Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
K.C. and M.C., Minor Children.
Dakota County District Court
File No. J3-96-59843
Allen P. Eskens, 3 Civic Center Plaza, Suite 207, P.O. Box 3412, Mankato, MN 56002 (for appellant)
James C. Backstrom, Dakota County Attorney, Donald E. Bruce, Assistant County Attorney, 1560 West Highway 55, Hastings, MN 55033 (for respondent county)
David A. Jaehne, 60 East Marie, Suite 109, West St. Paul, MN 55118 (for respondents K.C., M.C., and guardian ad litem Judith Oehlenschlager)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Mulally,
Appellant challenges the district court's order terminating her parental rights. We affirm.
Appellant is the biological mother of K.C., born March 19, 1994, and M.C., born March 14, 1995. The children have been in foster care since September 25, 1995, and were adjudicated CHIPS on December 18, 1995. A permanent placement hearing was held September 18, 1996, and on October 4, 1996, Dakota County filed a petition to terminate Carlson's parental rights. A termination trial was held in June 1997, and Carlson's parental rights were terminated on July 23, 1997. This appeal followed.
On review of a decision terminating parental rights, the appellate court must determine whether the findings by the district court "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).
I. Statutory Basis for Termination
The burden is on the petitioner to prove by "`clear and convincing evidence that one or more of the statutory termination grounds exists.'" In re the Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991) (quoting In re Welfare of C.K., 426 N.W.2d 842, 847 (Minn. 1988)), review denied (Minn. July 24, 1991). Additionally, the petitioner must demonstrate that the conditions supporting termination "exist at the time of trial and will continue to exist for an indeterminate period." In re Welfare of D.F.B., 412 N.W.2d 406, 410 (Minn. App. 1987) (citing In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980)), review denied (Minn. Nov. 18, 1987).
The district court determined that three statutory grounds supported termination of Carlson's rights. The court concluded that, pursuant to Minn. Stat. § 260.221, subd. 1(b)(2), (4), and (5) (Supp. 1997), Carlson neglected or refused to care for her children's needs, she was "palpably unfit" to parent the children, and, despite reasonable efforts by the county, she "failed to correct the conditions leading to the determination."
A. Neglect of Duties
Parental rights may be involuntarily terminated if the court determines
that the parent substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon that parent by the parent and child relationship, including but not limited to providing the child with necessary food, clothing, shelter, education, and other care and control necessary for the child's physical, mental, or emotional health and development, if the parent is physically and financially able, and reasonable efforts by the social service agency have failed to correct the conditions that formed the basis of the petition.
Minn. Stat. § 260.221, subd. 1(2) (Supp. 1997).
When the children were placed in foster care, the family was homeless and staying with a friend in a hospital room. From the time of placement until the termination trial, Carlson moved seven times. Although Carlson was employed for the majority of time her children were in foster care, she had six different employers between the time of placement and the trial. The district court found that Carlson's housing and employment situation evidenced a "pattern of instability" and that there was no indication that this would change in the future.
Carlson was originally given unlimited, unsupervised visitation. She visited the children weekly from the time of the initial placement in September 1995 until July 1996 but was often late picking up or returning the children. The court ordered supervised visitation in July 1996. Carlson visited the children only three times between January and June 1997 and had only two telephone contacts during that period.
Although Carlson gave a number of reasons for her failure to visit the children after the visits were changed to supervised visits, it is notable that she visited the children regularly before the court ordered supervised visitation. Difficulty in scheduling with the visit supervisor may have contributed to the decrease in visits after the court ordered supervised visits, but this alone does not justify visiting the children only three times in five months. See J.S., 470 N.W.2d at 702 (affirming termination where parents did not maintain contact with children); see also In re the Welfare of D.C., 415 N.W.2d 915, 919 (Minn. App. 1987) (noting parents have a duty to maintain relationship with their children).
Social services offered Carlson assistance in getting the court-ordered individual counseling, but she failed to participate. Carlson testified that she went to Linden Center for two counseling sessions, at Pangborn's referral, but the sessions were $92 each. Pangborn testified that she had obtained a waiver for Carlson and the county would have paid for the counseling. Carlson also received counseling from a Hennepin County therapist but after one meeting, the therapist informed Carlson that he was primarily a juvenile therapist.
The county arranged Early Childhood Special Education (ECSE) sessions for K.C., but Carlson attended only one or two sessions. She testified that she could not go to the ECSE classes at the foster home because she was not notified or invited, and she believed that she was not welcome in the foster home and would not be permitted to attend the classes. The foster mother testified that Carlson knew of and could have attended the ECSE sessions at her home prior to July 1996. Carlson argues that although the county faulted her for not attending ECSE classes, Dr. Terhune, who conducted a court-ordered psychological and parenting evaluation of Carlson, made this only one of his recommendations for parenting training, while social services insisted she participate in both ECSE and parenting classes.
Carlson did attend ten parenting sessions with Nancy Kankel, who stated that Carlson did well. Although Carlson completed in-home parenting education with Kankel, she completed these classes after two previous attempts in 1996 and after a termination of parental rights petition had been filed.
