This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of
the Children of T.A.A.
Filed February 2, 2005
Washington County District Court
File No. 82-19451Y
Doug Johnson, Washington County Attorney, Gregory J. Tavernier, Assistant County Attorney, 14949 – 62nd Street North, Box 6, Stillwater, Minnesota 55082 (for respondent county)
Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, Minnesota 55402 (for appellant mother)
Duane Brandl, 345 Brooks Avenue West, Roseville, Minnesota 55113 (father)
Patricia Zenner, Assistant Public Defender, 1825 Curve Crest Boulevard West, Suite 202, Stillwater, Minnesota 55082 (for children)
Beth Harrison, Washington County Guardian ad Litem’s Office, 14949 – 62nd Street North, Box 3802, Stillwater, Minnesota 55082 (guardian ad litem)
Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant mother challenges the termination of her parental rights to her four children, arguing (1) the record lacks sufficient evidence to support the trial court’s finding that the state made reasonable efforts toward reunification; and (2) the record lacks sufficient evidence to support the trial court’s termination of her parental rights. Because we conclude the evidence was insufficient to support the trial court’s finding that the county made reasonable efforts toward reunification, we reverse.
Appellant-mother challenges the trial court’s termination of her parental rights to her four children: J.B., born November 30, 1990; K.B., born May 12, 1992; C.T., born February 18, 1999; and H.B., born August 5, 2001.
On May 1, 2003, child protection services removed appellant’s children from her care due to concerns about the unsanitary condition of her home. Child protection services found dirty dishes, dirty clothing, and animal feces on the floor of appellant’s home, and that C.T. was unsupervised and had a bruise on his cheek. Washington County community services filed a CHIPS petition on May 6, 2003. The petition alleged that the home was unsanitary, C.T. had a bruise on his face, and that there has been a history of neglect and sexual abuse regarding the children. On June 27, 2003, appellant admitted that her children were in need of protection or services based on the fact that her two oldest children, both daughters, had been sexually abused by men appellant allowed into her home. Child protection services had also been involved with appellant in 2002 regarding the sexual assault of J.B., and appellant had satisfactorily addressed the issue.
A Washington County social worker (social worker) prepared an out-of-home placement plan designed to establish permanent reunification of the family. The social worker identified the following goals in the plan: (1) appellant would appropriately parent her children in a consistent manner; (2) appellant would maintain good, stable mental health; (3) appellant would live a chemical-free, healthy lifestyle; (4) appellant would meet her children’s and her own educational needs; and (5) appellant would maintain a legal, stable, clean, and safe environment for her children. The court ordered appellant to comply with the placement plan by the permanency deadline of November 1, 2003. As the case manager, the social worker coordinated efforts to assist appellant in satisfying the goals in her case plan by directing various service providers to work with appellant and gathering progress reports from these providers. The social worker received information from two psychologists, a chemical health assessor, parenting counselors, and a family skills therapist regarding appellant’s progress on the various components of appellant’s case plan.
In accordance with the case plan, appellant submitted random urinalysis samples (UAs) on May 6, June 5, June 11, and August 20, 2003. All of them tested positive for marijuana and/or methamphetamine. Each time, appellant denied using drugs and stated that the positive results were due to her use of over-the-counter medications.
Despite the positive UAs, the social worker testified that by the end of the permanency deadline on November 1, 2003, she and appellant’s individual therapist had enough hope that appellant would continue to make progress on her parenting skills, and, accordingly, the social worker recommended a three-month extension at a hearing on November 4, 2003. The reunification recommendation was based in part on the social worker’s testimony that appellant had cleaned her home and that it was now an appropriate place for children. Additionally, in November 2003, the guardian ad litem wrote to the district court stating that appellant had become successful at learning to establish boundaries with her children and was beginning to use discipline appropriately.
At the termination trial, the social worker testified that she was prepared to recommend at a December 1, 2003 hearing that appellant be reunited with her children sometime during the month of December until she received a confirmation report that morning which indicated appellant had used methamphetamine on November 11, 2003. The social worker conferred with her supervisor, and at the December 1 hearing, recommended that the court cease reunification efforts. The court followed the social worker’s recommendation and ordered that reunification efforts cease. After the December 1 hearing, the social worker made a determination to proceed with a permanency option other than reunification. On December 19, 2003, the children were moved from their foster home to their aunt’s household. On February 25, 2004, the state petitioned to terminate appellant’s parental rights.
