This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-98-2102

In the Matter of the Welfare of:
D.T.O., Child

Filed June 29, 1999
Affirmed
Randall, Judge

Scott County District Court
File No. 98-09438

Allen P. Eskens, 3 Civic Center Plaza, Suite 207, P.O. Box 3412, Mankato, MN 56002-3412 (for appellant B.A.F.)

Thomas J. Harbinson, Scott County Attorney, Susan K. McNellis, Assistant County Attorney, Peggy Flaig Hellier, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent Scott County)

Considered and decided by Randall, Presiding Judge, Davies, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges the district court's decision terminating her parental rights. She asserts that (a) the county failed to make reasonable efforts to reunite her with her child; (b) the district court relied on her past rather than considering her circumstances at the time of trial; and (c) the county failed to meet is burden of proving the statutory bases for termination by clear and convincing evidence. We affirm.

FACTS

Appellant B.A.F., born February 10, 1982, gave birth to D.T.O. on May 28, 1997. D.T.O. was born approximately three months prematurely and weighed one pound, 15 ounces at birth. He was hospitalized until September 19, 1997, when he was placed in a foster home. Through the date of trial, D.T.O. continued to reside in the foster home where he was initially placed.

D.T.O. has a number of on-going medical problems, including chronic lung disease and delayed physical development. After his release from the hospital, public health nurses were assigned to monitor D.T.O and to instruct B.A.F. on his care.

B.A.F. originally agreed to be placed in the same foster home, but she was removed from the foster home after three days because of her behavior. B.A.F. then returned to her mother's home where she had lived prior to the placement. After her removal from the foster home, B.A.F. was allowed to visit D.T.O. four hours a day, five days a week. Her visitation was reduced to four hours, one day a week after she assaulted a teacher in December 1997.

A child in need of protection or services (CHIPS) petition was filed for both B.A.F. and D.T.O. in September 1997. On October 2, 1997, the district court adjudicated both CHIPS. A petition for termination of B.A.F.'s parental rights to D.T.O. was filed June 16, 1998. After a trial on September 14-16, 1998, the district court ordered B.A.F.'s parental rights terminated.

D E C I S I O N

In reviewing a decision terminating parental rights, the appellate court must determine whether the district court addressed the statutory criteria in its findings, "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.

B.A.F. first argues that the district court's decision must be reversed because the county failed to make reasonable efforts to reunite her with D.T.O. As B.A.F. notes, each of the statutory bases for termination requires that reasonable efforts be made to reunify the parent and child. See Minn. Stat. 260.012(c) (1998) (stating in proceedings under Minn. Stat. 260.221 (1998), court shall determine whether reasonable efforts were made by social service agency).

Reasonable efforts are defined as

the exercise of due diligence by the responsible social services agency to use appropriate and available services * * * to eliminate the need for removal and reunite the family. * * * The social service agency has the burden of demonstrating that it has made reasonable efforts or that provision of services or further services for the purpose of rehabilitation and reunification is futile and therefore unreasonable under the circumstances.

Minn. Stat. 260.012(b) (1998). In deciding whether reasonable efforts were made, the district court must consider whether the services provided 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).

B.A.F. argues that the county did not provide her with concrete assistance. She asserts that although she requested more visitation, her visitations were not increased. She also argues that she (a) did not receive assistance in learning how to read D.T.O.'s medical cues; (b) did not receive transportation assistance, other than transportation to visitations; (c) did not qualify for a housing program because of her age; (d) did not receive assistance in obtaining a job; and (e) was too young to get her G.E.D.

Contrary to B.A.F.'s assertions, the evidence demonstrates that the county made reasonable efforts to assist her. Although B.A.F. argues that she was not taught D.T.O.'s medical cues, B.A.F.'s own actions prevented her from learning about D.T.O.'s medical care. When a public health nurse attempted to perform routine development tests ("Denver Tests") on D.T.O., B.A.F. resisted, stating that she did not want to think or worry about D.T.O.'s development. When the nurse recommended the First Step program, which assesses development and teaches parents how to assist in their babies' development, B.A.F. refused a referral to the program. Although B.A.F. agreed to an assessment for First Step in February, she later refused to participate. After February 10, 1998, B.A.F. refused to work in any capacity with the public health nurse assigned to D.T.O.

