This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-2127

In the Matter of the Welfare of:

B.K.A.

Filed June 17, 1997

Affirmed

Huspeni, Judge

Redwood County District Court

File No. J5-95-50040

Allen P. Eskens, Rockow Eskens Law Office, 101 Hickory Street East, P.O. Box 3412, Mankato, MN 56002-3412 (for appellant father)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michelle Dietrich, Redwood County Attorney, P.O. Box 130, Redwood Falls, MN 56283 (for respondent county)

Joel Alan Solie, 315 S. Washington St., P. O. Box 377, Redwood Falls, MN 56283 (for respondent child)

Kevin Eugene Passe, P. O. Box 127, Redwood Falls, MN 56283 (for respondent mother)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.

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

HUSPENI, Judge

Appellant challenges the district court's termination of his parental rights, claiming the decision was not supported by the record and is clearly erroneous. Because we find that the district court's determinations that appellant is palpably unfit to be a party to the parent-child relationship with B.K.A., that appellant had abandoned B.K.A., and that it was in B.K.A.'s best interests to terminate appellant's parental rights are not clearly erroneous, we affirm.

FACTS

Appellant D.M.A. met his now ex-wife S.M. (formerly S.A.) in September 1989. Their daughter, B.K.A., the subject of this termination hearing, was born July 11, 1992. She was their third child; a son was born on June 14, 1991, and another daughter was stillborn. Appellant's rights to his son have been terminated by the Iowa courts.

On March 2, 1994, appellant was admitted to the Minnesota State Security Hospital in St. Peter, Minnesota (Security Hospital), for examination as the result of an arson charge. Appellant believed that his ex-wife was in an environmental suit, that she was carrying a machine gun, and that she was in the ceiling of a motel. He set the motel on fire fearing that his ex-wife would shoot him. The district court issued a warrant to commit appellant as mentally ill and dangerous. Ultimately, appellant was committed for an indefinite period as mentally ill and dangerous; the arson charges were subsequently dropped. Appellant continues to reside at the Security Hospital.

Appellant's current diagnosis is schizo-affective disorder (in partial remission), polysubstance abuse disorder, and antisocial personality disorder. Appellant's schizophrenia causes hallucinations that can result in aggressive and assaultive behavior. Appellant's history of anti-social behavior began at age twelve and has included domestic assaults, assaults, armed robberies, shoplifting, and burglary. About the same time his anti-social behavior began, he began using mood-altering chemicals including marijuana, LSD, PCP, amphetamines, alcohol, and cocaine.

As a result of appellant's schizophrenic difficulties, he was hospitalized at least ten times between 1981 and 1993; he has been committed three times to the Security Hospital since 1986. Appellant was placed in approximately five facilities between 1975 and 1981 to deal with his antisocial behavior. He has been placed in at least nine chemical dependency treatment facilities with his longest periods of sobriety occurring while he was incarcerated.

Over the years appellant has believed at various times that he was a policeman, Jesus Christ, and the owner of a substantial amount of property. He has believed that his 17-month-old son was kidnapped and killed, that he himself was radioactive, and that anyone he touched would be contaminated. In addition, he believed that people were shooting something into his mouth, that his food was contaminated and inedible, and that he would be killed if he took off his clothes or showered. He lost approximately 49 pounds as a result of this refusal to eat.

Since his admission to the Security Hospital in 1992, appellant has been involved in four separate assaults, one involving a staff member who appellant believed had shot him with a pistol. During 1995, appellant was involved in one assault, made 24 threats, was involved in 47 verbal abuse incidents, and made 61 delusional statements. By July 1995, he was in a psychotic state and was frequently observed holding a pillow over his head as if to drown out voices. A Jarvis order was approved, appellant was placed on Haldol Decanoate and, as a result of the medication, appellant is more stable and in partial remission from his psychotic symptoms.

At the termination hearing, S.M. testified that after their son was born, appellant would yell at the baby, spank him while he slept, and had no attachment to him. The district court also heard that, when the baby was three weeks old, appellant threw him in a crib and held a gun on the baby and his ex-wife. At that time, a SWAT team was called, tear gas was thrown into the house, and appellant was arrested. In a subsequent action the Iowa courts terminated appellant's parental rights to his son.

At the termination of parental rights hearing, testimony of a licensed psychologist, a licensed child protection worker, and the guardian ad litem showed that while appellant is currently in remission, he is still antagonistic at times and unwilling to comply with treatment or take prescribed medication; his refusal to take medication affects his ongoing diagnosis because medication is often the primary mode for stabilizing his illness. Testimony also indicated that appellant does not have knowledge of parenting skills and is a poor risk for parenting children, that parenting classes are not feasible because of appellant's current residence and restrictions, and that even with proper training, appellant would not be able to provide a stable, nurturing environment for B.K.A. in the foreseeable future.

Appellant argues that the district court's determination of abandonment and palpable unfitness is clearly erroneous and unsupported by the record.

D E C I S I O N

When reviewing a district court's decision to terminate parental rights, an appellate court must determine whether the district court addressed the applicable statutory criteria, whether the district court's findings were supported by substantial evidence, and whether the district court's conclusions were clearly erroneous. Considerable deference is due to the district court's decision because the district court is in a superior position to assess witness credibility. In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). To involuntarily terminate parental rights, the district court must find at least one of the eight statutory conditions for termination, pursuant to Minn. Stat. § 260.221. Id.1 However, the child's best interests remain the paramount consideration in every termination case. Id. at 397 (quoting In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)).

In this case, the district court concluded that appellant had abandoned B.K.A., pursuant to Minn. Stat. § 260.221, subd. 1(b)(1), that appellant was palpably unfit to be a party to the parent-child relationship, pursuant to Minn. Stat. § 260.221, subd. 1(b)(4), and that it was in the best interests of B.K.A. to terminate appellant's parental rights.