At the termination trial, the social worker testified that following appellant’s positive UA on November 11, 2003, she ordered a confirmation test and that she had also previously ordered two confirmation tests in June 2003 after receiving positive urinalysis results for appellant. The June 2003 confirmation results conclusively proved that appellant had used methamphetamine. The social worker explained that despite the two positive methamphetamine confirmation results, on November 4, 2003, she recommended that the court return the children to appellant’s home because each of the providers working with appellant had indicated that there was some hope that she would be successful. Additionally, the social worker testified that the November 11, 2003 confirmation that appellant had used methamphetamine was significant because it demonstrated that appellant has an issue regarding her chemical use and because her denial of chemical use is “significant in terms of being able to parent your children.”
Various county witnesses testified that the county referred appellant for chemical health assessments after the positive UAs in May, June, August, and November 2003. In addition, the social worker testified that she informed the chemical health assessor of the positive confirmation results in June 2003. But the assessor testified that he was not made aware of the two positive confirmation results in June 2003. The assessor testified that it is possible he would have recommended that appellant receive in-patient chemical dependency treatment in June 2003 if he had received the positive confirmation results in June. The assessor added that having proof that appellant was using methamphetamine would have affected his recommendations for appellant. Instead, the assessor did not recommend that appellant enter Tapestry, an in-patient treatment program, until his fourth chemical health assessment of appellant, on December 8, 2003, after receiving the positive confirmation results.
A Tapestry program assistant clinician (clinician), testified that she met with appellant to conduct an assessment and start treatment when appellant was admitted to Tapestry on December 17, 2003. Appellant admitted last using marijuana on December 1, 2003, and alcohol on December 12, 2003, but denied using methamphetamine except in her twenties. The clinician testified that appellant was compliant with attending all of her group meetings and participating at them and that appellant made progress from December 23 to 31, 2003.
The clinician testified that appellant did not complete the program at Tapestry because she left the program on January 2, 2004. The provider testified that Tapestry’s prognosis for appellant was poor when she left because she left against staff advice and because she lacked an awareness of her chemical dependency. The provider testified that appellant tested positive for marijuana when she was admitted to Tapestry and readmitted on January 1, but her UAs were negative during her stay at the facility.
The guardian ad litem (GAL) assigned to the case testified that until December 1, 2003, she supported reunification. The GAL admitted that in her November 28, 2003 report to the court, she stated that appellant was successful at learning to establish boundaries with her children, had used appropriate discipline, and continues to make good choices. But when she learned of the November 2003 positive methamphetamine confirmation, she changed her mind. The GAL testified that she cannot see how appellant can safely parent her children as long as she uses illegal chemicals.
The GAL admitted that appellant’s drug use was her main concern. But the GAL was also aware that the county had received confirmation of appellant’s use of methamphetamine in June 2003. The GAL testified that if appellant did not admit to her chemical use, then treatment would not necessarily have been appropriately started in June 2003. The GAL testified that drug treatment is only effective if the participant recognizes that there is a problem.
Following the trial, the court issued an order terminating mother’s parental rights in June of 2004. The trial court found that (1) appellant substantially, continuously, and repeatedly refused to comply with the duties imposed on her by the parent-child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2) (2002); (2) appellant is palpably unfit to be a party to the parent-child relationship, Minn. Stat. § 260C.301, subd. 1(b)(4) (2002); and (3) reasonable efforts failed to correct the conditions that led to the child’s placement, Minn. Stat. § 260C.301, subd. 1(b)(5) (2002). The trial court also determined that it was in the best interests of J.B., K.B., C.T., and H.B. to terminate appellant’s parental rights. This appeal follows.
To terminate parental rights, a trial court must find, among other things, that the county has made reasonable efforts to reunite the parent(s) and children, or that making such efforts would be futile. Minn. Stat. § 260.012(a), (c) (2002). Here, appellant argues that the record lacks clear and convincing evidence to support the finding that the county made reasonable efforts to reunite appellant and her children. See In re Welfare of the Children of R.W., 678 N.W.2d 49, 56 (Minn. 2004) (noting that the burden to show reasonable efforts or that such efforts would be futile is on county); In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (noting that the burden of proof in termination proceedings is clear and convincing).
