This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-229

C3-02-440

 

 

In the Matter of the Children of:

A. (J.) T., Mother.

 

 

Filed October 14, 2002

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File Nos. 227384, J301050526

 

 

Karim El-Ghazzawy, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for appellant/respondent guardian ad litem)

 

Eric J. Rucker, Steven P. LaPierre, Briggs & Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent/appellant mother)

 

Amy Klobuchar, Hennepin County Attorney, Julie K. Harris, Assistant County Attorney, Health Services, Building, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415 (for respondent Hennepin County)

 

Shawn R. Kennon, 648 Groveland Terrace, Suite 212, Minneapolis, MN 55403 (for respondent father P.J.Sr.)

 

 

            Considered and decided by Randall, Presiding Judge, Schumacher, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant mother challenges the termination of her parental rights to her youngest child, C.T.[1]  Guardian ad litem Thomas Scallen appeals the district court's decision not to terminate parental rights to Jo.J. and L.T.  These two appeals were consolidated by order of this court.  The termination of  parental rights to Je.J. and P.J.Jr. is not being appealed.  We affirm.

FACTS

            Appellant is the mother of Je.J., who was born July 30, 1987; P.J.Jr., who was born July 23, 1988; Jo.J., who was born October 28, 1994; L.T., who was born April 15, 1996; and C.T., who was born May 21, 1999.  B.T. is the presumed father of L.T. and C.T. because he lived with them and held them out as his own.  P.J.Sr. is the legal father of P.J.Jr. and Je.J.[2]  The father of Jo.J. has not been identified.

            B.T. has been addicted to crack cocaine and alcohol.  He has received chemical dependency treatment in 1993, 1994, 1999 and 2000.  He had a second-degree assault conviction for an incident involving a former girlfriend in which he threatened her with a knife in the presence of her infant child.  He was under the influence of drugs at the time.  He has a history of anger-management problems and of using corporal punishment on the older children.  He has had periods of unemployment but was employed at the time of trial.

            Mother is likewise addicted to crack cocaine.  She has received treatment in 1993, 1994 and 2000.  She has myontonic dystrophy, a form of muscular dystrophy characterized by fatigue, muscle spasms and muscle weakness.  She is employed as a health care aid and is taking coursework in medical transcription.

            C.T. was two years old at the time of trial and is in a foster home.  He has a number of complex medical problems and corresponding needs.  C.T. has been diagnosed with the most severe form of myontonic dystrophy.  He is susceptible to respiratory distress and is on a ventilator when he sleeps.  Until recently, he was also on a respirator during the day.  The ventilator requires constant monitoring and frequent suctioning.  If the ventilator were to become unplugged, C.T. could die very quickly.  C.T. needs a feeding tube and the assistance of a variety of medical devices and technologies to support his bodily functions.  He cannot support his own weight, and wears foot and body braces.  He cannot speak and knows only two or three signs to communicate.  He is certified to receive 20 hours of nursing assistance per day and receives that in the foster home.  

            L.T. also has special needs.  Like her mother, she has myontonic dystrophy resulting in cognitive delay and muscle weakness, creating problems with speech and physical limitations.  She wears leg braces and has had surgery to correct a club foot condition.  She is unable to speak clearly and has a limited ability to follow directions or communicate basic information.  This has placed her in danger in the past.

            Jo.T. has been diagnosed with attention deficit – hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD).  These create behavioral and educational problems.  Mother and B.T. have had difficulty controlling Jo.T.'s behavior and have disciplined him inappropriately. 

            Mother and B.T. have had a history of problems caring for their children.  In 1993, mother sent Je.J. and P.J.Jr. to live with P.J.Sr.'s mother in St. Louis because mother was using drugs at the time.  The children were with their grandmother for almost three years, and mother had very limited contact with them during that time.  In 1996, when the oldest children returned to live with mother, she was living with B.T., Jo.J. and L.T.

Mother and B.T. have received many services from government agencies to assist with the children and provide counseling and therapy.  Mother and B.T. accepted some of these services and rejected others.  With the variety of medical and behavioral challenges the children present, significant evidence indicated neglect of certain children while the needs of others were addressed.  The home health care nurses attending to C.T. testified about neglect and cleanliness.  Many of the nurses expressed concern and fear regarding B.T.

            At the end of December 1999, all five children lived with mother and B.T.  On December 31, 1999, and January 19, 2000, mother and B.T., recovering from drug addiction, relapsed and left their home on overnight binges without making arrangements for the care of the children.  Consequently, the children were placed on 72-hour health and welfare hold on January 20, 2000.  On January 25, 2000, respondent Hennepin County Department of Children, Family and Adult Services (DCFAS) filed a petition, alleging the children were children in need of protection or services.  The children were in out-of-home placement at the time of trial. 

