This opinion will be unpublished and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:
L.J. and K.I.J.,
Filed November 6, 2007
Hennepin County District Court
File Nos. 27-JV-06-7106, 27-J1-04-062995
Leonardo Castro, Chief Fourth District Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant LJ)
Michael O. Freeman, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)
Leonardo Castro, Chief Fourth District Public Defender, Angela F. Bailey, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for HJ)
Michael J. Biglow, 895 Tri Tech Center, 331 Second Avenue South, Minneapolis, MN 55401 (for guardian ad litem)
Considered and decided by Peterson, Presiding Judge; Lansing,
Judge; and Klaphake, Judge.
F A C T S
LJ is the mother of SJ, HJ, and IJ. SJ was placed in long-term foster care in November 2005 and is not subject to this proceeding. In September 2004 Hennepin County filed a child in need of protection or services (CHIPS) petition and an order for emergency protective care, based on allegations that LJ suffered from chemical dependency and that the children had been subject to abuse and unstable living conditions. In October 2004 the district court ordered out-of-home placement for SJ, HJ, and IJ.
Hennepin County first attempted to terminate LJ’s parental rights in February 2005. On February 7, 2006, the district court denied the termination petition but continued the order for the children’s out-of-home placement because LJ’s unresolved chemical dependency prevented her from providing appropriate parental care. Following a review hearing on March 31, 2006, the district court further continued the children’s out-of-home placement and adopted a revised case plan.
The case plan required LJ to attend weekly individual therapy, attend a weekly parenting program, meet regularly with the child-protection social worker, submit to twice-weekly urinalysis in compliance with a court-filed schedule, and attend twice-weekly twelve-step meetings and submit verification to the child-protection social worker. The March 2006 order included a plan for expanding visitation and for reunification if LJ complied with her case plan.
During the course of these proceedings, LJ participated in a methadone program to attempt to overcome her chemical dependency. In March and May 2006, she relapsed on heroin. On May 16, 2006, Hennepin County again filed a petition to terminate LJ’s parental rights.
Following her relapse, LJ obtained a sober-living housing placement, but she was discharged in September 2006, the same month as the trial on the termination petition, because she asked the child of another resident for urine. Although LJ provided numerous urine samples, she was unable to achieve a straight thirty-day compliant period in which she adhered to the urinalysis schedule or provided negative urine samples. Eight of LJ’s urine samples tested positive.
LJ also failed to provide consistent verification of her twelve-step program attendance. She did not successfully complete individual therapy. Although she completed a parenting program, the supervisor reported problems with LJ’s dishonesty and erratic behavior. During the pendency of the proceeding, LJ faced a number of criminal charges in Hennepin County and a Ramsey County petition to revoke probation of a suspended thirteen-month sentence.
At the contested termination hearing in September 2006, the county presented testimony from LJ’s current child-protection worker and the children’s guardian ad litem. LJ’s caseworker testified that LJ met with him about once each month and that they also spoke on the phone two or three times each month. He recommended that the court terminate LJ’s parental rights because she failed to achieve or maintain sobriety and failed to comply with her case plan. The guardian ad litem testified to her conclusion that it was in HJ’s and IJ’s best interests to terminate LJ’s parental rights because the children needed stability and permanency and that LJ’s continued chemical dependency prevented her from caring for the children. LJ testified that she would be able to treat her chemical dependency and obtain housing for herself and her children at RS Eden, a residential chemical-dependency program. She had not been admitted to the program at the time of trial, however, and could not assure the court that she would be admitted in the future.
Following the hearing, the district court issued findings of fact and conclusions of law. The district court found that the evidence clearly and convincingly established that LJ had failed substantially to complete the requirements of her case plan, that return of the children was not possible in the foreseeable future, and that it was in the best interests of the children to terminate LJ’s parental rights. The court concluded that the county had clearly and convincingly proved three statutory bases for termination of LJ’s parental rights: failure to abide by the duties of the parent-child relationship, failure to correct conditions leading to out-of-home placement, and that the children are neglected and in foster care. LJ appeals those determinations.
A district court may terminate parental rights only if it is proved by clear and convincing evidence that a statutory ground for termination exists and that the termination is in the child’s best interests. In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001). On review we closely inquire into the sufficiency of the evidence, taking into account the clear-and-convincing standard and also taking into account that it is the district court that assesses the credibility of witnesses. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). In termination-of-parental-rights proceedings, the paramount consideration is the best interests of the child. Minn. Stat. § 260C.301, subd. 7 (2006).
The district court found, first, that clear and convincing evidence established that LJ neglected her parental duties. See Minn. Stat. § 260C.301, subd. 1(b)(2) (2006) (listing neglect of parental duties as basis for termination of parental rights). The record demonstrates that LJ made efforts to comply with her case plan by attending numerous parenting classes, attending some twelve-step programs, submitting to multiple urinalyses, and obtaining some individual therapy. LJ’s failure to consistently follow her case plan, however, demonstrates her neglect in completing parental duties. The evidence substantiated a pattern of conduct that limits LJ’s ability to perform her parental duties. This conduct includes LJ’s criminal behavior, chaotic lifestyle, submitting positive urinalyses, continuing chemical dependency, inability to provide stable housing, failure to obtain necessary therapy, inability to successfully complete parenting programs, failure to engage in updated chemical-dependency evaluations, and failure to verify regular attendance at twelve-step programs. The district court did not err in finding that LJ neglected her parental duties.
