This opinion will be unpublished and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 Children of: J. L. W. and P. M. H., Parents.
Filed August 2, 2005
Gordon W. Shumaker, Judge
Ramsey County District Court
File Nos. J402555778, J103552931, JX04550153, J304550382
Laura K. Box,
Susan Gaertner, Ramsey County Attorney, Margaret L. Gustafson, Special Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 560, St. Paul, MN 55102 (for respondent Ramsey County Human Services Department)
Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
On appeal, appellant–father argues that the district court lacked sufficient evidence to terminate his parental rights. Specifically, he argues that the district court erred by (1) erroneously considering his incarceration status in determining that he had abandoned his children; (2) determining he had refused to comply with his parental duties; (3) determining that he was palpably unfit to parent; (4) finding that he exposed a child to egregious harm; and (5) determining that the children were neglected and in foster care. Appellant further argues that the district court erred in concluding that the county had provided active efforts, as required by the Indian Child Welfare Act, to reunify the family. Because the district court had sufficient evidence to terminate appellant’s parental rights and because the county’s efforts to unify the family were futile, we affirm.
Mother-J.W. and father–appellant-P.M.H. are the parents of two children C.W., born November 23, 2002, and M.E., born January 14, 2004. J.W. is eligible for enrollment in the Leech Lake Band of Ojibwe. At the start of J.W.’s and P.M.H.’s relationship, J.W. was 15 years of age and P.M.H. was 36 years of age. P.M.H. is currently incarcerated after pleading guilty to criminal sexual conduct against J.W. A CHIPS petition was filed with respect to C.W. three days after her birth, and M.E. has been in an out-of-home placement since one day after her birth. J.W. signed a consent-to-adopt form for both children on September 7, 2004, in which she voluntarily terminated her parental rights. On February 2, 2004, a termination of parental rights (TPR) petition was filed against father, P.M.H.
J.W.’s mother left J.W. in P.M.H.’s care. P.M.H. testified that he thereafter had a sexual relationship with J.W. for about 1 1/2 years. During the relationship, P.M.H. was physically and verbally abusive towards J.W. As a result, J.W.’s mother obtained an order for protection (OFP) against P.M.H. on behalf of J.W. In J.W.’s affidavit for the OFP, she states that P.M.H. assaulted her in his van, repeatedly hit her with closed fists, and smothered her until she eventually blacked out. The affidavit also states that P.M.H. made harassing and threatening phone calls to J.W. for a period of three weeks.
P.M.H. was charged with criminal sexual conduct, he fled
has an extensive criminal history dating back to 1989. Charges in
A trial was held on September 13, 2004, and November 4, 2004, on the termination of P.M.H.’s parental rights. Gloria Jourdain, the Ramsey County Community Human Services Department (RCCHSD) social worker involved with the family, testified that P.M.H. did not maintain contact with her or request visitation with the children. She also testified that she was in support of termination of P.M.H.’s parental rights. Rose Robinson, the Indian Child Welfare Act (ICWA) expert, testified that she supported termination of P.M.H.’s parental rights with respect to both children.
C.W. has been in foster care since November 26, 2002, and M.E. has been in foster care since January 14, 2004. The Leech Lake Band of Ojibwe approved the placement, and the foster parents now wish to adopt both girls.
D E C I S I O N
Standard of review
In reviewing the district court’s
decision to terminate parental rights, “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 (
A court proceeding to terminate parental rights to a Native American child must comply with the Indian Child Welfare Act (ICWA). Minn. Stat. § 260C.001, subd. 3 (2002). The ICWA requires that the petitioning party show beyond a reasonable doubt that “active efforts” were made to prevent the breakup of the Native American family and that those efforts were unsuccessful. 25 U.S.C. § 1912(d) (2002) (requiring active efforts); In re Welfare of M.S.S., 465 N.W.2d 412, 419 (Minn. App. 1991) (requiring proof of active efforts beyond a reasonable doubt).
1. Termination of parental rights
The district court terminated P.M.H.’s parental rights on the basis of Minn. Stat. § 260C. 301, subds. 1(b)(1), 1(b)(2), 1(b)(4), 1(b)(6), and 1(b)(8) (2002). P.M.H. argues that the district court lacked sufficient evidence to terminate his parental rights under any of the statutory criteria.
a. Subd. 1(b)(1) – Abandonment
district court may terminate parental rights upon a finding that a parent has
abandoned his or her child. Minn. Stat.
§ 260C.301, subd. 1(b)(1). The
Minnesota Supreme Court has determined that abandonment requires: (1) actual
desertion of the child and (2) an intention to forsake the duties of parenthood. In re
P.M.H. argues that a finding of
abandonment may not be predicated solely on his incarceration status. However, the court may consider the fact of
incarceration in conjunction with other evidence that supports a finding of
abandonment. See In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (
b. Subd. 1(b)(2) – Refusal to comply with parental duties
Minn. Stat. § 260C.301, subd. 1(b)(2), allows the juvenile court to terminate parental rights based on findings that “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 . . . .”
