This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-95-2474

In the Matter of the Welfare of:

T. M. W. and C. J. H., Children.

Filed June 11, 1996

Affirmed

Schumacher, Judge

Nobles County District Court

File No. J89550167

Larry C. Lucht, 906 Third Avenue, Post Office Box 475, Worthington, MN 56187-0475 (for Appellant Father)

Kenneth J. Kohler, Nobles County Attorney, 912 Third Avenue, Post Office Box 607, Worthington, MN 56187 (for Respondent Nobles County)

Considered and decided by Davies, Presiding Judge, Parker, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

E.D.H., the father of T.M.W. and C.J.H., appeals the termination of his parental rights. The trial court terminated parental rights on the grounds of abandonment and palpable unfitness, concluding that the children's best interests would be served by termination. We affirm.

FACTS

T.M.W., born September 28, 1990, and C.J.H., born January 15, 1992, are the children of appellant and T.W. Appellant and T.W. have not been married to each other and have lived together only occasionally. Appellant has an extensive criminal history, including a 1983 felony conviction for writing bad checks, a 1984 conviction for armed robbery, a 1991 conviction for grand theft, and numerous misdemeanor convictions.

Both children were born in Sioux Falls, South Dakota. The Department of Social Services in Sioux Falls provided services to appellant and T.W. from September 1990 to April 1991. When the agency social worker first visited the house where appellant and T.W. were living in August 1990, the worker observed that the house was very dirty, there were drugs in the ashtrays, and there was no food in the house. The parties moved frequently during the time the agency was providing services, and the agency lost contact with appellant for a period of time because he was in jail. Appellant was cooperative with service providers, but he was in and out of the home so frequently that the agency was unable to have enough contact with him to assess his progress on basic parenting skills. On two occasions, appellant contacted the agency to express concerns about T.W.'s care of the children while he was in jail.

On May 27, 1992, appellant began serving his sentence at the penitentiary in Sioux Falls for grand theft. In 1993, T.W., T.M.W., and C.J.H. moved to Minnesota. Respondent Nobles County Family Services took the children into protective custody and placed them in a foster home in March 1994. In December 1994, the children were adjudicated to be in need of protection or services. The children have remained in the same foster home placement since that time.

T.W. resumed contact with appellant in August 1994, when appellant was out on work release and living in a halfway house in South Dakota. When T.W. was having contact with appellant, she stopped being cooperative with respondent. T.W.'s cooperation improved in November 1994 when she stopped having contact with appellant. Appellant was returned to prison because of a positive urinalysis. Appellant was released from prison two weeks before the October 13, 1995, termination trial.

There was no provision for appellant in any of respondent's reunification plans and respondent did not attempt to work with him because he was incarcerated. Appellant was notified of the child in need of protection or services (CHIPS) proceeding in March 1994, but appellant did not contact respondent until June 1995 when appellant wrote respondent a letter indicating he wanted to be given a chance to parent the children when he was released from prison. Appellant has not contacted the children since they were placed in foster care in March 1994.

Both children suffer from attention deficit hyperactivity disorder (ADHD) and are on medication to control the disorder. Both children receive special education services. The children's foster mother testified that the children are very active and require a stable schedule and a great deal of supervision. The foster mother stated that both children have shown inappropriate sexual behaviors and exhibit bizarre behaviors when they are angry or upset. The foster mother testified the children have never received any cards, letters, telephone calls, or any communications from appellant while they have been in her foster home and that the children do not know who their father is.

Appellant stated that he had frequent contact with T.M.W. for a nine-month period in 1991, but acknowledged that he has otherwise had little contact with either child. Appellant stated that when he was in prison he sent cards and letters to the children at an address T.W. gave him in Minnesota but is unsure whether the children received the cards. Appellant indicated that on three or four occasions in 1993, T.W. brought the children to see him in prison.

Appellant testified he was informed that the children were placed in foster care in March 1994 and that an attorney was appointed for him. Appellant stated he did not attempt to contact the children after they were placed in foster care because T.W. told him that he was not allowed to have any contact. When asked why he only consulted with T.W. about contacting the children rather than asking his attorney or respondent, appellant replied, "Because I guess I chose to just ask her."

Appellant testified he is now living in Sioux Falls with his wife, their one-year-old child, and his wife's two other children. Appellant stated he has full-time employment at a construction company. Appellant indicated his wife supports his efforts to regain his children. Appellant stated he was unsure what skills he would need to take care of the children's special needs, estimating it might take him six months to acquire the necessary skills.

The children's guardian ad litem submitted a report regarding her October 1995 visit to appellant's home in Sioux Falls. The guardian stated that at the time of her scheduled visit, the home, with the exception of the living room, was cluttered and in disarray, with the bedrooms, bath, and upstairs hallway literally covered with clothing and household items. The guardian stated that both appellant and his wife appeared to be "laid back" in their handling of the children. The guardian stated that in her opinion, a plan to reunify the children with appellant was not in the children's best interest because (1) appellant does not have the experience necessary to provide for the extremely demanding needs of the children, (2) given the family constellation, the children would not likely receive the special attention they require, (3) appellant is a virtual stranger to the children and his wife is a total stranger to them, (4) appellant has not attempted to contact the girls, and (5) records on file from South Dakota are unfavorable to appellant.

