This opinion will be unpublished and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 Welfare
of the Child of D.Y.P. and A.C.V., Sr., Parents
Filed March 8, 2005
Stearns County District Court
File No. J7-04-50430
Michael G. Blee, Blee Law Office Ltd., 1529 West St. Germain, P.O. Box 801, St. Cloud, MN 56301 (for appellant father)
Janelle P. Kendall, Stearns County Attorney, Brenda L. Theis, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
Dannielle Bunting, 6754 46th Avenue Southeast, St. Cloud, MN 56304 (guardian ad litem)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant challenges the order of the district court terminating his parental rights to A.C.V. Jr., arguing that the determination is not supported by clear and convincing evidence. Because the district court’s order is supported by clear and convincing evidence for at least three of the statutory bases for termination and is in the best interests of the child, we affirm.
Appellant A.C.V. was born in Cuba and came to the United States in 1980. After living in California and Florida, appellant eventually moved to Minnesota. In July 1995, appellant was convicted of assaulting D.Y.P. while she was pregnant with appellant’s child. The child, A.C.V. Jr., was born on December 7, 1995, and at birth, the child tested positive for cocaine. Appellant and D.Y.P. never married.
Appellant has been incarcerated most of the child’s life and continuously since July 2003. At the time of the child’s birth, appellant was in prison. Then, appellant began serving a federal prison sentence in October 1996 and was not released until June 2001. While appellant was serving the federal prison sentence, A.C.V. Jr. was placed in foster care by Ramsey County Social Services on December 23, 1999. On April 5, 2000, Ramsey County filed a termination of parental rights (TPR) petition as to A.C.V. Jr.’s parents, alleging palpable unfitness, child neglect, and refusal or neglect to comply with the duties imposed by the parent-child relationship. The TPR stated that appellant failed to establish a legal relationship with A.C.V. Jr. One month later appellant acknowledged being the father of A.C.V. Jr. As a result, Ramsey County dropped the TPR petition, and, in January 2001, the district court issued a custody order transferring physical and legal custody of A.C.V. Jr. to Karen Luke, appellant’s girlfriend.
After appellant was released from federal prison in June 2001, he was arrested and held in custody on numerous occasions in various Minnesota counties. Appellant was incarcerated from November 22 through 27, 2001, and February 24, 2002. In July 2002, appellant was arrested for sale of a controlled substance and child endangerment. Specifically, appellant admitted that A.C.V. Jr. was with him when the cocaine sale occurred. Thereafter, appellant was in custody in Stearns County from August 9 through October 27, 2002; Benton County from October 27 through December 6, 2002; and Stearns County on January 21, 2003. In June 2003, Luke filed for an order for protection against appellant, which resulted in appellant’s confinement from June 21 through June 29, 2003. On July 6, 2003, appellant was again incarcerated and has remained so until the present time. It is anticipated that appellant will be released in 2006.
On March 17, 2004, Stearns County completed a child-protection assessment based on the allegation that Luke hit A.C.V. Jr. with a belt. When the authorities investigated the matter, Luke voluntarily agreed that the child should be removed from her residence. A.C.V. Jr. was transported into emergency shelter care and has since remained in the custody of Stearns County Human Services.
Stearns County filed a TPR petition on March 23, 2004. At trial, appellant admitted to his extensive criminal history and incarcerations. Appellant also admitted that he began using crack cocaine in 1985 and marijuana in 1981. Appellant admitted last using crack cocaine in August 2002 and marijuana in June 2003, but appellant has not yet completed chemical dependency treatment.
According to the pre-sentence investigation prior to appellant’s incarceration for sale of a controlled substance, appellant admitted that he was homeless, lacked a source of income, had no clothing, and had never held a full-time job. At the TPR hearing, appellant stated that his last employment was as a temporary worker sometime in 2003, but that he only worked for two to three weeks. Prior to that, appellant was in the employ of Goodwill for approximately two to three months beginning in January 2003.
