This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

 

A07-586

 

In the Matter of the Welfare of the Children of:

S.-L. C. a/k/a R., Parent.

 

Filed November 6, 2007

Affirmed

Ross, Judge

 

Hennepin County District Court

File No. 27-JV-06-7462

 

Leonardo Castro, Hennepin County Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant S.-L. C.)

 

Elizabeth Scott, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant child, J.H.)

 

Michael O. Freeman, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487; and

 

Michelle A. Hatcher, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

Bruce Jones, Rebecca Paulzine, Faegre & Benson, LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis MN 55402-3901 (for guardian ad litem)

 

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*


U N P U B L I S H E D ††O P I N I O N

ROSS, Judge

This appeal concerns the termination of S.-L.C.ís parental rights to her two youngest children.† S.-L.C. argues that her due process rights were violated because she had not been appointed an attorney until immediately before the termination trial.† She also contends that the district courtís findings were not supported by clear and convincing evidence and that the court therefore had no basis to conclude that she failed to comply with the duties imposed by the parent-child relationship, that she failed to correct the conditions leading to the childrenís out-of-home placement, or that the children were neglected and in foster care.† Because S.-L.C.ís claim that she was not appointed an attorney until just before trial is factually meritless, and because the record supports the district courtís findings that S.-L.C. failed to comply with her parental duties and that termination is in the childrenís best interests, we affirm the district courtís order terminating S.-L.C.ís parental rights.

FACTS

S.-L.C. has a history with child protective services in three different counties dating back to at least 1992.† Her children who are the subject of this matter, J.H. and B.H., were found to be in need of protection or services in March 2003.† They were placed out of the home from October 2003 to June 2004 because of educational neglect, lack of proper medical and emotional attention, and because S.-L.C. failed to prevent contact between J.H. and a person who had sexually abused her.† Hennepin County jurisdiction over that case terminated in December 2004.

In October 2005 the county received a report that J.H. and B.H. had not been enrolled in school since the previous year and that S.-L.C. was not actively home-schooling J.H. as she had represented.† The county filed a petition alleging that the children were in need of protection or services because S.-L.C. threatened to kill J.H. with a knife, broke a yardstick over her back, and beat her with a belt.† The district court again ordered J.H. and B.H. to be placed out of the home.† And the court again found the children to be in need of protection or services, based on educational neglect and the physical abuse.† Hennepin County filed a petition to terminate S.-L.C.ís parental rights in May 2006.

At the dispositional review hearing five days later, S.-L.C. appeared without counsel.† Her household income was too high to qualify her for appointed counsel.† The district court continued the hearing to one week to give S.-L.C. time to find an attorney.† But she was still unrepresented at the continued hearing.† She explained that she was too indebted to afford a private attorney and that a pro-bono-lawyers network did not handle child-protection cases.† The court appointed counsel on a sliding-fee basis and continued the hearing.† When the parties convened again on July 24, 2006, appointed counsel appeared on S.-L.C.ís behalf.

At trial beginning October 25, 2006, several county witnesses testified in favor of termination of S.-L.C.ís parental rights.† The child-protection social worker testified that S.-L.C. complied with aspects of her case plan by completing a psychological evaluation and a parenting assessment.† But S.-L.C. did not attend any parenting classes or participate in family therapy as required, even though the social worker assisted parenting professionals to tailor a program specifically for S.-L.C.† The guardian ad litem testified that B.H., who was eight years old at the time of the trial, has Aarskogís syndrome, a seizure disorder, and developmental delays.† J.H., who was thirteen years old, needs psychological therapy and educational planning.† A social worker testified that the county requested the district court to suspend visitation after S.-L.C. continually whispered to J.H. that she should recant her report that S.-L.C. abused her.† The social worker opined that termination of parental rights is in the best interests of both children.† A former parenting assessor who evaluated S.-L.C. opined that S.-L.C. needed a psychological evaluation, in-home family therapy, and an intensive parenting education program, and she testified that the children should remain in out-of-home placement for educational assistance.

B.H.ís therapist testified that B.H. has behavioral problems associated with anger and anxiety.† He also has significant cognitive limitations.† The therapist explained that although B.H. generally has progressed in his therapy, he has also regressed occasionally, often related to contact with S.-L.C. †In her opinion, termination of parental rights is in B.H.ís best interests.† The childrenís current and former guardians ad litem also testified to their opinion that termination of parental rights is in the best interests of the children.† The guardians based their opinions on educational neglect and J.H.ís physical abuse.† The former guardian ad litem observed that in four years S.-L.C. had met J.H. and B.H.ís educational and medical needs only when ďabsolutely requiredĒ by the court.†

S.-L.C. testified against termination.† She testified that she disagreed with the parenting-assessment program.† She had asked to participate in a day program instead of the night program so that she could spend evenings with her husband.† She admitted that she never initiated a phone call with J.H. †And she admitted that she did not bring gifts for J.H. as frequently as she had for B.H. in order to punish J.H. for not committing to attend visits.† Although she admitted that she had spanked J.H. inappropriately, she did not discuss the allegations of physical abuse.† S.-L.C. asserted that the district court allowed J.H. to assume inappropriate control, but she denied placing blame on J.H.† Despite evidence that S.-L.C. went to a parenting training program only once, she claimed to have attended six times and that the trainer there felt that S.-L.C. possessed adequate parenting skills.† But the county explained that this person was not a qualified parenting assessor.

