This opinion will be unpublished and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

C5-97-2142

In the Matter of the Welfare of:

T.M.V.J.

Filed June 30 , 1998

Affirmed

Peterson, Judge

Rice County District Court

File No. J09750419

James R. Martin, 607 North Central Avenue, Faribault, MN 55021 (for appellant)

Gregory G. Colby, P.O. Box 343, Owatonna, MN 55060 (for child)

Joe Iverson, 707 Lincoln Street North, Northfield, MN 55057 (guardian ad litem)

Elizabeth Hyduke, Assistant Rice County Attorney, Rice County Courthouse, 218 Northwest 3rd Street, Faribault, MN 55021 (for respondent)

Stephen R. Ecker, 331 Northwest 2nd Avenue, Faribault, MN 55021 (for father)

Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Foley, Judge.*

*Retired Judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

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

PETERSON, Judge

Appellant challenges the order terminating her parental rights. We affirm.

FACTS

T.M.V.J. was born May 15, 1995, when his mother, appellant R.V., was 13 years old and his father, D.J., was 16 years old. T.M.V.J. had a heart murmur at birth and underwent open-heart surgery on June 15, 1995. Following the surgery, T.M.V.J. lived in Faribault with R.V. and her parents. Despite a recommendation by T.M.V.J.'s physician that T.M.V.J. not be exposed to any cigarette smoke, R.V. allowed people to smoke in his presence.

In October 1995, R.V. ran away from home for two days with T.M.V.J. After returning home, R.V. had an argument with her mother at a Faribault shopping mall because she did not want to leave the mall when her mother did. During the ride home from the mall, R.V. took T.M.V.J. out of his car seat and tried to jump out of the car with T.M.V.J. in her arms. R.V.'s mother had to restrain her by holding her arm to prevent her from jumping out of the moving vehicle. Following this incident, R.V.'s mother attempted to voluntarily place R.V. in a group home in Faribault, but on October 23, 1995, R.V. ran away from home, and left T.M.V.J. with her parents.

On October 25, 1995, D.J. picked T.M.V.J. up for a visit, but did not return him. The police found T.M.V.J. at D.J.'s residence and placed him in foster care under a 72-hour hold. Rice County social services filed a petition alleging that T.M.V.J. was a child in need of protection or services (CHIPS). The court granted Rice County immediate custody of T.M.V.J., and he was placed in foster care.

In December 1995, the district court found that due to the immaturity or emotional disability of his parents, T.M.V.J. was without proper care and determined that T.M.V.J. was in need of protection or services. As to R.V. only, the court found that T.M.V.J. was without the special care made necessary by a physical condition because R.V. was unable or unwilling to provide that care. Pending disposition, T.M.V.J. remained in foster care. R.V. was scheduled to visit T.M.V.J. six times each week. She was frequently late for visits and missed several visits completely.

At the initial disposition hearing, T.M.V.J. was placed in the custody of Rice County social services for placement in foster care. Social services determined the length, frequency, and level of supervision of the parents' visitation. Between February and May 1996, R.V. substantially complied with the terms of the order.

In a CHIPS proceeding in May 1996, R.V. was determined to be a child in need of protection or services because of habitual truancy. R.V. and T.M.V.J. were placed in the same foster home, which gave R.V. the chance to parent T.M.V.J. The foster parent testified that R.V. did what was asked of her to care for T.M.V.J., but was not able to assume parental responsibility. In August 1996, T.M.V.J. and R.V. were allowed to return to R.V.'s parents' home. R.V. had some truancy and behavior problems, but otherwise continued to comply with court orders.

In January 1997, R.V.'s parents reported that her parenting skills were deteriorating, she was spending more and more time with her friends, and she had been absent from school 23 full or partial days. R.V. was diagnosed with clinical depression and placed on medication. On March 31, 1997, R.V. took the family van and went with T.M.V.J. to Owatonna to visit D.J. R.V.'s parents found her and brought her and T.M.V.J. back to Faribault. The next day, R.V. left school, picked up T.M.V.J. from day care, and again went to visit D.J.

R.V.'s parents reported to Rice County social services that R.V. had run away from home with T.M.V.J. A social worker and police officer found T.M.V.J. in D.J.'s home, but did not find R.V. there. R.V. later admitted that she hid in the living room because she did not want to be discovered by the police. T.M.V.J. was placed in a foster home.

