This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In the Matter of the Welfare of the Children of:
M.M.C. (a/k/a M.M.B.) and
J.J.V., Sr., Parents
Ramsey County District Court
File Nos. J3-03-556205 / J4-05-552622
Susan Gaertner, Ramsey County Attorney, Margaret Gustafson Samec, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN 55102 (for respondent Ramsey County Community Human Services Department)
Robert J. Lawton,
Dennis Daley, Children’s
Considered and decided by Halbrooks, Presiding Judge; Ross, Judge; and Crippen, Judge.*
Appellant J.J.V., Sr., challenges the district court’s order terminating his parental rights to his children. The district court concluded that J.J.V. abandoned his children, that he is a palpably unfit parent, and that a child experienced egregious harm in J.J.V.’s care. We affirm the parental-termination decision on grounds of abandonment and palpable unfitness.
J.J.V. is the father, and M.M.C. is the mother, of two boys and a girl, ages 14, 12 and 10. The children have been in out-of-home placement since October 2003 and were adjudicated to be in need of protection or services in April 2004.
J.J.V. has a history of
criminal behavior, including domestic violence and trafficking prostitution. He was charged with receiving profit from
prostitution and inducing a child younger than 16 into prostitution. A 15-year-old girl was one of up to six girls
or women living with him in 1991 when he was convicted of third-degree criminal
sexual conduct committed against the girl.
As a result of this conviction, J.J.V. is a registered sex offender. He admitted using cocaine in 1991 and that he
continues to use marijuana. He was
convicted of fifth-degree assault against M.M.C. in 1997 and again in 1999. J.J.V. left
Three months after the county removed the children from M.M.C.’s home and filed a petition for their protection or care, J.J.V. agreed to satisfy separate case plans established for each of his children. The plans required him to complete a psychosexual assessment and a parenting assessment and to follow all consequent recommendations, to complete anger management and domestic-abuse classes, and to track all of his children’s medical, therapeutic, and school appointments. J.J.V. did not complete these objectives or cooperate regarding them. He told the social worker that he refused to participate in a psychosexual assessment, anger-management training, “and things of that nature,” because his convictions occurred more than 14 years earlier. When the children’s guardian ad litem questioned his progress on the case plans, J.J.V. responded that he stopped working on them because his efforts would be futile and a waste of money.
The record suggests that J.J.V.
has never paid child support since the children were removed in 2003. He has not kept regular contact with his
children, spent time with them, or participated in their medical care or education. He has not sent gifts or birthday cards to them. He disregarded the guardian ad litem’s offer
to forward personal items through her to the children. When a different guardian ad litem encouraged J.J.V.
to come to
The county paid for the
children to visit J.J.V. in
The three children have special needs and have been receiving counseling services. The boys have significant emotional and behavioral challenges. One has mental-health issues, has had problems in school, has exhibited aggression toward his younger brother, and may have a learning disability. The other has emotional problems related to anger. They are in therapy to address their anger, aggression, and post-traumatic stress. Their therapist noted that they had endured “a tremendous amount of neglectful and abusive family living situations prior to being placed in foster care.” The boys reported witnessing severe violence between J.J.V. and M.M.C. when they lived together. One explained that he had seen J.J.V. beat M.M.C. unconscious, and that he had to intervene during their physical altercations. He also reported that his father “used to beat me and he abandoned us.” He indicated that one impetus of the beatings was bedwetting. The child now has little regard for his father and does not want to live with him. Another child also reported that he had seen J.J.V. strike M.M.C. The children reported significant drug use by both parents. The oldest child’s foster placements had changed several times because of his emotional and behavioral difficulties. The guardian ad litem predicted that the child would run away if forced to live with his father. The daughter has exhibited boundary and attachment disorders. She has vision deficiencies that impact her school performance and require ongoing medical attention. She told the social worker that she does not know J.J.V.
In March 2005, the county filed a petition to terminate the parental rights of J.J.V. and M.M.C to their three children. Because J.J.V. had given the child protection social worker an address and telephone number that were no longer valid when she tried to notify him of the pretrial hearing on the petition to terminate his parental rights, he was served notice by publication. The district court terminated J.J.V.’s parental rights by default for failure to appear at the hearing in December 2005, but it later vacated the order and allowed J.J.V. to contest the petition at trial in June 2006.
At the time of trial, J.J.V.
had been living at an address in
The district court terminated J.J.V.’s parental rights, finding that he had abandoned his children, that he was palpably unfit to be their parent, and that a minor child experienced egregious harm while in his care. This appeal follows.
