appellant was very angry and that she was not able to go further than the living room.
Dr. Raymond Sampson diagnosed appellant with adjustment disorder of disturbance of emotional conduct and explained that the results show she is significantly weak in practical judgment in everyday social situations due to mild mental retardation.
Several witnesses testified that they felt it was in the children’s best interests to terminate appellant’s parental rights. Olson testified that D.S. was sad and quiet when she first began meeting with him, but seemed happy after being in foster care. Barbara Thorne, a psychologist at Range Mental Health Center, testified that D.S. said the inappropriate sexual touching stopped because he was moved out of appellant’s home. Prebich testified that D.S. and M.S. were dirty when they lived with appellant but are now clean.
Appellant testified that she did not think there was any problem with the condition of her home and that she has removed much of the clutter since August of 2003.
On February 25, 2003, the trial court ordered that appellant’s parental rights be terminated pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), (8) (2002). The trial court also found that termination of appellant’s parental rights is in the best interests of the children. This appeal follows.
Appellant argues that she was prejudiced by the trial court’s denial of her request for a continuance because she was not able to discuss potential witnesses with her attorney before trial, and thus was not able to call witnesses who would have refuted the county’s allegation that her parental rights should be terminated. Therefore, appellant argues that the trial court abused its discretion in denying her motion for a continuance. We disagree.
The decision to grant or deny a motion for continuance is “within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.” Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). In determining whether an abuse of discretion occurred, this court must examine all of the circumstances before the trial court, at the time the motion was made, in order to determine whether the trial court’s decision prejudiced the appellant by materially affecting the outcome of the trial. In re Welfare of V.R., 355 N.W.2d 426, 429 (Minn. App. 1984), review denied (Minn. Jan. 11, 1985).
Here, appellant failed to contact her attorney during the two weeks preceding trial in order to discuss potential witnesses, despite receiving a letter from her attorney directing her to do so. Appellant has not proffered any evidence showing that her potential witnesses would have refuted the state’s allegation that her parental rights should be terminated. In addition, the trial court received into evidence a letter from one of appellant’s proposed witnesses concerning the current conditions of appellant’s home. Furthermore, the court had already delayed the trial past the 90-day requirement and it was in the children’s best interest to begin the trial. See Minn. R. Juv. Protect. P. 40.03, subd. 3(c) (2002) (requiring that a termination of parental rights matter shall be commenced and completed within 90 days of the filing of a termination petition). The trial court did not abuse its discretion in denying appellant’s motion for a continuance.
Termination of Parental Rights
Appellant argues that there is insufficient evidence to conclude that (1) she is palpably unfit to be a party to the parent-and-child relationship, (2) she has neglected to comply with her duties in the parent-child relationship, (3) reasonable efforts failed to correct the conditions leading to the children’s placement, and (4) the children are neglected and in foster care.
“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 interests.” In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004). When reviewing a district court’s findings in a termination proceeding, “appellate courts are 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). Although this court defers to the trial court’s findings, it exercises great caution in proceedings to terminate parental rights. In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997).
Appellant argues that she was able to assume her parental responsibilities at the time of the termination hearing, and alternatively, that she would have been able to assume parental responsibilities within the foreseeable future. Appellant argues that no evidence at the time of trial showed that her home was unsanitary because none of the county’s witnesses had been inside of her home since September 2003, four months before the trial. Further, appellant argues that the dismissal of the two child protection petitions based on unsanitary conditions show that she has a history of satisfactorily cleaning her home and meeting the county’s expectations. Additionally, appellant argues that the county failed to provide her with homemaker services, and that the trial court improperly based its finding that she was palpably unfit to be a parent on her mistrust of social services and on an evaluation stating that she is mentally retarded.
The district court may terminate parental rights if it finds
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) (2002).
