This opinion will be unpublished and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

A05-1721

 

In the Matter of the Welfare of the Children of:
A.J.R.V. and A.J.V., Sr., Parents.

 

Filed March 7, 2006

Affirmed

Peterson, Judge

 

Washington County District Court

File No. 82-2027OY

 

Sherri D. Hawley, Walling, Berg, & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, MN  55402 (for appellant-mother A.J.R.V.)

 

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Douglas H. Johnson, Washington County Attorney, Mary M. Pieper, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082 (for respondent Washington County Community Services)

 

Gregory J. Schmidt, 1600 University Avenue, Suite 510, St. Paul, MN  55104-3829 (for respondent-father A.J.V. Sr.)

 

Phyllis Connor, 14949 62nd Street North, Stillwater, MN  55082 (for guardian ad litem)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from the order terminating her parental rights to her four children, appellant-mother argues that there was insufficient evidence to conclude that she is palpably unfit to be a party to the parent-child relationship and that she was denied her constitutional rights.  We affirm.

FACTS

            Appellant-mother A.J.R.V. and father A.J.V., Sr.[1], are the parents of four minor children: A.J.V., Jr., born July 27, 1998; A.M.V., born March 18, 2001; A.J.V., born September 5, 2002; and A.J.L.V., born November 27, 2003.  The children currently reside in a foster home.

Respondent Washington County Community Services first became involved with the family after being notified on June 3, 2003, that during a prenatal doctor visit, mother tested positive for marijuana and admitted using methamphetamine.  The county found unsafe and unhealthy conditions in mother’s home and placed the three children that mother had at that time on a 72-hour health-and-welfare hold.  The children were returned to the home on June 8, 2003.  A month later, unsafe and unhealthy conditions were again found in mother’s home, and the county removed the children from the home.  A CHIPS petition was filed on July 10, 2003, and after an emergency protective hearing, the children were placed in foster care.

            An August 12, 2003 case plan required mother to: maintain a safe, sanitary, and drug-free home; comply with the recommendations of her chemical-dependency evaluations; complete inpatient treatment; abstain from using all mood-altering chemicals; submit to random urine analysis (UA); and complete a psychological evaluation and follow all recommendations.  Also, both parents were required to search for employment, improve their parenting ability, attend doctor appointments for the children and follow the recommended care, complete a parenting assessment and follow recommendations, and attend all prenatal medical appointments.

            Mother gave birth to A.J.L.V. on November 27, 2003.  Mother was maintaining her sobriety and consistently attending visitations with her three children in foster care.  Mother attempted to comply with her case plan, but after she failed to attend an intensive parenting program and continued to test positive for illegal substances, on August 16, 2004, the county filed a petition to terminate mother’s parental rights.  Following a two-day trial, the court issued its order denying the petition.  The children remained in foster care, and mother was granted supervised visits. 

Mother completed a rule-25 chemical-dependency assessment on December 27, 2004, was found to be chemically dependent, and was recommended for the Alcohol and Drug Abuse Program (ADAP) 10/84 outpatient treatment, which requires ten days of inpatient treatment followed by 84 hours of outpatient treatment.  After missing two scheduled intake appointments, mother failed to enter the program. 

Mother’s UA results for December 16 and 30, 2004, and January 4, 2005, which were all days of supervised visits, and for January 26, 2005, were positive for amphetamine and methamphetamine, and following a February 8, 2005 CHIPS-petition review hearing, the court suspended mother’s supervised visits until she completed her primary chemical-dependency treatment and provided UAs that tested negative for illegal substances. 

On February 14, 2005, mother completed a rule-25 updated chemical-dependency assessment, which was necessary because mother did not enter treatment within ten days after the previous assessment.  At the assessment, mother admitted using methamphetamine two to three times a week.  Mother requested the ADAP 10/84 program and was authorized to enter treatment on February 22, 2005; however, she cancelled her intake appointment on March 3, 2005. 

UA results for March 9 and 17 and April 12, 2005, were all positive for amphetamine and methamphetamine.  The social worker assigned to mother continued throughout March to help mother enter treatment.  Mother completed another rule-25 updated chemical-dependency assessment on April 7, 2005.  The chemical-dependency assessor recommended inpatient treatment with a half-way house or board and lodging, but mother again requested the ADAP.  On April 12, 2005, mother informed the court that she was scheduled for treatment and agreed to call and check in.  The chemical-dependency inpatient counselor testified that mother entered the ten-day inpatient phase of the ADAP 10/84 program, but she was discharged at the staff’s request before completing the program because she was not committed to the treatment process. 

On April 12, 2005, the county filed a second petition to terminate mother’s parental rights alleging four statutory grounds: Minn. Stat. § 260C.301, subd., 1(b)(2) (2004) (refused or neglected to comply with duties of parent-child relationship);  Minn. Stat. § 260C.301, subd., 1(b)(4) (2004) (palpably unfit); Minn. Stat. § 260C.301, subd., 1(b)(5) (2004) (reasonable efforts failed); and Minn. Stat. § 260C.301, subd., 1(b)(8) (2004) (children are neglected and in foster care).

