This opinion will be unpublished and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.B. and J.B., Parents.
Filed October 30, 2007
Morrison County District Court
File No. 49-JV-06-236
Andrew R. Pearson, Bradshaw &
David W. Buchin, Buchin Law
Office, 16 Ninth Avenue North,
Brian J. Middendorf,
Considered and decided by Hudson, Presiding Judge; Willis, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in these consolidated termination-of-parental-rights appeals, appellant-mother argues that the record does not show that (a) she is a palpably unfit parent; and (b) termination of her parental rights is in the children’s best interests. Appellant-father argues that (a) the record does not show that father is a palpably unfit parent; and (b) the county failed to make any efforts to reunite father and the children. We affirm.
Appellant-mother M.B. and appellant-father J.B. were married in South Dakota in 1991. The couple has three sons: J.A.B., born December 29, 1990; T.A.B., born August 14, 1998; and H.L.B., born November 15, 2000. Both J.A.B. and H.L.B. are children with special needs.
In January 2005, father was jailed on the allegations of criminal sexual assault of one of his oldest son’s friends, a 14-year-old girl. He later entered an Alford plea to first-degree attempted criminal sexual conduct. In May 2006, he was sentenced to 72 months in prison; his anticipated release date is January 2009.
In April 2005, a children-in-need-of-protection-or-services (CHIPS) case was initiated regarding J.A.B; in October 2005 J.A.B. was placed in foster care as a result of his delinquency. In June 2005, a CHIPS case was initiated regarding T.A.B. and H.L.B. after the family was evicted from their home.
In May 2006, one of the children told a neighbor that “his mother was dead.” When an adult arrived at the residence, he found mother in her bedroom, unconscious. As a result, the children were transferred to foster care, where they remained until July 2006. After a short trial home visit, they returned to foster care in late July 2006. The foster mother testified that when she picked up the boys in July, they had “a pungent odor to them,” and their behaviors had regressed. In August 2006, the children were allowed to return to their mother’s care, and the oldest child, J.A.B., also returned to live at home.
In October 2006, the in-home family-services worker visited the residence for a scheduled meeting and found the house empty. While the worker was waiting for mother, the boys returned from school; there was no note indicating where mother was, and the neighbors told the worker that they had not been instructed to look after the boys. Mother did not return to the house for approximately 50 minutes.
In October, the case manager also made an unannounced drop-in visit to the family’s home. The district court had given the case manager prior permission to document the conditions at the house on videotape. The videotape, which was later played for the district court during the termination-of-parental-rights trial, showed the house to be very messy and generally unsafe.
In October 2006, J.A.B. was again removed from the home because of his behavior at school and because it was discovered that mother was allowing him to smoke and drink at home. Ten days later, the two younger boys were also removed from mother’s home because of the condition of the home, a lack of supervision, and mother’s inability to control their behavior. When the foster mother picked them up, the boys “smelled very bad” and wore torn and dirty clothing. The foster mother noticed that their behavior had again regressed and that “they were very hyper, [and] somewhat aggressive with our animals. They didn’t want to listen to authority again.”
In November 2006, Morrison County filed a petition to terminate the parental rights of both mother and father under Minn. Stat. § 260C.301, subds. 1(b)(2), (b)(5) (2006). The petition alleged that mother and father had failed to comply with the duties of the parent-child relationship and that reasonable efforts had failed to correct the situation. Both parents entered denials to the petition and a termination-of-parental-rights (TPR) trial was held in Morrison County district court beginning in late January 2007.
At trial, the social worker, in-home-services worker, child-protection case manager, guardian ad litem, foster-care case manager, psychologist, and both mother and father testified. The social worker, who had been involved with the family since October 2005, testified that although mother was cooperative and willing to work, she is low-functioning and “is just not capable of following through, needs very repetitive reminders just for the, again, basic parenting strategies.” The social worker testified that she had not seen the improvement in mother’s parenting skills that one would expect, given the services that had been provided to her over a period of 15 months. The social worker also testified that conditions in the home were unsafe, and she described an abandoned vehicle with the windows smashed out and a gas leak that went unrepaired for nearly two months.
The in-home services worker testified that because she was aware of mother’s cognitive limitations, she tried to “do as much modeling [physical demonstration of tasks] as possible” to help her understand. She also testified that mother seemed to have difficulty disciplining and controlling her children’s behavior.
The case manager from Morrison County Social Services confirmed that mother was “very agreeable to services” and that she’s a “very kind person . . . and did try very hard.” But she also stated that “ultimately . . . at this point it’s really not enough. She’s not able to demonstrate that she’s able to keep the kids safe, that she’s able to discipline them and to provide for their needs without extensive support.” She later stated that “if [mother] had a supportive person that lived with her full time, such as a family member or . . . if she had in-home [services] every single day, she might be able to do it. But I think . . . on her own with the children, she’s not able to manage the children.”
