This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-2536

In the Matter of the Welfare of: J.M.P.

Filed August 12, 1997

Affirmed

Randall, Judge

Blue Earth County District Court

File No. J8-95-50978

Allen P. Eskens, Rockow Eskens Law Office, 207 Graif Bldg., 101 Hickory Street East, P.O. Box 3412, Mankato, MN 56002 (for appellant mother).

Hubert H. Humphrey III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent State of Minnesota).

Mark A. Lindahl, Assistant Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent Blue Earth County).

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

RANDALL, Judge

The mother of J.M.P. challenges the juvenile court's order terminating her parental rights, arguing that it is unsupported by the evidence and based on mere speculation. We affirm.

FACTS

J.M.P. was born on March 28, 1985. It appears that during the first two years of his life, J.M.P. lived with his father and his mother, appellant Sandra Schumski. Because J.M.P.'s father was abusive, Shumski eventually left him and moved to St. Cloud. Shortly after moving to St. Cloud, Shumski's two children, including J.M.P., were placed in foster care. A few months later, J.M.P. was brought back to Mankato by his grandmother, and he began living with his father. While Shumski was living in St. Cloud she was uncertain with whom J.M.P. was living. According to his grandmother, J.M.P. returned to live with Shumski when he was approximately three years old. However, in March of 1989, the grandmother discovered that J.M.P. was back in Mankato and that Shumski was living in Canada. From March 1989 until April 1991, J.M.P. lived with his grandmother. Eventually, J.M.P. went to live with his father and then, for a short time, with appellant. On June 1, 1992, a Child in Need of Protection or Services (CHIPS) petition was filed in Blue Earth County District Court. The petition cited repeated incidents of truancy, running away, and assaultive behavior by J.M.P. By order dated June 30, 1992, J.M.P. was adjudicated a CHIPS juvenile. He was then placed in a foster home in Mapleton. This placement was terminated at the request of the foster parents. Next, J.M.P. was placed in a foster home in Chatfield. This placement was terminated after two-and-a-half months because J.M.P. was acting out sexually with younger children in the home. Because no other placements were available for J.M.P., he was returned to Shumski's home.

J.M.P. has been diagnosed as having attention deficit hyperactivity disorder (ADHD), severe oppositional defiant disorder, learning disabilities, borderline personality development with antisocial features, and an attachment disorder. It is also suspected that he was sexually abused by an older juvenile or a non-parent caretaker.

While J.M.P. was living with Shumski, both were referred to Dr. Kelly Brigman for counseling. Shumski, however, participated in therapy irregularly and J.M.P. was not taken to counseling on a consistent basis. In June 1994, J.M.P. was placed in Prism House in Glencoe because of disruptive and destructive behavior at home and school. Blue Earth County prepared several reunification case plans, focusing on appropriate treatment for J.M.P. and encouraging consistent, appropriate contact with Shumski. Shumski was also encouraged to attend counseling and family therapy. Through Prism House, Shumski was offered parenting classes and family contact with J.M.P. However, Shumski did not participate in any of the counseling, therapy, or parenting classes offered by Prism House. Finally, in January 1995, a detailed contact schedule was created, specifying the dates and types of contact between Shumski and J.M.P. Although J.M.P. was aware of the schedule, Shumski failed to follow it. This frustrated and disappointed J.M.P. A counselor at Prism House, LaVonne Atkinson, testified that on several occasions, Shumski would call just before a scheduled visit and cancel. Following these cancellations, J.M.P. would act out by yelling at staff, physically damaging property, and attempting to harm other residents.

J.M.P. was allowed occasional home visits while at Prism House. Because of concerns about improper activities during these visits, specific guidelines were established. Shumski was generally uncooperative with the guidelines, frustrating J.M.P. further. Although J.M.P. enjoyed several months of progress at Prism House, he eventually regressed. According to Atkinson, J.M.P. was fearful of success, and it was her opinion that there was no security for J.M.P. in finishing the program and returning home.

J.M.P. was placed at Fairview Riverside Hospital from May 16, 1995, until June 6, 1995, because of strong suicidal ideation. Shortly after returning to Prism House, J.M.P. climbed onto the roof and threatened suicide. He was returned to Fairview Riverside until he was placed at St. Joseph's Children's Home in July 1995.

