may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of: B.U.
Filed October 27, 1998
Chisago County District Court
File No. J0-97-50412
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and
James T. Reuter, Chisago County Attorney, Cheryl L. Glassel, Assistant County Attorney, Chisago County Government Center, 313 N. Main St., Center City, MN 55012 (for respondent county)
Peter J. Grundhoefer, Johnson, Casterton & Grundhoefer, P.A., 105 N. Main St., Box 217, Center City, MN 55012 (for appellant mother)
Timothy J. Peterson, Peterson Law Office, 12839 Lake Blvd., P.O. Box 369, Lindstrom, MN 55045 (for child)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Foley, Judge.
Mother appeals from the trial court's order terminating her parental rights to B.U. pursuant to Minn. Stat. § 260.221, subd. 1(2), (4), (5), (8) (Supp. 1997) (neglect of parental duties, unfitness, failure to correct conditions that led to determination that child was in need of protection or services, and neglected and in foster care). We affirm.
Appellant is the mother of B.U., born June 6, 1990. B.U. lived with appellant from his birth until May or August 1995. At that time, B.U. was left in the care of his great uncle, Anastacio Martinez. On August 30, 1995, Kathy Gonzales, Martinez's girlfriend, contacted Linda Hansen, a child protection specialist for Chisago County Human Services. Gonzales and Martinez said that B.U. was living with them and that they did not know appellant's whereabouts and had not heard from her.
In September 1995, Chisago County filed a child in need of protection or services petition (CHIPS petition) on behalf of B.U. In October 1995, the county determined that maltreatment had occurred because appellant left B.U. in the care of relatives and made no attempts to contact him or talk to him by telephone. In November 1995, appellant was arrested on an unrelated criminal matter and placed in custody at the Ramsey County jail. While in custody, appellant admitted the allegations in the CHIPS petition. In December 1995, B.U. was adjudicated a child in need of protection or services. In January 1996, the county placed him in a foster home, where he remained at the time of trial.
Following a guilty plea on the criminal matter, appellant was incarcerated in the Minnesota Correctional Facility at Shakopee. Her scheduled release date is September 2000, with a possibility of early release in January 2000, with the remainder of her sentence being served at a halfway house.
Chisago County facilitated visitation between appellant and B.U. at the Shakopee prison. Beginning shortly after appellant's incarceration at Shakopee, B.U. visited her at the prison once every other week, and telephone visitation occurred three times weekly. Appellant did not qualify for a program allowing overnight visitation because she had not completed sex offender treatment and because she was not allowed unsupervised visitation.
William Fournier, a licensed psychologist who conducted psychological and intellectual testing on B.U., concluded that B.U. was developmentally delayed by at least two years in the following areas: social skills; self-help skills; gross and fine motor skills; expressive language; language comprehension; and numbers. Fournier concluded that at age seven B.U.'s general developmental level was age four and a half. Fournier testified that the developmental delays resulted from neglect, which occurred while B.U. was under appellant's care.
Based on his evaluation of appellant in July 1997, Fournier concluded that appellant continued to demonstrate a noticeable level of denial regarding her substance abuse problems, psychological issues, and the ferocity of her attack on the assault victim. Fournier's report stated that appellant was detoxified because she was incarcerated and that, except for attending anger management groups, appellant had not pursued appropriate therapy to address her substance abuse and psychological problems. Fournier concluded that B.U. "would face grave risks to his recovery and growth if he were re-unified under his [mother's] care in the foreseeable near or medium term" based on the following factors: appellant's substance abuse and psychological problems; her ongoing lack of judgment in exposing B.U. to stressful, possibly harmful, situations; and B.U.'s developmental problems and fragile emotional state.
Sonia Carbonell, a licensed psychologist who began treating B.U. in February 1996, recommended terminating appellant's parental rights. A July 16, 1997, report prepared by Carbonell stated:
1. [Appellant] appears to have taken some positive steps toward her rehabilitation. Unfortunately, the information obtained only addresses her attendance to some program without specific data of the issues she has been working on. She has numerous issues contributing to her present life circumstances such as the violent death of her father, a history of being abused at least physically as a child, a pattern of being a victim of severe domestic abuse as a young adult and a history of maternal abandonment, as well as poor relationship with her mother.
2. The information obtained through the psychological evaluations is insufficient to demonstrate her progress addressing the above mentioned issues. Neither is there enough information suggesting she has adequate inner psychological resources in order to successfully complete her rehabilitation. Her criminal violent history, her chemical dependency, her history of inadequate parenting, and her personality characteristics are indicators of a poor prognosis for long standing changes in behavioral patterns and life style.
"Parental rights are terminated only for grave and weighty reasons." In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). When reviewing a termination, this 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.
Id. The child's best interests are "the paramount consideration in every termination case." Id.
Petitioner must prove by clear and convincing evidence that a statutory ground for termination exists. In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991). Petitioner must also "show that conditions justifying termination exist at the time of trial and will continue to exist for an indeterminate period." Id. (quoting In re Welfare of D.F.B., 412 N.W.2d 406, 410 (Minn. App. 1987), review denied (Minn. Nov. 18, 1987)).
The court may terminate parental rights if it finds
(2) that the parent has 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[.]
* * * *
(4) 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. * * *
* * * *
(5) 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(2), (4), (5) (Supp. 1997). The existence of a single statutory ground is sufficient to support a termination of parental rights. In re Welfare of Maas, 355 N.W.2d 480, 483 (Minn. App. 1984).
