This opinion will be unpublished and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

A05-1105

 

In the Matter of the

Welfare of the Children of:

L.S. and D.W.D.,

Parents.

 

Filed January 31, 2006

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 235457

 

Leonardo Castro, Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, Minnesota 55401 (for appellant-father D.W.D.)

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, 525 Portland Avenue South, Suite 1200, Minneapolis, Minnesota 55415 (for respondent Hennepin County Human Services and Public Health Department)

 

John M. Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, Minnesota 55402 (for guardian ad litem)

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            On appeal from termination of his parental rights, appellant argues that (a) the district court improperly terminated his parental rights based exclusively on his incarceration; (b) the record lacks clear and convincing evidence to terminate parental rights; (c) the record does not show that termination is in the children’s best interests; and (d) the district court should have used its inherent equitable authority to issue a CHIPS adjudication and disposition orders.  We affirm.

FACTS

            Appellant is the noncustodial, adjudicated father of twins M.D. and T.D., who were born on February 8, 2004.  On February 13, 2004, Hennepin County filed a Child in Need of Protective Services (CHIPS) petition and an order for emergency protective care requesting that the children remain at the hospital until they could be placed in shelter/foster care.  The petition alleged that the children’s mother, L.S., had chemical-dependency and mental-health issues.  The petition listed appellant as a participant to the proceedings.

            Appellant and L.S. met with Sue Redmond, the child-protection social worker assigned to the children, at the hold hearing on February 13, 2004.  Although appellant was not legally obligated to complete a case plan, the department provided appellant with a protective-services plan suggesting that appellant: (a) complete a parent assessment and follow recommendations; (b) follow probation orders and criminal court orders; (c) attend supervised visits; and (d) submit to urinalysis tests (UAs).  At that meeting, appellant stated that he would not submit to UAs because of legal concerns and issues with the police.

            Appellant failed to attend the next scheduled meeting with Ms. Redmond on February 17 and did not participate in the visitation scheduled for that day.  Appellant was arrested on February 21 for attempted theft from a person.  Redmond was unaware of appellant’s whereabouts until March 26, when L.S. gave Redmond a letter that appellant wrote while in the Hennepin County jail.  While appellant was in custody, he and Redmond had several phone conversations discussing appellant’s case plan as well as the permanency timelines and, according to Redmond, appellant inquired about the children and appeared to be a concerned parent.  Redmond instructed appellant to contact her immediately upon his release to begin work on his case plan. 

On May 12, 2004, the district court adjudicated M.D. and T.D. as children in need of protection and services and transferred legal custody of the children to the Hennepin County Human Services Department (department).  L.S. subsequently fell out of contact with the department, and the district court terminated her parental rights by default.

Appellant did not contact Redmond upon his release from custody but phoned Redmond from Chicago on May 17.  Appellant went to Chicago to get information on possible relatives for placement of the children.  Appellant did not participate in the visitation scheduled for May 19.  On June 4, appellant was arrested in Minnesota on a second-degree burglary charge, which was later modified to an attempted burglary.  Appellant committed this felony-level offense while on conditional release awaiting sentencing for his May 2004 theft-from-person offense.  Appellant received a 15-month commitment for the theft-from-person charge on June 17, 2004.  Appellant pleaded guilty to the attempted burglary charge in August 2004.

Appellant met with Robert Hyland, a permanency social worker, in July at the St. Cloud correctional facility.  They discussed appellant’s case plan generally, but appellant’s prison case manager informed Hyland that the prison lacked a parenting assessor as well as personnel to administer appellant’s other case-plan requirements.  Hyland did not contact any other social-service providers to determine if appellant could receive a parenting assessment at the facility.  Appellant was transferred to the Moose Lake correctional facility.  He later requested and received a transfer to the Stillwater facility in order to participate in the parenting classes offered at that facility.  Appellant’s anticipated release date was in October 2005.

The department filed an alternative pleadings permanency petition seeking termination of appellant’s parental rights in July 2004.  The district court held a permanency hearing in February 2005.  Redmond, Hyland, and Donna Zimmerman, the guardian ad litem, testified in support of termination.  Appellant testified on his own behalf.

Exhibits produced at trial demonstrate that appellant has a history of chemical dependency, including cocaine and cannabis dependence.  Appellant participated in programming at the House of Charity for a time, but he was discharged as “absent without leave” and at high risk for continued use and behavioral problems in January 2004.  The exhibits do not reflect, however, that appellant received any chemical-dependency treatment at Stillwater due to information available at the time of his assessment.  In addition to chemical-dependency issues, appellant has an extensive criminal history involving felonies and various incarcerations, including multiple drug convictions, attempted first-degree burglary, and terroristic threats. 

