This opinion will be unpublished and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

A07-549

 

In the Matter of the Welfare of the Children of:

D.N.R., a/k/a D.N.J., Parent

 

 

Filed August 7, 2007

Affirmed.

Randall, Judge

 

Lake County District Court

File Nos. J1-03-50085 and J1-03-50086  

 

 

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

 

Russ Conrow, Lake County Attorney, Bruce L. Anderson, Assistant County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN  55616 (for respondent)

 

Roger A. Anderson,  430 Ninth Avenue, Two Harbors, MN 55616 (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

RANDALL, Judge               

            On appeal after remand in this termination-of-parental-rights proceeding, appellant-mother argues (a) the county did not make reasonable efforts to reunite mother and her children; (b) the termination was improperly based on conditions at a time other
than the termination; and (c) the record lacks evidence demonstrating that termination is in the best interests of the children.  We affirm.

FACTS

            D.R.R. (son), born in 1996, and A.R.R. (daughter), born in 2000, are the children of R.R.R. (father) and D.N.R. (mother).  The parents are divorced and custody of the children was placed with mother.  In October 2003, Lake County Human Services (the county) received reports that son had been missing school.  County social worker Vickie Thompson visited the family home to inquire about son and found the house in disarray.  Thompson also received reports that mother had been purchasing substantial quantities of alcohol from a local convenience store on a regular basis.  On October 6, 2003, the county filed Child in Need of Protection or Services (CHIPS) petitions for both children, alleging that mother’s alcohol addiction rendered her unable to adequately care for the children. 

On October 29, 2003, the district court ordered the county to undertake protective supervision of the children while they remained in the home and required mother to participate in a rule 25 assessment.  A rule 25 assessment was performed and, based on the examination, it was recommended that mother complete an extended-care, inpatient chemical-dependency program, furnish proof of sobriety, and follow all recommendations of treatment-program staff.  A reunification plan that incorporated several of these recommendations was presented to mother in January 2004.  Mother consistently refused to comply with the plan. 

On November 12, 2004, mother called Thompson, reported that she was having a breakdown, and requested that the children be placed in foster care.  The district court held a hearing that day, during which it granted the county temporary custody of the children and ordered that the children be placed in foster care.  The county placed the children in the home of licensed foster-care providers. 

Based on the county’s and guardian ad litem’s concern that mother continued to consume alcohol, in March 2004, the court ordered mother to submit to daily alcohol testing at the local police department during the week and random testing on weekends.  Mother submitted to testing on two occasions, but despite repeated requests by the county to comply with the order, she refused all further testing. 

At the behest of the county, both children were assessed for fetal alcohol syndrome.  Daughter was diagnosed with fetal alcohol syndrome and son with alcohol-related neurobehavioral disorder.  Mother does not accept the diagnoses and claims their health problems are genetic in origin. 

On August 30, 2004, the district court issued a CHIPS order adjudicating son and daughter in need of protection or services because “mother is unable or unwilling to provide the necessary food, clothing, shelter, education, and other required care for the children’s physical, emotional, or mental health.”  The CHIPS order directed mother to comply with the district court’s earlier order, requiring mother to submit to daily alcohol and drug tests, and to follow the county’s reunification plan, which required her to enter and complete inpatient alcohol treatment and an aftercare program.  Mother did not abide by these orders.  The county was also ordered to create a permanent placement plan. 

In early November 2004, mother was convicted of driving while impaired (DWI).  Shortly thereafter, on November 24, 2004, county petitioned to terminate mother’s parental rights on three statutory bases.  In December 2004, mother entered and completed inpatient treatment as a condition of her probation for the DWI offense, and her prognosis indicated a strong likelihood of relapse.  Beyond completing treatment, mother did not comply with further terms and conditions that required her to participate in Alcoholics Anonymous, obtain a sponsor, and contact a treatment center for counseling and medication.  After learning of mother’s completion of treatment, the county did not modify the reunification plan. 

During that time, the children were also moved from foster care to the home of J.V. and C.V., who had been identified as potential adoptive parents.  Due to the schedule of mother’s attorney, the three-day trial on the termination-of-parental-rights petitions spanned a nearly nine-month period.  Thereafter, on May 15, 2006, the district court issued an order terminating mother’s parental rights. 

