may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
S.K., R.K., M.K., and M.K., Children.
Filed March 30, 1999
Steele County District Court
File No. J6-96-50252
Stephen Ecker, 331 Northwest Second Ave., Faribault, MN 55021 (for respondent Paul Krell)
Douglas L. Ruth, Steele County Attorney, Christine A. Long, Assistant County Attorney, 317 N. Cedar, P.O. Box 616, Owatonna, MN 55060 (for respondent Steele County)
Jeffery Johnson, 25 N.W. Second St., Faribault, MN 55021 (for M.K. and M.K.)
Keith Deike, Patton, Hoversten, and Berg, 215 Elm Avenue, Waseca, MN 56093 (for respondents Walter and Marlene Gaul)
John L. Fossum, Fossum & Zrimsek, L.L.P., 18 Bridge Square, P.O. Box 840, Northfield, MN, 55057 (for S.K., R.K. and Guardian Ad Litem)
Bonnie Thompson, Steele County Courthouse, 111 E. Main St., Owatonna, MN, 55060 (Guardian Ad Litem for M.K. and M.K.)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
Appellant is the mother of four children, the older two of whom were found in need of protection or services and permanently placed in the custody of appellant's parents. Appellant claims that the county did not make reasonable efforts to reunite these children with the rest of the family. She also argues that the district court abused its discretion in placing the two older children with the grandparents. Because the record shows the county's efforts to reunite the family were reasonable and supports the county's placement of the children, we affirm.
1. County's Reunification Efforts
When reviewing a permanent placement disposition, this court must determine "whether the trial court's findings address the statutory criteria and are supported by `substantial evidence' or whether they are clearly erroneous." In re Welfare of A.R.G.B.-R., 551 N.W.2d 256, 261 (Minn. App. 1996) (quoting In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990)). The evidence and its reasonable inferences are viewed in the light most favorable to the prevailing party, and the district court's findings are not set aside unless clearly erroneous. A.R.G.B.-R., 551 N.W.2d at 261-62.
Appellant claims the county did not make reasonable efforts to reunite the family. See Minn. Stat. § 260.012(b), (c) (1998) (reasonable reunification efforts include offering appropriate and available services to adequately meet needs of child and child's family). First, appellant argues that the therapist's failure to consult with outside experts and reduction in his appointments from weekly to bi-weekly demonstrates an insufficient effort. The record shows, however, that the therapist consulted with colleagues at his clinic and experts who had previously worked with the children and that he limited his visits because working with the children was very time consuming; progress was very slow; and the therapy commitment was long term.
Second, appellant observes that the county made no attempt to conduct visitation among the older children and their parents or the children's siblings after April 1997. But the therapist testified that while he thought visitation could be "helpful[,]" it should not be initiated until suggested by the children. The therapist's opinion is consistent with the children's extremely adverse reaction to parental visits and their indifferent reaction to sibling visitation. Thus, the record shows the county's efforts were reasonable.
Third, appellant argues that under In re Welfare of S.Z., 547 N.W.2d 886, 894 (Minn. 1996), a permanent placement was premature because the county's efforts were inadequate to diagnose the children and because the children are making progress in therapy. Under S.Z., termination of parental rights should not occur because of a parent's mental illness if, "within a foreseeable time[,]" the parent will be able to care for the child. 547 N.W.2d at 892. Here, the district court extended the permanency decision beyond the usual statutory 12-month limit after the children steadfastly refused or were unable to cooperate with county service providers. See Minn. Stat. § 260.191, subd. 3b(a), (b) (1998) (within a year after a child is placed out of the parents' home, district court must usually hold placement hearing to decide whether child can be returned home). In addition, the children's therapist, who was the only person able to establish a relationship with the children, testified that the children's progress in therapy has been very slow and that he was unsure when he would have sufficient information to diagnose the children. Because the children's diagnoses and prognoses are uncertain, the record does not show that the children's problems will be resolved in a "foreseeable time." Therefore, the permanent placement decision was not premature.
2. Placement Decision
Appellant challenges the finding that the parents' cooperation with the county was "immaterial" to whether the children would be placed with them. For reunification to occur, parents must be able to care for their children. See, e.g., Minn. Stat. § 260.012(a) (requiring, in CHIPS proceeding, provision of services to eliminate need for removal). Here, because appellant cannot currently care for the children, any district court error in finding her cooperation with the county to be "immaterial" is not prejudicial and not a basis for reversal. See In re Welfare of S.R.A., 527 N.W.2d 835, 838 (Minn. App. 1995) (holding admission of cumulative evidence in termination proceeding not prejudicial), review denied (Minn. Mar. 29, 1995).
Appellant claims the district court erred in relying on the older children's preference to live with their maternal grandparents because the district court did not find the children to be of sufficient age to express a preference. See Minn. Stat. § 257.025(a)(2) (1998) (considering child's preference proper if child is of "sufficient age to express preference"). The children, ages 11 and 7, may have been old enough to express a preference. See Pekarek v. Pekarek, 384 N.W.2d 493, 498 (Minn. App. 1986) (eight-year-old child deemed of sufficient age to express custodial preference). Also, with the exception of the parents, all parties asked that the children be placed with the maternal grandparents. Thus, even if the district court improperly relied on the children's preference, other evidence in the record supports the placement.
Appellant also argues that placing the children with her parents will impede the relationship between the children and the parents. Currently, the children do not want a relationship with their parents, and actual or suggested contact with the parents causes the children to regress, become hysterical, and/or self-injurious. At present, there is no relationship to impede between the children and their parents.
Noting split custody is disfavored under Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988), appellant argues that placing the older children with her parents will "nullify" the children's relationship with their siblings. Because appellant cannot currently care for the children, split custody is necessary. While the trial court found that placing the children with the maternal grandparents would "deter interaction" between the children and their siblings, the court also found that the children have lacked a relationship with their siblings for some time. On this record, we cannot say that the district court abused its discretion in its placement decision. See In re Welfare of T.P., 492 N.W.2d 267, 269 (Minn. App. 1992) (affirming placement of children with grandparents where parents not able to care for children).