This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In the Matter of the Welfare of the Child of:

J. L. M. and R. D. J., Sr., Parents.



Filed October 24, 2006


Halbrooks, Judge



Anoka County District Court

File No. J8-06-50044



Kathryn J. Cima, 1007 West 53rd Street, Minneapolis, MN 55419 (for appellant)


Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 3rd Avenue, 7th Floor, Anoka, MN 55303 (for respondent)



            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the district court’s termination of his parental rights, appellant R.D.J., Sr., challenges the district court’s conclusions that (1) termination is justified by the statutory factors of (a) neglect of or refusal to comply with parental duties, (b) appellant’s palpable unfitness to be a parent, (c) reasonable efforts were unsuccessful to correct conditions requiring the foster-home placement and (d), the child is neglected and in foster care; and contends that (2) it is not in the child’s best interests to have his parental rights terminated; and (3) the district court should have transferred legal and physical custody of his son to the sister of his fiancée.  We affirm.


            R.D.J., Jr., son of J.L.M. and appellant R.D.J., Sr., was born on August 1, 1998.  At an emergency protective-case hearing on September 22, 2004, R.D.J., Jr., and his half-sister were adjudicated by the district court to be children in need of protection or services, following an incident when J.L.M. left the half-sister at home alone.  Appellant did not attend the hearing.  At the time of the hearing, R.D.J., Jr., was with appellant; their whereabouts were unknown.

Two days later, the district court held an admit/deny hearing, which appellant attended.  Both appellant and J.L.M. denied the facts of the petition.  The district court ordered R.D.J., Jr., to remain with appellant under protective supervision on the condition that appellant cooperate with Anoka County Department of Social Services.  The district court also ordered appellant to be subject to random urinalysis (UA) and Breathalyzer tests and directed appellant to inform the county of any new address within 24 hours after moving.  Appellant subsequently missed two appointments with a social worker, prompting questions about the accuracy of the information that appellant had provided the county about his residence.  At the pretrial hearing, based on appellant’s failure to cooperate with the county, the district court ordered R.D.J., Jr., to be placed in foster care until the county could substantiate that appellant had an appropriate home and appellant’s UA was clean.  The following week, a social worker visited appellant at his apartment.  The social worker saw nothing to indicate that a child lived there, and there was no food in the refrigerator.  Appellant stated that “90% of the time,” he and R.D.J., Jr., lived with his fiancée in a house owned by his fiancée’s sister, Sherry Ironnecklace.  But appellant refused to allow the county to have access to that home for an inspection.

The district court held a disposition hearing on December 14, 2004.  Appellant attended the hearing and admitted the petition facts.  The district court adjudicated R.D.J., Jr., to be a child in need of protection or services under Minn. Stat. § 260.007, subd. 6(3), (8), and (9) (2004), and continued its prior order and case plan, modified to reduce appellant’s UAs to no more than once a week and eliminating the requirement of a chemical-dependency evaluation.  The district court further ordered that the county could move toward placing R.D.J., Jr., with appellant if it could be verified that appellant had a stable residence and appellant visited his son and cooperated with the county and the guardian ad litem (GAL). 

The GAL subsequently recommended that appellant be permitted an unsupervised overnight visit with R.D.J., Jr., at his apartment over the Christmas holiday.  But as a result of appellant’s failure to comply with conditions established for the visit, the county advised appellant that future visits with R.D.J., Jr., would take place at the government center until he provided proof of his residence.  In January 2005, appellant failed to attend two visitations with his son.  At a disposition hearing on January 28, 2005, the district court placed R.D.J., Jr., with appellant under protective supervision and continued the terms of the December 14, 2004 order.

            This second period of custody under protective supervision continued until October 3, 2005, when R.D.J., Jr., was placed in foster care.  During this period, appellant failed to enroll R.D.J., Jr., in court-ordered counseling and missed six appointments with the social worker.  A planned same-day visit between R.D.J., Jr., and his half-sister and her foster family on August 4, 2005, had to be extended for three days because appellant could not be found to pick up R.D.J., Jr.  In addition, appellant failed to provide random UAs, claiming that he was providing UAs to the Hennepin County drug court as a condition of his probation there following a conviction of a third-degree controlled-substance crime for the sale of crack cocaine.  Appellant was simultaneously telling Hennepin County that he was satisfying the UA requirement by providing tests to Anoka County.  In actuality, appellant was not providing UA samples to either county.