Mother appealed the decision to this court, claiming that the district court failed to identify a statutory basis supporting termination and neglected to provide sufficient findings of county’s allegedly reasonable services to the family.  In re Welfare of the Children of D.N.R., No. A06-1120, 2006 WL 3720133, at *2-3 (Minn. App. Dec. 19, 2006).  This court agreed.  Id.  The decision was reversed and remanded with instructions to identify at least one statutory ground for termination of parental rights and to make findings that set forth the existing conditions on which the determination is based.  Id. at 3.  The district court was also required to make explicit findings regarding the nature and extent of county’s efforts to rehabilitate mother and reunite family.  Id. On remand, the district court issued amended findings and terminated mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2) (2004).  This appeal followed.  

D E C I S I O N

            “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).  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). 

            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, this court must affirm.  In re Welfare of the Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004); see Minn. Stat. § 260C.301, subd. 1(b) (2006); Minn. R. Juv. Prot. P. 39.04.

I.  Reasonable Efforts

 

            In terminating mother’s parental rights under Minn. Stat. § 260C.301, subd. 1(b)(2), the district court was required to find, among other things, that the county’s reasonable efforts have failed to correct conditions that formed the basis of the termination petition or would be futile.  The district court’s findings indicate that the county made reasonable efforts, but due to mother’s unwillingness to cooperate with the county, those efforts eventually became futile.  “Reasonable efforts” to prevent placement and for rehabilitation and reunification are defined as “the exercise of due diligence by the responsible social services agency to use culturally appropriate and available services to meet the needs of the child and the child’s family.”  Minn. Stat. § 260.012(f) (Supp. 2005).  Whether a county has satisfied its reasonable-efforts obligation 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.

Mother claims that the district court committed reversible error by finding that the county made reasonable efforts up until the time of termination.  Her argument concentrates on the district court’s determination that, as of August 16, 2004, the county “was no longer attempting to actively work on reuniting the mother or the father with the children. . . .  [The county] continued to help coordinate visits and transportation between the children and the mother.”  The record supports the finding that the county discontinued reunification and rehabilitation efforts in August 2004.  Social worker Thompson testified that the county ceased working toward reunification in August 2004, and the primary purpose for any further contact was to facilitate limited visitation. 

Based on the district court’s findings and the weight of the evidence, mother claims the district court erred in determining that the county engaged in reasonable efforts because the county unilaterally relieved itself of reunification efforts at least 21 months before termination of her rights on May 15, 2006.  Mother argues that if the county wished to terminate its efforts, the proper mechanism for obtaining such relief is to petition the district court.  Under Minn. Stat. § 260.012(a), a social-services agency is obliged to make reasonable efforts to reunite the family unless and until the agency petitions the court to be relieved of its duty to make reasonable efforts and the court determines that these efforts are unnecessary under one of nine statutory bases, including futility of further efforts. 

Mother is correct that reasonable efforts are required and had the district court’s decision been based solely on a finding of continuous reasonable efforts, it is doubtful whether the finding would be supported by clear and convincing evidence.[1]  But her argument overlooks another of the district court’s findings.  The district court held that mother’s “unwillingness to work with [the county] and to comply with her reunification plan as outlined in the CHIPS proceeding reflects the futility of [the county] offering further services to [her].”  Therefore, although the county did not petition to be relieved of its efforts, the district court, as permitted by statute, retroactively determined that reasonable efforts became futile.  See Minn. Stat. § 260C.301, subd. 1(b)(2) (permitting termination upon a finding that either reasonable efforts failed to correct the conditions that led to out-of-home placement or that reasonable efforts would be futile). 

Mother argues that this finding is not supported by clear and convincing evidence, and claims that she has been sober since December 2004, four months after the county terminated its efforts.  But a careful review of the record supports the district court’s finding of futility.  Mother was provided with a copy of the reunification plan in January 2004, approximately 11 months before the county petitioned for termination, and two and a half years before termination of her rights, but mother did not comply with the plan. 

