This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-25

 

In the Matter of the Welfare

of the Children of:

 

S.E.P. and J.W.P., Parents.

 

Filed August 7, 2007

Affirmed in part, reversed in part, and remanded

Ross, Judge

 

Itasca County District Court

File No. 31-JV-06-2824

 

 

Ellen E. Tholen, 702 Second Avenue, P.O. Box 210, Bovey, MN 55709 (for appellants S.E.P. and J.W.P.)

 

Evelyn Schneider, 518 18th Street S.W., Bemidji, MN 56601 (for respondents A.M.A.P. and L.M.A.P.)

 

John J. Muhar, Itasca County Attorney, Mary J. Evenhouse, Assistant County Attorney, Itasca County Attorney’s Office, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County Health and Human Services)

 

Kay Furlong, 102 Northeast Third Street, Grand Rapids, MN 55744 (guardian ad litem)

 

 

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

U N P U B L I S H E D   O P I N I O N

ROSS, Judge

S.E.P. and J.W.P. challenge a district court order terminating their parental rights to their two children.  Because the district court’s conclusion that J.W.P., the children’s father, is palpably unfit to be a party to the parent-child relationship is supported by substantial evidence, we affirm the termination of his parental rights.  But because the district court’s decision to terminate the rights of the children’s mother, S.E.P., is not supported by substantial evidence, we reverse the termination of her parental rights.

FACTS

J.W.P. and S.E.P. have been married since 2002 and are the father and mother, respectively, of two children, A.M.A.P. and L.M.A.P.  The children were born in 2004 and 2005.  S.E.P. has admitted that J.W.P. has physically assaulted her during their marriage.  InMay 2006 J.W.P. pleaded guilty to malicious punishment of a child.  The criminal charge resulted from an incident in which 19-month-old A.M.A.P. knocked over J.W.P.’s coffee.  J.W.P. responded in anger by yelling, “Get out of my f-----g face!” and spanking her several times, which left her buttocks bright red.  S.E.P., who was in another room in the house, heard the father’s harsh chastening of the toddler over the sounds of a television.  Police investigated a reported disturbance at the home and interviewed J.W.P., who admitted that he “accidentally got carried away” and “lost control.”  Police arrested him, but they released him on the condition that he have no contact with S.E.P. or the children.  He was rearrested three days later for violating this condition because he continued to live with S.E.P. and the children.  J.W.P.’s attorney had advised him, contrary to the condition, that he could live with the family.  While at the home, a police officer observed S.E.P. push A.M.A.P. away and refuse to feed L.M.A.P., who was crying.  The children were removed from the home and placed in foster care.  After J.W.P.’s guilty plea, the court ordered him to stay away from the family home.

The Itasca County Department of Health and Human Services filed a children-in-need-of-protection-or-services petition, and in July 2006, both parents admitted that the children were in need of services and agreed to follow case plans.  The district court adopted the case plans in July.  J.W.P. and S.E.P.’s case plans required each of them to maintain a domestic-violence-free home and lifestyle and provide safe and adequate care to their children; to complete a parenting assessment and psychological evaluation and follow the evaluator’s recommendations; to provide safe and adequate housing for themselves and their children; to develop and demonstrate appropriate parenting patterns; and to remain law-abiding and comply with all child-protection and criminal-court orders.

J.W.P. attended an intervention program for men as directed, but he refused to attend individual counseling despite the recommendations of several professionals.  He moved back to the family home and lied to county workers about it.  Thepsychologist who evaluated S.E.P. recommended that she participate in dialectical behavior therapy, individual counseling, and shared-family foster care.  She began the therapy program and individual counseling.  Although she began the foster-care program, she left the home after several days because of conflicts with the foster mother.

The county petitioned to terminate J.W.P.’s and S.E.P.’s parental rights.  In December 2006, following a trial, the district court terminated their parental rights.  The court concluded that J.W.P. is palpably unfit to parent the children, that J.W.P. and S.E.P. each failed to correct the conditions leading to the children’s placement outside the home, and that they both had children who were neglected and in foster care despite the availability of rehabilitative services.  The court found that neither parent would be capable of providing appropriate care for the children in the reasonably foreseeable future and that termination was in the children’s best interests.  This appeal follows.