A petition to terminate Shumski's parental rights was filed in Blue Earth County District Court on November 1, 1995, alleging that, as it relates to Shumski, the child is neglected and in foster care. At the December 26, 1995, hearing, the termination was continued to allow Shumski the opportunity to work on a five-point plan, addressing both her and J.M.P.'s needs.

The final termination hearing was held on October 25 and 29, 1996. By order dated November 25, 1996, the juvenile court terminated both Shumski's and the father's parental rights to J.M.P., concluding that termination of parental rights was appropriate and in the best interests of J.M.P. This appeal follows.

D E C I S I O N

In a proceeding to terminate parental rights, the paramount consideration is the child's best interests. Minn. Stat. § 260.221, subd. 4 (1996); In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995). To terminate parental rights, the state must establish at least one statutory basis by clear and convincing evidence. In re Welfare of S.Z., 547 N.W.2d 886, 890, 893 (Minn. 1996). In addition to the statutory grounds, the petitioner must show that the conditions justifying termination exist at the time of trial and will continue for an indefinite period of time. In re Chosa, 290 N.W.2d 766, 769 (Minn. 1980). On appeal, this court is required to consider:

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.

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

Here, the juvenile court terminated Shumski's parental rights pursuant to Minn. Stat. §§ 260.221, subd. 1(b)(5), (8), finding that: (1) reasonable efforts by Blue County Human Services have failed to correct the condition leading to the CHIPS determination, (2) the child is neglected and in foster care, (3) Shumski's circumstances, condition, or conduct are such that the child cannot be returned to her, and (4) despite the availability of needed rehabilitative services, Shumski has been unable or failed to make reasonable efforts to adjust her circumstances, conditions, or conduct so that the child can be returned to her in the reasonably foreseeable future. The juvenile court concluded that it was in the best interest of J.M.P. to terminate Shumski's parental rights.

Parental rights may be terminated under Minn. Stat. § 260. 221, subd. 1(b)(5), when it is determined that the child has been neglected, dependent, or in need of protection or services, and reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination. In a proceeding to terminate parental rights, the county's efforts must assist in alleviating the conditions that gave rise to the dependency adjudication. In re Welfare of M.A., 408 N.W.2d 227, 235-36 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). Whether the county has satisfied this duty of reasonable efforts requires consideration of the length of time the county has been involved and the quality of the effort made. In re Welfare of M.G., 407 N.W.2d 118, 122 (Minn. App. 1987).

In the present case, J.M.P. was adjudicated a CHIPS child in June 1992. Since that time, he has had four different placements: the foster home in Mapleton, the foster home in Chatfield, Prism House, and finally St. Joseph's Children's Home. Also, various case plans have been created, not only to assist J.M.P., but to assist Shumski as well. Except for the last case plan, the goal of the various case plans was to reunite J.M.P. with Shumski. The most critical component of these various case plans was the establishment of regular and consistent contact between Shumski and J.M.P., along with Shumski's participation in J.M.P.'s therapy.

The record shows that Shumski has consistently failed to comply with goals and recommendations set forth in the case plans. Shumski's contact and participation have been irregular and sporadic. While at Prism House, Shumski made only 13 of the 20 scheduled visits and only 7 were according to the schedule. Although Shumski's contact was somewhat consistent when J.M.P. was first placed at St. Joseph's, since the spring of 1996 until the hearing date in late October 1996, except for two occasions during the summer, there has been no contact between Shumski and J.M.P.

The record also establishes that Shumski has been unable or unwilling to create or provide a stable lifestyle or acceptable living environment for J.M.P. by following through with components and recommendations set forth in the various case plans adopted in an effort to reunite her with J.M.P. Shumski has been inconsistent in her contacts with J.M.P. and has never actively participated in his therapy. This inconsistency in visitation and failure to comply with the case plans and contact schedules has resulted in J.M.P. having a deep sense of betrayal, abandonment, and hurt. When Shumski failed to make a scheduled contact, J.M.P. acted out by yelling at staff, physically damaging property, and attempting to harm other residents. Shumski's sporadic and irregular contact and participation has also hampered J.M.P.'s ability to progress with his treatment and therapy.