For a county’s efforts to be reasonable, the county must “provide those services that would assist in alleviating the conditions leading to the determination of dependency.” In re Welfare of M.A. & J.A., 408 N.W.2d 227, 235–36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). The crux of the trial court’s decision to terminate appellant’s parental rights is its determination that appellant had not complied with her case plan because she had not satisfied the portions of that plan requiring appellant to not abuse chemicals:
[appellant] has not complied with this Court’s orders and the reasonable case plan, specifically, but not limited to, abstaining from using illegal controlled substances on multiple occasions; failing to complete the court-ordered chemical dependency treatment program, and continuing to refuse to admit during this trial that she used controlled substances; that she continues to deny she needs chemical dependency treatment; and that she continues to deny under oath that she needs any parenting help or services.
Because the crux of the trial court’s termination of appellant’s parental rights was appellant’s abuse of chemicals, for the county’s reunification efforts to be reasonable, those efforts had to address appellant’s chemical abuse. This record shows that appellant’s chemical abuse was critical to each of the bases the district court used to terminate appellant’s parental rights, but the record lacks clear and convincing evidence that the county’s reunification efforts were reasonable. Therefore, we reverse the termination of appellant’s parental rights.
A. Chemical Abuse and Bases for Termination
The statutory bases used to terminate appellant’s parental rights were that appellant refused to abide by the duties of the parent-child relationship, was a palpably unfit parent, and failed to correct the conditions leading to the children’s out-of-home placement. See Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5) (2002).
Appellant’s case plan required her to consistently parent her children, maintain stable mental health, lead a chemical-free life, “participate in the children’s educational needs[,]” and maintain a safe environment for her children. The trial court found that appellant failed to meet these goals, and it is undisputed that appellant’s ability to appropriately parent her children, to maintain mental stability, to address the children’s educational needs, and to preserve a safe environment for the children was impacted by her chemical abuse. Also, the district court found that parenting services for appellant were discontinued, in part, because she continued to deny that she had a chemical-abuse problem. Thus, appellant’s abuse of chemicals not only adversely affected her ability to abide by the duties of the parent-child relationship, her fitness as a parent, and her ability to correct the conditions leading to the children’s out-of-home placement, but it also was a significant reason for the withdrawal of the services that were intended to assist appellant in remedying these parental deficiencies.
The degree to which appellant’s chemical abuse permeates, and is inextricably intertwined with, her parenting deficiencies and her failure to correct those deficiencies is reflected in the district court’s findings that (a) the case worker admitted that mother’s chemical abuse became an “ongoing issue for reunification[;]” (b) it accepted as credible the testimony of a psychologist who assessed appellant and noted that he was concerned about the positive UAs, despite appellant’s denials that she was abusing chemicals; (c) the psychologist indicated that appellant’s prognosis was “guarded” because she refused to discuss her chemical abuse and her history of abuse; and (d) the guardian ad litem stated that the major reasons appellant did not satisfy her case plan were related to her chemical abuse and her denial of the fact that she had a problem with chemicals. The district court also made various findings reflecting the social worker’s testimony that appellant’s denial that she abused chemicals was “significant in terms of being able to parent your children.” Although our review is complicated somewhat because the district court did not explicitly apply the statutory bases for termination to the facts it found, we are satisfied that appellant’s chemical abuse pervades her parenting deficiencies and, as a result, the district court’s reasons for terminating parental rights.
B. Reasonableness of County Efforts Related to Chemical Abuse
Because of the importance of appellant’s chemical-abuse problems in this termination proceeding, the county’s efforts to reunite the family, to be reasonable, had to give appellant an adequate opportunity to address those chemical-abuse problems. See In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990) (stating, to be reasonable, services “must go beyond mere matters of form so as to include real, genuine assistance”), review denied (Minn. July 6, 1990). The record, however, shows that (a) on May 1, 2003, the county removed the children from mother’s care, meaning that the six-month permanency period would end on November 1, 2003; (b) between May 6 and November 11, appellant’s UAs tested positive once for marijuana, once for amphetamine, and three times for methamphetamine; (c) because over-the-counter medications can cause “false positive” UA results, the June and November UAs prompted additional tests to confirm the presence of methamphetamine; (d) in June 2003, the social worker had two confirmations that appellant had used methamphetamine; (e) the social worker transmitted those confirmations to the chemical dependency assessor; (f) the assessor never got the confirmations, conducted chemical-health assessments as a result of the positive UAs, and recommended that appellant abstain from using chemicals and submit to random UAs, but did not refer appellant for chemical dependency treatment; (g) several members of the county’s child-protection apparatus who were involved in this case and aware of the June confirmations recommended reunification of mother and the children; (h) the district court extended the permanency period by one month, to December 1, 2003; (i) upon receipt in late November 2003 of a third confirmation that mother had taken methamphetamine, that confirmation was transmitted to the assessor, who actually received it; (j) when the assessor received the third confirmation, he referred appellant for chemical dependency treatment; (k) as a result of the receipt of the third confirmation that appellant had used methamphetamine and the assessors referral of appellant for chemical dependency treatment, the county workers decided to seek to terminate appellant’s parental rights; (l) appellant participated in, and complied with the requirements of, that chemical dependency treatment for two weeks, until she learned that the county had ceased reunification efforts; and (m) the assessor testified at the termination trial that if he had received one or both of the June confirmations, it would have affected his treatment recommendations for appellant at those times because, until he received the third confirmation, he gave appellant “the benefit of the doubt” that the positive UAs were “false positives.”
