This opinion will be unpublished and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 Child of D.B., Parent.
Filed November 8, 2005
Scott County District Court
File No. 2004-08308
Steven L. Bergeson, Tuttle & Bergeson, Inc.,
Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Peggy Flaig Hellier, Assistants County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent Scott County Human Services Department)
Roger J. Ramstad,
Marcia Kladek, 2491 Bridle Creek Trail,
Considered and decided by Chief Judge Toussaint, Presiding Judge; Peterson, Judge; and Dietzen, Judge.
In this termination of parental rights proceeding, appellant D.B. challenges the district court’s order and judgment that three statutory grounds for termination were established in the record and that termination is in the best interests of the child. Because the district court’s decision that three statutory bases for termination was supported by clear and convincing evidence, and termination is in the child’s best interests, we affirm.
Appellant lived in
D.B., the child of appellant, was born on April 18, 2003, with cocaine in his system. Although D.B. is not a “special needs” child, he has intermittent night terrors and sleep problems. D.B. has been out of his parents’ custody for nearly two years. D.B.’s mother has five children, one of whom, D.B., was fathered by appellant. In December 2003, after a history of involvement with child protection services, D.B. and the other children were removed from the mother’s home and placed with their maternal aunt. D.B.’s mother voluntarily terminated her parental rights to D.B. at the outset of the termination of parental rights (TPR) trial.
has never been the full-time caregiver for either D.B. or his 18-year old
daughter. From D.B.’s birth until winter
2003, appellant sporadically stayed with D.B.’s mother in her rented home. Appellant assisted with D.B. to some extent
when he was in town, but D.B.’s mother always had primary responsibility in
caring for D.B. During this time,
appellant traveled between
Appellant has an
extensive criminal record from
On May 5, 2003, Scott County Human Services filed a Children in Need of Protection and Services (CHIPS) petition involving D.B. and his half-siblings, all of whom at that time were in the sole custody of their mother. Appellant was incarcerated at that time. After the CHIPS adjudication, the county provided the court with a case plan for D.B., which established D.B. would continue living with his maternal aunt and her husband. At that time, the county did not provide a specific case plan for appellant, who was not a caregiver to D.B. and whose whereabouts were unknown to county human services.
A county caseworker assigned to the case attempted to locate appellant following the filing of the CHIPS petition. The caseworker obtained contact information for appellant from D.B.’s mother and aunt, and left several messages for appellant to contact her. Appellant eventually responded to the caseworker’s messages in February 2004. Appellant called her after business hours and left two messages, saying he had a lot of “business” going on, and that he would call her later. But appellant left no contact information and expressed no concerns about D.B. The caseworker again tried to reach appellant in late-February 2004, but was unsuccessful.
In May 2004, the caseworker located appellant in prison and sent him a letter stating that a termination of parental rights petition would be filed. Although appellant was aware of D.B.’s out-of-home placement, he made no effort to assert his parental rights. According to appellant, he did not appreciate the seriousness of the situation until he received notice of the termination petition.
In August 2004, Scott
County Human Services filed its amended petition to terminate the parental
rights of appellant. Upon learning of
the petition, appellant phoned a second caseworker assigned to the case and reaffirmed
his interest to parent D.B. Appellant
told the caseworker that he last saw D.B. in October 2003. Appellant hoped to live with D.B. in
A TPR trial was held March 23 and 24, 2004. Appellant was in prison at the time of the trial. A caseworker testified that during his time in prison, appellant had five supervised visits with D.B. During one visit, a caseworker observed that when D.B. ran off, appellant told D.B. he would “leave him if he didn’t come back.” Appellant has not identified any relatives or family members that could serve as a support network for him and D.B., or who would or could be an appropriate placement for D.B. while appellant was in custody.
D.B.’s guardian ad litem (GAL) also testified at trial. The GAL testified that the best interests of D.B. support termination of appellant’s parental rights. The basis of the opinion was that appellant made no attempt to be involved in the case, that D.B. was placed with his aunt and her husband most of his life, and appellant’s imprisonment. The GAL concluded that D.B needed a permanent home with a bed, rules, and a parent who was always there. The GAL testified that she lacked sufficient information to determine appellant’s parenting skills.
Following the trial, the district court granted the petition to terminate appellant’s parental rights on three statutory grounds: (1) appellant was palpably unfit to be a parent despite reasonable reunification efforts by the county; (2) appellant failed to correct conditions leading to D.B.’s out-of-home placement; and (3) D.B was neglected and in foster care. The court also determined that termination of appellant’s parental rights was in D.B.’s best interests. This appeal follows.
D E C I S I O N
On appeal from a termination of 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 (
may terminate parental rights on the basis of one or more of the nine criteria
listed in Minn. Stat. § 260C.301, subd. 1(b) (2004). Although the petitioner need only prove one
criterion, the primary consideration in any termination proceeding is the best interests
of the child.
This court will
affirm a termination of parental rights “as long as at least one statutory
ground for termination is supported by clear and convincing evidence and
termination is in the child’s best interests.”
In re Welfare of Children of R.W.,
678 N.W.2d 49, 55 (
appellant raises four issues. Appellant
first argues that the county failed to prove by clear and convincing evidence
that he is “palpably unfit” under Minn. Stat. § 260C.301, subd. 1(b)(4).
