This opinion will be unpublished and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

A05-852

 

In the Matter of the Welfare of

the Child of D.B., Parent.

 

Filed ­­­November 8, 2005

Affirmed

Dietzen, Judge

 

Scott County District Court

File No. 2004-08308

 

Steven L. Bergeson, Tuttle & Bergeson, Inc., 1275 Ramsey Street, Suite 300, Shakopee, MN 55379 (for appellant-father D.B.)

 

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Peggy Flaig Hellier, Assistants County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent Scott County Human Services Department)

 

Roger J. Ramstad, 525 East First Avenue, Shakopee, MN 55379 (for respondent child)

 

Marcia Kladek, 2491 Bridle Creek Trail, Chanhassen, MN 55317 (guardian ad litem)

 

            Considered and decided by Chief Judge Toussaint, Presiding Judge; Peterson, Judge; and Dietzen, 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, appellant D.B. challenges the district court’s order and judgment that three statutory grounds for termination were established in the record and that termination is in the best interests of the child.  Because the district court’s decision that three statutory bases for termination was supported by clear and convincing evidence, and termination is in the child’s best interests, we affirm. 

FACTS

 

Appellant lived in Chicago, Illinois most of his life.  He is over 40 years old and has a high-school degree.  He attended trade school.  He has a daughter from another relationship who is around 18 years old and resides in Chicago.  Appellant met D.B.’s mother in Illinois at an Alcoholics Anonymous (AA) meeting in the fall of 2000.  Appellant was incarcerated at the time but allowed to leave prison to attend AA meetings.  Appellant and D.B.’s mother were never married.  Appellant and D.B.’s mother separated before D.B. was born.  Appellant moved to Minnesota to follow D.B.’s mother after learning she was pregnant.  No evidence indicates appellant has ever held employment in Minnesota.  Appellant does not have a Minnesota driver’s license or vehicle. 

D.B., the child of appellant, was born on April 18, 2003, with cocaine in his system.  Although D.B. is not a “special needs” child, he has intermittent night terrors and sleep problems.  D.B. has been out of his parents’ custody for nearly two years.  D.B.’s mother has five children, one of whom, D.B., was fathered by appellant. In December 2003, after a history of involvement with child protection services, D.B. and the other children were removed from the mother’s home and placed with their maternal aunt.  D.B.’s mother voluntarily terminated her parental rights to D.B. at the outset of the termination of parental rights (TPR) trial.

            Appellant has never been the full-time caregiver for either D.B. or his 18-year old daughter.  From D.B.’s birth until winter 2003, appellant sporadically stayed with D.B.’s mother in her rented home.  Appellant assisted with D.B. to some extent when he was in town, but D.B.’s mother always had primary responsibility in caring for D.B.  During this time, appellant traveled between Minnesota and Chicago, where he managed rental property for his father.  Appellant also committed several criminal offenses and spent a substantial amount of time in custody during this time. 

Appellant has an extensive criminal record from Illinois and Minnesota.  He has eight criminal history points.  His record of convictions includes: Felony Robbery (February 1987); Felony Check Forgery (September 1989); Felony Manufacturing/ Delivering Cocaine (May 1991); Felony Manufacturing/Delivering Cocaine (May 1991); Misdemeanor Theft (April 1995); Felony Retail Theft (August 1995); Misdemeanor Theft (November 1995); Misdemeanor Theft (August 1996); Misdemeanor Theft (August 1997); Misdemeanor Theft (August 1997); Felony Retail Theft (September 1998); Felony Receiving/Possessing/Selling a Stolen Motor Vehicle (August 1999); Gross Misdemeanor Theft (August 1999); Misdemeanor Theft (April 2004); Misdemeanor Driving After Suspension (April 2004); Misdemeanor Theft (April 2004); Felony Theft (April 2004); and Controlled Substance Crime in the Fifth Degree (April 2004).[1] Appellant has been incarcerated four times in Illinois.  Appellant was incarcerated several times through the second-half of 2003, during which time he was unable to help care for D.B.  In April 2004, appellant was sentenced to 24 months in prison with a conditional release date of June 9, 2005, for felony theft and fifth-degree possession of a controlled substance and incarcerated in St. Cloud, Minnesota.

