This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the Welfare of the Child of:

H.E.P. and M.L.S., Parents


Filed July 10, 2007


Randall, Judge


Lake County District Court

File No. J6-03-50095 


Mark C. Jennings, 509 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)


Russell Conrow, Lake County Attorney, Laura M. Auron, Assistant Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN 55616 (for respondent Lake County)


Mark D. Fiddler, Fiddler Law Office, P.A., 510 Marquette Avenue South, Suite 200, Minneapolis, MN 55402 (for respondent guardian ad litem)


Mikkel A. Long, P.O. Box 3407, Duluth, MN 55803 (for respondent mother)

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal after remand in this termination-of-parental-rights proceeding, appellant-father argues (a) the determination that he failed to comply with the duties of the parent-child relationship is unsupported because he was complying with a majority of the duties required of a parent, and the district court’s findings were not based on current evidence of his interaction with child; (b) he cannot be a palpably unfit parent because the conduct that is the basis for the ruling did not occur in front of the child; and (c) the county failed to make reasonable efforts to support the family.  We affirm.


            Appellant M.L.S. and his long-time girlfriend H.E.P. (mother) are the parents of A.C.O.S. (child) born May 1996.  The parents’ 15-year-relationship has been turbulent, with over 20 break-ups, multiple domestic altercations, and use of controlled substances that led to intervention by law enforcement in the home where they lived together with child.  In the fall of 2003, Lake County Human Services (county) became aware of troubles within the home after two reports of volatile family situations.  The first was a report from law enforcement that mother pointed a gun at appellant in the presence of child, and the second occurred when officials from child’s school notified police that mother was afraid she might harm child.  Then, on December 11, 2003, appellant and mother engaged in a domestic dispute in the presence of child, and mother fled the home out of fear of appellant.  Upon arrival of the police, appellant told the officers that they would have to shoot him if he was to be arrested.  Child was found hiding with a pillow over her head. 

After an investigation of the altercation, child was removed from the home and county filed a petition on December 15, 2003, alleging, on several statutory grounds, that child was in need of protection or services (CHIPS).  Under an agreement with county, mother entered an admission to two of the allegations in the CHIPS petition, and child was returned to mother under certain conditions.  Appellant, who had subsequently moved out of the family home, later admitted to the same CHIPS allegations, and under the child protection services plan (CPSP) adopted by the court, appellant was prohibited from having contact with mother and child.

In June 2004, an amended CPSP was implemented that allowed appellant to be reintegrated into the home contingent on his participation in mental health and chemical dependency programs and abstinence from controlled substances.  Appellant initially participated in a portion of these programs, but in late September 2004, county began to receive reports of domestic disputes, use of illegal substances, and threats of suicide at the home from law enforcement.  Child also exhibited poor behavior at school during this time, and county opined that her behavior was attributable to her observance of her parents’ disputes.  On September 27, 2004, law enforcement responded to another domestic disturbance at the couple’s home.  The police arrived to find the couple in the middle of a violent altercation, with both acting “irrational and out of control.”  Due to the couple’s unstable behavior, and because neither parent wanted the other to have custody, child was removed from the home and placed in emergency foster care.  

On October 14, 2004, the court conducted an emergency child placement hearing.  Evidence of appellant’s drug use was presented, and the couple’s relationship problems were also discussed.  The court was troubled by the couple’s continued abuse of controlled substances and violent behavior and ordered that child, whose behavior in school had begun to deteriorate, remain in foster care.  The court also conditioned visitation for appellant on completion of a rule 25 assessment and reasonable proof of sobriety, and requested that county identify a counseling program for the couple.  Over the course of the next several months, appellant did not obtain an assessment and obstinately refused to cooperate with county.  On February 25, 2005, the court granted county’s request for relief from further reunification efforts.   

