This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1807
A04-1827

 

In the Matter of the Children of

L. V. and L. S., Parents.

 

Filed March 29, 2005

Affirmed

Halbrooks, Judge

 

Kandiyohi County District Court

File No. J7-04-50159

 

John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant L. V.)

 

Michael Kinney, Smolnisky & Kinney, P.C., 321 5th Street Southwest, P.O. Box 1442, Willmar, MN 56201 (for appellant L. S.)

 

Boyd Beccue, Kandiyohi County Attorney, Amy Isenor, Assistant County Attorney, 415 Southwest 6th Street, Willmar, MN 56201 (for respondent county)

 

Kristin Trebil, Greater Minnesota Family Services, 513 5th Street Southwest, Willmar, MN 56201 (guardian ad litem)

 

            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this consolidated appeal, appellant L.V. challenges the district court’s decision terminating her parental rights, arguing that (1) the record lacks clear and convincing evidence that L.V. is a palpably unfit parent; (2) the county failed to make reasonable efforts to reunite the family because, among other things, L.V. was not given a reasonable opportunity to correct her parenting problems; and (3) the county did not adequately investigate L.V.’s mental condition to determine whether it was curable, but then improperly used her mental condition as a reason to seek to terminate her parental rights.  Appellant L.S. argues that (1) the county failed to make reasonable efforts to reunite the family; (2) the determination that efforts to reunite the family were futile cannot be dispositive where the efforts were not reasonable; (3) the record lacks clear and convincing evidence that father is a palpably unfit parent and that termination was in the best interests of the children; and (4) the district court should have granted father’s request for a continuance.  Because we conclude that there is substantial evidence that the county provided reasonable efforts to reunite the family and from which the district court could conclude that L.V. and L.S. are palpably unfit parents and because we conclude that the district court did not err in denying L.S.’s request for a continuance, we affirm.

FACTS

            Appellants L.V. and L.S. are the mother and father, respectively, of four minor children (the children) who are the subject of this appeal.  All of the children are under eight years of age.  L.V. has four additional children who do not reside with her and are not the subject of this appeal.  Pursuant to a court order, physical and legal custody of one of these additional children has been transferred to L.V.’s aunt and uncle per Minn. Stat. § 260C.201, subd. 11 (2004). 

            L.V. and L.S. separated in May 2002.  L.S. was given custody of the children, but L.S. and the children were living with L.V. at the time the children were removed from the home.  Kandiyohi County Family Services (KCFS) received a neglect report regarding the children in February 2003 and conducted an in-home investigation in March.  In April, the children were voluntarily placed in foster care and have lived in the home of foster-care providers Tom and Mary Roelofs since May 2003.[1] 

            On June 24, 2003, KCFS filed a child-in-need-of-protection-or-services (CHIPS) petition.[2]  On July 10, KCFS filed a termination-of-parental-rights (TPR) petition alleging that L.V. and L.S. “ha[d] substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed upon [them] by the parent and child relationship” as set forth in Minn. Stat. § 260C.301, subd. 1(b)(2) (2004), and that they were “palpably unfit to be [parties] to the parent and child relationship” as set forth in Minn. Stat. § 260C.301, subd. 1(b)(4).  The CHIPS petition was subsequently dismissed and the matter proceeded on the TPR petition. 

            Trial on the TPR petition was held on October 7 and 8, 2003.  After commencement of the trial, L.S. “executed a voluntary conditional termination of parental rights to the subject children, conditioned upon the termination of parental rights of the mother, [L.V.].”[3]  The court denied the TPR petition with respect to both L.V. and L.S.,[4] but found clear and convincing evidence that the children were in need of protection and services and ordered KCFS to “submit a case plan for a structured reunification of the subject children with [L.V.].”  

            After a review hearing on January 5, 2004, the district court accepted the reunification plan recommended by KCFS, found that KCFS had provided “reasonable efforts” to implement the plan, ordered L.V. to “complete 30 days of supervised parenting time to increase her skills and bond with [the children],”[5] and ordered L.S. to continue scheduled weekly visits with the children and to “make an affirmative effort to maintain his mental health” by meeting with mental health care providers. 