The record also reflects that, even after the county terminated its efforts, mother’s attitude toward rehabilitation and reunification remained unchanged.  Other than entering treatment as a condition of probation for her DWI conviction, mother did not comply with the reunification plan or the terms of her probation.  The order to submit to daily alcohol tests remained in effect up until the time of termination, yet mother did not comply.  In addition, mother did not pay the fine assessed for her conviction or complete the conditions of probation, which required her to participate in Alcoholics Anonymous, obtain a sponsor, and contact a treatment center for counseling and medication.  At trial, mother also stated that she was uncomfortable working with the county and believed that she could maintain sobriety without the county’s assistance.  

With regard to her children, mother admitted that, although she received limited visitation opportunities, she had never made any efforts to increase visitation or regain custody, and in January 2004 when the county attempted to work with mother to assess the children’s health problems, mother refused to participate and disagreed with the testing results.  Given the substantial evidence of mother’s noncompliance with the reunification plan and the terms of her probation long after the county terminated its efforts, the district court’s finding that continued efforts would be futile is not clearly erroneous.   

Finally, mother claims that the termination of parental rights was not based on current evidence.  Evidence that forms the basis for termination of parental rights must relate to conditions that exist at the time of termination and are likely to continue for a prolonged, indeterminate period.  In re Welfare of P.R.L.,622 N.W.2d 538, 543 (Minn. 2001).  Mother’s rights were terminated on the basis that she had “substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship . . . .”  Minn. Stat. § 260C.301, subd. 1(b)(2). 

Mother strongly contends that because her alcoholism precipitated the termination proceedings, the district court was required to make current findings pertaining to her sobriety.  Mother claims that she has been sober since she received alcohol-dependency treatment in December 2004 and argues that termination was improperly based on her condition prior to treatment.  In support of her contention, she cites (1) her testimony that the county did not request that she participate in alcohol testing in 2005; (2) the testimony of Thompson, mother’s adult daughter, and the guardian ad litem that demonstrates that they were either unaware of mother’s drinking habits during 2005 or believed she was sober; and (3) the district court’s May 2004 pre-trial finding of six months of continuous abstinence.  Although mother’s claim of a post-December 2004 rehabilitation has some support in the record, the district court’s findings indicate that her self-reported sobriety was countered by her failure, up until the time of trial, to comply with the reunification plan, the terms of her probation, and the court order that she report to the local police station for daily alcohol testing.         

II.  Best Interests

 

            Mother also disputes the district court’s finding that termination of her parental rights was in the best interests of the children.  In addition to 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 that “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. 

 

            Mother claims that termination was not in the best interests of the children because she has allegedly been sober since December 2004 and her visits with the children have gone well.  However, the district court made specific findings that balance the interests of mother and children.  The findings indicate that while mother and children have strong interests in maintaining their relationship, the children’s interest in a stable nurturing home, which mother cannot provide, outweighs all competing interests.  Substantial evidence supports this finding.  Both children have been diagnosed with disorders that require special attention to their emotional, physical, mental, and educational needs, and mother admittedly does not accept these diagnoses.  Mother has also failed to fully comply with the terms of her probation, the court-ordered reunification plan, or daily alcohol testing, which were intended to rehabilitate mother to a level of sobriety that would allow her to provide a healthy, stable environment for her children.

            We understand appellant’s arguments and the strong presentation by her attorney.  Parental termination cases are about as close to irrevocability as anything judges have to deal with.  But, with the substantial support in the record, and that coupled with the discretion of the district court in matters fact intensive and dependent upon credibility determinations, we find the termination of parental rights was proper. 

            Affirmed.



[1] In the previous appeal in this matter, this court offered a critical assessment of the sufficiency of the county’s efforts:

 

What we can glean from the record appears to establish that [the county], of its own volition, ceased providing rehabilitative services to mother in November 2004, approximately 18 months before the termination of mother’s parental rights.  The evidence also shows that, since that time, [the county] admittedly has done nothing to reunite mother with her children other than arranging visitation.  How these circumstances constitute reasonable efforts to rehabilitate mother and reunite the family is not readily apparent from our review.

 

D.N.R., 2006 WL 3720133, at *3.