During her testimony, mother admitted that her home environment had not been safe, but she stated that she had recently been able to clean up her house. She also admitted that she had previously been unable to meet the needs of her children but that she wanted her children back and was ready to show the court that she could now take care of them.
The consulting psychologist who administered the parenting assessments observed that mother had a significant bond with her children but described her parental fitness as “inadequate” and her prognosis as “poor.” He estimated her IQ as “borderline,” which, although not determinative, has a significant effect on her ability to parent effectively. He stated that mother’s evaluations also indicated that she has obsessive-compulsive personality traits and that such people often “don’t change very easily.” That aspect of her personality has “implications for [mother’s] treatment and training.” The psychologist also specifically rejected the idea that a full-family foster home would be beneficial because it would just “create more dependency.”
Because father was incarcerated, he had little involvement in the case or case plan. The social worker, in-home-services worker, and case manager all testified that they had not provided services to father and had had very little, if any, contact with him. The psychologist testified that the parenting assessment showed that father’s parental fitness was “very poor.” But he also stated that because the assessment was more than a year old, he could not provide the court with an accurate assessment of father’s current abilities as a parent without additional testing.
At the trial, father denied sexually assaulting the 14-year-old girl and stated that there was no longer an active warrant for his arrest in Montana. He also testified that he was enrolled in various programming in prison including parenting classes, math classes, and reading and writing classes. Father stated that although he had made some bad decisions in his life, he believed that he is a good role model to his children.
The guardian ad litem testified that she did not support termination of mother’s and father’s parental rights, and instead would “support a continuing foster placement.” But she also stated that she was not aware of any full-family foster-care placement in or near Morrison County.
On February 23, 2007, the district court issued a written order and memorandum terminating the parental rights of mother and father under Minn. Stat. § 260C.301, subds. 1(b)(4), (b)(5). The district court concluded that (1) Morrison County had made reasonable efforts to avoid termination; (2) termination was in the best interests of all three children; (3) the county had shown by clear-and-convincing evidence that mother and father were palpably unfit to be parties to the parent-child relationship; and (4) the county had shown by clear-and-convincing evidence that mother and father failed to correct the conditions that led to the out-of-home placement of their children.
In its written memorandum, the district court stated that:
[W]ith respect to [mother], [it] is clear that she has attempted everything asked of her by the Court and Social Services. Unfortunately, cooperation alone, without progress in alleviating her parenting deficiencies, is not enough to avoid termination. In spite of significant services, [mother] is still incapable of meeting the regular requirements of a parent and the needs of her children on a consistent basis. Unfortunately, she does not have the natural capacity to comprehend and apply the information provided to correct her parenting deficiencies. At this point, it does not appear as though any amount of services would lead to the desired result.
Regarding father, the district court acknowledged that incarceration was a factor in its decision but stated that:
If [father’s] incarceration were the only strike against him in this matter, the Court would agree that termination is not appropriate. But the Court may consider other evidence supporting termination, in conjunction with incarceration. . . . The Court was presented with his conviction for criminal sexual assault, an offense in which he used his adolescent son as a means to lure his victim to his home. This Court is also aware of similar allegations existing in the State of Montana; allegations that led to the issuance of a warrant for his arrest. Evaluations of [father] talk about his preoccupation with sex. As of this time, he remains an untreated sex offender.
This appeal follows.
D E C I S I O N
Mother argues that the district court clearly erred by finding her palpably unfit to parent under Minn. Stat. § 260C.301, subd. 1(b)(4) (2006), because “[t]here is no evidence of a pattern of specific conduct, or an untreatable specific condition relating to the parent-child relationship demonstrating [mother’s] inability to care for the ongoing needs of her child” and that “there’s nothing in the record to suggest that she could not provide the necessary support, structure and safety her children need.” We disagree.
Minn. Stat. § 260C.301, subd. 1(b)(4), provides that a district court may terminate parental rights if it finds
that a parent is palpably unfit to be a party to the parent and child relationship because of 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. . . .
appeal in a termination proceeding, “appellate courts are limited to
determining 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 (
of parental rights will be affirmed as long as at least one statutory ground
for termination is supported by clear and convincing evidence and termination
is in the child’s best interests.” In re Welfare of Children of R.W., 678
N.W.2d 49, 55 (
It is clear that mother made a great effort to improve her parenting skills and that she cooperated fully with all of her service providers. But the record supports the district court’s finding that she is unfit to care for her children.