            The county provided mother and B.T. with a case plan at a hearing in January 2000.  Mother and B.T. were to complete chemical dependency assessments and follow through with corresponding recommendations, remain drug-free, submit to urinalysis as requested, and provide safe and stable housing for the children.  In June 2000, mother and B.T. completed parenting assessments provided to them.  These did indicate some progress in their parenting skills but also indicated a variety of parenting concerns.  The assessments recommended a variety of counseling and therapy as well as parenting education.

Mother and B.T. contend that they followed through with the case plan and met the requirements.  The county takes issue with mother and B.T.'s performance of some of the recommendations and claims that mother and B.T.'s improvement was limited.  This is especially true of B.T., whom the county contends still exhibits problems with anger, discipline techniques, and understanding the children's needs.     

            In October 2000, the children were adjudicated in need of protection or services after mother and B.T. conceded their chemical dependence and that the dependency interfered with their ability to parent.  B.T. also admitted that between 1996 and 2000, he had inappropriately physically disciplined some of the children. 

            On January 11, 2001, a petition to terminate parental rights or transfer permanent legal and physical custody was filed as to each of the five children with the district court, alleging grounds for termination under Minn. Stat. § 260C.301 (2000).  A court trial was held over eight days between September 17, 2001 and December 14, 2001.  Mother and B.T. testified as to the progress they had made with their parenting and drug addiction.  It is undisputed that mother and B.T. have remained drug-free since the January 2000 relapse.  The county presented several witnesses, including therapists, social workers, nurses, and the guardian ad litem, who had either worked with mother, B.T., and the children or provided services in the home.  All of these opined that parental rights should be terminated.

On January 8, 2002, the district court issued its findings and order transferring legal custody of Je.J. and P.J.Jr. to P.J.Sr.'s sister in St. Louis, Missouri; terminating parental rights to C.T., and denying termination of parental rights as to Jo.J. and L.T.  Custody of C.T. was awarded to Minnesota Commissioner of Human Services pending adoption.  Jo.J. and L.T. were ordered to continue in foster care pending a review hearing and further order of the court. 

D E C I S I O N

Only "grave and weighty reasons" support a termination of parental rights.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  The petitioning party must demonstrate one or more of the statutory grounds for termination by clear and convincing evidence.  In re Welfare of J.S., 470 N.W.2d 697, 701 (Minn. App. 1991), review denied (Minn. July 24, 1991).  The child's best interests are "the paramount consideration" in every termination case."  In re: M.D.O., 462 N.W.2d at 375 (citations omitted).   

The appellate courts review the record to determine whether the findings are supported by substantial evidence and are not clearly erroneous.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  The district court must make specific findings as to conditions existing at the time of the termination decision. Id.  Additionally, the district court must consider the special needs of a child and the parent's abilities to meet those special needs when determining whether to terminate parental rights as to that particular child.  In re Welfare of D.D.K., 376 N.W.2d 717, 721 (Minn. App. 1985).

1.            Under Minn. Stat. § 260C.301 subd. 1(b)(4) (2000), a court may terminate parental rights if the court finds, by clear and convincing evidence

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.

 

The evidence must relate to conditions that exist at the time of the termination decision.  In re Welfare of P.R.L, 622 N.W.2d 538, 543 (Minn. 2001).  As the statute directs, however, the court must examine the "pattern of specific conduct before the child" in order to determine whether or not that parent is "palpably unfit" to parent the child as of the time of the hearing.  The parent's past conduct and current behavior is considered in making this finding.  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).

            Mother and B.T. vehemently argue that the district court committed anerror of law by considering their past drug use when determining whether to terminate parental rights as to C.T.  They maintain that by considering this past history, the district court violated the directive that the court's focus must be on the conditions existing as of the time of the determination.  Mother and B.T. maintain that the possibility of drug relapse may not be considered when a parent has maintained sobriety for a significant period of time and otherwise has complied with the case plan requirements related to the dependency.  Mother and B.T. frame this issue as a question of law, and the district court's consideration of a potential relapse as an error of law. 

            We disagree.  Although mother and B.T.'s history of drug use is indeed past behavior as opposed to a present condition, the risk of relapse is a present risk and condition.  While not determinative on the ultimate issue, the district court may certainly consider this factor in its decision.  Indeed, it would seem that the very opposite of mother and B.T.'s position would be true – a failure or refusal to consider the history of drug use and relapses at all would constitute an abuse of discretion.  In particular, given C.T.'s significant medical concerns, the district court had to consider the possibility of relapses by mother and B.T., and the life-threatening consequences to C.T. created thereby.   The risk of death should C.T. be left unattended at all is quite real.