On October 13, 2005, the county petitioned to terminate the parental rights of both parents.  After a trial, the district court terminated the rights of appellant, but not mother.  Appellant appealed the termination of his parental rights, claiming that the district court failed to identify a statutory basis for its decision.  This court agreed and remanded to the district court for further findings.  In re Welfare of the Child of H.E.P. and M.L.S., No. A06-1013 (Minn. App. Dec. 5, 2006).  On remand, the district court made additional findings and again ordered appellant’s rights terminated.  This appeal followed.     


            In reviewing a termination of parental rights, this court assesses “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).  “Parental rights are terminated only for grave and weighty reasons.”  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).

            Because the district court “is in a superior position to assess the credibility of witnesses,” this court’s review is limited to determining whether the evidence supporting termination is clear and convincing.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  The district court’s findings must be clear and specific to the statutory requirements, “and the evidence must address conditions that exist at the time of the hearing.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  Termination may be ordered for a number of statutorily-defined bases, and as long as at least one ground is supported by clear and convincing evidence, and termination is in the child’s best interests, we must affirm.  In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).

            In this case, county petitioned for termination of appellant’s parental rights under Minn. Stat. § 260C.301, subds. (1)(b)(2), (4), and (5) (2004), alleging that appellant failed to abide by the duties of the parent-child relationship, that he is a palpably unfit parent, and that reasonable efforts by the county failed to correct the conditions that led to child’s placement outside of the home.  The district court terminated appellant’s rights under all three subdivisions.

A.        Neglect of Duties

            Appellant alleges that the district court’s ruling that he neglected his parental duties was clearly erroneous.  Under Minn. Stat. § 260C.301, subd. 1(b)(2), parental rights may be terminated upon a finding:

            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, . . . 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.


            Appellant contends that since he has not seen his daughter since September 2004, no current evidence of neglect can exist.  We disagree.  Termination of parental rights must be based on conditions that exist at the time of the hearing and are likely to continue for a prolonged and indeterminate period of time.  In re P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), reviewed denied (Minn. Apr. 15, 2003).  But appellant’s argument ignores his own culpability for the sequence of events that have transpired.  Appellant was not allowed to visit with his daughter due to his non-compliance with a court-ordered CPSP.  In October 2004, the district court ordered that child be removed from the couple’s home, but also established a CPSP that would have allowed appellant to begin therapeutic visitation upon completion of a rule 25 assessment and reasonable proof of sobriety.

            Appellant, by his own admission, has failed to comply with either condition, and as a result, he has been barred from any contact with child.  To allow appellant to rely on his noncompliance with a court order as a defense would contradict the intent of the CHIPS laws, and his unwillingness to comply with a court-ordered plan lends credence to the district court’s finding of neglect of parenting duties.  In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003) (finding that a parent’s failure to comply with key elements of a court-ordered case plan may support a finding that a parent failed to satisfy the duties and responsibilities in the parent-child relationship).

            Still, appellant contends that the court erred in finding substantial evidence of neglect of his duties as a parent.  His argument concentrates on the court’s removal of child from the home after the September 27, 2004, altercation.  Appellant claims that the court and county “overreacted” by removing child from the home and contends that, up until that point, he had “generally compl[ied] with the majority” of the requirements outlined in the June 11, 2004, CPSP.  Appellant’s claim of general compliance with the June 2004 order appears to have some support in the record, but is not uncontroverted.  Allegations of drug use and domestic violence during that time period were raised at the October 2004 hearing, and appellant does not dispute that he was involved in the September 2004 altercation with mother.  His narrow focus on a four-month-time-period overlooks the substantial evidence of current conduct and history of volatile behavior outlined by the district court.  In its findings, the district court held that appellant failed to comply with court orders to avoid violent behavior and abstain from use of illicit drugs, both of which would affect his ability to parent.  As late as 2005, appellant was convicted of third-degree-assault of mother and criminal damage to property, and was incarcerated through October 2005.  Also, at the time of trial in 2006, appellant twice tested positive for marijuana use.  During trial, appellant and mother admitted that child witnessed multiple domestic disputes between them that included yelling, swearing, and physical altercations, and appellant’s psychiatrist, Dr. Jeffrey Hardwig, and child’s psychologist, Mary Carpenter, testified that child, who has developed acute behavioral problems, models her conduct after her parents’ behavior.  Carpenter also asserted that child is afraid of appellant, and Thompson testified that appellant and mother would need to obtain chemical dependency treatment before they could receive the counseling necessary to improve their relationship and support child.      