Testimony at the hearing also established that A.C.V. Jr. is a special-needs child who receives assistance at school and requires more than average care. The diagnoses of the child made by experts include ADHD, post-traumatic stress disorder, and oppositional-defiant disorder with traits of obsessive/compulsive disorder. The child sees a therapist every ten days. Appellant has maintained limited contact with the child from prison through letters. On July 15, 2004, the district court entered an order terminating the parental rights of appellant to A.C.V. Jr. This appeal follows.
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, “Considerable 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).
Moreover, 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). The evidence must relate to conditions that exist at the time of termination, and it must appear that the conditions giving rise to the termination will continue for a prolonged, indeterminate period. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). In any proceeding to terminate parental rights, the best interests of the child must be the paramount consideration. Minn. Stat. § 260C.301, subd. 7 (2002). But to support the involuntary termination of the parental rights, at least one of the factors in Minn. Stat. § 260C.301, subdivision 1 (2002), must also be established by clear and convincing evidence. In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998). The district court terminated appellant’s parental rights on five statutory grounds, which appellant challenges. We turn now to those challenges.
Abandonment of A.C.V. Jr.
Appellant challenges the district court’s conclusion that he abandoned the child pursuant to Minn. Stat. § 260C.301, subdivision 1(b)(1). Essentially, appellant argues that incarceration alone is not sufficient to support a finding of abandonment. We agree that incarceration at the time of the termination proceeding is not sufficient in itself to constitute abandonment. However, it is a factor that may be considered in conjunction with other factors supporting the finding of abandonment. In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004) (citing In re Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970)). Here, the district court found that appellant is not only currently incarcerated but also has been incarcerated for the majority of A.C.V. Jr.’s lifetime. Specifically, appellant was incarcerated when the child was born, has been incarcerated on at least seven separate occasions totaling a minimum of six years and nine months (81 months) during the child’s lifetime, and will remain incarcerated until early 2006.
The district court also found evidence of parental neglect. Appellant did not acknowledge parenthood until the child was four-and-one-half years old. From the time of appellant’s release from federal prison in June 2001 until the beginning of his current confinement in July 2003, appellant had the opportunity to establish a relationship with A.C.V. Jr. and actively participate in the normal activities of a parent. But appellant did not avail himself of this opportunity. Instead, this time period was marred by various other arrests and further confinements of appellant. And appellant continued his use of drugs, including the sale of drugs in the child’s presence. While it is true that appellant has recently sent some letters to A.C.V. Jr., those letters have been infrequent, and appellant’s letters must be weighed against the other significant evidence of parental neglect.
In summary, clear and convincing evidence supports the district court’s determination that appellant abandoned A.C.V. Jr. by continuing his criminal conduct, which has resulted in significant periods of confinement, and by failing to treat his drug addiction. The inevitable consequences of appellant’s activities have been abandonment and parental neglect.
Next, appellant contends that the record does not support the district court’s conclusion that appellant has “substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship[.]” Minn. Stat. § 260C.301, subd. 1(b)(2). The statute further requires a finding that “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[.]” Id.
We have carefully reviewed the record and conclude there is clear and convincing evidence to support the district court’s determination that appellant has refused and neglected to comply with the duties imposed on the parent in the parent-child relationship. Appellant has made a series of choices over the past several years to continue his criminal activities and his use of drugs. These activities prevent appellant from complying with his duties as a parent to A.C.V. Jr. In particular, there is no evidence in the record that appellant has for any significant period of time ever provided A.C.V. Jr. with necessary food, clothing, shelter, education, and other care and parental control necessary for the child’s physical, mental, or emotional health and development.
But appellant contends that the record is devoid of any reasonable efforts by social services to correct the conditions that formed the basis of the petition. Stearns County argues that reasonable efforts were made in January 2001 when the child was placed with Luke. But those efforts later failed when Luke filed for an order of protection against appellant in June 2003 and when she agreed that the child should be removed from her home in March 2004. Based on appellant’s incarceration and unstable living situations when he is not incarcerated, the district court concluded that it would have been futile for the county to make other reasonable efforts to correct conditions that formed the basis of the petition. We agree.