The unwillingness or failure to cooperate with rehabilitation plans generally provides clear and convincing evidence that the present conditions of neglect will continue for a prolonged and indefinite period of time. See In re Welfare of J.S., 470 N.W.2d 697, 703 (Minn. App. 1991) (holding the failure to cooperate with rehabilitation plans will support the conclusion that the present conditions will continue for a prolonged and indeterminate period), review denied (Minn. July 24, 1991); In re Welfare of H.K., 455 N.W.2d 529, 533 (Minn. App. 1990) (holding that "[a]ppellant's unwillingness to complete any of the goals of her placement plan provides clear and convincing evidence that the present conditions of neglect will continue for a prolonged and indeterminate time."), review denied (Minn. July 6, 1990).

Further, there is no evidence in the record to indicate that the present conditions will change in the foreseeable future.

[W]here * * * the record demonstrates a long-term placement characterized by a repeated failure of reasonable efforts to reunite the family, the trial court should appropriately determine what action most readily promotes the best interests of the child. While judicial caution in severing the family bonds is imperative, untoward delay of the demonstrated inevitable is intolerable.

In re Welfare of J.J.B., 390 N.W.2d 274, 280 (Minn. 1986).

Shumski has been provided with detailed and specific case plans designed to reunite her with J.M.P. These plans informed Shumski exactly what was expected of her and why it was important to J.M.P.'s therapy. Yet Shumski has repeatedly failed to comply with these case plans. Shumski admits that she cannot parent J.M.P. presently and that she does not ever expect him to return to her home. Given these repeated failed attempts and Shumski's conceded inability to parent J.M.P., the juvenile court properly concluded that all reasonable efforts to correct the conditions leading to J.M.P.'s CHIPS determination have failed.

Pursuant to Minn. Stat. § 260.221, subd. 1(b)(8), parental rights may be terminated upon a finding that the child is neglected and in foster care. Neglected and in foster care means: (1) the child has been placed in foster care by court order, (2) the parent's circumstances are such that the child cannot be returned to them, and (3) the parent, despite the availability of rehabilitative services, has failed to make reasonable efforts to change those circumstances or has willfully failed to meet reasonable expectations in visiting or financially supporting the child. In re Welfare of J.D.L., 522 N.W.2d 364, 369 (Minn. App. 1994); Minn. Stat. § 260.015, subd. 18 (1996).

In determining whether the child is neglected and in foster care, the juvenile court shall consider the following factors: (1) the length of time the child has been in foster care; (2) the parent's effort to adjust the circumstances necessitating the removal of the child, including the use of rehabilitative services, to make it in the child's best interests to return in the foreseeable future; (3) whether the parent has visited the child within the three months preceding the filing of the petition, unless some good cause preventing or making it not in the child's best interest exists; (4) the maintenance of regular contact or communication with the agency or person responsible for the child; (5) the appropriateness and adequacy of the services provided or offered to the parent to facilitate a reunion; (6) whether additional services would likely bring about a lasting parental adjustment allowing a return of the child within an ascertainable time; and (7) the nature of the efforts by the responsible social service agency to rehabilitate and reunite the family and whether those efforts were reasonable. Minn. Stat. § 260.155, subd. 7 (1996).

J.M.P. has been in foster care since 1992. Despite the availability of rehabilitative services, Shumski has failed to make reasonable efforts to adjust her circumstances. While J.M.P. has been in foster care, Shumski has moved repeatedly without informing those responsible for J.M.P., changed jobs frequently, has failed to comply with the recommendations set forth in the various case plans, and has resisted participation in J.M.P.'s therapy. The services provided or offered to Shumski were reasonable and designed to reunite her with J.M.P. Given Shumski's repeated failure to comply with the various case plans, it is unlikely that any additional services would likely bring about a lasting parental adjustment enabling the return of J.M.P. to Shumski's home within an ascertainable period of time.

The final question is whether, as the juvenile court concluded, it is in J.M.P.'s best interests to have Shumski's parental rights terminated. Juvenile courts stop short of irrevocable termination, even when a statutory ground supporting termination is present, if it is determined the termination is not in the child's best interests. See In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996) (holding that a juvenile court is prevented from terminating parental rights, even if one or more of the statutory grounds supporting termination are present, if it is not in the child's best interests). Shumski argues that it is not in J.M.P.'s best interests to have her parental rights terminated because it would be a crushing, devastating blow to J.M.P.

