This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

In the Matter of the Welfare of: A. R. Child.

Minnesota Court of Appeals #C9-95-1992
Winona County District Court #JX9450971

May 7, 1996

Julius E. Gernes, Winona County Attorney, Susan E. Cooper, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for Winona County Department of Human Services)

Greg Schultz, 225 South Kingston Street, Caledonia, MN 55921 (for guardian ad litem)

Karl W. Sonneman, Sonneman & Sonneman, P.A., Assistant Public Defender, 111 Riverfront, Suite 202, Winona, MN 55987 (for mother)

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

U N P U B L I S H E D    O P I N I O N

AMUNDSON, Judge

Appellant mother Mae Linn Oevering challenges a trial court order terminating her parental rights in A.R. By notice of review, respondent Winona County Department of Human Services challenges the order insofar as it allows Oevering to retain her parental rights in T.F. We affirm the termination of parental rights in A.R. and reverse the retention of parental rights in T.F.

FACTS

The county has offered Mae Linn Oevering parenting assistance through a variety of services and programs since the first of her four daughters was born in 1988. Oevering's participation in these programs has been inconsistent.

In the summer of 1992, the county placed all four children in foster care due to the unhealthy conditions in which they lived. While in foster care, the health of the youngest child, T.F., improved, and her weight climbed to the seventy-fifth percentile. In sad contrast, physicians diagnosed the second youngest child, A.R., with leukemia. In September 1993, T.F. returned to her mother's home where her weight quickly dropped to the thirtieth percentile. A.R. remains with her foster family. [1]

Oevering admits she is overwhelmed by her children. She continues to isolate her children in their room to give herself reprieve (although not as frequently as she once did). As a result of this isolation and other instances of neglect, A.R. and T.F. have significantly impaired communication and motor skills. T.F.'s oral skills are so delayed that she cannot easily chew, suck, or swallow. Witnesses described Oevering's interaction with her children as passive and noninteractive. The most often-voiced concern by professionals is T.F.'s lack of attachment to her mother.

Since 1992, Oevering has made only slightly more than half of her scheduled visits with A.R. Oevering has attended only two of A.R.'s doctor appointments, and she has not attempted to learn much about her daughter's illness or the degree of care she requires.

The county's expert, Dr. Friedrich, a clinical psychologist from the Mayo Clinic, testified that Oevering has only a minimal understanding of her children. He further testified that she is presently incapable of putting another person's needs before her own, that she displays no joy toward her children, that she is overwhelmed by daily events, and that she does not have the intellectual ability or personality characteristics to parent successfully. Oevering's own expert corroborated Friedrich's testimony, testifying that Oevering's parenting behavior is inconsistent and detrimental to the children's development.

Despite similar findings regarding the children's developmental delays and special needs, the trial court ordered that Oevering's parental rights be terminated as to A.R., but retained as to T.F. This appeal followed.

D E C I S I O N

There is perhaps no more grave matter that comes before the court than the termination of a parent's relationship with a child.

In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). Therefore, we exercise great caution and recognize a presumption against terminating parental rights. In re Welfare of T.M.D., 374 N.W.2d 206, 211 (Minn. App. 1985), review denied (Minn. Nov. 25, 1985). On review of a trial court order for termination of parental rights, we

must determine whether the trial court's findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous. The child's best interests, however, remain the paramount consideration in every termination case.

In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citation omitted).

I. Failure to Comply with Parental Duties

It is the parent's duty to provide the child with the "necessary food, clothing, shelter, education, and other care" to support the child's physical, mental, and emotional health and development. Minn. Stat. § 260.221, subd. 1(b)(2) (1994). Failure to comply with these duties constitutes grounds for termination of parental rights. Id. The trial court held that, as to A.R., Oevering had substantially neglected to comply with her parental duties. However, the trial court held that, as to T.F., Oevering had not neglected her parental duties. We agree with the trial court's conclusion as to A.R., but disagree as to T.F.

Oevering argues that she corrected the conditions that led to her children's placement in foster care in 1992. Oevering also argues that she has worked hard to improve her parenting skills. Oevering points to the testimony of both Janice Hobbs, a social worker, and Nancy Hawkinson Horning, a public health nurse, for proof that she no longer neglects her parental duties.

While both Hobbs and Horning have some positive things to say about Oevering, they also testified that Oevering has minimal interaction with her children, that she is overwhelmed by their demands, and that T.F.'s interaction with her mother is no more intimate than her interaction with complete strangers. Horning testified regarding her concern for T.F.'s weight loss since living with her mother and Oevering's inability to care for more than one child at a time.

Oevering admits she is overwhelmed by the typical and daily tasks associated with taking care of small children. Evidence indicates she is incapable of meeting the significant medical and emotional needs of A.R. as well as the emotional and developmental needs of T.F. Nothing in the record shows that the parental duties required for the care and support of T.F. are any less demanding than what is required for the care and support of A.R. Therefore, sufficient evidence exists to support termination of parental rights as to both children pursuant to Minn. Stat. § 260.221, subd. 1(b)(2).