Mother avoided giving specimens for a UA in May 2005 and tested positive for marijuana and methamphetamine on June 10, 2005.  On May 31, 2005, mother completed another rule-25 updated chemical-dependency assessment, and the chemical-dependency counselor recommended 28 days of residential inpatient treatment at River Place and six months at Hart House, a sober housing facility.  Mother entered River Place on June 24, 2005, but left against staff advice on June 27, 2005.  Mother testified that she has not been sober since December 8, 2004.

            The district court terminated mother’s parental rights. This appeal follows.

D E C I S I O N

1.         Mother argues that the county failed to prove by clear and convincing evidence that her parental rights should be terminated under any of the statutory bases asserted in the petition.  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).  The evidence must be clear and convincing that at least one of the statutory bases for termination exists to support a decision to terminate parental rights.  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2004) (listing nine criteria).  “[T]he evidence must address conditions that exist at the time of the hearing. . . .  When considering termination of parental rights, the court relies not primarily on past history, but to a great extent upon the projected permanency of the parent’s inability to care for his or her child.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (quotations and citation omitted).  District courts must make clear and specific findings that conform to the statutory requirements.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  “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).

The district court determined that clear and convincing evidence existed to terminate mother’s parental rights under all four statutory bases alleged in the petition.  Proof of one statutory basis is sufficient, and in any termination proceeding, the best interests of the child must be the paramount consideration.  Minn. Stat § 260C.301, subd. 7 (2004).

Parental rights may be terminated based on clear and convincing evidence

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or 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); see R.W., 678 N.W.2d at 55 (requiring clear and convincing evidence). 

 “If a parent’s behavior is likely to be detrimental to the children’s physical or mental health . . . , 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) (citing In re Welfare of H.M.P.W., 281 N.W.2d 188, 191 (Minn. 1979)).  A parent’s condition can provide a context for conduct that supports a determination of palpable unfitness even where the conduct alone may not compel that determination.”  In re Welfare of A.V., 593 N.W.2d 720, 721-22 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). 

The record demonstrates that mother has limited understanding of her ongoing chemical-dependency issues and has failed to comply with court orders requiring her to address these issues.  Chemical-dependency-assessment counselors recommended that mother participate in various treatment programs.  The district court ordered mother to complete treatment and suspended mother’s supervised visits until she completed her primary chemical-dependency treatment and provided UAs testing negative for illegal substances.  Mother failed to enter treatment after missing intake appointments at the ADAP in December 2004.  Mother again scheduled an appointment to enter treatment at the ADAP in February 2005 and again failed to enter the program.  In April 2005, mother informed the court that she was scheduled to enter treatment at the ADAP.  She checked in, but she was discharged from the program because she was not committed to the treatment process.  Mother entered treatment at River Place but left against staff advice a few days later.  The district court found that the treatment programs that were recommended for mother were culturally and linguistically appropriate and that mother twice failed to successfully complete treatment.

A therapist who completed a parenting assessment testified, and the district court found, that mother had to first address her chemical-dependency needs before any other services would be effective in improving her parenting.  Mother’s social worker testified that treatment was the primary focus of mother’s case plan after the first termination trial.  The social worker testified, and the court found, that the county provided reasonable efforts to treat mother’s chemical dependency.  Despite these efforts, mother failed to complete the recommended chemical-dependency treatment and remain sober.

Mother testified that she was not employed and had not been employed since the proceedings began in June 2003.  There was also testimony that since the first termination trial, mother had resided with her father, her mother-in-law, her sister, and her cousin.  The district court found that mother has no stable housing and is unable to provide adequate housing for her children.  The district court also found that “it is unlikely in the reasonable foreseeable future [that mother] will be able to remain sober and provide for the needs of her children due to her continued use of methamphetamine and inability to complete chemical dependency treatment.”

There is clear and convincing evidence that mother’s consistent pattern of illegal drug use has rendered mother unable, for the reasonably foreseeable future, to care for the ongoing physical needs of her children.  The district court did not err in concluding that the county proved by clear and convincing evidence that mother’s parental rights should be terminated because mother is palpably unfit to be a party to the parent and child relationship.  Because proof of only one statutory basis for termination is required, we will not address the other statutory bases that the district court concluded were met.

2.         Mother argues that because the county required her to continue working with the same social worker who had been assigned to her before the first termination trial and that social worker testified at the first termination trial about what a horrible parent mother is, the county failed to make reasonable efforts to reunify the family.  Mother contends that it is apparent that the social worker had determined long before the first trial that mother was not worthy to be a parent and that there is every reason to believe that the social worker relished the opportunity to prove to the district court that she was right in seeking the termination of mother’s parental rights and that the court was wrong in not granting the first petition.  But this bald accusation does not demonstrate that the county failed to make reasonable efforts to reunify the family.