            For the majority of the time until October 3, 2005, appellant and R.D.J., Jr., were living at Sherry Ironnecklace’s home.  The evidence at trial was that R.D.J., Jr., had problems when living there.  From September to October 3, 2005, he was tardy or absent from school 21 of 25 days and was struggling academically in first grade.  R.D.J., Jr., testified that people at the house often yelled at and were not nice to him, he had to make his own breakfast, and he felt that living there was “weird.”  R.D.J., Jr., also testified that appellant punished him by hitting him, once by punching him in the stomach.  R.D.J., Jr., also stated that he saw appellant and his fiancée “using a razor blade to cut white powder on top of a mirror.” 

            R.D.J., Jr., returned to foster care after appellant was incarcerated as a result of Hennepin County probation violations.  Following his foster-home placement, R.D.J., Jr., attended school regularly, and his academic skills improved dramatically.  As previously noted, although appellant was court-ordered to involve R.D.J., Jr., in counseling, he failed to do so.  While appellant was incarcerated, the county asked him to sign a release to allow social services to place R.D.J., Jr., in counseling.  Appellant again refused, even after obtaining his attorney’s advice that he sign the release.  As a result, the district court authorized social services to sign the necessary releases so that R.D.J., Jr., could begin counseling. 

            The county petitioned the district court to terminate both J.L.M.’s and appellant’s parental rights to R.D.J., Jr.  Appellant petitioned the district court to transfer legal and physical custody of R.D.J., Jr., to Sherry Ironnecklace.  Following a court trial, the district court terminated both J.L.M.’s and appellant’s parental rights and denied appellant’s petition.  This appeal by R.D.J., Sr., follows.  J.L.M. has not appealed.




            Appellant challenges the district court’s findings supporting termination, claiming that the findings are not supported by clear and convincing evidence.  “There is perhaps no more grave matter that comes before the court than the termination of a parent’s relationship with a child.”  In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995).  In reviewing a termination of parental rights, we will determine whether “the findings of fact of the juvenile court are supported by substantial evidence and are not clearly erroneous.”  In re Welfare of J.M.S., 268 N.W.2d 424, 428 (Minn. 1978) (citing Minn. R. Civ. P. 52.01).  We “closely inquire[ ] into the sufficiency of the evidence to determine whether the evidence is clear and convincing.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  But “[c]onsiderable 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). 

            This court “must determine whether the [district] court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  When making these determinations, this court exercises great caution, but “a court need find only one of the statutory grounds exists to terminate parental rights.”  S.Z., 547 N.W.2d at 890.  The district court’s findings must be clear and specific to the statutory requirements, supported by evidence addressing current conditions.  Id. 

            In order to terminate parental rights, the district court must find that the “present conditions of neglect will continue for a prolonged, indeterminate period.”  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  The neglect must be caused by more than incarceration but the fact of imprisonment “may combine with other factors, such as parental neglect and withholding of parental affection, to support a finding of abandonment.”  In re Welfare of Walker, 287 N.W.2d 642, 644 (Minn. 1979).

            Here, the district court found four statutory grounds to terminate appellant’s parental rights:  appellant’s refusal to comply with or neglect of parental duties, appellant’s palpable unfitness to be a parent, the failure of reasonable efforts by social services to correct conditions, and that R.D.J., Jr., was neglected and in foster care.


            The district court may terminate parental rights if it finds

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, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child’s physical, mental, or emotional health and development, if the parent is physically and financially able, and 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. 


Minn. Stat. § 260C.301, subd. 1(b)(2) (2004).  Here, the district court found that appellant’s neglect of parental duties dated back to 2004, when appellant and R.D.J., Jr., were unable to be located for the emergency protective-case hearing.  Although the district court granted appellant protective supervision of R.D.J., Jr., at the subsequent admit/deny hearing, appellant failed to cooperate with social services.  The record contains evidence that appellant missed scheduled appointments, provided social services with an inaccurate address for R.D.J., Jr.’s, residence, and failed to comply with explicit visitation conditions.  After appellant received protective custody of R.D.J., Jr., his fulfillment of conditions was no better.  Appellant missed six scheduled appointments and failed to provide random UAs as ordered.  R.D.J., Jr., whose testimony was specifically credited by the district court, stated that he was responsible for making his own breakfast at the Ironnecklace home.  In addition, R.D.J., Jr., testified that he observed appellant and Kari Ironnecklace using a razor blade to cut white powder on a mirror and that appellant punched him when he misbehaved.  Further, R.D.J., Jr.’s, attendance at school was poor, and his academic progress was adversely affected. 