D E C I S I O N

Each parent challenges the district court’s termination decision.  A district court may involuntarily terminate parental rights when clear and convincing evidence supports a statutory basis for termination.  Minn. R. Juv. Prot. P. 39.04, subd. 1; see also Minn. Stat. § 260C.301, subd. 1(b) (2006) (listing grounds for involuntarily terminating parental rights).  The district court must also find that the social-services agency made reasonable efforts toward reunifying the family and that termination is in the children’s best interests.  Minn. Stat. § 260C.301, subds. 7, 8 (2006).  We review whether the court’s findings are supported by substantial evidence.  In re Child of A.S., 698 N.W.2d 190, 194 (Minn. App. 2005), review denied (Minn. Sept. 20, 2005).  We defer to the district court’s assessment of witness credibility, but because parental rights may be terminated only for grave and weighty reasons, we must carefully examine the evidence to decide if it clearly and convincingly supports termination.  Id.

We first address the termination of J.W.P.’s parental rights.  Termination of parental rights is appropriate when a parent is palpably unfit to be a party to the parent-child relationship.  Minn. Stat. § 260C.301, subd. 1(b)(4).  The unfitness must arise from a pattern of specific conduct before the children or specific conditions related to the parent-child relationship, either of which is of a duration or nature that makes the parent unable to care appropriately for the children in the reasonably foreseeable future.  Id.  The district court concluded that J.W.P. was palpably unfit based on his long history of anger, emotional abuse, and domestic violence, his history of mental illness, and his refusal to participate in services to adequately address these problems.

Substantial evidence supports the district court’s findings and its conclusion that J.W.P. is palpably unfit to parent A.M.A.P. and L.M.A.P.  J.W.P has demonstrated a failure to control his anger since he was 14 years old.  When he was 19 years old, he dislocated the elbow of a former girlfriend’s young child and threatened the child during an anger-induced violent physical reaction, and he punished the child excessively on multiple occasions.  S.E.P. has reported J.W.P.’s violence against her throughout their marriage, and she has also stated that he sometimes spanks A.M.A.P. excessively, and he uses profanity when he is upset with L.M.A.P.  J.W.P. has stated that he is afraid of his own anger.  The record therefore establishes that J.W.P.’s angry and unreasonable treatment of A.M.A.P. is not an isolated incident and is part of an ongoing pattern of anger and domestic violence.  J.W.P. also has a significant history of mental illness and has been diagnosed with several mental disorders since 1995.  In 1997 he was found incompetent to stand trial for a sexual-assault charge.  He has voluntarily discontinued his treatment and medications.  He has steadfastly refused individual counseling, despite the recommendations of professionals.  This refusal and his inability to control his angry and violent outbursts support the district court’s conclusion that it is unlikely that his behavior will be corrected in the foreseeable future.  The psychologist who evaluated J.W.P. testified that J.W.P. has poor insight into his difficulties, that he has anger problems and an inability to cope with stress, and that he is generally irresponsible.  She noted that he refuses to admit he has problems and he has not attempted to modify his behavior.  She explained that, without individual counseling, he will be unable to change or control his behavior.  A social worker and guardian ad litem expressed similar opinions.  The district court’s findings of J.W.P.’s palpable unfitness are supported by substantial evidence.

The record also supports the district court’s findings on reasonable efforts and the children’s best interests.  Reasonable efforts by a social-services agency are those that are realistic under the circumstances.  Minn. Stat. § 260C.301, subd. 8; In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  An agency need not continue to provide services that would be futile.  S.Z., 886 N.W.2d at 892.  An analysis of the children’s best interests involves balancing both the children’s and parent’s interests in preserving the parent-child relationship and any other competing interests of the child.  In re Welfare of Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004).

J.W.P.’s case plan was designed to accomplish five major goals.  The county provided J.W.P. with access to services to address the parenting problems he exhibited and his inappropriate anger, but J.W.P. rejected these services.  Most significantly, J.W.P. refused to participate in individual counseling, which the county and service providers deemed most important for successful reunification of the family.  Substantial evidence also supports the district court’s findings that it is not in the children’s best interests to be raised in an environment of anger, unpredictability, and volatility.

Because the record supports the district court’s findings that a statutory basis for termination of parental rights exists, that the county made reasonable efforts toward reunification, and that termination is in the children’s best interests, we affirm the termination of J.W.P.’s parental rights to A.M.A.P. and L.M.A.P.