Here,the trial court correctly found that the unsanitary condition of the home is a health and safety concern to the children and has been an ongoing problem. The trial court acknowledged that appellant has made minimal efforts in times of crisis, such as pending court proceedings, to clean her home and address the children’s other needs, but it concluded that appellant has repeatedly failed to maintain even a minimally adequate home environment over any length of time and is palpably unfit to be a party to the parent-and-child relationship based on a consistent pattern of improperly caring for the children. The record supports this conclusion. Likewise, the record supports the trial court’s findings that appellant’s conflict with social services would continue to endanger the children, and that appellant lacks the ability to provide the necessary nurturing for her children and to learn any of the skills required to provide minimally adequate parenting for her children.
Thus, we reject appellant’s argument that she was able to assume parental responsibilities at the time of trial, or alternatively, that she would be able to in the near future. Cady and Prebich’s testimony demonstrates that appellant has consistently failed to appreciate and address the problems with her parenting skills. Among other things, despite clear evidence in the record that D.S. has repeatedly engaged in inappropriate sexual contact with other children, appellant has continually refused to acknowledge D.S.’s need for therapeutic intervention. In addition, appellant’s inability to maintain a clean home over the past ten years is a chronic problem. For example, the record shows that in May 1999, D.S. was removed from appellant’s home due to the unsanitary conditions of the home. A child protection petition was subsequently filed. With assistance of community members, appellant cleaned the home, D.S. was returned, and in August 1999, the petition was dismissed. But only six months later, the record shows that the county filed another child protection petition concerning D.S. and M.S., again based on the unsanitary conditions of the home. This petition was eventually dismissed as well. Contrary to appellant’s contention, the trial court properly considered appellant’s past patterns of behavior in determining that the unsanitary home condition would continue to create an unsafe environment for the children. See In re Welfare of S.Z., 547 N.W.2d 886, 893-94 (Minn. 1996) (when considering termination of parental rights, the court relies “not primarily on past history, but ‘to a great extent upon the projected permanency of the parent’s inability to care for his or her child’”) (quoting In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995)). Though appellant correctly points out that the county had not been inside of her home for about four months before trial, the evidence compels the conclusion that appellant’s house would become unsanitary again in the future, if it was not already unsanitary at the time of trial.
Appellant’s argument that the county failed to provide her homemaker services also fails. Appellant and Hanson acknowledged at trial that appellant received homemaker services in 2001; the record reflects that appellant also received homemaker services in 1991, when her first six children were under the county’s care. Homemaker services were discontinued in 2001, because appellant was uncooperative. Prebich testified that she inquired about homemaker services for appellant in 2003, but none were available. Furthermore, even if services were available, Prebich testified that the homemakers did not want to go to appellant’s home because the home was so unsanitary, and because appellant treated the homemakers like maids and did not try to learn for herself how to clean her home. Finally, Hanson, community members, and social service workers had all tried at various times to help appellant clean her home or develop a plan to learn how to clean it.
We also conclude that the trial court appropriately considered appellant’s psychological evaluation. Although appellant’s mild retardation is only one factor, the record strongly suggests that it adversely affects her ability to provide the necessary nurturing for her children and learn the needed skills to minimally parent. See In re Welfare of J.J.B., 390 N.W.2d 274, 281 (Minn. 1986) (holding that a mental disability may preclude a parent from providing proper parental care). Finally, the record supports the trial court’s finding that appellant’s distrust of social services continues to endanger her children because appellant will not comply with case plans or follow their recommendations.
We conclude that the trial court properly determined that appellant is palpably unfit to be a party to the parent-and-child relationship.
Parent-child Relationship, Reasonable Efforts, Neglected and in Foster Care
Appellant argues that where a parent makes the necessary changes and adjustments that address the court’s concerns that led to the children’s out-of-home placement, Minn. Stat. § 260C.301 subd. 1(b) (2002) is not satisfied. Appellant argues that she sufficiently corrected the conditions that formed the basis for the termination of parental rights petition and that led to the out-of-home placement of her children at the time of the termination hearing. Therefore, according to appellant, the record does not support the trial court’s findings that she violated any of the statutory grounds for termination.
