This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In the Matter of the Welfare
of the children of:
S.L.J., mother, and R.E.G., father.
Filed June 14, 2005
Houston County District Court
File No. JX-04-50126
Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*
Appellant R.E.G. challenges the termination of his parental rights to his children, L.E.G. and J.S.G., arguing that the district court erred by identifying five statutory bases for termination under Minn. Stat. § 260C.301, subd. 1 (2004). Because the district court’s findings are not supported by substantial evidence, we reverse the termination of appellant’s parental rights and remand this matter to the district court for further proceedings in accordance with this opinion.
court reviews the district court’s order terminating parental rights to
determine whether (1) the district court has identified one of the statutory
bases for termination, which are currently found at Minn. Stat. § 260C.301,
subd. 1 (2004); (2) the district court’s findings are supported by substantial
evidence; and (3) the district court’s conclusions are clearly erroneous. In re
Welfare of L.A.F., 554 N.W.2d 393, 396 (
supporting termination must relate to conditions existing at the time of
termination, and it must appear likely that the conditions leading to
termination will continue for an indefinite and prolonged time. In re
Welfare of P.R.L., 622 N.W.2d 538, 543 (
addition to identifying a statutory basis for termination, the district court
must make findings that termination is in the best interests of the child. In re
Welfare of Children of R.W., 678 N.W.2d 49, 55 (
The district court here identified five statutory bases for termination: (1) abandonment, Minn. Stat. § 260C.301, subd. 1(b)(1); (2) neglect of parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (3) palpable unfitness, Minn. Stat. § 260C.301, subd. 1(b)(4); (4) failure to correct conditions that led to an out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (5) children neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8).
presumption of abandonment exists when a parent has had no contact on a regular
basis with a child and has expressed no consistent interest in the child’s
well-being for six months, despite the responsible agency’s reasonable efforts
to facilitate contact.
district court’s findings of abandonment here are not supported by substantial
evidence. Although appellant did not
visit the children for 10 months, from September 2003 until June 2004, he was a
resident of the state of
2. Neglect of Parental Duties
“Neglect of parental duties” is the failure to comply
with the obligations of parenthood, including, but not limited to, providing a
child with food, clothing, shelter, education, or other care necessary for a
child’s physical, mental, or emotional well-being. Minn. Stat. § 260C.301, subd. 1(b)(2). Neglect of parental duties can include
failure to provide financial support, as well as failure to provide emotional
or physical protection or supervision. See In re Welfare of J.D.L., 522 N.W.2d
364, 367 (
Here, although appellant may not have been the primary
caretaker in Arkansas, the children’s pediatrician testified that he was very
involved and took primary responsibility for their medical care until they left
Arkansas. The ICPC home study found that
the home he maintained was clean and appropriate for children and that he
carefully managed his money. There are
no allegations that the children lacked food, clothing, or shelter while living
with appellant and their mother in
Based on the record before us, we conclude that the findings of neglect of parental duties are not supported by substantial evidence. The district court therefore erred in terminating appellant’s parental rights on this basis.
3. Palpable Unfitness
A parent is presumed to be palpably unfit
to be a party to the parent and child relationship [where there is] a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship . . . 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). In order to terminate parental
rights for palpable unfitness, the district court must find that reasonable
efforts have been made to prevent placement and reunify parent and child. Minn. Stat. § 260C.301, subd. 8 (2004); see also In re Welfare of S.Z., 547
N.W.2d 886, 892 (
Despite the more specific language of earlier cases that
preceded recent statutory amendments, the idea of “palpable unfitness” comes
down to a question of whether a parent has the capacity to parent or the
ability to engage in “constructive efforts to improve [his or her] ability to
parent.” See In re Welfare of A.V., 593 N.W.2d 720, 722 (
The district court found that appellant had engaged in “bizarre,
threatening and inappropriate behavior.”