Each of mother’s service providers testified that she does not have the ability to effectively or safely parent on her own. And while mother argues that because of her cognitive limitations, “more patience and support are required,” the record shows that Morrison County gave her numerous opportunities to demonstrate her parenting abilities and provided her with many in-home services over a period of nearly two years. Despite these efforts, mother’s condition and parenting abilities have shown no appreciable improvement.
also argues that the district court erred by concluding that termination was in
the best interests of the children. When
determining the best interests of a child, a district court is required to
“balance three factors: (1) the child’s interest in preserving the parent-child
relationship; (2) the parent’s interest in preserving the parent-child
relationship; and (3) any competing interest of the child.” In re
Welfare of R.T.B., 492 N.W.2d 1, 4 (
In this case, mother clearly has an interest in preserving the parent-child relationship, and the parties agree that she loves her children. But “[w]here the interests of parent and child conflict, the interests of the child are paramount.” Minn. Stat. § 260C.301, subd. 7 (2006). And here, the record shows that when the children were in mother’s care, their needs were not adequately met. The children’s interest in a stable environment and their health considerations outweigh mother’s interest in maintaining the parent-child relationship. The district court’s conclusion that termination was in the best interests of the children is supported by clear-and-convincing evidence and is not erroneous.
Father argues that the record does not support the district court’s determination that he was palpably unfit to parent under subdivision 1(b)(4) and that the district court cannot rely solely on his conviction and incarceration for criminal sexual conduct to support its decision.
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 (
Here, the district court acknowledged that father’s incarceration was a factor in its decision. But the district court also noted that it “[did] not rely on that fact alone in deciding this matter.” The record shows that the district court also considered the father’s cognitive abilities; his difficulty in maintaining employment before his incarceration; his Alford plea to attempted criminal conduct involving a 14-year-old-girl and the seriousness of that conduct; his lack of sex-offender treatment; and the year-old parenting assessment showing that father’s parental fitness was “very poor;” his history of reckless and dangerous activity; and his “disturbing preoccupation with sex.” Ideally, father’s parenting assessment should have been updated prior to the termination trial to better assess his status and parenting skills as of the time of termination. But based on the facts that we do have, we conclude that there is clear-and-convincing evidence that father is palpably unfit to parent and that the district court did not err by terminating father’s parental rights.
We also note that the earliest father would be available to parent the children is in 2009, and there is no assurance that the children could return to his care when he is released. In In re Children of Wildey, 669 N.W.2d 408, 416 (Minn. App. 2003), aff’d as modified, In re Welfare of Children of R.W., 678 N.W.2d 49, in which the appellant father had “at least two more years to serve in prison,” this court stated that he could not expect the court “to view the case as if he were ‘outside’ and available tomorrow to take over day-to-day parenting” because “the children have no parents now and will have to wait at least two years before they might have one.” To remand in this case would be to subject the children to at least two more years of a chaotic and troubled situation.
Father also argues that Morrison County failed to provide reasonable efforts under Minn. Stat. § 260C.301, subd. 1(b)(5) (2006), to correct the conditions that led to the children’s out-of-home placement. He maintains that “absolutely no efforts were made to attempt to rehabilitate [father] or to reunite him with his family.” The parties do not dispute that services were not provided to father while he was incarcerated.
district court may terminate parental rights if it finds “that following the
child’s placement out of the home, reasonable efforts, under the direction of
the court, have failed to correct the conditions leading to the child’s
is important to carefully examine the efforts provided to parents “because
public agencies may transform the assistance into a test to demonstrate
parental failure.” In re Welfare of J.H.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (
Reasonable efforts are not required if it is shown that “the provision of further services is futile and therefore unreasonable under the circumstances.” Minn. Stat. § 260.012 (a)(5) (2006). This court has previously determined that a county’s failure to provide a case plan or services to a father who was incarcerated did not constitute error. In re Children of Vasquez, 658 N.W.2d 249, 257 (Minn. App. 2003) (“The district court’s finding that the county was not required to provide appellant with a case plan because it would be futile and therefore unreasonable is not erroneous because the futility of reunification efforts is irrefutable.”). “‘[R]easonable efforts,’ by definition, does not include efforts that would be futile.” Children of R.W., 678 N.W.2d at 56.
Here, father will be incarcerated until at least 2009. He admitted that his incarceration was a direct consequence of his own voluntary actions and not the result of anyone else’s conduct. He also admitted that has not participated in any sex-offender treatment while in prison. On these facts, and taking into consideration the best interests of the children, we cannot say that the district court erred by concluding that reasonable efforts failed to correct the conditions that led to the out-of-home placement of the children.