This opinion will be unpublished and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

A05-123

A05-124

 

In the Matter of the Children of:

 

M.M.F. and B.R.P., Parents.

 

Filed August 9, 2005

Affirmed

Dietzen, Judge

 

Stearns County District Court

File No. J3-04-50750

 

Andrew R. Pearson, 803 West St. Germain Street, Suite 103, St. Cloud, MN 56301 (for appellant mother M.M.F.)

 

Michael G. Blee, 1529 West St. Germain Street, P.O. Box 801, St. Cloud, MN 56302 (for appellant father B.R.P.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Janelle P. Kendall, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (for respondent Stearns County Human Services)

 

Danielle Bunting, 6754-46th Avenue Southeast, St. Cloud, MN 56304 (guardian ad litem)

 

            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            In this termination of parental rights proceeding, appellants challenge the district court’s determination on four statutory grounds that they are unfit to be parents.  Because we agree with the district court that one or more statutory grounds for termination exist through clear and convincing evidence, we affirm. 

FACTS

            Mother-appellant M.M.F. (Mother) and father-appellant B.R.P. (Father) are the parents of seven children.  One of the children, M.P., has been diagnosed as mildly retarded with attention-deficit disorder, hyperactivity, mood disorders, and reactive-attachment disorder.  M.P. was placed in an individually tailored foster home in November 2002.    The remaining six children were placed in foster homes a year later.  At the time they were taken from the parental home, three children were under the age of six, and the oldest was almost 14 years old. 

The foster-home placements followed a welfare check conducted in November 2003 by employees of respondent Stearns County Human Services at a mobile home owned by Mother.  The welfare check revealed an extremely unsanitary home, which contained an unkempt bathtub holding dirty clothes, an exit door made inaccessible by laundry buildup in the hallway, exposed electrical outlets, leaky ceilings, a broken window covered by a board, soiled bunk beds without sheets or bedding, carpeted-over heating vents, lack of hot water, piles of clothes and toys covering bedroom floors, lack of plumbing under the bathroom sink, and smoke alarms without batteries.  The children had dirt accumulation on their bodies and some stated that they slept in their everyday clothes and did not bathe regularly.  It was suspected by the county’s employees that some of the children had head lice.  The county’s report stated that the “house smelled of cat urine, dirty clothing and mildew.” 

            The biological parents, foster parents, guardian ad litem, and a county social worker subsequently discussed and agreed to out-of-home placement plans (placement plans) applicable to each child.  The placement plans required the biological parents to (1) maintain appropriate and permanent housing for the children; (2) undergo parenting and psychological assessments, as well as attend recommended meetings such as school conferences for each child; and (3) provide contact information for individuals to be considered “permanency options” for each child.  The social worker testified that the parents did not meet the requirements of the placement plans and that Father did not keep his appointments and discontinued his placement plans once he became engaged to another woman.  The county filed petitions to terminate parental rights in May 2004.

            In July 2004, the district court sent Father a notice of the trial; the notice specified that if Father failed to appear at the trial, the court may “permanently sever[] parental rights pursuant to a termination of parental rights petition.”  Additionally, the county’s social worker testified that, in August 2004, Father contacted her and stated that “he had no intentions of driving to Saint Cloud for the termination hearing.”  The social worker notified Father that counsel could be provided to him at no cost but was rebuffed.  Father did not appear for the termination trial in November 2004. 

            The district court granted the county’s petitions to terminate parental rights in December 2004.  The district court made extensive findings on the unsanitary condition of the mobile home to support its conclusions that the parents refused to comply with duties imposed by the parent-child relationship and were palpably unfit to be parents.  Additionally, the district court determined that the parents had failed to obtain suitable housing for the children and that Mother had not attended the counseling mandated by the placement plans.  The district court concluded that the county offered reasonable family-reunification services, but the services were not used by the parents.  Finally, the district court found that the children had shown substantial improvement since they were removed from the parents’ care and concluded that termination of parental rights was in the best interests of the children.  The parents subsequently filed notices of appeal with this court and the proceedings were consolidated.               

D E C I S I O N

            On appeal in a termination 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).  Finally, a reviewing court “exercises great caution in termination proceedings, finding such action proper only when the evidence clearly mandates such a result.”  In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996).  