Appellant argues that the evidence was insufficient to support a termination of her parental rights under Minn. Stat. § 260.221, subd. 1(2), (4), or (5). We disagree. There was evidence that neglect by appellant resulted in B.U. being developmentally delayed by at least two years in many areas. Also, when appellant left B.U. with her uncle, she failed to maintain contact with B.U. or her uncle.
There was evidence that the conditions causing the neglect still existed at the time of trial despite reasonable efforts by Chisago County to correct them. Appellant was not allowed unsupervised visitation with B.U. because she discussed inappropriate topics with him after being told not to do so by a social worker. Although appellant testified that she resumed attendance at AA shortly before trial, there was evidence that she was in denial regarding her substance abuse and psychological problems and that she failed to participate in appropriate programs to address those problems. Carbonell opined that appellant's chemical dependency, history of inadequate parenting, and personality characteristics were indicators of a poor prognosis for longstanding changes in her behavior and lifestyle. Fournier opined that appellant would not be capable of parenting B.U. in the foreseeable near- or medium-term future.
The evidence was sufficient to support the termination of appellant's parental rights pursuant to Minn. Stat. § 260.221, subd. 1(2), (4), and (5). See In re Welfare of S.Z., 547 N.W.2d 886, 892-93 (Minn. 1996) (evidence that mental illness made parent unable to care for child and that prognosis for recovery from mental illness during foreseeable future was poor, supported termination of parental rights under Minn. Stat. § 260.221, subd. 1(4)); In re Welfare of A.Y.-J., 558 N.W.2d 757, 762 (Minn. App. 1997) (evidence that parent failed to obtain court-ordered psychological evaluation or take steps to address chemical dependency problems supported termination under Minn. Stat. § 260.221, subd. 1(5)), review denied (Minn. Apr. 15, 1997); In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn. App. 1996) (evidence that substance abuse and self-esteem problems made parent unable to care for child and that parent had failed to overcome those problems despite reasonable efforts by county supported termination under Minn. Stat. § 260.221, subd. 1(2)).
Appellant also challenges the sufficiency of the evidence to support the termination of her parental rights pursuant to Minn. Stat. § 260.221, subd. 1(8), which allows termination when a child is neglected and in foster care. B.U. had been in foster care by court order since at least January 1996. Appellant will not complete her sentence for assault and criminal sexual conduct until September 2000. As a result of appellant's continuing psychological and chemical dependency issues, despite the availability of treatment programs, it was not certain that she would be capable of caring for B.U. when she completed her sentence. The evidence was sufficient to support the termination of appellant's parental rights under Minn. Stat. § 260.221, subd. 1(8). See Minn. Stat. § 260.015, subd. 18 (1996) (defining neglected and in foster care).
Appellant next contends that the termination of her parental rights was not in B.U.'s best interests.
[B]ecause a child's best interests are the paramount consideration in proceedings to terminate parental rights, the trial court is precluded from terminating parental rights where the record does not show that termination is in the child's best interests * * * even if one or more of the statutory prerequisites for termination exist.
In re Welfare of M.P., 542 N.W.2d 71, 74 (Minn. App. 1996).
The trial court considered the factors relevant to B.U.'s best interests. Its findings addressed the bond between appellant and B.U., appellant's failure to take steps necessary to make her a capable parent, and B.U.'s need for stability, security, and permanency. See In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (setting forth factors that trial court must consider in analyzing child's best interests).
In M.P., this court reversed and remanded the trial court's termination of a mother's parental rights because the trial court failed to make findings on the children's best interests. This court questioned whether termination would be in the best interests of the oldest child, 15-year-old M.P., based on her expressed preference for reunification and evidence that she was unadoptable. M.P., 542 N.W.2d at 75. "The choice of children old enough to express a preference about their custodial arrangement has always received significant weight in examining a child's best interests." Id. This court noted that termination might not benefit M.P. if the alternative was placement in long-term foster care. Id. at 76.
Although B.U. expressed a preference for reunification, this case is factually distinguishable from M.P. B.U. is only eight years old. More importantly, there was evidence that termination of appellant's parental rights would benefit him. B.U. suffers from psychological problems and significant developmental delays. Fournier testified that B.U. needed a secure, warm, and stable environment and attachment figures, and that appellant was not currently able to provide those to B.U. Fournier's testimony indicated that the gap between B.U.'s chronological age and developmental age could widen if he did not soon obtain the needed environment and attachment figures. Carbonell recommended terminating appellant's parental rights because a permanent placement would afford B.U. the best opportunity to overcome his developmental delays and psychological problems. Carbonell's report stated that B.U. was still at an adoptable age and that appellant's prognosis for making long-term lifestyle and behavior changes was poor.
Finally, appellant argues that the trial court's findings are inadequate to support the termination. The trial court "must make clear and specific findings conforming to the statutory requirements." S.Z., 547 N.W.2d at 893. Appellant, however, does not explain how the trial court's findings are deficient.
The evidence was sufficient to support a termination of appellant's parental rights pursuant to Minn. Stat. § 260.221, subd. 1(2), (4), (5), and (8). Evidence supports the trial court's findings that termination was in B.U.'s best interests. The trial court did not err in terminating appellant's parental rights.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We do not address appellant's argument on abandonment. The trial court did not rely on abandonment as a ground for terminating appellant's parental rights.
 We recognize that after this court decided M.P., the supreme court in In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998), reaffirmed that assessment of a child's adoptability is not required in termination proceedings.