D E C I S I O N
J.J.V. contends that the district court erred
by ordering the termination of his parental rights. On appeal in a termination proceeding, “appellate
courts are limited to determining whether the [district court’s] 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 (
The district court relied on three statutory bases to justify terminating J.J.V.’s parental rights, determining that (1) J.J.V. has abandoned his children, Minn. Stat. § 260C.301, subd. 1(b)(1); (2) J.J.V. is palpably unfit to be a party to the parent-child relationship, id., subd. 1(b)(4); and (3) while in J.J.V.’s care, a minor child experienced egregious harm, id., subd. 1(b)(6). The court found also that termination of J.J.V.’s parental rights is in the best interests of the children, following Minn. Stat. § 260C.301, subd. 7.
first address J.J.V.’s challenge to the district court’s conclusion that
termination of his parental rights is warranted by a finding that he abandoned
his children. Generally, a parent is
presumed to have abandoned his children if he has had no contact with them on a
regular basis, has not demonstrated consistent interest in the children’s
well-being for six months, and the social services agency has made reasonable
efforts to facilitate contact.
record supports the district court’s findings that J.J.V. abandoned his
children. He had not seen or asked to
see his children since August 2004, except for one brief visit after a court
hearing on May 5, 2005, despite being in
The record also supports the conclusion that J.J.V. intentionally forsook parental duties by not showing interest in his children’s well-being. He refused to complete the case plans created to facilitate his reunification with his children. He did not know how long his children had been in therapy or how often they attend, and he had never asked. He has never provided a home for the children or taken any steps to prepare to provide for the children’s therapeutic needs if the children were placed with him. The guardian ad litem testified that J.J.V. does not know what his children’s needs are, let alone how to address them, and J.J.V. points to no contradictory evidence.
J.J.V. argues that his fight for visitation rights demonstrates his desire to participate in his children’s lives. But legal action by a parent may not be sufficient to overcome the presumption of abandonment. See id. at 399 (holding that district court had sufficient evidence to conclude that father’s court-prompted paternity action did not demonstrate effort to accept parental duties). J.J.V. offers assorted reasons to justify his lack of contact, but the district court was within its discretion to decide that his reasons were insufficient or not credible and that the social worker and the guardian ad litem made reasonable, unsuccessful efforts to facilitate contact. We conclude that the district court’s finding of abandonment is support by substantial evidence and is not clearly erroneous.
The district court also determined that termination of J.J.V.’s parental rights is alternatively justified due to his palpable unfitness to parent. J.J.V. challenges that conclusion as well. The district court may terminate parental rights for palpable unfitness, which includes “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).
The record supports the district court’s finding that J.J.V. has a lifestyle that is inconsistent with developing a parent-child relationship in which he can meet a child’s ongoing physical, mental, or emotional needs. J.J.V. had engaged in criminal sexual conduct with a minor, promotion of prostitution, and ongoing illegal drug use. He consistently has lacked stable housing and employment, failed to provide financial support for his children, failed to regularly visit or contact his children, and demonstrated disinterest in the children’s well-being. He met his one occasion to spend time with the children in more than two years by leaving them unattended in his apartment for an extended time. He compounded these chronic failings by rejecting his case plans and disavowing any need for a psychosexual assessment or anger-management training. Whatever scant justification might exist for his indignation concerning these objectives, they were steps established for his reunification with his children and he completely disregarded them. He also provided no verifiable employment information, which, particularly in light of his involvement in trafficking prostitution, adds to the other valid concerns about his parental fitness.
The record contains additional indications of J.J.V.’s parental unfitness. The children had experienced a great deal of neglect and abuse in the family home when J.J.V. lived there. The boys saw him severely beat their mother. One child intervened to disrupt altercations between his parents. J.J.V. reportedly beat one of the boys for wetting his bed. The children witnessed J.J.V. abusing drugs. J.J.V. admits that he still uses illegal drugs. The guardian ad litem testified to her belief that J.J.V. would not be fit to parent his children at that time or in the foreseeable future, and there is nothing in the record that would reasonably counter that opinion.
We conclude that the district court’s finding that J.J.V. is palpably unfit to parent his children is supported by substantial evidence. J.J.V. does not challenge the district court’s finding that termination is in the children’s best interests, and the record amply supports all of the findings by clear and convincing evidence. Because we affirm the termination on grounds of abandonment and palpable unfitness, we do not address the alternative ground for termination cited by the district court, egregious harm to a minor.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.