            At trial, appellant acknowledged that he suffers from severe mental illness, including bipolar disorder, affective personality disorder, and borderline personality disorder, as well as chemical dependency, and provided little, if any, evidence that he had sought consistent psychological or medical treatment.  He also testified that he does not trust the county to provide services for him or child, and rejected offers for respite care, individual therapy, and camp for child, despite the difficulty and frustration he experienced caring for child.  Further, throughout the CHIPS proceedings and the termination of parental rights trial, appellant threatened to leave the area rather than participate in the CPSP.  Finally, appellant, who is permanently disabled as a result of his mental illness, is unable to financially provide for child because his social security disability benefits were suspended due to outstanding warrants for his arrest.

            Appellant’s history is relevant to the analysis of whether appellant substantially, continuously, or repeatedly neglected to comply with his duties as a parent.  See Minn. Stat. § 260C.301, subd. 1(b)(2).  Evidence presented at trial demonstrates that child was exposed to appellant’s abuse of controlled substances, engagement in domestic violence with mother, and the affects of his struggle with mental illness—without consistent treatment—throughout her young life.  This evidence of appellant’s unwillingness to create an environment suited to fit the needs of child supports the district court’s finding of neglect.  Because the district court is in a superior position to judge the credibility of appellant’s efforts and the testimony of witnesses, considerable deference must be accorded to its findings.  See L.A.F., 554 N.W.2d at 396.  We conclude the district court’s finding of neglect of parental duties was not clearly erroneous.          

B.        Reasonable Efforts

            Terminating parental rights because a parent neglected the duties of the parent-child relationship also requires a finding that the county made reasonable efforts to correct the conditions leading to child’s out-of-home placement.  Minn. Stat. § 260C.301, subd. 1(b)(2).  The same is true for terminating parental rights under Minn. Stat. § 260C.301, subd. 1(b)(5), which was another of the statutory bases for appellant’s termination.  Accordingly, both grounds are addressed concomitantly.  

            “Reasonable efforts” are defined as “the exercise of due diligence by the responsible social services agency to use appropriate and available services to meet the needs of the child and the child's family.”  Minn. Stat. § 260.012(f) (Supp. 2005).  Whether county’s services constitute “reasonable efforts” depends on the nature of the problem presented, the duration of the county’s involvement, and the quality of the county’s effort.  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  The services provided “must go beyond mere matters of form so as to include real, genuine assistance.”  Id. 

            Appellant alleges that reasonable efforts to correct conditions adverse to child and reunite the family were not made, and focuses his argument on county’s actions immediately following the September 27, 2004, altercation with mother.  However, the district court’s findings and the substantial evidence presented at trial reflect that reasonable efforts were made.  In finding reasonable efforts by county, the district court noted that a presumption of reasonable efforts was applicable because child resided outside of the parental home under court order for a cumulative period of 12 months within the proceeding 22 months.  See Minn. Stat. § 260C.301, subd. (1)(b)(5)(i). 

            In addition, the district court held that the chronology of county’s efforts demonstrated a consistent commitment to reuniting the family and correcting problems within the household.  The court’s findings were delineated into two distinct time periods.  The first concentrated on county’s actions after the June 2004 CPSP, which allowed appellant to return to the family home.  The court noted that, at that time, county provided ongoing case management, in-home family therapy, in-home mental impairment/chemical dependency treatment, child care, emergency cash assistance, gas cards, phone cards, groceries, and grocery gift cards, and also offered adult mental case management, respite care, camp for child, and individual therapy for child.  Appellant does not challenge the sufficiency of these efforts.   