On April 4, 1997, the district court held an emergency review hearing on both T.M.V.J.'s and R.V.'s CHIPS cases. The court ordered that T.M.V.J. remain in foster care and ordered that R.V. be placed in the custody of Rice County for placement in a shelter. R.V. ran away from the shelter two times on the same day as the review hearing. The first time, the Hastings police brought her back to the shelter. The second time she was not found until April 18, 1997. She was returned to the shelter, but ran away the next day, and was not found until April 22, 1997. Throughout this period, she had no visitation with T.M.V.J., did not call to inquire about his welfare, and did not take her prescribed medication for depression.

Rice County petitioned to terminate R.V.'s and D.J.'s parental rights. Following a trial, the court found that clear and convincing evidence existed to support termination of parental rights pursuant to Minn. Stat. 260.221, subd. 1(5) (Supp. 1997), and ordered both parents' rights terminated.

D E C I S I O N

"[T]ermination of parental rights is not a preferred action." In re Welfare of M.G., 407 N.W.2d 118, 120 (Minn. App. 1987). A presumption exists that a natural parent is a fit and suitable person to be entrusted with the care of his or her child. In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980). The petitioner must establish at least one statutory basis for termination by clear and convincing evidence. In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). The petitioner must show that the conditions justifying termination exist at the time of trial and will continue for an indefinite period of time. Chosa, 290 N.W.2d at 769. On appeal, we determine whether (1) the district court's findings address the statutory criteria, (2) whether those findings are supported by substantial evidence, (3) and whether those findings are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).

The trial court determined that the conditions of Minn. Stat. 260.221, subd. 1(5) (Supp. 1997), were met. Under Minn. Stat. 260.221, subd. 1(5), the trial court may involuntarily terminate all rights of a parent to a child if it finds

that following upon a determination 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. 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 a cumulative period of more than one year within a five-year period following an adjudication of * * * need for protection or services under section 260.015, subdivision 2a, clause (1), (2), (3), (6), (8), or (9) * * * and an order for disposition under section 260.191, including adoption of the case plan required by section 257.071;

(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.

R.V. contends that in reaching its conclusion that reasonable efforts had failed to correct the conditions leading to the CHIPS determination regarding T.M.V.J., the trial court improperly applied an amendment to the presumption in Minn. Stat. 260.221, subd. 1(5)(i), that did not become effective until after the petition to terminate her parental rights was filed. We disagree.

It is correct that an amendment to Minn. Stat. 260.221, subd. 1(5)(i), became effective after the petition to terminate was filed and that this amendment changed the statutory presumption for determining whether reasonable efforts had failed to correct the conditions leading to the CHIPS determination. 1997 Minn. Laws ch. 239, art. 6, 29. But in reaching its conclusion that reasonable efforts had failed to correct the conditions leading to the CHIPS determination regarding T.M.V.J., the trial court stated that the statutory presumption does not apply. The court then specifically found:

While [R.V.] does not fit within the statutory presumption due to her compliance with court orders and case plans, termination is still appropriate. Reasonable efforts in this case have failed to correct the conditions that led to the CHIPS finding. [R.V.] is still too immature to take on the responsibilities of parenthood and just has not demonstrated an ability to care for and advocate for her child.

Because the trial court did not rely on the statutory presumption, the fact that the court referred to the amended version of the statute did not affect its determination on the issue. There is no reason to conclude that the court's determination would have been different under the 1996 version of the statute.[1]

R.V. argues that respondent failed to prove by clear and convincing evidence that the conditions leading to the out-of-home placement of T.M.V.J. have not been corrected. We disagree. In the December 1995 CHIPS order, the district court concluded that T.M.V.J. was in need of protection or services because he was

without the special care made necessary by his physical conditions because the child's parents have been unable or unwilling to provide that care as defined by statute, and also that [T.M.V.J.] is without proper parental care because of the emotional, mental condition of the parents and state of immaturity of the child's parents as defined by statute.

The record contains clear and convincing evidence that R.V. is still immature and not able to function as a responsible parent. During April 1997, R.V. ran away from her parents' home with T.M.V.J. The police found T.M.V.J. in D.J.'s home. At trial, R.V. testified that she and T.M.V.J. had spent the night in D.J.'s mobile home, and T.M.V.J. had slept on the floor. She also testified that she hid when the police arrived because she knew she would get in trouble for skipping school. Three times R.V. ran away from the shelter where she was placed during April 1997. The first time she was quickly picked up by the Hastings police, but the second time she was on the run for 15 days. After she was found and brought back to the shelter, she ran away the next day and was not found for three days. During this period, R.V. did not take any of her medication for depression, did not have any visitation with T.M.V.J., and did not call to check on his welfare. A social worker who has been involved with R.V. since before T.M.V.J.'s birth, testified that R.V. has consistently failed to provide a secure environment for T.M.V.J., and that R.V.'s immaturity, lack of insight, poor choices, and risk-taking behavior do not allow her to give T.M.V.J. the care he needs.

