Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed February 24, 1998
Faribault County District Court
File No. J19750121
Troy Timmerman, Asst. Public Defender, 825 E. Second St., P. O. Box 247, Blue Earth, MN 56013 (for appellant mother)
Hubert H. Humphrey III, Attorney General, Suite 1400, NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Joel R. Welder, Faribault County Attorney, 125 N. Main, P.O. Box 5, Blue Earth, MN 56013 (for respondent county)
Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
Appellant challenges the termination of her parental rights to M.E.(R)S. Because we see no abuse of discretion in the trial court's denial of appellant's request for a continuance and no clear error in its findings of fact, we affirm.
Appellant had a son, M.E.(R)S. (hereafter "M."), in December 1995. The baby's father was later determined to be Eduardo Salas. When M. was a month old, respondent Faribault County Human Services (FCHS) received a referral regarding him. An assessment indicated that appellant was rough with M., allowed others to care for him, and moved frequently from one residence to another. A month later, FCHS received a second referral on M. Another assessment found that appellant was failing to provide medical care and medication for M.'s significant respiratory problems and failing to keep him clean. In late February, FCHS established a plan for M.'s care, requiring appellant to attend parenting classes, counseling sessions, and school, and to have a chemical dependency assessment. In March, appellant left the parenting program and again failed to provide for M.'s needs and care.
In April 1996, FCHS filed a petition to have M. adjudicated a child in need of protection or services (CHIPS). Later that month, M. was found to be in imminent danger and was removed from appellant's custody, to which he has never returned. He has been in foster care with the same family since his removal from appellant's care.
In May 1996, FCHS designed and adopted an out-of-home placement plan for M. The plan required appellant to attend parenting classes, have psychological and chemical dependency assessments, secure a living environment suitable for M., and to attend budgeting classes and counseling sessions. But appellant then moved out of Faribault County. In June 1996, appellant admitted M. was CHIPS. By the time M. was formally adjudicated CHIPS in July, appellant had moved to Duluth with a carnival and told FCHS that she planned to leave Minnesota and wanted to place M. for adoption. She had no contact with M. or his foster parents until late September, when she returned to the area.
Because appellant had met the goals of neither the February plan nor the May plan, a new out-of-home placement plan was adopted in October 1996. Appellant rejected a program in which M. could live with her while she resolved her chemical dependency problem, so the plan required her to develop another way of addressing her chemical dependency. This plan also required that appellant enroll in and attend parenting classes, cooperate with psychological assessment procedures, secure a clean, smoke-free, safe living environment for herself and M., maintain a schedule for him, visit him at least twice weekly for an hour each time, and focus on his needs during the visits.
Appellant spent the period from November 1996 until January 1997 in a residential chemical dependency program that she entered when she found she was again pregnant and recognized that her chemical dependency problem was severe. She left the program for a halfway house, where she remained only briefly because she did not like the all-female residence. When she reported to FCHS that she was living with a man in Anoka, FCHS requested a home study of the Anoka residence. The study was done, but appellant had moved again by the time FCHS received the results.
On April 29, 1997, FCHS petitioned for a termination of appellant's parental rights on the grounds that she had very little contact with M. during and after treatment, demonstrated no ability to focus on his needs, did not provide a stable environment for him, and failed to complete educational or counseling programs. Around May 1997, appellant moved again, this time from Anoka County to Hennepin County. FCHS requested that Hennepin County do a home study.
A hearing on the termination petition was scheduled for August 13-14, 1997. Two days before the hearing, appellant first met with the Hennepin County social worker who was conducting the home study. The day before the hearing, appellant moved for a continuance pending completion of the home study. The district court denied the motion and proceeded with the hearing, at which Salas voluntarily terminated his parental rights to M.
Appellant's testimony showed that she had changed residence between 15 and 20 times since M. was born, that she had had relationships with about six men, and that when the Hennepin County home study began, i.e., prior to the hearing, appellant had already received her 30-day notice to be out of the apartment that was to be the subject of the study. The Hennepin County social worker testified that appellant's apartment appeared to be reasonably clean and that there was a bed but no crib for 18-month-old M. The social worker had not yet seen the Faribault County case file. He testified that, to complete his home study, he would need to consider the number of residences and relationships appellant had had while M. was in foster care, her interactions with the foster parents and with M. while he was in foster care, the status of appellant's chemical dependency treatment, and appellant's level of compliance with the FCHS plans. He also noted that appellant had said she might be moving, and that if she moved out of Hennepin County he would have no jurisdiction to complete the home study.
Following the social worker's testimony, appellant's attorney again moved for a continuance. The court denied the motion and terminated appellant's parental rights. Appellant challenges the denial and the termination.
1. Denial of the motion for a continuance
The granting of a continuance is a matter within the discretion of the trial court and its ruling will not be reversed absent a showing of clear abuse of discretion.
Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977). Appellant twice sought a continuance, first at the beginning of the hearing, so the Hennepin County social worker could complete the home study he had begun the previous day, and again after the social worker testified. In response to the first motion, the court asked the FCHS child protection specialist assigned to M.'s case whether the failure to complete the home study was due to Hennepin County or to appellant. The child protection worker explained that appellant was originally in Anoka County, that by the time FCHS obtained results of the Anoka County home study in March 1997 appellant had moved, that appellant's residence was not known until May 1997 when she provided a Hennepin County address, that appellant did not in fact live at that address, as FCHS learned when it attempted unsuccessfully to serve her with the petition for termination, and that appellant then provided a new Hennepin County address which was the subject of the pending home study. The court concluded that Hennepin County's failure to complete its home study was the fault of appellant, not the fault of the county, and denied her motion for a continuance. Its decision to proceed with the hearing was not an abuse of discretion.
On the second day, the Hennepin County social worker testified by telephone as to what he had seen and what else he would have to consider to make a recommendation concerning termination. Following his testimony, appellant again moved for a continuance. The trial court observed:
If [appellant] were to move from Hennepin County today to another County we would have to postpone [the hearing] again to get potentially another home study done. I think the home county has sufficient information to make a decision, and therefore the motion is denied.
In light of appellant's 15 to 20 residence changes in the 19 months since M.'s birth, the decision to proceed without completing another home study was not an abuse of discretion.
2. Findings of fact
Parental rights are terminated only for grave and weighty reasons. The standard of review is, therefore, well defined. The appellate court 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) (citations omitted). The statutory criteria are set out in Minn. Stat. § 260.221, subd. 1 (b)(5) (1996), providing that a court may terminate parental rights if it finds that "reasonable efforts" have failed to correct the conditions leading to a CHIPS adjudication.
It is presumed that reasonable efforts under this clause have failed upon a showing that:
(i) a child has resided out of the parental home under court order for more than one year following an adjudication of * * * need for protection or services * * * and an order for disposition * * * including adoption of the case plan required * * *;
(ii) conditions leading to the determination will not be corrected within the reasonably foreseeable future. It is presumed that conditions leading to a child's out-of-home placement will not be corrected in the reasonably foreseeable future upon a showing that the parent or parents have not substantially complied with the court's orders and a reasonable case plan, and the conditions which led to the out-of-home placement have not been corrected; and
(iii) reasonable efforts have been made by the social service agency to rehabilitate the parent and reunite the family.
The court found that M. had resided continually in the same foster home since being removed from appellant in April 1996, that he has been there more than a year after his CHIPS adjudication, that appellant has not substantially complied with the county's case plans, that the conditions leading to M.'s out-of-home placement will not be corrected within the foreseeable future, and that the county has made reasonable efforts to reunite the family.
Appellant contends that the county's plans were actually "hurdles" preventing her from retaining her parental rights and relies on language from In re Welfare of J.H.D., R.M.D., and C.M.D., 416 N.W.2d 194, 198 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988):
[A county's e]fforts to help parents generally are closely scrutinized, because public agencies may transform the assistance into a test to demonstrate parental failure.
Appellant's reliance is misplaced. J.H.D. upheld a termination of parental rights on facts similar to those here: the county had designed plans, the parents had not complied with the plans or achieved their goals, and although the mother had been visited by a public health nurse, she had made only brief and temporary improvements in parenting. Here, FCHS designed various plans, appellant did not comply with the plans, and there is no indication that appellant's parenting skills have improved.
Moreover, appellant's interest in regaining custody of M. has not been consistent. At least twice she announced her intention to move out of state; two or three times she discussed giving M. up for adoption with her child protection worker, and at times when she was not thinking of M., she decided to reside at a considerable distance from him. While she argues that her visitation was infrequent because of the distance, her testimony shows that FCHS agreed to provide transportation, if necessary.
Appellant testified that she selected a parenting class that focused on discipline, often for older children, rather than attending a recommended parenting class; that she had stopped counseling; that she had not attended budgeting classes; that she had not made any provision for medical insurance for M.; that she had paid nothing for M.'s foster care; that prior to the termination petition she often cancelled scheduled visitation or cut her visitation short; that she was now visiting once a week during most weeks; that she had neither clothing nor a crib for M.; and that although she told the court she planned to marry the man with whom she was currently living and make a family for M., she had broken up with that man and left his residence two or three weeks earlier because she felt "so much tension and so much rage" toward him.
M.'s foster mother testified that until the termination petition was filed, appellant often cancelled or shortened her visits, that appellant always seemed to get tired of M. and to stop interacting with him before the end of a visit, and that appellant did not know what degree of roughness was appropriate in playing with a child of M.'s age who has respiratory difficulties, or what clothing for M. was appropriate to the weather. The foster mother also testified that she and her husband would be interested in adopting M., and that appellant had asked her if they would adopt M. if her rights were terminated.
The court's findings that the conditions which led to M.'s out-of-home placement are not likely to be resolved in the foreseeable future, that appellant did not substantially comply with the plans, and that the county made reasonable efforts to rehabilitate appellant and to reunite the family, are supported by the evidence and are not clearly erroneous. There is no basis for reversal.
Because there was no abuse of discretion in denying the motion for a continuance and no error in the findings of fact, we affirm.