On May 5, 2003, Scott County Human Services filed a Children in Need of Protection and Services (CHIPS) petition involving D.B. and his half-siblings, all of whom at that time were in the sole custody of their mother.  Appellant was incarcerated at that time.  After the CHIPS adjudication, the county provided the court with a case plan for D.B., which established D.B. would continue living with his maternal aunt and her husband.  At that time, the county did not provide a specific case plan for appellant, who was not a caregiver to D.B. and whose whereabouts were unknown to county human services.

A county caseworker assigned to the case attempted to locate appellant following the filing of the CHIPS petition.  The caseworker obtained contact information for appellant from D.B.’s mother and aunt, and left several messages for appellant to contact her.  Appellant eventually responded to the caseworker’s messages in February 2004.  Appellant called her after business hours and left two messages, saying he had a lot of “business” going on, and that he would call her later.  But appellant left no contact information and expressed no concerns about D.B.  The caseworker again tried to reach appellant in late-February 2004, but was unsuccessful.  

In May 2004, the caseworker located appellant in prison and sent him a letter stating that a termination of parental rights petition would be filed.  Although appellant was aware of D.B.’s out-of-home placement, he made no effort to assert his parental rights.  According to appellant, he did not appreciate the seriousness of the situation until he received notice of the termination petition.

In August 2004, Scott County Human Services filed its amended petition to terminate the parental rights of appellant.  Upon learning of the petition, appellant phoned a second caseworker assigned to the case and reaffirmed his interest to parent D.B.  Appellant told the caseworker that he last saw D.B. in October 2003.  Appellant hoped to live with D.B. in Minneapolis after his scheduled release from prison in October 2004.  But his actual anticipated supervised release date was June 9, 2005.

            A TPR trial was held March 23 and 24, 2004.  Appellant was in prison at the time of the trial.  A caseworker testified that during his time in prison, appellant had five supervised visits with D.B.  During one visit, a caseworker observed that when D.B. ran off, appellant told D.B. he would “leave him if he didn’t come back.”  Appellant has not identified any relatives or family members that could serve as a support network for him and D.B., or who would or could be an appropriate placement for D.B. while appellant was in custody. 

            D.B.’s guardian ad litem (GAL) also testified at trial. The GAL testified that the best interests of D.B. support termination of appellant’s parental rights.  The basis of the opinion was that appellant made no attempt to be involved in the case, that D.B. was placed with his aunt and her husband most of his life, and appellant’s imprisonment.  The GAL concluded that D.B needed a permanent home with a bed, rules, and a parent who was always there.  The GAL testified that she lacked sufficient information to determine appellant’s parenting skills.

Following the trial, the district court granted the petition to terminate appellant’s parental rights on three statutory grounds: (1) appellant was palpably unfit to be a parent despite reasonable reunification efforts by the county; (2) appellant failed to correct conditions leading to D.B.’s out-of-home placement; and (3) D.B was neglected and in foster care.  The court also determined that termination of appellant’s parental rights was in D.B.’s best interests.  This appeal follows.

D E C I S I O N

On appeal from a termination of parental rights, “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).  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).  

District courts may terminate parental rights on the basis of one or more of the nine criteria listed in Minn. Stat. § 260C.301, subd. 1(b) (2004).  Although the petitioner need only prove one criterion, the primary consideration in any termination proceeding is the best interests of the child.  Id., subd. 7 (2004).  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.  District courts are required to make clear and specific findings that conform to the statutory requirements.  Id. 

This court 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).  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).

I.

