This opinion will be unpublished and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 re the Matter of the Welfare
of the Children of L.L.A., Jr.
Filed December 14, 2004
Ramsey County District Court
File Nos. J3-02-554265 and J2-03-552436
Robert J. Lawton, 1100 West Seventh Street, St. Paul, MN 55102 (for appellant L.L.A., Jr.)
Susan Gaertner, Ramsey County Attorney, Margaret L. Gustafson, Special Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102 (for respondent Ramsey County Community Human Services Department)
Paul Bergstrom, 25 West Seventh Street, St. Paul, MN 55102 (for guardian ad litem)
Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellant L.L.A., Jr. challenges the district court’s decision to terminate his parental rights to L.L.A. and L.L.A., III. Because the district court’s findings are adequately supported by evidence in the record and properly address the statutory factors, we affirm.
Mother J.J.P. and father-appellant L.L.A., Jr. are the parents of two children, L.L.A., aged seven years, and L.L.A., III, aged three years. On May 13, 2002, appellant violently assaulted J.J.P. in the presence of L.L.A. The assault began when appellant accused J.J.P. of having an affair. Appellant first verbally assaulted J.J.P. in the master bedroom then physically attacked her in the bathroom. Appellant repeatedly struck J.J.P. with his closed fists and choked her. Appellant also duct-taped J.J.P.’s legs. According to the police report, appellant was under the influence of methamphetamine at the time of the attack.
The children were at home during the assault, and their bedroom was located about 20 feet from the site of the attack in the bathroom. Appellant testified that at one point during the assault he made L.L.A. pick up a toy that was near J.J.P.’s dripping blood and return to L.L.A.’s room. A nurse at Midwest Children’s Resource Center interviewed L.L.A. three days after the assault and concluded that L.L.A. had witnessed the May 13 attack, as well as other episodes of domestic violence.
As a result of the assault, J.J.P. suffered a fractured eye socket and had bruises covering her body. Appellant was convicted of third-degree assault and sentenced to 43 months in prison.
The May 2002 assault was not the first instance of domestic violence by appellant. In 1993, appellant was convicted of domestic assault on a former girlfriend. In November 2001, when L.L.A. and L.L.A., III were present in the apartment, appellant slapped and punched J.J.P. several times during a late-night argument. J.J.P. attempted to escape, but appellant dragged her up the apartment stairs by her hair and choked her until she urinated. Appellant then loudly and repeatedly asked L.L.A. if J.J.P. had a visitor to the apartment that night. Finally, two days before the final assault, appellant hit J.J.P. twice with an electrical extension cord when the children were home.
L.L.A. and L.L.A., III were taken from the home in September 2002 and placed with a foster mother, Lori Zastrow. L.L.A. and L.L.A., III were adjudicated as children in need of protection or services in November 2002. J.J.P. did not comply with her court-ordered case plan and had her parental rights terminated in July 2003. A case plan was presented to appellant in prison in August 2003, but a county social worker testified that appellant failed to substantially comply with the plan’s requirements. After a four-day trial, the district court terminated appellant’s parental rights in an order filed on April 1, 2004. Appellant challenges the ruling as against the weight of the evidence and an abuse of discretion.
On appeal 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). On review, “[c]onsiderable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). Finally, a reviewing court “exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).
Parental rights may be terminated pursuant to conditions set forth in Minn. Stat. § 260C.301 (2002). If the district court “finds by clear and convincing evidence that one or more of the conditions set out in section 260C.301 exist, it may terminate parental rights” (emphasis added). Minn. Stat. § 260C.317, subd. 1 (2002). This court closely inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); S.Z., 547 N.W.2d at 893. Appellant challenges the district court’s termination of his parental rights on five statutory grounds.
1. Appellant Substantially Refused to Comply with Parental Duties
The district court found that appellant “substantially, continuously and repeatedly refused and neglected to comply with the duties imposed upon him as father” to L.L.A. and L.L.A., III, pursuant to Minn. Stat. § 260C.301, subd. 1(b)(2). This statutory subdivision requires the county social services agency to expend “reasonable efforts” to correct the damaging parental conditions, unless the efforts would be futile. Id.