II. Palpable Unfitness

Parental rights may be terminated upon a finding that a parent is "palpably unfit" to be a parent because the parent is unable "to care appropriately for the ongoing physical, mental, or emotional needs of the child." Minn. Stat. § 260.221, subd. 1(b)(4). A parent may be found palpably unfit if her mental disability precludes her from providing proper parental care. In re Welfare of J.J.B, 390 N.W.2d 274, 281 (Minn. 1986). Moreover, children with special needs require parents with exceptional parenting skills. See In re Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn. App. 1985).

The trial court held that Mae Oevering is palpably unfit to parent A.R. However, the trial court held that Oevering was fit to parent T.F.

While Oevering may be able to bathe, clothe, and feed her children, the evidence indicates that Oevering's mental retardation precludes her from being able to care for and meet the special needs of both A.R. and T.F. Thus, we hold it was clearly erroneous for the trial court to find that Oevering is palpably unfit to meet the special needs of A.R., a developmentally delayed four-year-old, but capable of meeting the special needs of T.F., a developmentally delayed three-year-old.

III. Failure of Corrective Measures

Parental rights may be terminated upon a finding that efforts to correct neglectful conditions have failed. Minn. Stat. § 260.221, subd. 1(b)(5). Reasonable efforts are presumed to have failed if:

(i) a child under the age of 12 has resided out of the parental home under court order for more than one year following an adjudication of dependency, neglect, need for protection or services * * * ; (ii) conditions leading to the determination will not be corrected within the reasonably foreseeable future; and (iii) reasonable efforts have been made by the social service agency to rehabilitate the parent and reunite the family.

Id.

The trial court held that "reasonable efforts * * * have failed to correct the conditions" leading to the determination that A.R. was a child in need of protection or services. However, the trial court held that, as to T.F., efforts to correct the poor conditions have succeeded.

Oevering argues the first factor fails because "but for" the leukemia, A.R. would have been returned to Oevering's custody in 1993. We find no merit in this argument because the statute does not address the reason for the continued separation--only that there has been a more-than-one-year separation after an adjudication of dependency, neglect, or need for protection.

Oevering also argues that the county failed to make reasonable efforts to reunite her with A.R. because the county did not take into account Oevering's mental retardation in accordance with Minn. Stat. § 256B.092 (1994). This argument must also fail because the county provided Oevering with special parenting classes designed for cognitively limited parents as well as hands-on learning through routine home visits.

IV. Best Interests of the Child

The best interests of the child is the paramount factor in decisions to terminate parental rights. Minn. Stat. § 260 221, subd. 4. In fact, even where termination is justified under Minn. Stat. § 260.221, the best interests of the child may preclude termination if the child's interests so require. In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).

To determine the best interests of the child, the court must consider: (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 (Minn. App. 1992). Further, this court has affirmed termination where the child's special needs are related to the parent's prior neglect or abuse. See id.

In this case, both A.R. and T.F. appear to have little interest in preserving the parent-child relationship. A.R. has bonded with her foster family of the last three years, and she has thrived both emotionally and developmentally. Moreover, experts from both sides testified that T.F. does not have a normal or growth-enhancing attachment to her mother. Finally, Oevering and her live-in boyfriend apparently fail to recognize T.F.'s special needs, referring to her as a "normal three-year-old."

Oevering, on the other hand, appears to have a strong interest in preserving the parent-child relationship. She testified to her love for her children and her desire to improve herself so she may properly care for them. The children appear to be a source of self-worth for her.

The children, however, have strong competing interests. Both are developmentally delayed. A.R. needs acute attention to her medical condition. T.F. needs acute attention to her verbal and motor skills as well as a secure environment in which to develop emotionally. Although Oevering wants to meet her children's special needs, she has difficulty meeting their most basic needs. Therefore, we hold it is in the best interests of both children to terminate Oevering's parental rights to each of them.

V. Equal Protection

Oevering argues that her equal protection rights were violated because the county petitioned to terminate only her parental rights and not those of A.R.'s father. Oevering argues she was singled out because she is a woman. We disagree.

For Oevering to succeed, she must prove that: (1) similarly situated individuals have not been proceeded against; and (2) the county's discrimination is invidious or in bad faith. State v. Jones, 451 N.W.2d 55, 59 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990). Oevering produced no evidence that she was singled out from similarly situated individuals or that the county acted in bad faith.

VI. Social Worker Misconduct

Oevering argues the petition to terminate parental rights should have been dismissed in its entirety due to social worker misconduct. We disagree.

In this case, the alleged misconduct had no negative effect on Oevering's attempts to fulfill her parental duties, her fitness as a parent, or the county's rehabilitative efforts. While the social worker's conduct was distasteful and deceitful, it was not so pervasive as to require the dismissal of the petition.

We acknowledge Oevering's love for her children, her attempts to meet their needs, and the sadness this opinion must bring her. However, both A.R. and T.F. need to find one secure home where they can thrive physically and emotionally as well as learn to overcome the developmental obstacles they face.

Affirmed in part and reversed in part.


Footnotes

[1]The two oldest children reside with their father.