Carlson argues that the district court erred in looking at whether she had followed the specifics of her case plans rather than at whether she had met the intended goals. Carlson notes that at the time of trial she was employed, living in a safe, suitable apartment, and involved in a long-term relationship. She also had an insured vehicle and driver's license and had completed testing to go back to school. She insists that Dr. Terhune recommended only that (1) she receive counseling; (2) she receive "some parenting training"; (3) she have regular visitation; and (4) she have a stability plan for areas including employment, education, financial support, social relationships, and residence. Carlson asserts that Pangborn's requests were vague, while Dr. Terhune provided specific goals. Carlson argues that this lack of specificity and concreteness should be viewed as a lack of reasonableness by the county. She also notes that she met with Pangborn in person only three times, they did not meet prior to court hearings to go over the reunification plans, and, between April 1996 and April 1997, they had only ten telephone contacts.
Despite Carlson's arguments, there is no evidence that she did not understand the requirements of her case plan. Further, although she argues that the court should look to Dr. Terhune's recommendations rather than Pangborn's plans, Carlson failed to follow even Dr. Terhune's recommendations because she did not complete counseling and did not maintain regular visitation with the children. Social services made reasonable efforts to correct the conditions that resulted in the CHIPS adjudication, and Carlson failed to cooperate with some of the court-ordered requirements. See J.S., 470 N.W.2d at 702 ("A petition for termination is supported by clear and convincing evidence where the parents have failed to work with the welfare agency."). The district court's findings are not clearly erroneous, and the district court did not err in concluding that respondent met its burden of demonstrating by clear and convincing evidence that grounds for termination existed.
B. Palpably Unfit
The court may also involuntarily terminate parental rights if the court concludes
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(4) (Supp. 1997).
In In re the Welfare of M.A., this court affirmed the termination of a mother's parental rights where the mother lacked maturity and parenting skills and the child had serious emotional and behavioral difficulties. 408 N.W.2d 227, 233 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). Further, in In re the Welfare of J.D.L., where this court affirmed the termination of a father's parental rights, this court noted the father's inadequate parenting skills and noted that a psychological evaluation indicated he lacked the motivation to parent. 522 N.W.2d 364, 368 (Minn. App. 1994).
K.C. is developmentally delayed, and trial testimony indicated that she would be difficult to parent. Dr. Terhune testified that when he asked Carlson about attending early childhood classes with K.C., she stated that "she could find better things to do than sit in a room for three hours and play with [her] daughter." As noted previously, ECSE sessions were arranged, but Carlson attended only one or two of those sessions.
Although the parenting educator, Kankel, testified that Carlson had improved her parenting skills, Kankel stated that she believed Carlson would be able to care for her own children in the immediate future only with supervision. Kankel did not know how long this supervision would be necessary. Kankel never observed Carlson with her own children, and they never worked on skills for parenting a special-needs child.
According to the foster mother's testimony, M.C. would cling to her and hide from Carlson when Carlson would come for a visit. She also testified that K.C. pulled out the hair on the right side of her head until she was bald. Additionally, she testified that the children usually returned from visits with dirty diapers and upset stomachs. On one occasion Carlson swore and threatened the foster parents in front of the children.
Based on the evidence in the record, the district court's findings are not clearly erroneous, and it did not err in concluding that respondent produced clear and convincing evidence demonstrating that Carlson is palpably unfit to parent her children.
C. Failure to Correct Conditions
Parental rights may also be involuntarily terminated if the court determines
that following upon a determination of neglect or dependency, or of a child's need for protection or services, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the determination.
Minn. Stat. § 260.221, subd. 1(5) (Supp. 1997). A presumption exists that reasonable efforts have failed if: (1) the child has resided out of the home pursuant to court order for one year or more following a CHIPS adjudication; (2) the conditions which caused the determination "will not be corrected within the reasonably foreseeable future"; and (3) social services has made reasonable efforts "to rehabilitate the parent and reunite the family." Id., subd. 1(5)(i)-(iii).
The children were adjudicated CHIPS on December 18, 1995 and continued to reside in foster care at the time of the termination hearing in June 1997. The district court determined that the county made reasonable efforts to rehabilitate Carlson, and that she has failed to correct the conditions that caused the CHIPS determination.
As stated above, the county made reasonable efforts to assist Carlson. Although Carlson made some efforts to correct the conditions that led to the CHIPS petition, the district court did not clearly err by concluding that there was clear and convincing evidence that Carlson failed to correct the conditions or by concluding that the conditions would not be corrected in the near future.
II. Best Interests
The best interests of the child is the most important consideration in termination proceedings. In re the Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997). The best interests of the child determination, however, is not sufficient on its own to support a termination of parental rights. In re the Welfare of S.N., 423 N.W.2d 83, 91 (Minn. App. 1988). The court must balance the child's and the parent's interests in maintaining their relationship with other competing interests of the child. In re the Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). Competing interests include a stable living environment, health considerations, and the child's preference. Id.
As respondent notes, contrary to Carlson's contentions, there is a legal basis for terminating parental rights where the children have waited "long enough." Minn. Stat. § 260.191, subd. 3b (Supp. 1997), requires the court to determine the permanent status of children placed outside the home more than 12 months. The best interests of children are not served by preventing them from establishing bonds with an adoptive parent. In re the Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996); see also In re the Welfare of J.J.B., 390 N.W.2d 274, 280 (Minn. 1986) (stating "untoward delay of the demonstrated inevitable is intolerable").
M.C. and K.C. were 6 and 18 months old, respectively, when they were placed in foster care. At the time of trial, they had lived in foster care for approximately 20 months. Trial testimony indicated that both children have done well in the foster home. The district court did not clearly error by concluding that the best interests of the children would be served by terminating Carlson's parental rights.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.