            The district court found that this pattern was one of substantial, continuous, or repeated refusal or neglect to fulfill parental duties such as providing sufficient food, shelter, education, and any other care and control necessary for proper development.  Although appellant claims that he “provided the day to day care for this child for most of the child’s life,” substantial evidence supports the district court’s findings on this factor. 


            The district court may terminate parental rights if it finds a specific pattern of conduct or conditions that makes that parent “palpably unfit” to care for the child “for the reasonably foreseeable future.”  Minn. Stat. § 260C.301, subd. 1(b)(4) (2004).  Palpable unfitness has been defined as “no capacity to parent or to engage in [any] constructive efforts to improve [the] ability to parent.”  In re Welfare of A.V., A.V., A.V. & A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  A parent may be “palpably unfit” even if the parent has a close relationship with the child.  Id. (affirming district court that identified the “inherent tragedy in its conclusion”).  The statute specifies that a “consistent pattern” of conduct or “specific conditions” are equally suitable to find palpable unfitness.  Id.  Specific “permanently detrimental” patterns or conditions must be found to occur over a period of time.  In re Welfare of B.C., 356 N.W.2d 328, 332 (Minn. App. 1984).

            Here, the district court’s findings focused on appellant’s conduct, beginning more than a year before incarceration.  Evidence provided by social services showed that appellant had consistently failed to cooperate with social services and had allowed R.D.J., Jr., to live in a house filled with violence, drugs, and neglect.  Thus, appellant was responsible for a “consistent pattern” of conduct and “specific conditions” that appear to be “permanently detrimental.”  This pattern justifying termination is substantially documented in the district court record.


            The district court also terminated appellant’s parental rights based on its finding that the reasonable efforts of social services had failed to correct the conditions that required R.D.J., Jr.’s, out-of-home placement.  Minn. Stat. § 260C.301, subd. 1(b)(5) (2004).  “Efforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure.”  In re Welfare of J.H.D., R.M.D. & C.M.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  The assistance must “go beyond mere matters of form, such as the scheduling of appointments, so as to include real, genuine help.”  In re Welfare of J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).  Such help must focus on the parent’s specific needs.  In re Welfare of M.A. & J.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). 

            Appellant disputes that reasonable efforts failed because, he claims, first, the case plan did not address concerns raised in the district court’s findings, such as where R.D.J., Jr. spent nights and who cared for him in appellant’s absence.  Second, appellant argues that he “complied with the case plan” because all of his UAs were negative, including those provided for Hennepin County; thus, he claims that social services released him from the requirement until after he was incarcerated.  Appellant contends that any other noncompliance on his part resulted from social services improperly notifying him, by sending a letter to his fiancée’s house where he may not have been receiving mail, or by his “delay[ ]” in signing a release of information resulting from the request to consult with his attorney. 

            But the case plans, admitted as exhibits in district court, document reasonable efforts.  The October 19, 2004 out-of-home-placement plan set goals for the parents to resolve their own chemical-dependency and mental-health issues, learn proper parenting and life-management skills, and ensure that R.D.J., Jr., was in a drug-free environment.  A child-protective-services plan sought R.D.J., Jr.’s, safety, requiring appellant to notify social services of any change in his household location and composition and to provide adequate parenting supervision.  Second, R.D.J., Jr.’s, need for permanency required that appellant maintain contact with social services and sign the necessary releases.  Third, concern for the child’s well-being required appellant to set appropriate limits with proper discipline and to provide for R.D.J., Jr.’s, basic needs such as food, clothing, shelter, supervision, and school attendance.  The case plan called for appellant to complete parenting-skills training; monitor R.D.J., Jr.’s, homework; ensure punctual school attendance; establish age-appropriate bed times; and ensure that R.D.J., Jr., received an adequate breakfast.  The district court found that appellant had available to him services for chemical-dependency evaluation, domestic-violence counseling, and parenting-skills education.  He failed to enter the latter two programs.  A chemical-dependency evaluation completed in Hennepin County recommended that appellant complete chemical-dependency treatment, but he chose not to.