First, the district court found that appellant repeatedly refused to comply with the duties required of him as a father. The district court outlined appellant’s extensive criminal history, which besides the assault convictions, includes convictions for giving false information to police, possession of cocaine, and possession of ecstasy. Appellant also has a history of chemical abuse and gang affiliations. The district court found that appellant had sporadic employment since his children were born and sold drugs to support his family. Since L.L.A. was born, the family moved approximately ten times.
In its conclusions of law, the district court found that the county made reasonable efforts to rehabilitate the family, and that additional services would “not bring about lasting parental adjustment enabling a return of the children” to appellant’s home. A county social worker, Mary Earl, admitted at trial that appellant could not take advantage of many of the county’s services, such as psychological and chemical risk assessments, because of his incarceration. The county did provide two supervised visits in prison, continued out-of-home placement of the children with Zastrow, and counseling for L.L.A. The district court listed additional services provided, such as appellant’s post-assault mental evaluation at Regions Hospital, Ramsey County nursing services, and family preservation funds. In prison, appellant completed a parenting education course, participated in various religious fellowship classes, and completed partial work on a high school GED.
The district court thus concluded that the county’s services were adequate and additional services would not bring about a “lasting parental adjustment.” The district court found that John Ekholm, the county’s child protection worker, Dr. Tom Breitenbucher, L.L.A.’s clinical psychologist, and Earl gave credible testimony in this regard. Ekholm testified that the county was concerned that L.L.A. was suffering from post-traumatic stress disorder from witnessing the May 2002 assault. Breitenbucher testified that (1) L.L.A. is not as socially adept as other peer children; (2) L.L.A. is unsure of what rules apply in the home, whether they be Zastrow’s rules or appellant’s rules; and (3) L.L.A. is still impressionable. Earl testified that (1) Zastrow immediately enrolled L.L.A. in a school and addressed L.L.A., III’s need for surgery; (2) appellant has intermittent explosive disorder, which Earl noted is dangerous “because it indicates that at times [appellant] . . . lacks the ability to control his action, his temper”; and (3) appellant has repeatedly failed to abstain from using drugs or to find stable employment and housing.
Based on this record, the county showed by clear and convincing evidence that appellant substantially neglected to comply with his parental duties, that the county provided reasonable services to try and rectify the situation, but additional services were unreasonable because they would not bring about “lasting parental adjustment.” Id. Therefore, the district court’s decision to terminate appellant’s parental rights based on this statutory factor was not clearly erroneous.
2. Appellant is Palpably Unfit to be a Parent to L.L.A. and L.L.A., III
According to state law, a court may also terminate parental rights if the following condition exists:
[T]hat 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). Under this provision, the district court found that appellant’s history of criminal activity, domestic violence, drug abuse, poor mental health, unstable housing, and unemployment resulted in appellant being unfit for a relationship with L.L.A. and L.L.A., III.
Besides appellant’s long criminal and drug history, there is evidence in the record that he is palpably unfit to be a party to the parent-child relationship. For example, appellant’s mother, who testified that her son was a doting father, also testified that appellant occasionally used drugs in front of his children at family events. Appellant’s mother added that appellant “slapped [J.J.P.] around a little bit.” Appellant testified that he does not call Zastrow’s house to speak with his children because he dislikes Zastrow. There is no evidence in the record that suggests that appellant will secure adequate employment or will have enough income to maintain a home for himself and his children after he is released from jail.
“If a parent’s behavior is likely to be detrimental to the children’s physical or mental health or morals, the parent can be found palpably unfit and have his parental rights terminated.” In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003).There is clear and convincing evidence that appellant’s assaultive behavior, witnessed by L.L.A., and his turbulent personal history is likely to be detrimental to his children’s physical and mental health. L.L.A. is already suffering from appellant’s actions by acting out sexually and exhibiting signs of being socially behind her peer group. On this record, the district court’s conclusion that appellant is palpably unfit to be a party to the parent-child relationship with L.L.A. and L.L.A., III is not clearly erroneous.
3. L.L.A. and L.L.A., III are Neglected and in Foster Care
The district court also found that L.L.A. and L.L.A., III are neglected and in foster care, which is a ground for parental rights termination under Minn. Stat. § 260C.301, subd. 1(b)(8). State law provides that a child is neglected and in foster care if (1) the child has been placed in foster care by court order; (2) the child’s parents’ circumstances, condition, or conduct is of a type that it is impossible to return the child to the home; and (3) the child’s parents have “failed to make reasonable efforts to adjust their circumstances, condition or conduct[.]” Minn. Stat. § 260C.007, subd. 24 (2002).