The district court found that S.-L.C. had dragged J.H. repeatedly by the hair, broken a yardstick over her back, and threatened to kill her.† The court found that B.H. had witnessed much of this.† The court found that S.-L.C. acted inappropriately during supervised visitation and failed to maintain regular contact with either the child-protection social worker or the children.† It found that the children were without necessary education and that S.-L.C. demonstrated ďan unwillingness to successfully complete the court-ordered case plan [for] the reasonabl[y] foreseeable future.Ē† The court concluded that the county had proved by clear and convincing evidence three statutory bases for terminating S.-L.C.ís parental rights: failure to comply with the duties imposed by the parent-child relationship; failure to correct the conditions leading to the childrenís out-of-home placement; and the children were neglected and in foster care.† This appeal follows.

D E C I S I O N

I

We first consider whether S.-L.C.ís due process rights were violated based on her claim that she was unrepresented from December 30, 2005, until ďjust beforeĒ trial on October 25, 2006.† The due process challenge is factually meritless.† The United States Supreme Court has noted that an indigent parent has no presumptive due process right to counsel in a termination-of-parental-rights proceeding.† Lassiter v. Depít of Soc. Services., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162 (1981).† But Minnesota has afforded parents a statutory right.† Minn. Stat. ß 260B.163, subd. 4(a) (2006).† Contrary to her assertion, S.-L.C. was not unrepresented until just before trial.† She was actually without counsel from only December 30, 2005, to July 24, 2006, when appointed counsel appeared on her behalf at the pretrial hearing.† S.-L.C. had first appeared in court regarding the termination petition on May 30, 2006, without representation.† One week later, on June 6, 2006, the court ordered the appointment of counsel on a sliding-fee basis to accommodate her limited means. †S.-L.C. points to no authority to support the notion that three months of pretrial appointed representation triggers a statutory concern under section 260B.163, subd. 4(a).† And she has failed to establish that she suffered any prejudice related to the timing of appointment of counsel.† We reject S.-L.C.ís contention that her right to due process was violated.

II

We next consider whether clear and convincing evidence supports one of the statutory bases for termination of parental rights.† We review a termination to determine 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).† We give considerable deference to the district court because of its superior position to assess the credibility of witnesses.† In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). †If a single statutory basis for terminating parental rights is affirmable, this court need not address any other statutory basis the district court may have found to exist.† See In re Children of T.A.A., 702 N.W.2d 703, 708 n.3 (Minn. 2005) (declining review of remaining grounds for termination after affirming on grounds of palpable unfitness).† We conclude that substantial evidence supports at least one statutory basis for the termination of S.-L.C.ís parental rights.

S.-L.C. challenges the district courtís determination that she has failed to comply with her parental duties in the parent-child relationship.† The district court may terminate parental rights if it finds by clear and convincing evidence that the parent has substantially, continually, or repeatedly neglected the parental duties imposed by the relationship.† Minn. Stat. ß 260C.301, subd. 1(b)(2) (2006); see Minn. Stat. ß 260C.317, subd. 1 (2006) (requiring clear and convincing evidence to support termination).† Parental duties include, among other essentials, providing the child with necessary education and care necessary for the childís physical, mental, and emotional health and development.† Minn. Stat. ß 260C.301, subd. 1(b)(2). †The district court found that S.-L.C. had failed to provide for the childrenís educational needs and physical and emotional health.

The record supports this finding.† The 2002 child-protection record reveals that S.-L.C. did not maintain a consistent schedule for home education and she failed to lead J.H. to complete a second-grade curriculum.† At the child-protection proceeding in November 2005, J.H. testified that S.-L.C.ís only effort toward J.H.ís education was to administer a test concerning which she gave J.H. no instructions or guidance.† J.H. testified that instead of being home-schooled, she spent most of her days performing housekeeping chores.† The district court that determined that J.H. was in need of protection or services found that the children were neither enrolled in a conventional school nor actually being home-schooled.