            If the district court “finds by clear and convincing evidence that one or more of the conditions set out in [Minnesota Statutes] section 260C.301 exist, it may terminate parental rights.”  Minn. Stat. § 260C.317, subd. 1 (2004).  This court carefully inquires into the sufficiency of the evidence to determine whether the evidence is clear and convincing.  In re Welfare of J.M., 574 N.W.2d 717, 724 (Minn. 1998); S.Z., 547 N.W.2d at 893.  The burden of proof in termination proceedings is on the county.  In re Welfare of Chosa, 290 N.W.2d 766, 769 (Minn. 1980).  Evidence presented at trial must make it “appear that the present conditions of neglect will continue for a prolonged, indeterminate period.”  Id.  Finally, we will affirm a termination of parental rights “as long as at least one statutory ground for termination is supported by clear and convincing evidence and termination is in the child’s best interests.”  In re Welfare of Children of R.W., 678 N.W.2d 49, 55 (Minn. 2004).

I.

Father’s Failure to Appear at Trial

            Father argues that he did not receive notice of the trial.  But Father raises this issue for the first time in his reply brief and, therefore, the issue is not properly before us.  See In re A.R.M., 611 N.W.2d 43, 50 (Minn. App. 2000) (holding issue first raised in reply brief not properly before this court).  Nonetheless, we will consider the issue in the interests of fairness.

The district court’s statement that Father received adequate notice of the termination trial is a finding of fact.  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  Findings of fact are not clearly erroneous when they are reasonably supported by evidence in the record considered as a whole.  Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn. 1977). 

            Here, the district court found, and the record reflects, that notice of the termination trial was given to Father by written court notice and orally through the county’s social worker.  We therefore conclude that the district court’s finding that Father was afforded adequate notice of the termination trial is not clearly erroneous.

            Father also argues that we should reverse and remand for a new trial so he can contest the termination proceeding with assistance of counsel.  But Father cites no legal authority for his contention that he must be provided with counsel after failing to appear for trial.  While a parent has a right to effective assistance of counsel in a termination proceeding, Minn. R. Juv. Protect. P. 25.02, subd. 2, concomitant with that right is the obligation to appear at the proceeding.  We find no merit to Father’s arguments.   

II.

Termination of Parental Rights—Father

Father challenges the district court’s findings and conclusions that four statutory grounds support termination of his parental rights.  First, the district court determined that Father substantially refused or neglected to comply with the duties imposed by the parent and child relationship by not providing the children with “necessary food, clothing, shelter, education, and other care and control necessary for the child[ren]’s physical, mental, or emotional health and development.”  See Minn. Stat. § 260C.301, subd. 1(b)(2) (2004).  As part of this subdivision, the county social-services agency must undertake reasonable efforts to correct the concerns underlying the termination of parental rights petition, or an undertaking of reasonable efforts must be futile.  Id. 

Father argues that the district court’s findings on this statutory factor are scant, conclusory, and unsupported by the record.[1]  See In re Welfare of M.M., 452 N.W.2d 236, 239 (Minn. 1990) (commenting that district court cannot merely recite or summarize testimony without making specific findings regarding parental ability).  We disagree.

There is evidence in the record supporting the finding that Father refused to comply with the duties imposed by the parent-child relationship.  A clinical psychologist testified that Father was “not willing to cooperate with outside authorities, whether it be the Court or Human Services, in a[n] effort to go through the process and procedures that would be necessary to have more activity with his children, to demonstrate that he could parent them.”  A trial exhibit revealed that the psychologist made 13 attempts to schedule parenting-assessment appointments with Father, but Father kept only three appointments. 

A behavioral consultant testified that he observed the home to be a chaotic environment that made it difficult for the parents to control the behavior of the children.  When asked how the home rated for hygiene quality on a scale from one to ten, with ten being the worst value, the consultant rated the home as a “nine and a half.”  The psychologist concluded that Father possesses a volatile temper and is not open to input from others.  The district court found the testimony of the psychologist and behavioral counselor to be persuasive and concluded that the present neglect will continue for a prolonged, indeterminate period.

The record is also replete with examples of county-provided family-reunification services, which included in-home visits, parenting group meetings, individual therapy for the children, daycare, transportation, housing assistance, specialized foster care for M.P., and neurological assessments.  See Minn. Stat. § 260C.301, subd. 1(b)(2) (requiring reasonable efforts by social-services agency to show that parent has refused or neglected to comply with duties of parent-child relationship).  We conclude that the record provides clear and convincing evidence to support the district court’s legal conclusion that Father refused to comply with the parent-child relationship, and its findings were not clearly erroneous. 