Thus, despite the fact that various arms of the county’s child protection apparatus knew or should have known since June that appellant was abusing chemicals and that her chemical abuse was an “ongoing problem,” appellant was not referred for chemical dependency treatment until mid-December, and several county witnesses actually recommended reunification at the time of the initial November 1, 2003 permanency deadline. Under these circumstances, we cannot say that the record contains clear and convincing evidence supporting the district court’s finding that the county made reasonable efforts, related to chemical dependency, to assist appellant.
To the extent that the county argues that efforts to address appellant’s chemical dependency would have been futile in light of appellant’s denial of chemical use at the termination trial, we reject this argument. The trial court did not find that such efforts would be futile, and an appellate court cannot make that finding. See In re Welfare of M.D.O., 462 N.W.2d 370, 374-74 (Minn. 1990) (stating role of court of appeals is to correct errors, not find facts). Also, given the circumstances recited above, especially the fact that when appellant was finally referred to chemical-dependency treatment she made progress in that treatment until she was told that the county had (based on appellant’s chemical abuse) terminated efforts to reunite the family, we are not convinced that the current record requires a finding of futility. Cf. Warwick v. Warwick, 438 N.W.2d 673, 678 (Minn. App. 1989) (inferring finding of bad faith on clear record). In support of its claim that efforts to address appellant’s chemical use would have been futile, the county also points to the assessor’s testimony that appellant was not a good candidate for chemical dependency treatment because she denied having a chemical use problem and that she was even using illegal chemicals. But the clinician at the chemical dependency treatment center testified that it is not unusual for patients to express resistance to the treatment program because “[p]art of the illness is the denial phase.”
Because of the defects in the county’s treatment of appellant’s chemical abuse problems, we conclude that this record lacks clear and convincing evidence to support the finding that the county made reasonable efforts to reunite appellant and her children. We also conclude that the county has not produced a record so clear that it requires a finding that such efforts would be futile. While the county’s obvious miscommunication of the confirmation results is unfortunate, especially for appellant who, as a result, did not receive the timely chemical dependency treatment she needed, the consequences of the county’s miscommunication should not be visited upon appellant in the form of termination of her parental rights.
Because we conclude that the evidence was insufficient to support the trial court’s finding that the county made reasonable efforts to rehabilitate appellant and reunite the family, we do not address whether the record otherwise lacks sufficient evidence to support the trial court’s termination of appellant’s parental rights.
HARTEN, Judge (dissenting)
I respectfully dissent. In its focus on separate segments of the evidence, the majority overlooks the forest for the trees. The district court’s findings are not garbled: because of appellant’s past and ongoing chemical abuse (which she is loathe even to admit), she is palpably unfit to parent and her unfitness is reasonably certain to continue indefinitely. It is manifestly unreasonable for the county to waste funds in a futile effort to reunite this family. The best interests of the children are at stake here; the district court justifiably gave the children a chance by terminating appellant’s parental rights. Justice Holmes declared that, “The life of the law has not been logic; it has been experience.” The International Encyclopedia of Quotations 430 (John P. Bradley et al. eds., J. G. Ferguson Publ’g Co. 1978). I would affirm the district court.
 Apparently the social worker never followed up and asked the assessor why he was not referring appellant to chemical dependency treatment even though she knew about the two positive confirmation tests in June 2003 and testified that she communicated this information to the assessor.