The district court may weigh at least seven factors when determining whether a child is neglected and in foster care: (1) the length of time the child has been in foster care; (2) any efforts the parents have made to adjust circumstances, conduct, or conditions that makes it in the child’s best interests to return home in the foreseeable future; (3) whether the parent has visited the child within three months of filing of the parental-rights-termination petition; (4) the maintenance of regular communication with the person temporarily responsible for the child; (5) the adequacy of services provided to the parent to facilitate a reunion; (6) whether additional services would likely bring about parental adjustment, such that the child could be returned to the parent; and (7) the nature of the efforts made by the social services agency to reunite the family. Minn. Stat. § 260C.163, subd. 9(1)-(7) (2002).
Taking these statutory factors into account, the district court held that the children are neglected and in foster care. There is evidence in the record that (1) the children have been in foster care for more than two years; (2) appellant has not adjusted his circumstances in a manner that makes it in the children’s best interests to return home; (3) appellant has not maintained regular communication with his children; (4) appellant has not maintained regular communication with Zastrow; and (5) additional services are unlikely to bring about lasting parental adjustment enabling the children to return to appellant. Based on this evidence, the district court’s holding that the children are neglected and in foster care is not clearly erroneous.
4. Termination of Appellant’s Rights is Within the Best Interests of the Children
In a termination of parental rights proceeding, “the best interests of the child must be the paramount consideration[.]” Minn. Stat. § 260C.301, subd. 7. “[T]he trial court is precluded from terminating parental rights where the record does not show that termination is in the child’s best interests and that this is true even if one or more of the statutory prerequisites for termination exist.” In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).
The district court made substantial findings on whether terminating appellant’s parental rights was in the best interests of the children. The court considered the testimony of Edinburgh, Zastrow, Breitenbucher, and Margaret Getman, the guardian ad litem for the children. Getman testified that the children need permanency in the home, which they are now receiving from Zastrow. Getman concluded, and the district court agreed, that appellant’s incarceration, lack of a stable home, unemployment, criminal history, history of drug abuse, history of domestic violence, and lack of anger management combine to make it not in the children’s best interests to reside with appellant. On this record, the district court’s conclusion that it was in the best interests of the children to terminate appellant’s parental rights was not clearly erroneous.
5. Reasonable Efforts to Reunite Have Not Been Provided to Appellant
Finally, the district court also grounded termination of appellant’s parental rights on the conclusion that the county’s reasonable efforts to reunify the family were unsuccessful. Minn. Stat. § 260C.301, subd. 1(b)(5). It is presumed that reasonable efforts have failed if: (1) a child under the age of eight has resided outside of the home for six months; (2) the court has approved the out-of-home placement plan; (3) the parent has not substantially complied with the court’s orders and the case plan; and (4) “reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.” Id., subd. 1(b)(i)-(iv). The first three factors have been met, as both children have resided with Zastrow since September 2002 under a court-approved placement plan, and appellant has not completed his case plan, which was presented to him in prison.
“Whether efforts are ‘reasonable’ requires consideration of the length of time the county has been involved with the family as well as the quality of effort given.” In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987). The county became involved with appellant and J.J.P. when their children were adjudicated as children in need of protection or services in November 2002. Appellant’s case plan mandated that appellant attend an anger-management program, complete chemical-dependency treatment, and maintain safe and stable housing. Appellant testified that he was unable to complete these goals because the prison did not have anger-management or chemical-dependency programs, and he could not maintain housing from jail.
The district court held that the county expended reasonable efforts to keep the family unified. This conclusion is erroneous. While the county did transport the children to jail for supervised visits with appellant and found a foster mother to care for the children during appellant’s incarceration, it was impossible for appellant to complete much of the county’s case plan before trial. Although the county did not carry its burden on this statutory provision, it has carried its burden under the other provisions, and the court’s termination of appellant’s parental rights is upheld on those grounds. See Minn. Stat. § 260.301 (allowing termination of parental rights as long as one of the statutory factors is met).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.