The trial court terminated the parental rights of both T.W. and appellant. T.W. did not appear at the termination trial and has not appealed.

D E C I S I O N

On review of an order terminating parental rights, this court determines whether the trial court's findings address the statutory criteria, are supported by substantial evidence, and whether they are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). In a termination proceeding, the petitioner has the burden of proving that there is a statutory ground for termination by clear and convincing evidence. In re Welfare of Rosenbloom, 266 N.W.2d 888, 889-90 (Minn. 1978). There is a presumption that a natural parent is a fit and suitable person to be entrusted with the care of his child. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).

The court may terminate parental rights if it finds that the parent has abandoned the child. Minn. Stat. ' 260.221, subd. 1(b)(1) (Supp. 1995). Abandonment is presumed when

(i) the parent has had no contact with the child on a regular basis and no demonstrated, consistent interest in the child's well-being for six months; and

(ii) the social service agency has made reasonable efforts to facilitate contact, unless the parent establishes that an extreme financial or physical hardship or treatment for mental disability or chemical dependency or other good cause prevented the parent from making contact with the child.

Id.

The presumption of abandonment does not apply to this case, because respondent did not make any efforts to facilitate contact between appellant and the children. But the statute specifies that the court is not prohibited from finding abandonment in the absence of the presumption. See id.

An intention "to forsake the duties of parenthood" must be present before abandonment can be found. In re Welfare of Staat, 287 Minn. 501, 506, 178 N.W.2d 709, 713 (1970).

[A]lthough imprisonment per se is not sufficient to constitute abandonment, the fact of imprisonment may combine with other factors, such as parental neglect and withholding of parental affection, so as to lend support to a finding that the parent has relinquished all parental claims to his child and thereby has abandoned him.

Id.

The trial court found that appellant abandoned the children while incarcerated due to his lack of any meaningful effort to maintain contact with them through correspondence, phone calls, or visits, or indirectly through respondent or foster parents. Although appellant testified he had occasional contact with the children in 1993, it is undisputed that since the children were placed in foster care in March 1994, appellant has made no effort to contact the children. We defer to the trial court's assessment of the credibility of appellant's excuse for failing to contact the children after they were placed in foster care. See M.D.O., 462 N.W.2d at 374-75 (trial court stands in a superior position to appellate court in assessing the credibility of witnesses). Appellant's unexcused failure to have any contact with the children for a year and a half prior to the termination trial constitutes substantial evidence supporting the trial court's finding of abandonment.

The trial 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.

Minn. Stat. ' 260.221, subd. 1(b)(4) (Supp. 1995).

The trial court found that appellant is palpably unfit to be a party to the parent and child relationship based on his long history of criminal behavior and living circumstances that demonstrate a significant lack of interest on appellant's part regarding the welfare of the children with whom he is residing. Appellant argues that although his past incarceration prevented him from caring for the children, he is now available for them and desires to reunite.

While the fact that a parent [has been] in prison cannot be enough in itself to render a parent palpably unfit and warrant termination of parental rights, incarceration, together with other evidence, such as the parent's incapability or lack of motivation to care for the child, may be the basis for such a decision.

In re Welfare of G.B.N., 412 N.W.2d 415, 418 (Minn. App. 1987).

It is undisputed that appellant has a long history of criminal offenses. The guardian's report indicates appellant's home was dirty and in disarray, even though her visit was previously scheduled. Appellant's "laid back" parenting style, noted by the guardian, would not meet the children's need for constant supervision and a structured schedule.

The trial court had the opportunity to assess the credibility of appellant's statement that he is now motivated to acquire the skills required to parent the children. See In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995) (trial court's superior ability to assess the credibility of witnesses is particularly true where the trial court's opportunity to observe the parent is so crucial to an accurate evaluation of what is best for the child). Substantial evidence in the record supports the trial court's conclusion that there is no prospect appellant has either the interest or ability to acquire the skills necessary to address the children's special needs. See In re Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn. App. 1985) (given the critical fact that the child is a special needs child demanding exceptional parenting skills, there was clear evidence that the parent's inability to provide adequate care would continue in the future).

In determining whether termination of parental rights is appropriate, the best interests of the child is the paramount consideration. In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986). The trial court found that termination of appellant's parental rights is in the children's best interests because they require a permanent, nurturing environment, with skilled, devoted parents and that a prolonged, futile effort at reunification would only result in a diminished opportunity for the children to be adopted into a permanent living situation. Substantial evidence in the record supports the trial court's best interests finding. See In re Welfare of J.L.L., 396 N.W.2d 647, 652 (Minn. App. 1986) (in view of child's special needs and prolonged length of time parent would need to develop appropriate skills, trial court did not err in determining child's needs outweighed parent's interests).

Affirmed.