            Thus, the district court terminated appellant’s parental rights based on more than appellant’s incarceration or chemical dependency.  The case plan provided precise, clear steps that informed appellant what he needed to do to resolve the issues that required R.D.J., Jr.’s, foster-care placement.  But the record shows that appellant consistently failed to follow the case plan.  The district court’s conclusion that social services made reasonable efforts to reunify appellant with R.D.J., Jr., is supported by substantial evidence.


            The district court also based the termination of appellant’s parental rights on the ground “that the child is neglected and in foster care.”  Minn. Stat. § 260C.301, subd. 1(b)(8) (2004).  Minnesota law defines this condition as a child (1) placed in foster care by a court order, (2) who cannot be returned to the child’s parents because of the parents’ circumstances, condition or conduct, and (3) whose parents have failed to make reasonable efforts to correct the situation, even when assistance is available for them to do so.  Minn. Stat. § 260C.007, subd. 24 (2004).

            When determining whether a child is neglected and in foster care, the district court must consider seven factors: (1) how long the child has been in foster care; (2) the parents’ efforts to improve their circumstances; (3) whether the parent has visited the child for the preceding three months, unless extreme hardship prevented visitation; (4) the parents’ regular contact with the party temporarily responsible for the child; (5) the appropriateness or adequacy of services available to the parent to improve circumstances; (6) whether additional services would likely allow the child to return to the parent, whether the services have been offered, and if not offered, why they were not offered; and (7) the nature and reasonableness of agency efforts to reunite the family.  Minn. Stat. § 260C.165, subd. 9 (2004).  The district court balances these factors, considering both the interests of the parents and the interests of the child, along with the particular circumstances in each case.  In re Welfare of HGB, MAB & DJB, 306 N.W.2d 821, 826, 827 (Minn. 1981).  But the district court need not specifically address each factor so long as its “detailed findings of fact demonstrate the existence of many of the factors outlined in the statute, and provide clear and convincing evidence.”  A.D., 535 N.W.2d at 649.

            R.D.J., Jr., was in foster care for more than five months.  Appellant did not visit R.D.J., Jr., nor did appellant attempt to contact R.D.J., Jr., while appellant was in prison.  In addition, appellant failed to maintain regular contact with social services or with the foster parents.  The district court’s findings in this matter address the statutory factors and are supported by substantial evidence. 



            Appellant disputes that it is in R.D.J., Jr.’s, best interests to be in foster care instead of living with him or Sherry Ironnecklace.  A district court considering termination of parental rights must make the best interests of the child its paramount consideration, Minn. Stat. § 260C.301, subd. 7 (2004), but the termination must be based on more than the child’s best interests.  In re Welfare of M.H., 595 N.W.2d 223, 228 (Minn. App. 1999).  The district court presumes that the natural parent is suitable to care for his or her child and that it is in the child’s best interests to be cared for by the natural parent.  In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980).  This court closely reviews the district court’s evidence to determine whether it is substantial.  S.Z., 547 N.W.2d at 893.  Findings must address current conditions in a manner clear and specific to the statute.  Id.

            In analyzing whether a decision is in the child’s best interests, courts “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 R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests include stability, the child’s choice among placement alternatives, and the child’s health.  Id.