            Second, the district court concluded that Father is palpably unfit to be a party to the parent and child relationship because of a specific pattern of conduct that renders him incapable “to care appropriately for the ongoing physical, mental, or emotional needs of the child[ren].”  See id., subd. 1(b)(4).  The county must prove that specific conditions existing at the termination hearing will continue for a prolonged period of time.  See In re Welfare of M.D.O., 462 N.W.2d 370, 377 (Minn. 1990).

Father asserts that palpable unfitness to be a parent was not established because there was no testimony from “an independent professional” that provided insight into his interaction with his children.  But the district court cited the testimony from a clinical psychologist and behavioral consultant explaining that Father did not: (1) participate in the court-ordered placement plans; (2) maintain a safe environment in the mobile home; or (3) find permanent housing for the children.  The record supports the district court’s findings that the specific conditions leading to the out-of-home placements would continue for the reasonably foreseeable future and its conclusion that Father was palpably unfit to be a party to the parent-child relationship. 

  Third, the district court determined that the county provided reasonable efforts to correct the conditions leading to the children’s out-of-home placements.  See Minn. Stat. § 260C.301, subd. 1(b)(5).  The record contains testimony from a county social worker that the county provided extensive family-reunification services to the parents over the years, which included in-home visits, parenting group meetings, daycare, transportation, bus tokens, housing assistance, specialized foster care for M.P., neurological assessments, and supervised visitation.  There is clear and convincing evidence in the record to support the district court’s conclusion that the county provided reasonable services to assist the parents with family reunification.                 

Finally, the district court concluded that termination of parental rights was in the best interests of the children.  See Minn. Stat. § 260C.301, subd. 7 (2004).  The best interests of a child is the paramount factor in any termination proceeding.  Id.  But “case law indicates that parental rights may not be terminated solely on the grounds that it is in the best interests of the child to do so.”  In re Welfare of S.N. & M.O., 423 N.W.2d 83, 91 (Minn. App. 1988). 

Father argues that termination was improperly based solely on his failure to attend the trial.  We disagree.  The district court made detailed findings concerning the derelict condition of the parental residence, Father’s failure to obtain permanent housing and failure to comply with the placement plans, as well as the children’s improvement since being placed into foster care.  See In re Welfare of Child of L.F., 644 N.W.2d 796, 797 (Minn. 2002) (“The district court’s decision to terminate parental rights was based on [mother’s] failure to correct the conditions leading to out-of-home placement and her neglect of [child] while [child] was in foster care, not on [mother’s] failure to appear.”).  As the district court noted, no alternatives to termination—such as remaining in long-term foster care or returning the children to Father—are in the children’s best interests.  Cf. In re R.W., 678 N.W.2d at 57-58 (stating that legislature prefers adoption or placement with relative over long-term foster care).  We therefore affirm the district court’s termination of Father’s parental rights to his children. 

III.

            Termination of Parental Rights—Mother

Mother argues that it is in the best interests of M.P. that her rights not be terminated so that M.P. can continue to live in foster care and receive visitation from Mother.  Mother believes that M.P. will not be adopted. 

We have observed that “[a] prospective consideration of a child’s best interests necessarily requires consideration of the chance for a child’s adoption.”  In re Welfare of M.P., 542 N.W.2d 71, 76 (Minn. App. 1996).  In M.P., we concluded that terminating a mother’s parental rights to a 15-year-old child who had expressed a preference against adoption would be unwise because the child would lose contact with her mother while residing in long-term foster care.  Id.  But the reasoning of M.P. was overruled by the supreme court in In re Welfare of J.M. 574 N.W.2d at 723.  In J.M., the supreme court, referring to an earlier appellate proceeding, noted that “nowhere in the [parental termination] statute is imminent adoption an element of a termination proceeding.  The court of appeals seems to have added a requirement not contemplated by the legislature.”  Id. (quotation omitted). 

We agree with the rationale in J.M. and reject Mother’s argument.  Here, the district court’s conclusion that M.P.’s best interests would not be served by returning him to Mother’s care is adequately supported by the record.  Testimony from a social worker and a behavioral consultant concluded that M.P., a special-needs child, needs consistency in his life and Mother could not provide a stable presence due to her difficulties in maintaining a healthy living environment and her failure to complete the placement plans.  We conclude that the district court’s termination of Mother’s parental rights to M.P. is supported by clear and convincing evidence in the record. 

Affirmed.