R.V. also argues that respondent failed to prove by clear and convincing evidence that social services made reasonable efforts to correct the conditions leading to T.M.V.J.'s CHIPS determination. She contends that the services provided for her and T.M.V.J. were not reasonable in light of her situation. We disagree.

In determining whether the county has made "reasonable efforts," the trial court

shall consider whether services to the child and family were:

(1) relevant to the safety and protection of the child;

(2) adequate to meet the needs of the child and family;

(3) culturally appropriate;

(4) available and accessible;

(5) consistent and timely; and

(6) realistic under the circumstances.

Minn. Stat. 260.012(c) (Supp. 1997).

Whether efforts are "reasonable" also "requires consideration of the length of time the county has been involved with the family as well as the quality of effort given."

In re Welfare of D.T.J., 554 N.W.2d 104, 108 (Minn. App. 1986) (quoting M.G., 407 N.W.2d at 122).

There is clear and convincing evidence supporting the trial court's finding that respondent made "reasonable efforts" to rehabilitate R.V. and reunite her with T.M.V.J. Respondent provided R.V. the following services: (1) individual and family counseling; (2) psychological evaluation, including an evaluation for depression and intelligence testing; (3) public health nursing services; (4) parent aide services; (5) teen parent group; (6) shelter placement; (7) foster care for R.V. and T.M.V.J.; (8) visitation with T.M.V.J.; and (9) a social worker to help R.V. comply with her court order and case plans.

R.V. also argues that there is not clear and convincing evidence that reunification between her and T.M.V.J. cannot occur in the reasonably foreseeable future. R.V. contends that her running away and her parenting problems were caused by depression, which she claims is now under control. She also asserts that she will attain majority in approximately 16 months and believes that she will be able to parent T.M.V.J.

An order terminating parental rights under Minn. Stat. 260.221, subd.1(5), "is appropriate only if it appears that the condition of dependency or neglect will continue for a prolonged, indefinite period of time." In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). The order must be based upon conditions existing at the time of the hearing and a conclusion that those conditions will continue for a prolonged, indeterminate period of time. In re Welfare of M.M.D., 410 N.W.2d 72, 74-75 (Minn. App. 1987).

Although R.V. improved her parenting skills, there is clear and convincing evidence that her immaturity will continue indefinitely. As recently as April 1997, R.V. ran away from her parents' home, putting her desires above T.M.V.J.'s needs. Also, when the police arrived at D.J.'s trailer looking for T.M.V.J., R.V. did not act as an advocate for her child's interests, but instead hid so that she would not get in trouble. After being placed in a shelter, R.V. ran way three times. During this period she did not visit T.M.V.J. or call to check on his welfare. Although R.V. had more than two years to demonstrate that she had the ability to care for T.M.V.J., her behavior has not changed significantly, and we see no evidence that it will change in the reasonably foreseeable future.

Finally, R.V. contends that the finding that termination of her parental rights is in the best interests of T.M.V.J. is not supported by the record.

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). An order terminating parental rights must explain the district court's rationale for concluding why the termination is in the best interests of the child. In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996). In deciding whether termination of parental rights is in the best interests of the child, the court must consider (1) the child's interest in preserving the parent-child relationship; (2) the parent's interest in preserving the parent-child relationship; and (3) any competing interests that the child may have such as a need for a stable environment or permanency. In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

The district court made detailed findings why terminating R.V.'s parental rights is in the best interests of T.M.V.J. T.M.V.J. has spent 15 of 28 months in foster care, living in three different homes with different caregivers. If R.V.'s parental rights were not terminated, T.M.V.J. would have to stay in foster care indefinitely because of R.V.'s immaturity and inability to care for him. T.M.V.J.'s guardian ad litem testified that it was in the best interests of T.M.V.J. for termination to occur because he is in need of permanency so that he can develop properly. Furthermore, the Rice County adoption social worker testified that T.M.V.J. could be placed in an adoptive home in a short period of time, but as children become older, it becomes more difficult to place them for adoption. The trial court memorandum demonstrates that the court carefully weighed the conflicting considerations when determining the best interests of T.M.V.J. The court's decision is supported by the evidence.

Affirmed.

[1] We do not determine whether the 1996 or the 1997 version of Minn. Stat. 260.221, subd. 1(5), applies to this case.