            During this same time period, a different district court considered a motion to review court-ordered placement regarding two of L.V.’s children from a previous relationship.  On January 6, 2004, that district court ordered “[f]ull legal and physical custody . . . of [A.M.V.] . . . to Wright County Human Services,” and “[f]ull legal and physical custody of [T.J.V.]” to L.V.’s aunt and uncle.  The court also ordered that T.J.V. “shall not be returned to the care of her mother, [L.V.], except by court order and notice to Wright County Human Services Agency.” 

            On April 2, 2004, KCFS filed a second TPR petition.  Trial regarding this petition was held on July 1 and July 13.  L.S. was not present on either date and was found to have “defaulted to the petition to terminate his parental rights.”  The court further found that he was “palpably unfit to be a party to the parent and child relationship due to his persistent mental illness and resulting instability.”  With respect to L.V., the court found that KCFS had made reasonable efforts to reunite the family and that the “consistent inability of [L.V.] to implement the services” made the county’s continued effort to offer such services futile.  The court then found that L.V. was “palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct,” including “an inability to apply her parental skills and knowledge to provide adequate nurturing for the children’s emotional, physical, medical and educational development and safety.”  Accordingly, the court granted the petitions for termination of parental rights of both L.S. and L.V. and awarded custody of the children to the commissioner of human services.  This consolidated appeal follows.

D E C I S I O N

            On appeal in a TPR proceeding, “appellate courts are limited to determining whether the findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether they are clearly erroneous.”  In re Welfare of D.D.G., 558 N.W.2d 481, 484 (Minn. 1997).  On review, “[c]onsiderable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.”  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  Although this court carefully reviews the record, we will overturn the district court’s findings of fact only if those findings are clearly erroneous.  In re Welfare of A.D., 535 N.W.2d 643, 648 (Minn. 1995).

            Minn. Stat. § 260C.301 (2004) provides, in relevant part, that:

The juvenile court may upon petition, terminate all rights of a parent to a child:

 

. . . .

 

(b) if it finds that one or more of the following conditions exist:

 

                        . . . .

 

(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 . . . if the parent is physically and financially able, and either reasonable efforts by the social services agency have failed to correct the conditions that formed the basis of the petition or reasonable efforts would be futile and therefore unreasonable;

 

                        . . . .

 

(4) that a parent is palpably unfit to be a party to the parent and child relationship . . . .

 

(5) that following the child’s placement out of the home, reasonable efforts, under the direction of the court, have failed to correct the conditions leading to the child’s placement.

 

Minn. Stat. § 260C.301, subd. 1(b)(2), (4)-(5).

I.          Termination of Parental Rights of L.V.

            L.V. first suggests that the district court clearly erred in concluding that she is palpably unfit to be a party to the parent and child relationship.  She argues that the holding in the first TPR hearing (that not enough time had elapsed “for the [district] court to conclude by a ‘clear and convincing’ standard that the conditions leading to the filing of the [TPR] petition w[ould] exist for a ‘prolonged, indeterminate period’”) rendered the issue res judicata for the second TPR hearing because nothing had occurred “demonstrating that this conclusion no longer applied.”  She further contends that “there was not enough evidence to justify a subd. 1(b)(4) termination in January, 2004, and subsequent events did not supply such a lack, or add to the existing evidence enough to change [the district court’s] conclusions.”  But on January 6, 2004, between the filing of the two TPR petitions, “[f]ull physical and legal custody” of T.J.V.—L.V.’s daughter from a previous relationship—was transferred to L.V.’s aunt and uncle pursuant to Minn. Stat. § 260C.201, subd. 11 (2004).    