There was extensive testimony about appellant’s difficult relationships
with county staff and the children’s foster parents, as well as indications
that this type of behavior also occurred in appellant’s dealings with
The examining psychologist in
Based on our review of the entire record, we conclude
that the district court’s findings of palpable unfitness are not supported by
substantial evidence. The district court
therefore erred in terminating parental rights on this basis. But we are troubled by the failure to
document appellant’s mental health history and his actions in
4. Failure to Correct Conditions
Termination based on the failure to correct conditions leading to the out-of-home placement requires proof that (1) the child has been out of the home for 12 out of 22 months, or six months if the child is less than eight years old, unless there is regular contact and the parent is in compliance with the case plan; (2) there is a court-approved plan; (3) the parent has failed to correct conditions leading to the out-of-home placement; and (4) the social service agency has made reasonable efforts to rehabilitate the parent and reunify the family. Minn. Stat. § 260C.301, subd. 1(b)(5).
The case plan here required appellant to (1) visit the
children; (2) have a psychiatric evaluation and follow the recommendations; and
(3) cooperate with the ICPC study. The
district court’s findings of non-compliance appear to be based on frustration
with appellant’s defiance and manipulation of the system and his abusive
conduct toward county staff. Appellant,
however, visited the children after he came to
Although the county offered many extraordinary services to appellant, including assistance with housing, bus fare, transportation, supplies for visitation, food vouchers and phone cards, it failed to pursue a referral to anger management counseling. This contradicts the district court’s findings that the county made reasonable efforts to rehabilitate appellant.
This court found termination not justified when a parent
“completed many of the conditions of the plan,” but not all conditions. In re
Welfare of M.H., 595 N.W.2d 223, 228 (
Parental rights may be terminated when a child is found to be neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(8). “Neglected and in foster care” means that the child is in foster care by court order; the parent’s circumstances are such that the child cannot be returned to the parent; and the parent has failed to make reasonable efforts to correct conditions, despite the availability of rehabilitative services. Minn. Stat. § 260C.007, subd. 24 (2004). The court must consider 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) the effort the parent has made to adjust circumstances, conduct, or conditions that necessitates the removal of the child . . . including the use of rehabilitative services offered to the parent;
(3) whether the parent has visited the child within the three months preceding the filing of the petition, unless extreme financial hardship . . . prevented the parent from visiting the child . . .;
(4) the maintenance of regular contact or communication with the agency or person temporarily responsible for the child;
(5) the appropriateness and adequacy of the services provided or offered to the parent to facilitate a reunion;
(6) whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time, whether the services have been offered to the parent, or, if services were not offered, the reasons they were not offered; and
(7) the nature of the efforts made by the responsible social services agency to rehabilitate and reunite the family and whether the efforts were reasonable.
Minn. Stat. § 260C.163, subd. 9 (2004).
Again, we are troubled by the county’s failure to pursue what appears to be a critical element of the efforts to rehabilitate appellant and reunify the family—the referral for anger management counseling—particularly when the examining psychologist was of the opinion that six to twelve months of such counseling could be sufficient. We conclude that the district court’s findings are not supported by substantial evidence.
6. Best Interests
In any termination proceeding, the best interests of the
child are of “paramount consideration.”
Minn. Stat. § 260C.301, subd. 7 (2004).
The district court made only a conclusory finding that it is in the
children’s best interests that appellant’s rights be terminated. Generally, the district court must make
findings that explain its rationale for determining the child’s best
interests. In re Tanghe, 672 N.W.2d 623, 626 (
Although we conclude that the district court’s findings
are not supported by substantial evidence and that its decision to terminate
appellant’s parental rights was error, we remain troubled by appellant’s attempts
to obstruct the county’s efforts. We are
also troubled by the county’s failure to fully research appellant’s mental
health history, follow through on the referral to anger management counseling,
and offer evidence on the effect of appellant’s behavior on the parent and
child relationship. Rather than merely
reverse the district court’s order for termination, we conclude that the
children remain in need of protective services until there is a satisfactory
completion of the case plan, which requires anger management counseling, and
should include mental illness treatment depending on appellant’s mental health
therefore reverse the district court’s order for termination, but remand for a continuation of the CHIPS proceeding until a complete investigation and case plan can be satisfied.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
We acknowledge that the county made one attempt to refer appellant to anger
management counseling, which he refused.
A social service agency is not required to provide services if it would
be futile to do so.