            Mother and B.T. rely on the Minnesota cases indicating that the focus must be on present conditions when the court makes its decision.  The district court, however, must examine past conduct in order to reasonably attempt to predict the future.  To do this, the court must evaluate the evidence and testimony regarding what the parents have and have not done in the past regarding parenting the children and their efforts to improve their parenting skills leading up to the hearing or trial.  The possibility of relapse to the addiction of drugs, despite efforts to maintain sobriety, always exists.

            Mother and B.T. rely upon an Oregon case, State ex rel. State Office for Servs. to Children & Families v. Stillman, 333 Or. 135, 36 P.3d 490 (Or. 2001), for the proposition that a lower court commits an error of law if it considers the possibility of relapse when determining whether to terminate the parental rights of a recovering drug addict who has remained drug-free for a significant period of time leading up to the determination.

The argument based on Stillman is misplaced.  The Oregon Supreme Court analyzed the facts and evidence presented to the lower court and decided that the petitioner had not demonstrated by clear and convincing evidence the grounds for terminating the father's rights.  The court spent considerable time detailing the facts and circumstances involved in that case and stated, relative to the father's drug problem,

all that has occurred since [father's arrest for drug dealing in the home] indicates that father's behavior will not be repeated.  The statute requires us to evaluate whether father presently, i.e. at the time of the termination hearing, was unfit.  On this record, the state has not shown that he was.

 

Id. at 149, 36 P.3d at 497 (emphasis added and in original).  The court noted extraordinary efforts on behalf of the father to handle his addiction, and the unanimous testimony of all involved in his treatment that his efforts were exemplary. Id. at 141-42, 36 P.3d at 493-94.  The Oregon Supreme Court simply agreed with the court of appeals that the record in that case failed to establish the grounds for termination.  The court did not adopt or advocate the "rule of law" mother and B.T. advance.

            As for the record in the present case, the district court specified in its findings the extreme medical challenges C.T. faces and the constant attention and care he requires.  The evidence supports these findings.  Mother and B.T. do not dispute these facts.  They also concede the extreme danger C.T. would be placed in should relapse occur and he was left unattended.  The risk of relapse is real, and the consequences for C.T. of such possible relapse are drastic.  This constitutes a present and ongoing risk that the district court was required to consider. 

            Mother and B.T. also claim the district court could not have concluded that they were fit to parent Jo.J. and L.T. but not fit to parent C.T. without committing an abuse of discretion.  They argue that these two contrary determinations are logically inconsistent, and thus one must be erroneous.  From their standpoint, the decision as to Jo.J. and L.T. was the correct one, but the decision to terminate as to C.T. was error. 

            Although this argument has some merit, nevertheless it fails.  The district court must analyze a parent's ability to properly fulfill the parenting role as it relates to each child, while bearing in mind the paramount consideration of the best interests of that child.  In a situation such as C.T.'s, where the child has extraordinary needs due to medical challenges, this individualized analysis takes on particular significance.  Essentially, the district court decided that the county had not met its burden of proof with respect to Jo.J. and L.T. but had met its burden with respect to C.T.  The evidence presented at trial was significant as to both the progress mother and B.T. had made in their parenting skills and the shortcomings still existing. 

            These shortcomings are magnified when juxtaposed with the challenges C.T. presents.  Certain shortcomings might not place Jo.J. and L.T. in actual physical danger, yet could present significant risks to C.T.  Indeed, considering the "round the clock" care C.T. requires, even the most skilled parent would be challenged.  Moreover, caring for and attending to C.T. monopolizes the caregiver's time and energy at the expense of the other children.  The district court made such a finding.  The other children have their own individualized needs, and mother and B.T. will have to work hard and continue with their progress to avoid falling short of meeting those needs, even without the additional responsibility of caring for C.T.

            Mother and B.T. also maintain that the district court erred in determining that they had substantially complied with their case plan so that Jo.J. and L.T. should be reunited with them, while deciding nonetheless to terminate parental rights as to C.T.  The district court's findings are separated grouping Jo.J. and L.T. together, Je.J. and P.J.Jr. together, and then C.T.  In its findings with respect to Jo.J. and L.T., the court found that mother and B.T. have substantially complied with their case plan.