Abandonment

Minn. Stat. § 260.221, subd. 1(b) (1994), permits termination of parental rights on the ground of abandonment.

(1) [If the district court finds:] That the parent has abandoned the child. 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 * * *. The court is not prohibited from finding abandonment in the absence of this presumption * * *.

Id. "[S]ocial service agency involvement is required only if the petitioner seeks to establish a presumption of abandonment," and the district court may consider the assertion of abandonment even though a social service agency is not making efforts to establish and maintain parental rights. L.A.F., 554 N.W.2d at 397-98. The district court found that appellant had abandoned B.K.A. because he has had no direct or indirect contact with B.K.A., except for observing her at one court hearing.

Abandonment requires both actual desertion of the child and an intention to forsake the duties of parenthood. Id. at 398. Therefore, the county must establish that abandonment is intentional, rather than due to misfortune and misconduct alone, in order to satisfy the statute. Id. Appellant argues he did not intentionally abandon B.K.A. because he believed there was an order for protection preventing him from contacting B.K.A. Even if we were to credit the strength of appellant's belief as to a restraining order, testimony established that appellant had never demonstrated any consistent interest in B.K.A.'s well-being, that appellant has not provided any financial support to B.K.A.,[2] and that he has never asked to visit her, asked about her well-being or inquired into the possibility of modifying the restraining order.[3] Our review of the record does not persuade us that the district court's conclusion as to abandonment is clearly erroneous.[4]

Palpable unfitness

As an additional basis to terminate appellant's parental rights, we also agree with the district court's determination that appellant is palpably unfit to be a party to the parent-child relationship with B.K.A.

Minn. Stat. § 260.221, subd. 1(b)(4) (1994), permits termination of parental rights on the ground of palpable unfitness.

A parent is palpably unfit to be a party to the parent 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 * * * needs of the child.

Id.

The trial court must make clear and specific findings conforming to the statutory requirements and the evidence must address conditions that exist at the time of the hearing. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). Appellant argues that the county failed to establish that his conduct at the time of the hearing was abusive or that his condition would last for a prolonged period of time.

The district court conclusions (1) that appellant does not believe that he is mentally ill or in need of medication, (2) that appellant's mental illness, and resulting patterns of behavior over the last several years, will continue indefinitely, and (3) that these facts, in combination with appellant's longstanding chemical dependency, make any recovery from mental illness virtually impossible outside of a hospital setting, are amply supported by testimony in the record.[5]

Appellant also argues that it was improper to terminate his parental rights because the county did not make reasonable efforts to reunite him with his daughter, and, even if the county was not required to make reasonable efforts, it failed to prove, by clear and convincing evidence, that reasonable efforts to reunite would have been unrealistic.

A social service agency seeking to terminate parental rights on the basis of palpable unfitness must make reasonable efforts to rehabilitate a parent and to reunite the family; the trial court must determine whether reasonable efforts have been made. In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996). However, "in some cases, any provision of services or further provision of services would be futile, and therefore unreasonable." L.A.F., 554 N.W.2d at 397-98 (quoting S.Z., 547 N.W.2d at 892).

The district court specifically determined that the county had not attempted to reunite appellant with his daughter, but also stated that any attempts were unrealistic under the circumstances. Findings of fact shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Because there is evidence that appellant's current mental illness, history of violence, and current living environment render provision of any social services futile, and therefore unreasonable, the district court's determination is not clearly erroneous.

Best interests of the child

The best interests of the child are the paramount consideration in every termination case. Minn. Stat § 260.221, subd. 4 (1994); L.A.F., 554 N.W.2d at 397 (quoting M.D.O., 462 N.W.2d at 375). Appellant does not argue that it is not in B.K.A.'s best interests to terminate appellant's parental rights. Rather, citing In re Welfare of S.N., 423 N.W.2d 83, 91 (Minn. App. 1988), appellant argues that consideration of the best interests of the child alone is not sufficient to support a termination of parental rights. While we do not dispute appellant's analysis of S.N., the district court did not terminate appellant's parental rights solely on the basis of B.K.A.'s best interests. Instead, because the court determined that appellant had abandoned his child and that he was palpably unfit to be a party to the parent-child relationship with B.K.A., either of which bases would have been sufficient under the statute to terminate appellant's parental rights, this argument is without merit.

Affirmed.

1Appellant does not allege that the district court failed to address the applicable statutory criteria. Rather, appellant challenges the sufficiency of the evidence and the district court's conclusion.

[ ]2We do not find the lack of appellant's financial support determinative to the extent that SSI was appellant's sole source of income, and after payment of his expenses, appellant was unable to contribute to B.K.A. financially.

[ ]3The order appellant referenced, contrary to his allegation, was not issued in connection with B.K.A.; instead, it was an order (not one for protection) issued in an Iowa proceeding.

[ ]4In several of its findings the district court prefaces its statements with such phrases as "[D.M.A.] denies," and "[D.M.A.] stated." See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989). "Reciting the parties' claims may be helpful in understanding what the trial court considered in making its findings; however, the findings themselves must be affirmatively stated as its findings." Id. (citation omitted). In this case, in finding number 29, the district court specifically found that appellant has had no contact with his daughter. In reviewing the record, this finding is not clearly erroneous.

[ ]5While appellant notes in his petition for release that the licensed psychologist stated he was in partial remission with regard to the manifestations of his mental illness and that the psychologist had recommended that appellant be transferred to a less restrictive environment, the three-judge review panel saw fit to deny the petition. The fact that appellant is in remission while in a hospital and subject to a Jarvis order requiring the forced administration of his medication does not indicate that he is no longer in need of continuing, prolonged treatment.