 

On appeal, appellant raises four issues.  Appellant first argues that the county failed to prove by clear and convincing evidence that he is “palpably unfit” under Minn. Stat. § 260C.301, subd. 1(b)(4).  Minnesota law provides:

The juvenile court may upon petition, terminate all rights of a parent to a child if it finds that . . . a parent is palpably unfit to be a party to the parent and child relationship because . . . 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).  “If a parent’s behavior is likely to be detrimental to the children’s physical or mental health or morals, the parent can be found palpably unfit and have his parental rights terminated.”  In re Children of Vasquez, 658 N.W.2d 249, 255 (Minn. App. 2003) (affirming termination of parental rights of a father who was incarcerated through the time of the termination trial).  Incarceration, in and of itself, is not a sufficient basis for termination.  In re Welfare of A.Y.-J., 558 N.W.2d 757, 761 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997).  But courts may consider the fact of incarceration along with other evidence.  Id.  Evidence demonstrating a pattern of inadequate parenting skills supports a determination that the parent was palpably unfit.   In re Welfare of J.D.L., 522 N.W.2d 364, 368–69 (Minn. App. 1994). 

Appellant contends that the county failed to show a consistent pattern of specific conduct or conditions that are detrimental to the parent-child relationship because the only evidence presented concerning appellant was that he was incarcerated.  See  A.Y.-J., 558 N.W.2d at 761. Appellant’s argument is misplaced.  Courts may consider the fact of incarceration along with other evidence.  Id.   Here, the district court determined that it was not only appellant’s incarceration, but also it was his repeated criminal behavior that resulted in his inability to care for the needs of D.B. 

The district court also determined appellant was “palpably unfit” for other reasons.  Specifically, appellant exhibited a pattern of behavior in which he left the parenting responsibility to others.  For example, when the county made repeated efforts to contact appellant regarding D.B., his phone response was that he was busy and left no contact information.  The record supports the findings of the district court, and appellant does not challenge these findings.

            Appellant also contends that the county failed to demonstrate that appellant’s current circumstances will continue into the indefinite or foreseeable future.  The district court observed that appellant has spent much of his adult life in prison.  Appellant’s life in crime remained uninterrupted after he became a father; he committed a drug offense just 10 days after the D.B.’s birth.  Unfortunately, the record provides little indication that appellant’s pattern of behavior will change.  The district court’s conclusion that appellant is “palpably unfit” is amply supported in the record by clear and convincing evidence.

II.

 

Second, appellant argues that the county failed to prove by clear and convincing evidence that reasonable efforts failed to correct the conditions leading to child placement under Minn. Stat. § 260C.301, subd. 1(b)(5).  Minnesota law provides:

The juvenile court may upon petition, terminate all rights of a parent to a child if it finds 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)(5).  It is presumed that reasonable efforts have failed if, among other factors, “reasonable efforts have been made by the social services agency to rehabilitate the parent and reunite the family.”  Id., subd. 1(b)(5)(iv).  “‘[R]easonable efforts,’ by definition, does not include efforts that would be futile.”  R.W., 678 N.W.2d at 56 (citation omitted); see also Vasquez, 658 N.W.2d at 255 (observing that “where the futility of reunification efforts is irrefutable, a case plan is unnecessary”).  The Minnesota Supreme Court determined that reasonable efforts do not require that the county provide services to “parents who have shown but minimal interest or involvement with their children or the CHIPS proceeding.”  R.W., 678 N.W.2d at 56.  The supreme court reasoned that “[s]uch a requirement would put an impossible burden on counties to provide services to a parent who has chosen not to respond to a CHIPS petition despite being given the opportunity to do so and would force counties to attempt to reunify children with a parent who has [demonstrated] little interest in reunification.”  Id.

Appellant contends that the efforts expended by the county were not reasonable because the county workers did not make sufficient efforts to contact or provide services to appellant while he was incarcerated.  We disagree.  Following the filing of the CHIPS petition, two caseworkers made repeated attempts to contact appellant, yet appellant chose not to maintain contact with the county.  These attempts included telephone calls, trying to locate appellant by contacting D.B.’s mother and caregivers, mailing letters to appellant, and eventually visiting appellant in prison.  Appellant could have made himself accessible to the county as they formulated and developed a case plan.  Instead, appellant left two phone messages after business hours for his caseworker to indicate he had other “business.”  Appellant apparently felt no sense of urgency to become involved in D.B.’s life until the termination petition. 