The district court also made several findings indicating mother and B.T.'s shortcomings with respect to their parenting of C.T.  In particular, the district court noted mother and B.T.'s inability or refusal to cooperate effectively with the home nurses.  These people are essential to C.T.'s well-being, and mother and B.T. have effectively alienated virtually all of them.  Eleven out of 12 nursing service personnel refuse to come into the home because of B.T.'s anger and intimidation.  This is a significant problem.

Mother and B.T.'s interpersonal skills are poor – so poor that they are endangering C.T.  Without adequate nursing assistance, no one could competently parent C.T.  They plan to move out of the metro area, which likely would make nursing assistance more difficult to obtain.  Given the pattern of alienation, the district court's finding regarding the lack of cooperation is significant.  The district court did not abuse its discretion with its decision to terminate mother's parental rights as to C.T.

2.            Conversely, respondent guardian ad litem argues that the district court abused its discretion with the determination that the county had not demonstrated by clear and convincing evidence grounds for terminating parental rights as to Jo.J. and L.T.  This is a significant burden on appeal.  The guardian ad litem must demonstrate the district court abused its discretion by ruling that the county had failed to produce clear and convincing evidence that the parental rights must be terminated.

The guardian ad litem and DCFAS presented evidence as to mother and B.T.'s problems parenting Jo.J. and L.T.  These children, like C.T., present particular parenting challenges given their medical, behavioral, and mental circumstances.  On the other hand, significance evidence was also presented as to the progress mother and B.T. had made relative to parenting Jo.J. and L.T.  Many of mother and B.T.'s shortcomings were due in part to the attention C.T. demanded.

Essentially, the district court concluded that mother and B.T. can be responsible parents for Jo.J. and L.T. when they can focus their attention on that responsibility, even if they cannot adequately parent the other children.  Their demonstrated ability to parent two children, as opposed to five or three, is sufficient to defeat the county's petition to terminate.  Although there may be a risk mother and B.T. will fail in their efforts to parent Jo.J. and L.T., the district court's decision is not an abuse of discretion.

3.            The guardian ad litem also takes issue with the order of the district court requiring Jo.J. and L.T. to remain in foster care pending reunification with mother and B.T.  The guardian ad litem argues this is not an available disposition under the statute and therefore constitutes an error of law.  The district court's specific order as to these children states:

14.Pursuant to Minn. Stat. § 260C.312, [Jo.J.] and [L.T's] foster care placements shall continue pending reunification between the children and [B.T. and mother].

 

15. Reunification shall not occur without order of this court.

 

16.DCFAS shall continue without interruption all reunification services being facilitated or provided by DCFAS to [mother and B.T.].  DCFAS shall pay the cost of these services above and beyond the parents' ability to pay.

 

17.Counsel for DCFAS, [mother and B.T.] and the guardian ad litem shall contact the court to set a review hearing, as to [Jo.J.] and L.T.], to occur within 30 days from the date of this order.

 

The guardian ad litem argues that In re Welfare of J.M., 574 N.W.2d 717 (Minn. 1998), prohibits this disposition in that it is not one of those specifically enumerated in the statute.

            In re J.M. can be distinguished.  In that case, the district court ordered the children returned to foster care after deciding that the mother

would not be able to parent her children effectively in the foreseeable future, but determined that she should continue to have supervised visitation rights so long as she complied with her case plan.

 

Id. at 720.  The court then reversed its ruling, deciding that it had erred and parental rights should be terminated.  Id. This court and the supreme court affirmed the district court's correction.  Id.

            In In re J.M., the district court's final determination concluded that the parent would not be able to take over the parenting role, therefore long-term foster care was in the best interests of the children.  The court ultimately made the requisite findings that grounds for termination had been proven by clear and convincing evidence.  Id.  Allowing for supervised visitation after having so concluded was an error of law, which the district court itself acknowledged and corrected.

            In the case at bar, the district court specifically determined that grounds for termination had not been proven by clear and convincing evidence relative to Jo.J. and L.T.  The court ordered reunification with mother and B.T., but exercised its discretion in controlling themeans, timing and process by which that reunification would occur.  The fact that reunification was not to occur immediately is of no consequence.

There is nothing in the order that would indicate equivocation as to what ultimately is to occur.  The district court ordered reunification and merely factored in the children's best interests in effectuating its order.  The order does not indicate that the decision is subject to change or that the court believed mother and B.T. had not as yet successfully rebutted the petition to terminate.  Accordingly, the court's order is within the parameters of the statute and the case law dealing with the statute.  The district court did not commit an error of law with its order facilitating the final disposition as to these children.     

Affirmed.