Minn. Stat. § 260C.301, subd. 1(b)(4), provides that “[i]t is presumed that a parent is palpably unfit to be a party to the parent and child relationship upon a showing . . . that the parent’s custodial rights to another child have been involuntarily transferred to a relative . . . .”  Id. (emphasis added).  Thus, contrary to L.V.’s assertion, the circumstances had substantially changed.  For the second TPR petition, the burden shifted to L.V. to demonstrate that she was not palpably unfit to be a parent.  In re Welfare of D.L.R.D., 656 N.W.2d 247, 250 (Minn. App. 2003).  To rebut the presumption, a parent must provide evidence that “affirmatively and actively demonstrate[s] her or his ability to successfully parent a child” and establish that any prior unfitness no longer exists.  Id. at 251.  This she has not done.

            L.V. has improved her prior living conditions; she is employed and has lived in one location for two years.  But she has not effectively rebutted the presumption of unfitness, or “actively and affirmatively demonstrate[d]” that she is able to successfully parent her children.  Id.  In her testimony at the TPR hearing, L.V. disputed that she often ignored her children whenever she arrived at the foster home.  She also suggested that the difficulties she had in completing tasks such as cooking and cleaning in the foster home resulted from the fact that she also had to take care of her home in Willmar, that the reason she sometimes slept during the day rather than interacting with her children was because she occasionally worked the second shift, and that any difficulty she had in establishing authority resulted from her children’s confusion regarding to whom they should listen, L.V. or the Roelofs.

            Much other evidence, however, remains unrebutted.  For example, Mary Roelofs testified that L.V. was only minimally nurturing, rarely comforted her children, and did not call to check on their well-being.  She also testified that L.V. made inappropriate remarks, such as telling one of the children, “you’re the worst kid I’ve ever met,” and indicated that L.V. could not manage the difficulties of parenting, telling Roelofs, “I can’t handle this, I’m done.”  Despite the fact that L.V. had spent 29 days[6] in the foster home participating in supervised parenting, Roelofs testified that L.V.’s parenting skills had not generally changed or improved and that the bond between L.V. and the children had actually “regressed.”  She concluded that it “would be very detrimental to the[] children’s future” to be returned to L.V.  The district court made numerous additional findings of fact based on Roelofs’ testimony regarding L.V.’s parenting skills.  Because the district court is in a better position to judge the credibility of witnesses and because there is support in the record for the district court’s findings of fact, the findings are not clearly erroneous.  L.A.F., 554 N.W.2d at 396.

            L.V. further argues that the district court erred in concluding that “KCFS has provided reasonable efforts to reunite the family.”  She asserts that “not only did the [c]ounty not make reasonable efforts . . . [,] it tried to frustrate such efforts.”[7]  L.V. fails to note that where, as here, the district court determines that the parent’s custodial rights to another child have been involuntarily transferred to a relative, “[r]easonable efforts for rehabilitation and reunification are not required.”  Minn. Stat. § 260.012(a)(1)(iv) (2004) (emphasis added).  But even if reasonable efforts were required, the record here supports a finding that such efforts have been made.

            Services aimed at reunification must “go beyond mere matters of form” and include real, genuine assistance.  In re Welfare of J.A., 377 N.W.2d 69, 73 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986).  Here, the record contains substantial evidence supporting the district court’s determination that KCFS made the requisite reasonable efforts to reunite the family.  See In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990) (requiring substantial evidence to support a finding that reasonable efforts had been made), review denied (Minn. July 6, 1990).  Among other things, KCFS provided:  (1) PATH-certified full-time foster care and support services for the children; (2) assistance for L.V. to develop parenting skills and implement effective parenting techniques; (3) free transportation for L.V. to and from the foster home; and (4) supervised parenting time that accommodated L.V.’s work schedule.[8]  The ultimate goal of the PATH foster placement was reunification.  Accordingly, the district court did not err in finding that KCFS made reasonable efforts to reunify the family.

            L.V. asserts that KCFS failed to adequately investigate, address, and remedy the “effects of [her] emotional and mental disability” prior to beginning termination proceedings.  This court will generally not consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because this issue was not raised before the district court, we decline to address it here.