Here, appellant has chosen to ignore the county’s reasonable efforts to correct conditions by failing to change his lifestyle. For example, appellant was arrested in July 2002 for a controlled-substance crime in the third degree, a sale offense, and child endangerment. By having A.C.V. Jr. with him during the drug sale, appellant demonstrated remarkably poor judgment and a failure to change his lifestyle. We, therefore, conclude that clear and convincing evidence exists in the record to support the district court’s conclusion that it would have been futile to make other reasonable efforts to correct conditions that formed the basis of the petition.
The third statutory basis for terminating appellant’s parental rights is that he is “palpably unfit to be a party to the parent and child relationship.” Id., subd. 1(b)(4). The district court must determine that these conditions are of sufficient duration or nature to render the parent unable, for the reasonably foreseeable future, to care for the needs of the child. Id. “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).
Appellant’s conduct over the past ten years represents a consistent pattern of behavior that demonstrates appellant is unable, for the reasonably foreseeable future, to care appropriately for the ongoing needs of the child. In short, appellant’s criminal behavior has been, and is likely to be, detrimental to A.C.V. Jr.’s physical or mental health and morals. For the reasons stated in sections I and II, we conclude that clear and convincing evidence exists in the record to support the district court’s determination that appellant is palpably unfit to be a party to the parent-child relationship.
A district court “may” terminate parental rights if “one or more” of the statutory bases for termination listed in Minn. Stat. § 260C.301, subdivision 1(b) are satisfied. Minn. Stat. § 260C.317, subd. 1 (2002); see Minn. Stat. § 260C.301, subd. 1(b) (2002) (stating district court may terminate parental rights if it finds that “one or more of the following conditions exist . . .”); L.A.F., 554 N.W.2d at 396 (stating “[t]o involuntarily terminate parental rights, the district court must find that at least one of the [nine] statutory conditions for termination exist”) (citing statutory predecessor to Minn. Stat. § 260C.301, subd. 1(b)); In re Child of Simon, 662 N.W.2d 155, 162 (Minn. App. 2003) (stating district court may terminate parental rights “if clear and convincing evidence establishes that at least one statutory basis for termination exists and termination is in the best interests of the child”). Because the record supports the three bases for termination we have reviewed thus far, we need not address the other two bases for termination invoked by the district court.
Finally, appellant argues that it is not in the child’s best interests to terminate appellant’s parental rights. “The best interests of the child must be the paramount consideration” in a termination proceeding. Minn. Stat. § 260C.301, subd. 7. 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 Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (quotation omitted). Here, the district court found “[t]hat there is clear and convincing evidence that termination of the parental rights of [appellant] is in the best interest of [ACV, Jr.].” Although the district court did not specifically discuss the three factors stated above, the record is replete with evidence supporting the conclusion that the termination of appellant’s parental rights is in the best interests of the child.
The record demonstrates that appellant’s interest in preserving the parent-child relationship is minimal and is overshadowed by his interest in criminal activity that resulted in his numerous convictions and incarcerations for the majority of A.C.V. Jr.’s lifetime. The record also shows that appellant has been unable to maintain full-time employment and stable housing since his arrival in this country and is, therefore, incapable of providing for the welfare of A.C.V. Jr. The best interests of A.C.V. Jr. are paramount. He is a special-needs child who requires a structured, stable, and secure environment, and the record shows that appellant is incapable of providing the child with such an environment. The district court’s conclusion that the child’s best interests are served by terminating appellant’s parental rights is supported by clear and convincing evidence and is, therefore, affirmed.
The district court’s decision to terminate appellant’s parental rights, based on abandonment (Minn. Stat. § 260C.301, subd. 1(b)(1)), refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship (id., subd. 1(b)(2)), and palpable unfitness (id., subd. 1(b)(4)), is supported by clear and convincing evidence. Additionally, the district court’s conclusion that termination of appellant’s parental rights is in the best interests of the child (id., subd. 7) and is also supported by clear and convincing evidence.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.