This opinion will be unpublished and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
C1-98-544

In the Matter of the Welfare of:
M.W., T.N., J.N., Minor Children.

Filed October 20, 1998
Affirmed
Schumacher, Judge

Kandiyohi County District Court
File No. J9975664

John E. Mack, Mack & Daby P.A., 26 Main Street, Post Office Box 302, New London, MN 56273 (for appellant father)

Boyd A. Beccue, Kandiyohi County Attorney, John L. Kallestad, Assistant County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent county)

Ramona Lackore, 432 Litchfield Avenue, Willmar, MN 56201 (for children)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant father appeals the district court's order terminating his parental rights. We affirm.

FACTS

Father lived with mother from spring of 1990 until July of 1996. They were never married. Mother already had one child, M.W., who was born October 24, 1989, by another man. On June 5, 1990, T.N. was born, and on August 31, 1991, J.N. was born. Father considers M.W. his child. He requested custody of M.W. along with the other children. Father was injured at work on July 11, 1996, and the children were removed from the home while he was hospitalized. He and mother separated and the children have been in foster care since that time. On October 7, 1997, M.W.'s biological father consented to termination of his parental rights. Immediately before the hearing, mother consented to termination of her parental rights to all three children.

Mother and father have received county services since 1991 to assist with abuse and neglect issues. The district court found the home was filthy with rabbit feces, food, and garbage. Rabbits were allowed to roam freely in the house. The children were often barefoot and were not toilet trained. Although none of the children were toilet trained when they entered foster care, they have improved since. Mother would lock the children in their room and cover the windows with blankets. The children often went without food. Father claims he was unable to help the children or defend them because he often worked late into the evening. He did not take active steps to prevent the abuse. Furthermore, he did not seek help from county service providers, even though he had been in contact with them throughout this time.

The children all have special needs and require extra care. The district court made findings regarding each child and included each of the children's psychologist's recommendations.

M.W. has many problems, requiring her placement in a therapeutic foster home. She was diagnosed with posttraumatic stress disorder and enuresis (involuntary urination). She acts out in ways that are quite harmful to other children, including attempts to be sexually abusive. Other problems include low self-esteem, poor coping and boundaries with intense sexual acting out, lack of feeling identification, low frustration tolerance, and limited abuse prevention skills. The therapist recommended a highly-structured environment for M.W., along with behavior modification. Caring for M.W. is demanding and requires extreme patience and nurturing abilities.

T.N. was diagnosed with attention deficit hyperactivity disorder, enuresis, asthma, and encopresis (involuntary defecation). She was described as being extremely angry. On two occasions at her foster home, she threatened her younger foster sister with a butcher knife. Her problems include being highly distractable, argumentative, difficulty interacting with her peers, difficulty with rules, bed wetting, and aggressive behaviors. She requires close supervision and monitoring in a loving, well-structured home.

The youngest child, J.N., was diagnosed with anxiety disorder NOS, enuresis, and asthma. Her acting out included open masturbation. She was subject to sexual abuse by her sisters, and she is not as aggressive as they are. Other problems include impaired coping and fear of punishment, and she requires a caregiver that can help her develop "a sense of self."

Father has been involved in various parenting programs provided by the county while being allowed weekly supervised visitation with all three children. The district court found that father is not capable of meeting the needs of these children in the foreseeable future. His personality type indicates difficulty in learning parenting skills due to his mistrust of others, an inability to work with others, avoidance of conflict, and competitiveness. He was unable to identify the special needs of his children. Father was unsuccessful in all of his parenting programs over two and one-half years, and most of the social services providers involved agreed that there are no other programs that would help him.

Father's inability to care for his children was apparent at his visits with the children. His behavior was inappropriate, and he failed to follow through with staff recommendations. Father's behavior included kicking the children's cards, removing toys and snacks to make them cry, calling names, knocking over toys, and laughing when these actions made them cry. He displayed competitive behavior with the children. He talked negatively to them, withdrew attention, showed a disparate amount of attention to one child over another, and refused to acknowledge them when they required affection.

The pervasiveness of emotional abuse and lack of any improvement by father continued. Eventually, the guardian ad litem and the children's psychologist recommended termination of parental rights. Other providers agreed with this recommendation. Respondent Kandiyohi County petitioned to terminate parental rights in August 1997.

At the hearing, the children's psychologist recommended some continued contact with both parents because she felt it would make the adjustment easier for the children. The adoption specialist was optimistic that the girls would be adoptable as a group, even with their special needs, because of their young age.