The therapist who completed mother’s parenting assessment testified that mother had to first address her chemical-dependency needs before any other services would be effective in improving her parenting.  The social worker that mother accuses of undermining reunification efforts testified that treatment was the primary focus of mother’s case plan after the first termination trial, and the case plan confirms this testimony.  Following the first trial, the county made what the district court found were reasonable efforts to get mother into a treatment program, and mother failed to successfully complete treatment.  Mother cites no evidence that the social worker’s efforts following the first trial were not directed toward getting mother into treatment so that mother could complete the first step in the process of improving her parenting.

3.         Mother argues for the first time on appeal that she was denied her constitutional right to equal protection.  Mother contends that it is well settled that parental rights may not be terminated based on a parent’s mental illness without proof that the mental illness prevents the parent from meeting the needs of the child.  Therefore, mother argues, because chemical dependency is no less a disease than mental illness, equal protection requires that her parental rights not be terminated solely because she is chemically dependent and that there must be proof that her disease prevents her from being able to adequately parent her children.

Mother also argues for the first time on appeal that she was denied due process of law when the district court applied the presumption under Minn. Stat. § 260C.301, subd. 1(b)(5) (2004), that reasonable efforts have failed to correct the conditions leading to a child’s placement out of the home when (A) a parent has been diagnosed by a professional as chemically dependent; (B) a case plan has required the parent to participate in a chemical-dependency treatment program; (C) an appropriate treatment program was offered to the parent; (D) the parent two or more times failed to successfully complete treatment or two or more times refused to participate in a treatment program; and (E) the parent continues to abuse chemicals.

Mother argues that the district court’s reliance on this presumption denied her due process of law because the issue of whether she failed to successfully complete treatment was left solely to the discretion of the treatment programs, and the presumption shifted onto her the burden of proving that reasonable efforts had not failed when she had never received a hearing to determine whether she had failed to successfully complete treatment.

“Even in the context of termination of parental rights, failure to raise constitutional issues in the district court precludes the issues from being raised on appeal.”  In re Welfare of M.H., 595 N.W.2d 223, 229 (Minn. App. 1999) (citing In re Welfare of C.L.L., 310 N.W.2d 555, 557 (Minn. 1981)).  Therefore, we decline to review these constitutional issues other than to note that the district court’s findings describe how mother’s chemical dependency has impaired her parenting ability, and mother had an opportunity at the hearing on the termination petition to present evidence that the treatment programs incorrectly concluded that she failed to successfully complete treatment.  There is no basis in the record to conclude that the issue of whether mother failed to successfully complete treatment was left solely to the discretion of the treatment programs, rather than that the district court was persuaded by the evidence presented at the hearing to conclude that mother failed to successfully complete treatment.

4.         The best-interests analysis in proceedings to terminate parental rights requires the district court to balance the child’s interest in preserving the parent-child relationship, the parent’s interest in preserving the parent-child relationship, and any competing interests of the child.  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  “Competing interests include such things as a stable environment, health considerations and the child’s preferences.”  Id. “Where the interests of parent and child conflict, the interests of the child are paramount.”  Minn. Stat. § 260C.301, subd. 7.

Mother argues that the best-interests analysis conducted by the district court did not address whether the children need to maintain a connection with mother and simply noted the strengths of the foster home.  Mother contends that “[t]he fact that the trial court focused exclusively on the foster home in its best interests analysis demonstrates that it assumed the children should not be with their parents and the court simply assessed the best placement options for them outside of their parent’s home.”  But the district court’s best-interests analysis did not focus exclusively on the foster home.  The district court found

The three older children have been subject to neglect in the home of the parents due to [the parents’] lengthy chemical dependency use.  The children have all experienced multiple moves.  The three older children all exhibit symptoms of attachment issues caused by their parent’s neglect.  During supervised visits, it is necessary for Barbara Chase, family service worker, to assist [mother], who is unable to care for all of the children.  During the last visit with both parents, [A.J.V., Jr.] engaged in a temper tantrum the entire visit.  [A.J.V.] is very independent of his parents, and sought to have all his needs met by Ms. Chase.  [A.M.V.], after greeting her parents, was looking out the window, awaiting the return of her foster care provider.  [A.J.L.V.], who was learning to walk, paid no attention to her parents.  The [foster parents] are aware of the children’s history and are willing to participate in any services the children may need and have requested in-home therapy. 

 

            This finding demonstrates that in determining whether to terminate mother’s parental rights, the district court examined the relationship between mother and the children and did not simply assume that the children should not be with mother.  Mother cites no authority for her claim that the district court’s best-interests analysis must specifically address whether the children need to maintain a connection with mother.

Affirmed.



[1] A.J.V., Sr. voluntarily terminated his parental rights and is not a party to this appeal.