            The second time period is dedicated to county’s services after the October 2004 CPSP was implemented.  The district court’s findings indicate that county made reasonable efforts to help appellant fulfill his obligations under the October order, but appellant responded by refusing to meet with Thompson, revoking all release of medical information authorizations, making angry and threatening phone calls, and declining to complete a rule 25 assessment or cooperate with urinalysis tests requested and provided by county. 

            The evidence in the record supports these findings.  At an October 2004 hearing, the court expressed concerns regarding the parents’ substance abuse and violence, and implemented a new CPSP that required counseling, a rule 25 assessment, random chemical tests, and abstinence from controlled substances.  The court also required county to develop a treatment plan for child and counseling for the couple, as well as contact all service providers who had previously worked with the family for recommendations for further treatment.

            In accordance with the order, county adopted a plan for child and Thompson contacted a number of providers who had worked with the family to determine how to proceed with the parents’ rehabilitation.  According to Thompson, of the providers who responded to her request for assessments, the consensus was that “no effective counseling program [could] be implemented until both parents are clean and sober,” and some recommended inpatient mental illness/chemical dependency treatment.

            Thompson also informed the court that she scheduled a rule 25 assessment for appellant, which he did not attend, and made several unsuccessful attempts to conduct drug screenings.  Thompson testified that appellant revoked all releases of medical information to county, which hindered her efforts to consult with providers, and informed her in December 2004 that he would obtain the appropriate services of his own volition and without the intervention of county.  Thompson claimed to have discussed the possibility of meeting with the parents in their home with McClain on multiple occasions, but ultimately decided against it due to safety concerns.   

            After contacting the family’s service providers and attempting to initiate the rule 25 assessments, county’s efforts over the ensuing months before being relieved of the duty to make reasonable efforts consisted of occasional correspondence to the home (which was the couple’s stated preference), phone calls to the family, calls to law enforcement to obtain a urinalysis of the parents, and limited contact with treatment providers who were also unable to make contact with appellant.  During one of the phone conversations between appellant and Thompson, appellant promised to provide documentation of his compliance with the court order by late December 2004.  The
county never received any results and appellant was unwilling to sign releases to obtain access to his medical information. 

            Thompson informed the court that county was unable to pursue treatment for appellant until he complied with the rule 25 evaluation and offered some level of cooperation.  Ultimately, the district court found that attempts to correct conditions and reunite appellant with child would be futile, and relieved county from further efforts of rehabilitation.  Comparing the district court’s findings with evidence proffered over the duration of the CHIPS proceedings, the district court’s determination that county extended reasonable assistance has substantial support in the record.  The district court’s determination that reasonable efforts were made was proper.  

C.        Palpable Unfitness

            Appellant contests the district court’s finding that he is an unfit parent under Minn. Stat. § 260C.301, subd. 1(b)(4).  Under this provision, termination of parental rights is appropriate if it is determined that a parent has engaged in:                                                                                                                                                                                                                                                                        

a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent 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 determination of “palpable unfitness” boils down to a question of whether a parent has the capacity to parent or the ability to engage in “constructive efforts to improve [his] ability to parent.”  In re Welfare of A.V., 593 N.W.2d 720, 722 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

            In support of his contention, appellant claims that (1) termination under this subsection is permissible only upon evidence of conduct before the child; and (2) the district court did not base its findings on the most current evidence of his conduct.

            Appellant’s contention that the statute requires consideration solely of his interaction with child is incorrect.  Under the language of the statute, appellant’s contact with the child is only one potential basis for a determination of his fitness as a parent.  The statute also contemplates “specific conditions directly relating to the parent and child relationship,” and a careful review of the record indicates that the district court appropriately analyzed appellant’s ability to parent under this standard.  Minn. Stat. § 260C.301, subd. 1(b)(4). 

            Next, appellant argues that the district court did not base its decision on current evidence.  We disagree.  This argument fails for the same reasons noted above.  A defense based on an alleged dearth of current evidence is unpersuasive here because any deficiency in recent evidence resulted from appellant’s unwillingness to comply with a court-order that required a drug assessment and abstinence from controlled substance use. 