We next address the termination of S.E.P.’s parental rights.  The district court terminated S.E.P.’s rights on two statutory grounds:  failure to correct the conditions leading to the children’s out-of-home placement and neglect of children in foster care.  See Minn. Stat. § 260C.301, subd. 1(b)(5), (8).  To terminate parental rights based on a failure to correct conditions requires an out-of-home placement, a court-approved case plan, a failure to substantially comply with the case plan, and reasonable efforts by the county to provide services to correct the conditions.  Id., subd. 1(b)(5).  A child is neglected and in foster care when the child was placed in foster care by court order; the child cannot be returned to the parents because of their parents’ circumstances, condition, or conduct; and, despite the availability of rehabilitative services, the parents have failed to make reasonable efforts to correct their circumstances, condition, or conduct.  Id. § 260C.007, subd. 24 (2006).

The record lacks clear and convincing evidence to support termination of S.E.P.’s parental rights.  The district court rooted its termination decision primarily in S.E.P.’s failure to exclude J.W.P. from the family home.  Officials removed the children from the home after J.W.P. returned following his first arrest.  But the county attorney acknowledges that S.E.P. allowed J.W.P. back only because she relied on the representation of J.W.P.’s attorney, accurately relayed by J.W.P., that J.W.P. was not prohibited from returning home.  The primary condition in the home requiring correction is J.W.P.’s angry and violent conduct; S.E.P.’s conduct was not questioned until she permitted J.W.P.’s return, and this permission rested on actual, though erroneous, legal advice.  Once the children were removed, S.E.P. permitted J.W.P., who is her husband, to remain at home.  S.E.P.’s decision to continue living with J.W.P. could not have put the children at risk because the children were no longer in the home.  And S.E.P. was aware that J.W.P. was subject to a case plan and that he was offered services designed to remedy his parental deficiencies to allow for family reunification.

Although S.E.P. did not complete shared-family foster care, the record demonstrates that the foster mother with whom S.E.P. was placed was relatively inexperienced in teaching parenting skills, and most of the conflict between them arose from personality differences.  Belying the county’s contentions about S.E.P.’s unfitness to parent and revealing the chief, underlying concern, in September 2006, even after two unsuccessful attempts at shared foster care, the county was prepared to restore legal and physical custody to S.E.P. until it learned that she continued to allow J.W.P. to reside in the home.  Her perceived parenting deficiencies were not so significant that the county felt her children would be at risk in her care. We are not deaf to the county’s description of S.E.P.’s parental imperfections, and we do not pretend that her parenting has been ideal.  But “few children would be reared by natural parents if model parents were the standard.”  In re Welfare of M.D.O., 462 N.W.2d 370, 379 (Minn. 1990).  By all accounts, the children are well adjusted, are developing at a normal rate, and are attached to S.E.P.

The county’s focus on J.W.P. too broadly tainted the parental rights of S.E.P., whose primary failure was living with her husband while the children abided elsewhere safely and while her husband failed to satisfy the primary objectives of his case plan.  Based on these unusual circumstances, we conclude that substantial evidence does not support the district court’s determination that S.E.P. failed to correct conditions or permitted the children to remain in foster care when her conduct is not at issue.  See In re Welfare of S.N., 423 N.W.2d 83, 87-88, 92 (Minn. App. 1988) (reversing termination of parental rights and ordering new trial when termination was based on conduct by mother’s son, who sexually assaulted sibling).  We therefore reverse the district court’s order terminating S.E.P.’s parental rights.

Because we are limited to the district court record at the time of the appeal, we must remand the case to afford the district court the opportunity to reopen the record and consider the children’s progress and any developments in the status and condition of S.E.P. and J.W.P. made since the district court issued its termination-of-parental-rights decision.  We recognize that the different outcomes regarding each parent’s parental rights in this case results in a difficult challenge to implementing a remedy consistent with the best interests of the children, S.E.P.’s parental rights, and S.E.P.’s obligation to provide her children with a safe environment, in light of S.E.P.’s potentially conflicting interest in maintaining her marriage with J.W.P.  We remand the case to the district court to fashion a remedy that provides for the children’s long-term protection in the care of their mother.  In forming this remedy, the court may choose to solicit the input and commitments from the county, the guardian ad litem, S.E.P., and J.W.P.

Affirmed in part, reversed in part, and remanded.