Second, the district court found that clear and convincing evidence established that LJ failed to correct the conditions that led to out-of-home placement of the children. See Minn. Stat. § 260C.301, subd. 1(b)(5) (2006) (listing failure to correct conditions leading to out-of-home placement as basis for termination of parental rights). A presumption arises under the statute that conditions leading to a child’s out-of-home placement have not been corrected upon a showing that the parent has not substantially complied with the court’s orders and a reasonable case plan. Id., subd. 1(b)(5)(iii).
As of the September 2006 trial, the children had been continuously in out-of-home placement for nearly two years. The children had been removed from the home because of exposure to abuse, unstable living conditions, and LJ’s chemical dependency. Although a case plan was ordered to assist LJ in correcting the conditions that led to out-of-home placement, inconsistencies in her completion of the case plan demonstrate failure to correct the conditions.
LJ’s heroin relapses, positive urine samples, failure to regularly attend therapy, and failure to prove consistent twelve-step meeting attendance show that she failed to correct her chemical dependency. The record provides substantial evidence for the district court to find, clearly and convincingly, that LJ failed to correct the conditions leading to out-of-home placement. The district court did not err in concluding that LJ failed to correct conditions leading to out-of-home placement.
Third, the district court found that clear and convincing evidence established that HJ and IJ are neglected and in foster care. See Minn. Stat. § 260C.301, subd. 1(b)(8) (2006) (listing “neglected and in foster care” as basis for termination of parental rights). A child is “neglected and in foster care” if that child has been placed in foster care by court order; the parents’ circumstances, condition, or conduct prevent return to the family; and the parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to address the problems preventing return. Minn. Stat. § 260C.007, subd. 24 (2006).
The district court’s findings addressed the statutory factors. The children have been in out-of-home placement since September 2004. LJ was unable to establish or maintain sobriety, attend to her mental-health needs, or change her chaotic lifestyle that included unstable housing and continuing criminal activity. LJ failed to complete her case plan and was unable to demonstrate to the district court that she would be able to comply with her parental responsibilities in the foreseeable future. LJ argues that the district court should have considered the agency’s failure to provide services. She points to her social worker’s failure to assist her in following her therapist’s recommendations after a psychological assessment. LJ does not deny, however, that she failed to follow up on the recommendations because she did not make appointments. The social worker’s failure to make the appointments for LJ is not necessarily an indication of failure to use reasonable efforts to rehabilitate and reunite the family. The record indicates that the case worker was in regular contact with LJ and that the county offered LJ therapy, drug treatment, housing assistance, and numerous other opportunities. Thus, the record supports the district court’s finding that the county made reasonable efforts to rehabilitate and reunite the family. The district court did not err in finding that HJ and IJ are neglected and in foster care.
The district court also made specific findings that termination of LJ’s parental rights is in the best interests of HJ and IJ because there is no substantial likelihood that they will be reunited with their mother in the foreseeable future; the children need permanency; and the children could be eligible for adoption. The record supports these findings on the children’s best interests.
It is clear that LJ made genuine efforts to follow her case plan. But it is also clear that LJ was unable to succeed in her efforts and to make reasonable progress. In light of her chemical dependency, the age of the children, and the time the children have been in out-of-home placement, the district court and this court are required to focus on the best interests of the children and their need for permanency. Thus, the district court did not err in finding that it is in the best interests of the children to terminate LJ’s parental rights.
LJ challenges the district court’s use of evidence from the first termination trial. Although counsel for LJ indicated at oral argument that he was not placing strong reliance on this point, the issue was not withdrawn and we address the challenge raised in the brief.
Evidence supporting termination must relate to conditions existing at the time of termination, and it must appear likely that the conditions leading to termination will continue for an indefinite and prolonged time. P.R.L., 622 N.W.2d at 543. The court should not rely primarily on past history, but rather on the parent’s future ability to care for her child. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).
The district court correctly focused on LJ’s future ability to care for her children. In assessing her future ability, the district court evaluated LJ’s compliance with case plans since the 2005 termination case. The district court did not primarily rely on evidence from the 2005 termination proceedings. It used the information to provide context in evaluating the case plan. Therefore, the district court did not abuse its discretion in considering the evidence from the 2005 proceedings.
LJ challenges the district court’s refusal to consider placing HJ and IJ in long-term foster care with their older sister. Questions of statutory interpretation are reviewed de novo. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn. 2001). Long-term foster care is allowable only if the court approves the agency’s compelling reasons that neither an award of permanent legal or physical custody to a relative nor termination of parental rights is in the child’s best interests. Minn. Stat. § 260C.201, subd. 11(d)(3)(i) (2006); In re Welfare of J.M., 574 N.W.2d 717, 721 (Minn. 1998). Additionally, to place a child in long-term foster care, the child must either be at least twelve-years old, or be a sibling of a child of that age in circumstances where the siblings have a significant positive relationship. Minn. Stat. § 260C.201, subd. 11(d)(3)(ii) (2006).
It is undisputed that Hennepin County did not provide compelling reasons for the court to order long-term foster care. LJ argues that the trial court erred in not exercising equitable discretion to order long-term foster care. J.M. established two controlling considerations for long-term foster care. 574 N.W.2d at 721. First, long-term foster care remains disfavored and may only be ordered in restricted circumstances. Id. Second, when the record supports a more favored alternative, long-term foster care may not be ordered. Id. The court concluded that the children’s best interests are served by termination of parental rights, which would offer them greater stability and the opportunity for adoption. Long-term foster care would not serve these goals. Therefore, the court acted within its discretion by proceeding on the termination of LJ’s parental rights rather than ordering long-term foster care for HJ and IJ.