The district court’s findings that the county expended reasonable efforts to correct the conditions leading to placement and reunite the family are amply supported by the record.  Thus, the district court’s conclusion that reasonable efforts failed to correct the conditions leading to child placement is supported by clear and convincing evidence.

III.

 

Third, appellant argues that the county failed to prove by clear and convincing evidence that D.B. was neglected and in foster care under Minn. Stat. § 260C.301, subd. 1(b)(8).  Minnesota law provides: “The juvenile court may upon petition, terminate all rights of a parent to a child if it finds that . . . the child is neglected and in foster care.”  Minn. Stat. § 260C.301, subd. 1(b)(8).  In determining whether a child is neglected and in foster care, the court shall consider, among other [non-exclusive] factors, the appropriateness and adequacy of services provided or offered to the parent to facilitate a reunion.  Minn. Stat. § 260C.163, subd. 9(5) (2004).   A child is neglected and in foster care if: (1) the child has been placed in foster care by court order; (2) the parents’ circumstances, condition, or conduct is of a type that it is impossible to return the child to the home; and (3) the child’s parents have “failed to make reasonable efforts to adjust their circumstances, condition or conduct.”  Minn. Stat. § 260C.007, subd. 24 (2004). 

Appellant argues that the county failed to make reasonable efforts to provide adequate services to foster the reunification of appellant and D.B.  The district court determined that the county made reasonable yet unsuccessful efforts to reunite the family by repeatedly trying to locate appellant and involve him in D.B.’s life.  “Because reasonable efforts for reunification would have been futile and the lack of a case plan for appellant was excusable, termination under this factor is appropriate.”  Vasquez, 658 N.W.2d at 256.

Reasonable efforts were only one factor that the district court considered.  The district court found that while D.B. was in court-ordered foster care, appellant was in prison and therefore D.B. could not reside with him, and appellant was responsible for his condition because he committed crimes just 10 days after the birth of D.B., which led to his imprisonment.  These findings are not challenged.  The district court’s conclusion that D.B. was neglected and in foster care is supported in the record by clear and convincing evidence.

IV.

 

Fourth, appellant argues that the district court should not have considered the best interests of D.B. because no proper ground for termination existed. “[P]arental 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) (emphasis added).  Here, the district court concluded that sufficient evidence existed to terminate appellant’s parental rights on three separate grounds.  Because we conclude that three separate grounds for termination existed, the district court properly considered D.B.’s best interests.

Appellant further argues that even if a statutory ground for termination exists, the county failed to prove by clear and convincing evidence that it is in the best interests of D.B. to terminate appellant’s parental rights.  In a termination-of-parental-rights proceeding, the best interests of the child are paramount.  Minn. Stat. § 260C.301, subd. 7.  Three factors guide this court’s review of the district court’s finding that termination is in the best interests of the children: “(1) the child’s interests in preserving the parent-child relationship; (2) the parent’s interests in preserving the parent-child relationship; and (3) any competing interest of the child.”  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests include emotional and psychological stability and the child’s health needs and interest in a stable, safe environment.  Id. (safe environment); In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986) (emotional and psychological stability); In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987) (health). 

Here, the district court determined that termination of appellant’s parental rights is in the best interests of D.B.  The district court found: (1) D.B. has been in out-of-home placement for most of his life; (2) D.B. has an established relationship with his foster care providers; (3) appellant has no certain and stable housing or employment; (4) appellant has exhibited a pattern and history of arrests and incarceration; (5) appellant has never been the primary caregiver of D.B.; and (6) D.B. needs permanency and care from a family that has established they have the means, ability, and desire to parent him.  None of these findings are challenged.  Consequently, clear and convincing evidence demonstrates that termination of appellant’s parental rights is in the best interests of D.B.

            Affirmed.