After the hearing, the district court ordered the termination of parental rights to all three children based on Minn. Stat. 260.221, subd. 1(b)(2); 1(b)(4); 1(b)(8). The court found clear and convincing evidence that statutory grounds for termination existed. The court also found that, though father loves his children, he will be unable to parent them in the foreseeable future, and it is in their best interest to be eligible for adoption while they are young and have a chance of staying together.

D E C I S I O N

The standard of review for a termination of parental rights requires this court to determine 1) whether the district court's findings address the statutory criteria, 2) whether those findings are supported by substantial evidence, and 3) whether those findings are clearly erroneous. In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). The state must prove the grounds for termination by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 1403 (1982). Throughout the case, however, the child's best interest must remain the paramount consideration. Minn. Stat. 260.221, subd. 4 (1996); M.D.O., 462 N.W.2d at 375.

1. The statutory criteria for termination of parental rights is found in Minn. Stat. 260.221 (1996 & Supp. 1997). Only one of the criteria need be proven to support termination. In re Welfare of A.J.C., 556 N.W.2d 616, 621 (Minn. App. 1996). This court need only decide whether the findings address the statutory criteria, are supported by substantial evidence, and whether those findings are clearly erroneous.

The first criteria requires that the parent has continuously failed to meet his duties as a parent to provide for the physical, emotional, and mental needs of the children and that efforts by social services have failed. Minn. Stat. 260.221, subd. 1(2) (Supp. 1997).

The district court found that father has not met the needs of his children and will not in the future, despite the services provided to him. When he did have custody of the children, he failed to meet their needs. At the visitations, he demonstrated an inability to comprehend the extensive needs of his children, including their physical, mental, and emotional health and development.

The second criteria the district court considered was Minn. Stat. 260.221, subd. 1(4) (Supp. 1997), which states 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 * * * 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.

The court found that father's inability to modify his behavior or improve his parenting skills to address the special needs of his children makes him palpably unfit to be a party to the parent and child relationship.

The third criteria, Minn. Stat. 260.221, subd. 1(8) (Supp. 1997), allows for termination of parental rights if a child is "neglected and in foster care" as defined in Minn. Stat. 260.015, subd. 18 (1996). The district court found these children were neglected because father was unable to care for the children and failed to successfully complete rehabilitative services. Father has gone through several programs without any significant improvement. Furthermore, the children were placed in foster care by court order,

This court concludes, after a thorough review of the extensive findings and record, that the statutory criteria has been proven by substantial evidence and the district court's findings are not clearly erroneous. The magnitude of reports regarding father's pattern of inappropriate behavior and inability to improve his parenting skills supports the district court's finding that he is not capable of caring for these children now or in the future.

2. Father claims the statutory criteria should be applied differently to non-custodial parents than to custodial parents and that there should be a different standard for those parents seeking to retain only non-custodial rights. This court has rejected these arguments in the past. See In re Welfare of N.F., No. CX-92-1307, 1993 WL 19711 at *4 (Minn. App. Jan. 25, 1993) (holding that Minn. Stat. 260.221 makes no distinction between custodial and non-custodial parents); In re Welfare of B.W.S., No. CX-95-12, 1995 WL 351690 at *3 (Minn. App. June 13, 1995) (rejecting argument that parent who only wants to retain visitation rights should be evaluated differently).

Retaining only visitation rights would not be appropriate in this case in any event because the children are under 12 years old. Minn. Stat. 260.191, subd. 3b(a)(3) (Supp. 1997) prescribes that children under 12 are not eligible for long term foster care.

3. Father also alleges that the county accused him, without evidentiary support, of sexually abusing the children. The district court's order makes no finding that father committed sexual abuse. The court did indicate, however, that no one questions that someone has sexually abused the children. We conclude the issue need not be addressed.

4. Father claims the district court did not do a "best interests of the child" analysis as required by Minn. Stat. 260.221, subd. 4 (1996). He claims the court should have made a finding regarding whether it was in the best interest of the children to cut off all parental rights, including visitation. The district court's order includes provisions made to allow continued visitation with father and mother "as recommended by the children's therapists," which is consistent with the testimony of the therapist that immediate severance with their parents might be detrimental to the children.

One purpose of this statute is to facilitate the adoption of children. The court found that it is in the best interest of these children to be adopted as soon as possible. Father argues that these children are not adoptable, despite testimony to the contrary. The county is not required to show that the children are likely to be adopted, only that adoption is in their best interest. In re Welfare of J.M., 574 N.W.2d, 717, 723 (Minn. 1998).

Affirmed.