The district court found that, given P.M.H.’s extensive criminal history, he has “done nothing to show that his pattern of criminal behavior has changed or that he is now capable of caring for two young children.” Although P.M.H. testified that he takes full advantage of any services available to him as a result of his incarceration, he acknowledges that it will be at least one to two years before he is stable enough to parent the children. P.M.H. was not present for the birth of either C.W. or M.E., initially denied paternity of C.W., and failed to contact Ms. Jourdain (RCCHSD social worker) regarding visitation with C.W. once his paternity had been conclusively established. Although P.M.H. testified that he was “pretty sure” he was the father of M.E., he again initially denied paternity of M.E. and failed to contact Ms. Jourdain regarding visitation once paternity had been established. The district court determined that P.M.H. has never had a relationship with either C.W. or M.E. and has not signed a recognition of parentage with respect to either child. The findings addressing the district court’s decision to terminate P.M.H.’s parental rights under subd. 1(b)(2) address the statutory criteria and are not clearly erroneous.
c. Subd. 1(b)(4) – Palpably Unfit
Minn. Stat. § 260C.301, subd. 1(b)(4), allows the district court to terminate parental rights based on findings that
a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of . . . conduct . . . or . . . conditions directly relating to the parent and child relationship. . . that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.
“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 (
There is sufficient evidence in the record to support the district court’s conclusion that P.M.H. is palpably unfit. The district court made extensive findings regarding P.M.H.’s criminal history dating back to 1989. P.M.H. has a history of drug abuse and testified to having used crack cocaine, marijuana, and methamphetamine. He testified that he continued to use drugs, despite completing two chemical-dependency programs. Further, P.M.H. testified to having had sex with a 16-year-old girl in 1993, when he was 28 or 29 years of age. P.M.H. has a history of abusive behavior towards J.W. and testified that it would take at least another one to two years for him to become a stable parent. Therefore, the district court’s decision that P.M.H. is “palpably unfit” to parent and, for the reasonably foreseeable future, will be unable to appropriately care for the children is supported by the record.
d. Subd. 1(b)(6) – Egregious Harm
Stat. § 260C.301, subd. 1(b)(6), allows the district court to terminate
parental rights based on a finding “that a child has experienced egregious harm
in the parent’s care which is of a nature, duration, or chronicity that
indicates a lack of regard for the child’s well-being . . . .” This ground for termination simply requires
that a child has experienced egregious harm in the parent’s care that
demonstrates the parent’s grossly inadequate ability to provide minimally
adequate parental care to any child. Matter of Welfare of A.L.F., 579 N.W.2d
152, 155 (
is sufficient evidence in the record to support the finding that P.M.H. has
subjected a child to egregious harm. The
district court found that P.M.H. engaged in a sexual relationship with J.W.
when she was 14 years of age. At his
sentencing hearing, P.M.H. admitted that he was involved in a sexual
relationship with J.W. and knew that she was only 15 years old at the
time. P.M.H. was charged in March 2003 with
criminal sexual conduct and fled
e. Subd. 1(b)(8) – Neglected and in foster care
Minn. Stat. § 260C.301, subd. 1(b)(8), allows the juvenile court to terminate parental rights based on findings that the children are neglected and in foster care. The court is required to weigh 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 the three months before the 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).
this case, the evidence demonstrated that C.W. has been in continuous
alternative care since November 26, 2002. M.E. has been in continuous alternative care
since January 14, 2004. P.M.H. has been
incarcerated for the majority of the children’s lives. Although P.M.H. has participated in the
services available to him in prison, he testified that he would be unable to
care for the children for at least one to two years and still needs to undergo
sex-offender treatment. P.M.H. has
failed to maintain any contact with the county social worker responsible for
the children and has not had visitation with either child. P.M.H. contacted the social worker, Gloria
Jourdain, twice prior to the termination proceeding. Once during July 2003, he called Ms. Jourdain
to tell her that J.W. was taking drugs and should not have custody of C.W. During the second phone call P.M.H. reported
that J.W. had gone to
because a child’s best interests are the paramount consideration in proceedings
to terminate parental rights, the district court may not terminate parental
rights if the record does not show that termination is in the child’s best
interests, even if one or more of the statutory prerequisites for termination
exist. In re Welfare of M.P., 542 N.W.2d 71, 74-75 (
2. Active Efforts
In order to terminate parental rights regarding a Native American child, the petitioning party must demonstrate that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” 25 U.S.C. § 1912(d) (2002). These “active efforts” must be proved beyond a reasonable doubt. Welfare of M.S.S., 465 N.W.2d at 418.
and M.E. are Native American children for ICWA purposes. P.M.H. argues that the county failed to
provide active efforts to reunify his family.
Specifically, he contends that he was never offered a written case plan,
visitation with the children, or any other services in order to prevent the
termination of his parental rights.
Although a written case plan is required, when the parent’s lack of
cooperation is responsible for the county’s failure to construct a plan, the
absence of a written plan is not reversible error. In re
Welfare of R.M.M. III, 316 N.W.2d 538, 542 (
Here, there is ample, convincing support in the record that the county’s offer of services would have been futile. P.M.H. has never had a relationship with either child, initially denied paternity as to both, has previously shown no interest in being a parent, and has been incarcerated for most of the children’s lives. He failed to provide county social workers with any contact information, and from November 23, 2002, to November 13, 2003, P.M.H.’s whereabouts were completely unknown. RCCHSD was prepared to provide services to P.M.H. had he made any attempt to maintain contact with the social workers assigned to the family or to allow them to contact him. On the two occasions that P.M.H. did contact the RCCHSD social worker involved, he called only to update RCCHSD on the activities of J.W. and did not request visitation with either child or inquire as to what he could do to obtain custody of the children. In fact, P.M.H. has not had any visitation with either child. Finally, P.M.H. has made no efforts to change his criminal behavior and concedes he is currently in no position to parent the children. Because the record supports a decision that efforts to reunify the family would have been futile, we cannot say that any failure to satisfy the technical requirements of 25 U.S.C. § 1912(d) is fatal to the district court’s decision to terminate P.M.H.’s parental rights.