The juvenile court may upon petition, terminate all rights of a parent to a child if it finds that . . . a parent is palpably unfit to be a party to the parent and child relationship because . . . 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). “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 (
that the county failed to show a consistent pattern of specific conduct or
conditions that are detrimental to the parent-child relationship because the
only evidence presented concerning appellant was that he was incarcerated. See A.Y.-J.,
558 N.W.2d at 761. Appellant’s argument is misplaced. Courts may consider the fact of incarceration
along with other evidence.
The district court also determined appellant was “palpably unfit” for other reasons. Specifically, appellant exhibited a pattern of behavior in which he left the parenting responsibility to others. For example, when the county made repeated efforts to contact appellant regarding D.B., his phone response was that he was busy and left no contact information. The record supports the findings of the district court, and appellant does not challenge these findings.
Appellant also contends that the county failed to demonstrate that appellant’s current circumstances will continue into the indefinite or foreseeable future. The district court observed that appellant has spent much of his adult life in prison. Appellant’s life in crime remained uninterrupted after he became a father; he committed a drug offense just 10 days after the D.B.’s birth. Unfortunately, the record provides little indication that appellant’s pattern of behavior will change. The district court’s conclusion that appellant is “palpably unfit” is amply supported in the record by clear and convincing evidence.
argues that the county failed to prove by clear and convincing evidence that
reasonable efforts failed to correct the conditions leading to child placement
under Minn. Stat. § 260C.301, subd. 1(b)(5).
The juvenile court may upon petition, terminate all rights of a parent to a child if it finds that . . . following the child's placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child's placement.
Minn. Stat. § 260C.301, subd.
1(b)(5). It is presumed that reasonable
efforts have failed if, among other factors, “reasonable efforts have been made
by the social services agency to rehabilitate the parent and reunite the
Appellant contends that the efforts expended by the county were not reasonable because the county workers did not make sufficient efforts to contact or provide services to appellant while he was incarcerated. We disagree. Following the filing of the CHIPS petition, two caseworkers made repeated attempts to contact appellant, yet appellant chose not to maintain contact with the county. These attempts included telephone calls, trying to locate appellant by contacting D.B.’s mother and caregivers, mailing letters to appellant, and eventually visiting appellant in prison. Appellant could have made himself accessible to the county as they formulated and developed a case plan. Instead, appellant left two phone messages after business hours for his caseworker to indicate he had other “business.” Appellant apparently felt no sense of urgency to become involved in D.B.’s life until the termination petition.
The district court’s findings that the county expended reasonable efforts to correct the conditions leading to placement and reunite the family are amply supported by the record. Thus, the district court’s conclusion that reasonable efforts failed to correct the conditions leading to child placement is supported by clear and convincing evidence.
Third, appellant argues
that the county failed to prove by clear and convincing evidence that D.B. was
neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8).
Appellant argues that the county failed to make reasonable efforts to provide adequate services to foster the reunification of appellant and D.B. The district court determined that the county made reasonable yet unsuccessful efforts to reunite the family by repeatedly trying to locate appellant and involve him in D.B.’s life. “Because reasonable efforts for reunification would have been futile and the lack of a case plan for appellant was excusable, termination under this factor is appropriate.” Vasquez, 658 N.W.2d at 256.
Reasonable efforts were only one factor that the district court considered. The district court found that while D.B. was in court-ordered foster care, appellant was in prison and therefore D.B. could not reside with him, and appellant was responsible for his condition because he committed crimes just 10 days after the birth of D.B., which led to his imprisonment. These findings are not challenged. The district court’s conclusion that D.B. was neglected and in foster care is supported in the record by clear and convincing evidence.
argues that the district court should not have considered the best interests of
D.B. because no proper ground for termination existed. “[P]arental rights may
not be terminated solely on the
grounds that it is in the best interests of the child to do so.” In re
Welfare of S.N. & M.O., 423 N.W.2d 83, 91 (
Appellant further argues
that even if a statutory ground for termination exists, the county failed to
prove by clear and convincing evidence that it is in the best interests of D.B.
to terminate appellant’s parental rights.
In a termination-of-parental-rights proceeding, the best interests of
the child are paramount. Minn. Stat. §
260C.301, subd. 7. Three factors guide
this court’s review of the district court’s finding that termination is in the
best interests of the children: “(1) the child’s interests in preserving the
parent-child relationship; (2) the parent’s interests in preserving the parent-child
relationship; and (3) any competing interest of the child.” In re
Welfare of R.T.B., 492 N.W.2d 1, 4 (
Here, the district court determined that termination of appellant’s parental rights is in the best interests of D.B. The district court found: (1) D.B. has been in out-of-home placement for most of his life; (2) D.B. has an established relationship with his foster care providers; (3) appellant has no certain and stable housing or employment; (4) appellant has exhibited a pattern and history of arrests and incarceration; (5) appellant has never been the primary caregiver of D.B.; and (6) D.B. needs permanency and care from a family that has established they have the means, ability, and desire to parent him. None of these findings are challenged. Consequently, clear and convincing evidence demonstrates that termination of appellant’s parental rights is in the best interests of D.B.
 Appellant also admitted to prior weapons convictions and an assault conviction, but no records were provided to the court.