B.A.F. did request additional visitation with D.T.O. and did not receive it. Increased visitation would likely have aided in developing B.A.F. and D.T.O.'s relationship and improving B.A.F.'s parenting skills. D.T.O., however, is a child with special medical needs. B.A.F.'s refusal to work with a nurse in learning how to care for him, and her refusal to participate in programs that would have aided his development, demonstrate her unwillingness to learn how to care for D.T.O.'s special needs.

It is true that obtaining housing, transportation, and employment were more difficult for B.A.F. because of her age, but the county attempted to assist her in a number of ways. Initially, she was given the opportunity to live in the foster home with D.T.O., but her actions resulted in her removal from the home. When she requested another placement, the county located two other potential foster homes for her and D.T.O. For a number of reasons, neither of these placements was ultimately available to B.A.F. and D.T.O. B.A.F. then stated that she wanted D.T.O. to stay in his original foster home. The county provided B.A.F. with transportation for her visits with D.T.O. When

D.T.O. was initially placed in the foster home in September 1997, B.A.F. was too young to obtain a driver's license, but she turned 16 in February 1998.

Although there is no indication that the county assisted B.A.F. in obtaining job training or employment, all of B.A.F.'s case plans emphasized school attendance before employment. The first mention of employment was in her case plan dated February 1998, in which the social worker directed that B.A.F. needed to develop a plan for how she would provide financially for herself and D.T.O. when she became an adult. The case plan noted that B.A.F.'s strategy might involve returning to school, entering a GED program, entering a job training program, or getting and keeping a job with a living wage. Since December 1997, B.A.F. has refused to attend any school (until her compelled attendance at a treatment facility in August 1998). B.A.F. became eligible for G.E.D. programs after she turned 16 in February 1998, but she failed to enter one.

The county could not solve all of the problems B.A.F. faced because of her age and circumstances, but the county made reasonable efforts to assist B.A.F. In contrast, B.A.F. has not made reasonable efforts to utilize the services provided by the county.

II.

B.A.F. next asserts that the county made its case by relying on past history, rather than on the conditions at the time of trial. See In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980) (stating court must consider conditions existing at time of hearing). She also insists that the only person the county called to testify who would have had the professional credentials and foundation to testify as to whether or not the conditions existing on the day of trial would continue to exist in the future was Darlene Merchant, B.A.F.'s therapist. See id. (stating "it must appear that the present conditions of neglect will continue for a prolonged, indeterminate period" (citation omitted)).

The district court did consider B.A.F.'s past, as B.A.F. asserts. But the court also considered the conditions at the time of trial and the likelihood that those conditions would change in the near future.

Merchant met with B.A.F five times between November 1997 and January 1998 and three times between May 1998 and July 7, 1998. Merchant testified that during the final three appointments B.A.F. was less oppositional and more open to behavioral change.

Although Merchant testified that by May 1998 B.A.F. was more motivated to change, there was no evidence that B.A.F. ever actually began taking any actions to change her situation. Further, there was no evidence introduced to demonstrate that B.A.F. had become better able to handle her anger, a problem that Merchant identified at trial. At the time of the trial, B.A.F. was in a secure juvenile facility as a consequence of an assault conviction against a teacher. While in the facility, and less than a month before the termination hearing, B.A.F. assaulted a juvenile resident and was charged with another assault. Evidence at trial indicated that her placement could last 12 to 15 months.

III.

Parental rights may be involuntarily terminated if there is clear and convincing evidence that one or more of the statutory conditions under Minn. Stat. 260.211 exists. Minn. Stat. 260.241, subd. 1 (1998). Here, the district court determined that pursuant to Minn. Stat. 260.221, subd. 1(b)(2), (4), (5), (8), the following four statutory grounds for termination existed: (1) B.A.F neglected her duties to D.T.O.; (2) she was palpably unfit to parent D.T.O.; (3) she failed to correct the conditions that led to the CHIPS determination; and (4) D.T.O. was neglected and in foster care.

A. Refusal or Neglect of Parental Duties

Parental rights may be terminated if

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.

Minn. Stat. 260.221, subd. 1(b)(2).

B.A.F. argues that she did not refuse or neglect to comply with her parental duties. B.A.F. also argues that the county has not established that she is financially and physically able to comply with her parental duties. Finally, B.A.F. argues that there is no evidence that her lack of compliance will continue indefinitely.

