This opinion will be unpublished and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 Child of:
S.S. and E.F.,
Filed July 24, 2007
Hennepin County District Court
File Nos. 27-JV-05-5357,
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant E.F.)
Julie K. Harris, Managing Attorney, Health Services Building, 12th Floor, 525 Portland Avenue South, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)
Lucas J. Thompson, Bruce Gregory Jones, Faegre & Benson, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for guardian ad litem)
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
The district court terminated EF’s parental rights in October 2006, finding that clear and convincing evidence established two statutory criteria for termination. On appeal, EF argues that the court’s decision is not supported by sufficient evidence and rests on improper considerations. Because the record establishes that the district court considered proper statutory criteria and properly admitted testimony and exhibits when it found by clear and convincing evidence that two statutory grounds for termination exist, we affirm.
F A C T S
is the father of SF, born in July 2005.
EF was not married to and did not reside with SF’s mother, SS, who
initially told EF that he was not the father.
EF and SS were also the parents of an older child who was born in July
2004. Both voluntarily terminated their
parental rights to the older child in May 2005 after
Around the time of SF’s birth, EF committed a number of property crimes. Shortly before SF’s birth, EF was arrested for theft. After SF was born, EF pleaded guilty to the theft charges and received a stayed sentence with credit for time served. EF was incarcerated in the late summer of 2005 for additional unrelated charges. Upon his release, EF helped care for SF for about three weeks before SS demanded that SF be returned to her custody.
social worker assigned to EF’s case was unable to reach him until January 2006,
because he had not told the social worker that he had been incarcerated. The social worker interviewed EF and structured
a case plan aimed at reuniting EF with SF.
The case plan required programming for parenting skills, chemical
dependency, and domestic violence; and was based in part on the case plan that
was developed when
EF encountered difficulty in his attempts to complete the case plan while incarcerated because many of the required programs had long waiting lists. EF was also unable to participate in work-release because he had outstanding warrants in other counties. As a result, EF had not completed any of the case plan requirements at the time of trial in September 2006.
The trial consisted of testimony by EF and the social worker. EF recounted the difficulties he had in attaining the necessary programming and his inability to participate in the work-release program. EF speculated that he would soon be eligible for work-release and might be able to enter suitable programs outside of prison. The social worker recounted the steps she took to assist EF and reported that he failed to complete any portion of the case plan.
The district court terminated EF’s parental rights to SF in October 2006, on the basis of continuous neglect and palpable unfitness to parent. The court noted that, although it was evident that EF “loves his child,” there was clear and convincing evidence that he was incapable of parenting SF at the present time or in the foreseeable future despite the social worker’s reasonable efforts. The court also observed that termination was in SF’s best interests because she had already been in out-of-home placement for seven months beyond the preferred six-month target, had special needs including hypertonia and developmental delay, and her needs for permanency could not be suspended until EF could turn his life around. EF appeals, arguing that the court’s order is not sufficiently supported by the evidence.
D E C I S I O N
an appeal from an order terminating parental rights, this court reviews whether
the district court has (1) identified a statutory basis for termination; (2)
made findings supported by substantial evidence; and (3) made conclusions that
are not clearly erroneous. In re Welfare of L.A.F., 554 N.W.2d 393,
courts may terminate parental rights if “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 EF “failed to cooperate with his case plan and correct the conditions that led to out-of-home placement,” despite reasonable efforts by the Hennepin County Human Services and Public Health Department. EF argues that this finding was erroneous for four significant reasons.
first argues that the court’s finding was based solely on his
imprisonment. A district court cannot
base a termination of parental rights on a parent’s incarceration alone. In re
Child of Simon, 662 N.W.2d 155, 162 (
EF characterizes the fact of his incarceration and its corresponding limitations too broadly. SF was born in July 2005 and was taken into county custody in September 2005. EF was not incarcerated for his most recent offense until November 2005. In that time he had opportunities to pursue a paternity test, to develop a case plan with the social worker, and to begin the programming that would likely form a part of any case plan. Instead, EF became involved in conduct that resulted in another criminal conviction, thereby jeopardizing his ability to comply with a case plan. Furthermore, once incarcerated, EF did not notify the social worker. The social worker finally located EF in January 2006, but critical time was lost during those months.
EF’s ability to comply with the case plan was unquestionably impaired by his incarceration, but his incarceration resulted from his voluntary conduct. It was this conduct that prevented him from addressing the conditions that led to out-of-home placement. Consideration of EF’s incarceration did not improperly influence the district court’s decision.
next argues that the county did not make reasonable efforts to reunite him with
SF. Social-service agencies are
statutorily required to use reasonable efforts to reunite a child at the center
of termination proceedings with his or her parent or parents.
The record demonstrates that the county’s efforts were reasonable under the circumstances. After locating EF the social worker met with him in jail to develop a case plan for reunification. The plan was based in large part on the case plan from the involuntary-termination proceeding for EF’s older child because EF indicated that many of the circumstances identified in that case plan remained unaddressed. The social worker then stayed in contact with EF and EF’s prison caseworker by phone. EF declined opportunities to communicate with the social worker further by mail because, as EF explained at trial, he preferred oral communication. The social worker did not inquire into ways to circumvent the long waiting lists for EF’s required programming. But the social worker was under no obligation to remedy the obstacles that EF erected for himself by engaging in criminal activity. Therefore, the district court’s finding that the county made reasonable efforts was supported by the record.
also argues that the district court improperly considered the termination
proceedings involving EF’s older child in reaching its determination. Typically, district courts should not focus
primarily on past history but should address the conditions as they exist at
the time of the hearing. In re Welfare of S.Z., 547 N.W.2d 886,
EF’s argument misconstrues the manner in which the district court used the disputed evidence. The district court’s termination order focused almost exclusively on present conditions. The court mentioned the prior proceeding once in ten pages of findings. And, contrary to EF’s suggestion, the prior proceeding is relevant because it took place only one year earlier. As a result, the evidence demonstrated that the conditions present at the time of the hearing were not recent developments and were likely to continue for an indeterminate period.
EF argues that there was no pattern of conduct revealing the continuous neglect
of his parental duties. But the evidence
produced at trial showed that EF has a history of chemical dependency and
domestic violence that he has not addressed, and a documented lack of parenting
skills that he does not believe need to be addressed because he is unwilling to
let others tell him how to parent his child.
More importantly, however, EF has a history of criminality that twice
prevented him from supporting SF in any way during SF’s first few months of
life. The district court’s finding of
neglect is, therefore, not clearly erroneous; especially as applied to SF, who
has significant special needs. In re Welfare of D.D.K., 376 N.W.2d 717,
second statutory ground for terminating parental rights exists when a parent is
“palpably unfit to be a party to the parent and child relationship.”
EF argues that the evidence shows no pattern of conduct to support the district court’s conclusion that he was palpably unfit to parent. EF also argues that many cases pursued under the palpable-unfitness element involve parents with mental illness or other, more serious afflictions. But the same pattern of conduct that supports the court’s finding that EF continuously neglected his parental duties also supports the finding that EF is palpably unfit to parent for the foreseeable future. EF’s past criminality and untreated history of substance abuse, domestic violence, and underdeveloped parenting skills directly affect the parent and child relationship. The cases EF cites do not decrease the seriousness of EF’s circumstances. Thus, they do not alter the outcome. The district court did not clearly err by finding that EF’s palpable unfitness was demonstrated by clear and convincing evidence.