            In finding appellant an unfit parent due to his consistent pattern of controlled substance abuse and domestic violence, the district court made current, specific findings regarding appellant’s unwillingness to make constructive efforts to improve his parenting ability.  For example, as noted above, evidence was presented at trial that appellant committed a third-degree felony assault against mother on March 21, 2005, and had only been released from incarceration for the offense approximately two months prior to the date of the court’s original findings.  See In re Welfare of G.B.N., 412 N.W.2d 415, 418 (Minn. App. 1987) (holding that incarceration together with other relevant factors is a sufficient basis for a termination decision).  While in prison, appellant yelled obscenities and threw feces at guards. 

            The court also found that, in the year prior to the trial, appellant failed to cooperate with random requests for urinalysis, refused to submit to a rule 25 assessment, and continued to abuse controlled substances based on a urine sample provided by appellant at the time of trial that tested positive for marijuana consumption.  The testimony and opinions of Dr. Hardwig, Carpenter, and county social worker Vickie Thompson also support this finding of unfitness.  They each testified that appellant’s behavioral and psychological problems permeate his relationship with child, and produce anxiety for child while under appellant’s care.  Similarly, child’s elementary school principal testified that the behaviors of child and parent were the most severe he had witnessed in 18 years of teaching, and mother’s psychiatrist described appellant as “the most difficult to manage person that I have ever met.”  The impact of appellant’s abusive behavior is also evident in child’s writings.  She noted in her journal:

When I was young, I had bad parents.  They taught bad things to me . . . like . . . biting people, hit[t]ing, kicking, break[ing] windows, scream[ing], swear[ing], [running away], and all kinds of stuff.  When I was [six years old] I had handmarks from both of my parents.    


            Appellant’s past conduct is relevant to a determination of whether the duration and nature of his actions render him unfit to continue as a parent.  See Minn. Stat. § 260C.301, subd. 1(b)(2).  As mentioned above, the court found that appellant’s history of controlled substance abuse, domestic violence, and mental health issues, as well as his inability to commit to consistent, long-term treatment has also played a part in child’s own behavioral issues.  Therefore, with substantial evidence in the record of conduct unbecoming of a fit parent, the decision to terminate appellant’s parental rights was not clearly erroneous.  

D.        Best Interests of the Child

            Appellant disputes the district court’s finding that termination of his parental rights was in the best interests of child.  Beyond determining whether one of the nine statutorily-defined bases for termination is present, a district court must also consider whether termination of parental rights is in the child’s best interests and “explain its rationale in its findings and conclusions.”  In re Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003);
Minn. Stat. § 260C.301, subd. 7 (2004) (stating “the best interests of the child must be the paramount consideration” in proceeding to terminate parental rights). 

            The “best interests” analysis 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.

            Appellant asserts that termination was not in child’s best interests because child’s behavior has not improved since she was removed from the home.  In support of his contention, appellant cites various portions of the trial transcript that allegedly demonstrate that child’s behavior and performance in school declined after she was removed from the family home.  This argument is specious, and does not address the necessary factors or have any support in case law.  Even if the child’s behavior and performance went downhill after being placed in a foster home, it does not follow that this change is attributable to the child’s removal from the family home. 

            The district court’s findings examine each of these factors in detail.  For example, the court demonstrated its analysis of appellant’s interests in the relationship when it held that appellant loved child, but also exhibited behavior, such as controlled substance abuse and domestic violence that lacked consideration of child’s needs and well-being.  The court also considered child’s interests in her relationship with appellant when it determined that child loved appellant, but feared him and felt she had an obligation to protect mother.  Finally, the court contemplated child’s competing interests, such as her need for “continued therapy,” a “stable, structured, and safe environment free of violence,” and “a caregiver able and willing to model healthy relationships an appropriate coping skills,” and found that father could not effectively satisfy these needs because he refused to address his chemical dependency, mental health problems, and violent behavior.  See In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987) (holding that child has a significant interest in the stability of her home environment and her health).  As such, the district court’s finding that child’s best interests were served by termination of appellant’s parental rights was reasonable.