            Here, the social worker and the GAL testified that termination of appellant’s parental rights was in R.D.J., Jr.’s, best interests for a safe, secure, and stable environment.  The district court found that terminating appellant’s parental rights was in R.D.J., Jr.’s, best interests because appellant “failed to meet any of the conditions of his case plan before being incarcerated.”  Specifically, appellant “failed to obtain stable housing, maintain contact with social services, enroll [R.D.J., Jr.] in counseling, provide random UAs at the direction of social services, or to sign the appropriate releases.”  Further, appellant had maintained contact with known drug users and had exposed R.D.J., Jr., to those drug users and the preparation of drugs for sale.  While in appellant’s care, R.D.J., Jr., was frequently absent or tardy from school, performed poorly in school, and had behavioral problems.  In contrast, R.D.J., Jr., “has been doing extremely well academically since entering foster care,” and R.D.J., Jr., “is happy in foster care.”  Appellant’s limited parenting skills prevented R.D.J., Jr., from living in “a stable, safe, secure and drug free environment for the foreseeable future, if ever.”  Therefore, the district court found that R.D.J., Jr.’s, interests are best served by living in a more stable home than in preserving the father/child relationship with appellant.  Detailed district court findings thus reasonably rebut the presumption that R.D.J., Jr., should live with his biological father, just as those findings support termination of parental rights. 



            Finally, appellant seeks the transfer of legal and physical custody of R.D.J., Jr., to Sherry Ironnecklace, whom appellant considers a member of his family.  In reviewing the district court’s denial of an alternative placement, we must determine if the challenged findings “address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.”  M.D.O., 462 N.W.2d at 375.  This court’s review “is limited to the sufficiency of the evidence and the adequacy of the findings to support the conclusions of law.”  In re Welfare of S.G. & K.G., 390 N.W.2d 336, 341 (Minn. App. 1986).

Appellant claims that the district court erroneously denied his custody motion as lacking permanency because it is “abundantly clear that he will try to regain custody.”  Appellant is correct that a custody transfer is a permanency option.  See Minn. Stat. § 260C.201, subd. 11(d) (2004) (requiring that the court make a permanent disposition if the child is not returned to the home).  But the district court primarily relied on R.D.J., Jr.’s, need for a safe, stable home, which the district court found that Ironnecklace could not provide. 

            In making a placement determination, the district court must determine the child’s best interests, Minn. Stat. § 260C.212, subd. 2(a) (2004), guided by statutory factors including:

(1) the child’s current functioning and behaviors; (2) the medical, educational, and developmental needs of the child; (3) the child’s history and past experience; (4) the child’s religious and cultural needs; (5) the child’s connection with a community, school, and church; (6) the child’s interests and talents; (7) the child’s relationship to current caretakers, parents, siblings, and relatives; and (8) the reasonable preference of the child, if the court . . . deems the child to be of sufficient age to express preferences.


Id., subd. 2(b) (2004).  In addition, “[s]iblings should be placed together” unless doing so would not be in the child’s best interests.  Id., subd. 2(d) (2004).  Placement with a relative is preferred.  Minn. Stat. § 260C.201, subd. 11(d)(1) (2004).

            J.D.R., Jr.’s, foster mother testified that R.D.J., Jr., is no longer difficult to care for, and the GAL stated that, since placement, R.D.J., Jr., has “flourished” in school.  The district court found that R.D.J., Jr., “is happy in foster care where he lives with three of his siblings.”  Furthermore, the district court found that Ironnecklace is not suitable to have custody.  Seven children live in Ironnecklace’s home, three of her’s and four of her sister’s (appellant’s fiancée), whom Hennepin County Juvenile Court placed with Ironnecklace because of her sister’s drug abuse.  Nonetheless, Sherry Ironnecklace allowed appellant’s fiancée, who lived in the house, to care for the children.  Sherry Ironnecklace has another child living with her grandparents.  The district court noted that, although Ironnecklace sought custody of R.D.J., Jr., she had not enthusiastically worked toward that goal.  She did not return required background-check forms for four and one-half months; when the forms were returned, they were completed in a manner in which social services could not process them.  It took Ironnecklace another month to correct the problem.  Further, when R.D.J., Jr., was in foster care, Ironnecklace never contacted the social worker or the GAL to inquire about him or to request visitation.

            Although appellant disputes the district court’s finding that Ironnecklace’s home is an unfit residence because Anoka County has not inspected the home, it was appellant who denied the county access to the home.  The district court also relied on R.D.J., Jr.’s, testimony and the testimony of the foster parent, who heard R.D.J., Jr., describe appellant’s use of drugs in the house and who saw R.D.J, Jr.’s, fear of being hit when he first moved into the foster home.  We, therefore, conclude that the evidence supports the district court’s determination that it is not in R.D.J., Jr.’s, best interests to transfer custody to Ironnecklace.