Because of her age, it would have been very difficult for B.A.F. to provide financially for both herself and D.T.O. Although B.A.F.'s age is beyond her control, she has refused to do the things that are within her control. Most notably, she has refused to learn the basic skills necessary to care for D.T.O.'s physical health and development. Thus, even if she received financial assistance and assistance in obtaining appropriate housing, she would be unprepared to care for D.T.O.'s other needs. Therefore, the district court did not err in concluding that there was clear and convincing evidence that grounds for termination existed under this statutory provision.

B. Palpably Unfit

The district court may also terminate parental rights if

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(b)(4). Under this section, the petitioner is required to

prove a consistent pattern of specific conduct or specific conditions existing at the time of the hearing that appear will continue for a prolonged, indefinite period and that are permanently detrimental to the welfare of the child.

M.D.O., 462 N.W.2d at 376-77 (citations omitted).

Although B.A.F. insists that her behavioral problems have not, and will not, have an effect on D.T.O., there is evidence that her behavior has affected her ability to establish a relationship with D.T.O. B.A.F. was initially placed in the foster home with D.T.O., but her violent behavior resulted in her removal from the home. Her assault on a teacher resulted in the court reducing her visitation time with D.T.O. out of concern for his safety. The assault subsequently resulted in her placement in a secure juvenile facility in St. Cloud, and her assault on another resident at that facility may extend her placement at the school. Her placement at the facility precludes her from visiting with D.T.O. Thus, her behavior has directly affected her relationship with D.T.O. and has rendered her unable to care for him in the reasonably foreseeable future. Therefore, the district court did not err in concluding that there was clear and convincing evidence that B.A.F. is palpably unfit to parent D.T.O.

C. Failure to Correct Conditions

Parental rights may be terminated if the court finds that

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(b)(5).

As we noted above, the county made reasonable efforts to correct the conditions that led to D.T.O.'s CHIPS adjudication. There is no question that the conditions that led to the adjudication still exist. B.A.F. is unable to care for D.T.O. at the present time, and there is no indication that she will be able to care for him in the near future. Thus, the district court did not err in concluding that grounds for termination of B.A.F.'s parental rights existed under this statutory provision.

D. Neglected and in Foster Care

Parental rights may also be terminated if the child "is neglected and in foster care." Minn. Stat. 260.221, subd. 1(b)(8). A child "neglected and in foster care" is defined as one:

(a) Who has been placed in foster care by court order; and

(b) Whose parents' circumstances, condition, or conduct are such that the child cannot be returned to them; and

(c) Whose parents, despite the availability of needed rehabilitative services, have failed to make reasonable efforts to adjust their circumstances, condition or conduct, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.

Minn. Stat. 260.015, subd. 18 (1998). The court must consider the following factors:

(1) the length of time the child has been in foster care;

(2) the effort the parent has made to adjust circumstances, conduct, or condition that necessitates the removal of the child to make it in the child's best interest to be returned to the parent's home in the foreseeable future, including the use of rehabilitative services offered to the parent; * * *

(4) the maintenance of regular contact or communication with the agency or person temporarily responsible fore the child;

(5) the appropriateness and adequacy of services provided or offered to the parent to facilitate a reunion;

(6) whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time, whether the services have been offered to the parent, or, if services were not offered, the reasons they were not offered; and

(7) the nature of the efforts made by the responsible social service agency to rehabilitate and reunite the family, and whether the efforts were reasonable.

Minn. Stat. 260.155, subd. 7 (1998).

At the time of trial, D.T.O. had been in foster care for approximately one year and had never lived with B.A.F. outside the foster home. B.A.F. has not refused to visit D.T.O. or indicated that she would refuse to support him financially if she had the resources, and B.A.F. maintained regular contact with the social services and the foster parents. Despite this, B.A.F. has refused to work with the public health nurses and refused to participate in services to aid D.T.O.'s development. She has also refused to attend school despite offered alternatives and has not changed her violent behavior. The county made numerous services available, and B.A.F. refused to cooperate with those services. As stated previously, the county made reasonable efforts to assist her.

Thus, there was clear and convincing evidence to support the district court's determination that D.T.O. was "neglected and in foster care."

Affirmed.