A district court may terminate parental rights if,
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). Parental rights can also be terminated when “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” and “the child is neglected and in foster care.” Minn. Stat. § 260C.301, subd. 1(b)(5), (8).
The trial court found that appellant has not followed through with tasks and has “demonstrated an unwillingness or inability to comply with even minimal duties and responsibilities necessary to protect or provide for her children despite directives from professionals and the [c]ourt.” Further, the trial court found that the prior conditions of unfitness continue to exist and that appellant has displayed a “defiance towards [c]ourt directives designed to promote reunification.”
Appellant argues that she substantially complied with the out-of-home placement plan (OHPP) for her children because M.S. received a Child Link assessment, enrolled in Headstart, and received a physical examination to ensure she had not been sexually abused. Appellant further argues that D.S. underwent an evaluation for his sexual acting out and continued to receive counseling from Dr. Sampson, received services from the Sexual Assault Program, and completed a psychological evaluation at the Range Mental Health Center. Finally, in compliance with the OHPP, appellant argues that she gave county workers access to her home and maintained a safe and sanitary home at the time of the termination hearing.
The record contradicts appellant’s claims. Many goals in the OHPP plans were met, but they were satisfied by court order, despite appellant’s opposition. Testimony at trial shows that appellant did not sign all of the necessary releases for herself and her children; that D.S.only completed the psychological evaluation as a result of court order; that D.S. did not undergo a specific evaluation by Dr. Sampson; and that appellant was opposed to enrolling M.S. in Headstart. In addition, though Prebich testified that appellant gave her access to the home, the evidence shows that appellant’s home is chronically unsanitary.
Finally, appellant argues that she has an interest in raising her children and that D.S. and M.S. have an interest in forming a close bond with their biological mother and avoiding the potential stigma of being adopted by their foster parents. Appellant argues that the county has not produced any new evidence that was not already presented in the 1999 and 2000 child protection cases, which were dismissed. Additionally, appellant argues that the trial court’s findings of fact did not adequately address the benefits of the termination of parental rights as to each child.
“The paramount consideration in all proceedings for the termination of parental rights is the best interests of the child.” Minn. Stat. § 260C.001, subd. 3 (2002). In analyzing 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 M.P., 542 N.W.2d 71, 75–76 (Minn. App. 1996). When determining which of the factors predominates, both the interests of the parent and child are considered along with the circumstances of each case. In re Welfare of H.G.B, 306 N.W.2d 821, 826 (Minn. 1981). The interests of the parent and child are not necessarily given equal weight. Id.
The trial court found that “while reunification may be what [appellant] is interested in accomplishing, [it] is clearly NOT in the children’s best interest.” The trial court acknowledged that appellant loves her children, but found that appellant’s conflict with social services has endangered the children’s physical and emotional well-being to such a serious, grave and weighty degree that reunification would likely harm the children. The trial court found that terminating appellant’s parental rights benefits both D.S. and M.S. because appellant has not maintained a sanitary home, addressed D.S.’s sexual acting out, nor cooperated with social services to address parenting problems. Furthermore, several social services employees testified that it was in the children’s best interest to terminate appellant’s parental rights.
We conclude that the trial court correctly determined that the children’s best interests would be served by having a permanent, stable home. During the past ten years appellant has not been able to maintain a sanitary home for any substantial period of time. That chronic problem, coupled with the failure to acknowledge D.S.’s sexual acting out, make it dangerous and unsafe for the children to live with appellant. Furthermore, it is highly unlikely that appellant will be able to make the necessary changes to adequately parent her children because she has demonstrated that she cannot make changes on her own and is not willing or unable to cooperate with social services. Therefore, the trial court did not clearly err in determining that the children’s best interests are served by terminating appellant’s parental rights.