II.        Termination of Parental Rights of L.S.

            L.S. appeals from a default judgment terminating his parental rights. 

[O]n appeal from a default judgment, a party in default may not deny facts alleged in the complaint when such facts were not put into issue [before the district court].  By the same token, a party in default may not assert facts on appeal which were not asserted [before the district court].

Thorp Loan & Thrift v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (emphasis in original) (citations omitted), review denied (Minn. Apr. 13, 1990). 

L.S. first argues that the district court erred in finding that he “has substantially, continuously and repeatedly refused or neglected to comply with the duties imposed upon him by the parent and child relationship.”  But the record includes substantial evidence of the historical inability of L.S. to meet the needs of his children, including incidents of homelessness, “living in a pickup camper parked in a junkyard,” and periods spent in various shelters. 

As we have noted, the district court is in the best position to assess the credibility of witnesses.  L.A.F., 554 N.W.2d at 396.  The district court heard testimony from KCFS social worker Claudia Zylstra that when the children resided with L.S., “[t]he home conditions were very chaotic, dirty house, the kids were running out into the street sometimes naked.  The windows were open in the house and it was winter.  And there was an ongoing problem with head lice . . . .”  Zylstra also noted that L.S. is still occasionally homeless. 

Roelofs testified that although L.S. “genuinely love[s] his children,” he had difficulty setting boundaries for the children and maintaining patience and control when dealing with them.  During his time at the Roelofs’ home, L.S.’s parenting skills did “not significantly” improve and when attempting to deal with the “chaos” of parenting multiple children, L.S. “escalated very easily.  On numerous [occasions] he asked to leave in frustration . . . .”  Although L.S. initially entered the out-of-home placement with his children so that he could work on his parenting skills, he left after about a month because “he could not handle the placement.” 

L.S. has been diagnosed with schizophrenia.  Zylstra suggested that L.S.’s mental disorder made it difficult for him to handle the day-to-day parenting of the children and rendered him unable to provide for their daily needs.  Zylstra also noted that L.S. indicated to her that he “believes that it is in his children’s best interests to be adopted by [another] family.”[9] 

            L.S. further argues that KCFS did not make reasonable efforts to correct the conditions that formed the basis of the petition.  But KCFS provided L.S. with an out-of-home family placement in which he was allowed to live with his children and provided him with round-the-clock assistance in an attempt to improve his parenting skills.  L.S. left this placement because he “could not handle” it, despite the fact that his parenting skills had improved only minimally. 

            Thus, there is substantial evidence in the record to support the district court’s findings that L.S. “has substantially, continually and repeatedly refused or neglected to comply with the duties imposed upon him by the parent and child relationship” and that KCFS “made reasonable efforts to correct the conditions that formed the basis for the petition.”  Consequently, the district court’s findings are not clearly erroneous.

            L.S. next asserts that the district court erred in concluding that he is palpably unfit to be a party to the parent and child relationship.  The district court may terminate parental rights if it finds 

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. § 260C.301, subd. 1(b)(4).

“Mental illness, in and of itself, is not [a] sufficient basis for the termination of parental rights.”  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  Instead, “the actual conduct of the parent is to be evaluated to determine his or her fitness to maintain the parental relationship with the child[ren] in question so as to not be detrimental to the child[ren].”  In re Welfare of Kidd, 261 N.W.2d 833, 835 (Minn. 1978).  Where chronic mental illness results in conduct detrimental to children, a finding of palpable unfitness is proper.  See id. at 835-36 (deeming chronic mental illness resulting in conduct detrimental to child as a proper basis for termination).

L.S. suggests that there is little “specific evidence” indicating that he engaged in conduct detrimental to his children as a result of his mental illness.  But, as set forth above, the record contains evidence of L.S.’s history of detrimental conduct and his inability to improve his parenting skills or maintain long-term housing or employment, despite the efforts of KCFS.  Because there is substantial evidence from which the district court could conclude that L.S. will be unable to appropriately care for his children for the foreseeable future, its finding that he is palpably unfit to be a party to the parent and child relationship is not clearly erroneous.