In the present case, all the witnesses, except for Dr. Jonathan Hoistad, testified that it would be in J.M.P.'s best interests to terminate Shumski's rights. Shumski, however, relies primarily on the testimony of Dr. Hoistad to argue that termination would not be in J.M.P.'s best interests. We note that Dr. Hoistad's opinion was based on limited knowledge of the circumstances of this case. Dr. Hoistad's contact with J.M.P. was limited to 1-1/2 hours in 1992 and 2 hours in May 1995. In addition, he reviewed a child placement plan, a treatment plan from St. Joseph's, and a guardian ad litem report. Dr. Hoistad has never met Shumski nor did he consult with any of J.M.P.'s counselors or therapists. He also was unaware of the attempted programming for J.M.P. and Shumski and was unaware of the extent of Shumski's involvement in J.M.P.'s life. From this limited knowledge, Dr. Hoistad concluded that it would not be in J.M.P.'s best interests to terminate Shumski's parental rights because it would cause J.M.P. to blame the system and would be more harmful than continuing the mother-child relationship.

In a termination of parental rights proceeding, the juvenile court is in a better position than appellate courts to assess the credibility of witnesses, especially where the "opportunity to observe the parent and other witnesses who are called to testify is so crucial to an accurate evaluation of what is best for the child." In re Welfare of A.D., 535 N.W.2d at 648. Its decision shows that the juvenile court chose to give more credit to those witnesses who have worked with J.M.P. and Shumski on a regular and continuous basis, rather than Dr. Hoistad, whose knowledge and involvement in the case was limited. We cannot say that, as a matter of law, the juvenile court erred in this respect.

Shumski argues that it is unfair to conclude she is a bad parent, incapable of parenting J.M.P., when semi-secure facilities could not control him. It is undisputed that J.M.P. is a "special needs" child. This court has held that the inability of a parent to care adequately for a "special needs" child in the foreseeable future supported the juvenile court's termination of parental rights. See In re Welfare of D.D.K., 376 N.W.2d 717, 722 (Minn. App. 1985) (affirming juvenile court's termination of parental rights where the evidence established that parent's inability to provide adequate care for special needs child would continue in the foreseeable future); In re Welfare of J.L.L., 396 N.W.2d 647, 651-52 (Minn. App. 1986) (affirming termination where parent admitted, and the evidence supported the fact, that he could not assume complete parenting responsibilities, even though parent contended he could so in the near future). The question is not whether Shumski is a bad parent, but whether she is capable of parenting J.M.P. with his special needs, however great or small. Shumski admits that she cannot. Shumski is clear that she believes J.M.P. will never return to his home. The juvenile court examined Shumski's own testimony on this point. That testimony, in addition to her past failure to cooperate with the various case plans, support the juvenile court's conclusion that it was not in J.M.P.'s best interests to continue the parent-child relationship.

Shumski simply contends that because the termination will be crushing to J.M.P, it is not in his best interests. We agree that termination is traumatic. But the record supports the juvenile court's conclusions. Also, the record indicates that J.M.P.'s social worker and primary counselor from St. Joseph's believe that, in time, J.M.P. will be able to work through it and move on with his life. They testified that presently, J.M.P. is holding onto the false hope that someday he will be reunited with his mother. This false hope prevents J.M.P. from moving forward in his therapy and consequently makes it more difficult to place him in an adoptive home. All the witnesses who testified at the hearing stated that J.M.P. needs stability, consistency, and permanence in his life. Shumski has been unable to provide them. The record does not support the conclusion that this will change in the foreseeable future.

Shumski's argument that J.M.P. is unadoptable does not change our conclusion. The testimony presented at the trial indicates that J.M.P. may be adoptable. Jeanette Ziegler, J.M.P.'s social worker with nearly 37 years experience in adoptions, including those involving special needs children, testified that she knows of prospective adoptive parents for J.M.P. The evidence also indicates that Shumski's inconsistency and sporadic contact with J.M.P. causes him to act out, making it more difficult, although not impossible, to place J.M.P. in an adoptive home. The testimony indicates that once J.M.P. abandons the false hope that he will return to his mother's home, the prospects for his improvement increase.

Affirmed.