Stipulated evidence supports the testimony that the children were receiving an inadequate education.† It shows that both children performed poorly under S.-L.C.ís care.† B.H.ís first-grade progress reports indicated below-grade-level performance in writing, reading, and math.† J.H. was not able to maintain grade-level performance during the time that S.-L.C. purported to home-school her.† The record shows that although S.-L.C. claimed to provide home-schooling to J.H. beginning in first grade and that J.H. excelled tremendously with 100% averages and straight Aís, standard testing completed in 2001 revealed that J.H. was actually functioning in the lower 50th percentile in all areas tested, falling in the bottom 30th percentile in 11 of 12 areas.† See Minn. Stat. ß 120A.22, subd. 11(a) (2006) (mandating that children not enrolled in a public school must be assessed annually using a national standardized achievement examination).† We do not suggest that poor academic performance is a basis for terminating parental rights, but we conclude that in this case, poor performance corroborates the testimony and other evidence that S.-L.C. was simply not providing the children with the education she claimed to provide them.

After the termination trial, the district court found that S.-L.C.ís misconduct and failure to follow her case plan prevented her from visiting the children, and it noted that her disregard for her obligation even to disclose their whereabouts resulted in her being jailed for contempt.† S.-L.C. relies chiefly on her willingness to present the children for an educational assessment to contest the district courtís conclusion that she failed and will likely continue to fail to provide for their education.† This sole effort does little to offset the evidence that S.-L.C. has failed to remedy the deficiencies related to the childrenís education.† Ample evidence supports the district courtís finding that S.-L.C. failed and will likely continue to fail to provide an education for J.H. and B.H.†

The record also supports the conclusion that S.-L.C. failed to provide for J.H. and B.H.ís physical and emotional health.† J.H. testified at the 2005 protection hearing that S.-L.C. used excessive corporal punishment on a regular basis, breaking a yardstick over her back and hitting her with a belt.† While reasonable corporal punishment may be imposed within a parentís discretion, the evidence supports the district courtís determination that the physical punishment inflicted on J.H. was not reasonable and rose to the level of physical abuse.† See In re Welfare of Children of N.F. and S.F., 735 N.W.2d 735, 739 (Minn. App. 2007) (holding that the use of corporal punishment must involve unreasonable force or excessively cruel discipline to rise to the level of physical abuse), review granted (Minn. Sept. 26, 2007). †See also In Re Welfare of P.L.C. and D.L.C., 384 N.W.2d 222, 224-25, 226 (Minn. App. 1985) (finding that corporal punishment, without evidence of force or resulting injury, did not justify the denial of custody).† B.H. witnessed much of the abuse S.-L.C. inflicted on J.H., and B.H.ís therapist opined that his exposure contributed to his anxiety.† The district court found that S.-L.C. failed to provide B.H. with medical care and to treat his developmental delays even though services would likely be covered by health insurance.† S.-L.C. refused to bring J.H. gifts during visitation, and she defended this deprivation as a form of ďtrainingĒ to punish J.H. for not attending the visits consistently. †S.-L.C. admitted that she did not call J.H. during the entire year that J.H. was in out-of-home placement.† The district court finally eliminated visits altogether because S.-L.C. repeatedly harassed J.H. to recant her testimony about S.-L.Cís abuse.† These facts support the district courtís conclusion that S.-L.C. did not and likely would not meet the childrenís physical and emotional needs.

Because the record contains clear and convincing evidence that S.-L.C. failed to comply with her parental duties by ensuring that her childrenís educational needs were met and by attending to their emotional and physical health, the district courtís findings are not clearly erroneous.† Because the findings supporting termination as to one statutory basis are not clearly erroneous, we do not consider the other two alternative bases that the district court relied on, and we turn last to the district courtís conclusion regarding best interests.

III

S.-L.C. contends that the district court erroneously found that termination is in J.H.ís and B.H.ís best interests, arguing that the courtís findings failed to consider J.H. and B.H. separately.† The paramount consideration is whether termination is in the childrenís best interests.† Minn. Stat. ß 260C.301, subd. 7 (2006).† There was ample testimony to support a finding that the termination of S.-L.C.ís parental rights is in both childrenís best interests.

Although the district court referred to ďthe best interests of the children,Ē it clearly considered the merits of termination concerning each child separately.† As S.-L.C. admits, her relationship with J.H. is strained.† The record reflects that S.-L.C. has a long history of abusing and mistreating J.H.† She has failed to provide for J.H.ís educational needs, and she has expressed little interest in rehabilitating her relationship with J.H.† Although S.-L.C.ís relationship with B.H. is different, the record suggests that it is not materially better.† The evidence shows that B.H. has severe developmental delays, cognitive difficulty, and behavioral problems.† These issues have improved during B.H.ís out-of-home placement, where he lives in a structured daily routine.† Despite having health-insurance coverage for B.H., S.-L.C. did not address these challenges while B.H. was in her care.† The district court considered the best-interests factors, and the record supports its conclusion that termination of S.-L.C.ís parental rights is in J.H.ís and B.H.ís best interests.

Affirmed.



*††† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.