            L.S. also contends that the district court erred in denying his request for a continuance.  The decision to grant or deny a motion for a continuance is “within the discretion of the [district] court and its ruling will not be reversed absent a showing of clear abuse of discretion.”  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).  To determine whether an abuse of discretion has occurred, this court must examine all of the circumstances before the district court at the time the motion was made, to determine whether the district court’s decision prejudiced L.V. by materially affecting the outcome of the trial.  In re Welfare of V.R., 355 N.W.2d 426, 429 (Minn. App. 1984), review denied (Minn. Jan. 11, 1985). 

            Although he received appropriate notice, L.S. did not attend the trial.  According to L.S., he was unable to be present at the hearing because his “mother was terminally ill in a hospital in Maryland or Virginia, and L.S. was attempting to visit her.”  L.S. was represented by counsel at the July 1 hearing; neither L.S. nor his attorney appeared at the July 13 hearing.[10] 

            The district court denied L.S.’s request for a continuance, noting that doing so would not be in the best interest of the children, but agreed to leave the record open for 15 days.  The court further stated:

[I]f [L.S.] decides that he wants to go ahead with his plan to voluntarily terminate his parental rights before [the district court] issue[s] any decision, he is free to do that, and [the district court] would honor that over a default.  And if [L.S.] wishes to participate and not voluntarily terminate his parental rights, if there is a motion setting out specific facts as to why he couldn’t be here today and when he will be available, [the district court] will consider either leaving the record open or reopening it as to [L.S.].

 

            L.S. offers no evidence that, had he been present at the trial, he would have refuted the evidence supporting the district court’s termination of his parental rights.  Instead, he simply makes a conclusory statement that he “could have contested” the factual basis for the district court’s findings.  Moreover, the district court left the record open for 15 days to allow L.S. to submit a formal motion and indicated that it would reopen the record if necessary.  There is no indication in the record that L.S. made such a motion or that he submitted any additional information to the district court.  Accordingly, the district court did not abuse its discretion in denying his request for a continuance.

III.       Best Interests

            The paramount consideration in all TPR proceedings must be the best interests of the children.  Minn. Stat. § 260C.301, subd. 7.  “Where the interests of parent and child[ren] conflict, the interests of the child[ren] are paramount.”  Id.

            With respect to L.S., Zylstra testified that termination of his parental rights would be in the best interests of the children.  Likewise, Roelofs testified that it would not be in the children’s best interests to return them to L.S.  L.S. himself indicated that adoption would be in the children’s best interests. 

            With respect to L.V., Roelofs testified that it would not be in the best interests of the children to be returned to L.V. and Zylstra reiterated her belief that L.V.’s parental rights should be terminated.  Additionally, Molly Fiedler, a social worker for PATH, testified that she did not “believe that the children would be safe” if they were returned to L.V.  

            More importantly, evidence was presented that the out-of-home placement had been very beneficial for the children.  When they entered the Roelofs’ home, the children displayed a variety of behavioral and academic problems.  During their time with the Roelofs, the children showed substantial improvement in these areas.  Zylstra noted that the children “are getting their [physical, psychological, and educational] needs met in their current placement [with the Roelofs], and they are making great progress, and it’s a joy to see.”  The guardian-ad-litem also noted that, after placement with the Roelofs, the children “continue[d] to succeed and improve”  After considering the evidence, the district court found that the children “are flourishing in their current foster placement.” 

            In addition, children have an interest in their health and the stability of their home environment.  In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).  The record reflects the instability of the home environment provided by L.S. and L.V.  There is also substantial evidence that the living conditions of the children when they lived with L.S. and L.V. posed a threat to the children’s health. 

            The evidence thus supports the district court’s ultimate findings.  Consequently, the court did not clearly err in terminating the parental rights of L.V. and L.S.

            Affirmed.