The district court terminated appellant’s parental rights in March 2005.  The district court concluded that the evidence satisfied the statutory criteria for termination under Minn. Stat. § 260C.301, subds. 1(b)(2) (neglect of parental duties), 1(b)(5) (reasonable efforts failed to correct conditions that led to an out-of-home placement), and 1(b)(8) (child is neglected and in foster care) (2004).  Appellant moved for a new trial and additional relief.  The district court denied that request.  This appeal follows.

D E C I S I O N

I

Appellant first challenges the district court’s order terminating appellant’s parental rights, arguing that the district court committed reversible error when it terminated parental rights solely because appellant was incarcerated and temporarily unavailable to care for the children.  A parent’s incarceration alone is insufficient to warrant termination of parental rights.  In re Child of Simon, 662 N.W.2d 155, 162 (Minn. App. 2003).  But “there is no prohibition against terminating parental rights while the parent is in prison,” and the district court can consider the fact of a parent’s incarceration “in conjunction with other evidence supporting the petition for termination.”  Id.

The record reflects that, in examining the evidence supporting the statutory criteria for termination, the district court did not rely exclusively on appellant’s incarceration.  In its March 15, 2005 order, the district court acknowledged that it could not rely solely on appellant’s incarceration and noted several factors that it considered relevant in satisfying the statutory criteria, including: (a) appellant’s extensive history of substance abuse, failure to successfully complete either required or voluntary treatment, and anticipated difficulty in maintaining sobriety upon release; (b) appellant’s extensive criminal history, including crimes indicating a tendency for violent and dangerous behavior; (c) appellant’s failure to complete significant services, including a parenting assessment, parenting programming, and supervised visitation; and (d) appellant’s unwillingness to engage in programming when the case first opened and during the period of his release.  Accordingly, there is no merit to appellant’s argument that the district court improperly relied solely on appellant’s incarceration.

II

Appellant next challenges the district court’s termination order, arguing the record lacks clear and convincing evidence supporting the statutory criteria for termination. 

This court reviews the district court’s order terminating parental rights to determine whether (1) the district court has identified one of the statutory bases for termination, which are currently found at Minn. Stat. § 260C.301, subd. 1 (2004); (2) the district court’s findings are supported by substantial evidence; and (3) the district court’s conclusions are clearly not erroneous.  In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996).  “Considerable deference is due to the district court’s decision because a district court is in a superior position to assess the credibility of witnesses.”  Id.

Evidence supporting termination must relate to conditions existing at the time of termination, and it must appear likely that the conditions leading to termination will continue for an indefinite and prolonged time.  In re Welfare of P.R.L., 622 N.W.2d 538, 543 (Minn. 2001).  The responsible social-services agency must make reasonable efforts to reunite the child with his or her parents in a safe and permanent home.  Minn. Stat. § 260C.001, subd. 8(1) (2004).  

The district court identified three statutory bases for termination: (1) neglect of parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2) (2004); (2) reasonable efforts failed to correct conditions that led to an out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); and (3) the children are neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8).  The district court need only find that one of the statutory conditions exists to terminate parental rights.  In re Welfare of P.J.K., 369 N.W.2d 286, 290 (Minn. 1985).

A.         Neglect of parental duties

Appellant challenges the district court’s decision to terminate his parental rights based on the finding that appellant intentionally neglected to comply with the duties imposed by the parent-child relationship.  Those duties include “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.”  Minn. Stat. § 260C.301, subd. 1(b)(2).  The statute further requires a finding that “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.”  Id.

Appellant argues that the record lacks substantial evidence that appellant refused to comply with the duties of the parent-child relationship because the district court made no finding that appellant was financially able to provide M.D. and T.D. with appropriate care.  In addition, appellant argues that his participation in programming at Stillwater demonstrates that he desires to learn how to parent.

The district court found and the record reflects that appellant refused to comply with the duties imposed by the parent-child relationship because appellant has never actively parented the children or provided any financial support.  There is no evidence in the record that appellant has ever provided M.D. and T.D. with necessary food, clothing, shelter, education, and other parental care or control.  Although the district court did not specifically address appellant’s financial circumstances, the district court’s findings reflect that appellant had sufficient resources to support his chemical dependency.  Finally, appellant’s recent interest in acquiring parenting skills at the Stillwater facility is insufficient to demonstrate compliance with the parent-child relationship, as appellant (a) failed to undergo a parenting assessment or actively work toward completion of his case plan when not incarcerated, and (b) made no effort to address the instability and danger to the children produced by his chemical dependency and propensity for criminal behavior.  See In re Welfare of J.K., 374 N.W.2d 463, 466 (Minn. App. 1985) (holding that a parent’s demonstrated improvement immediately before the termination hearing was insufficient to demonstrate a future ability to parent), review denied (Minn. Nov. 25, 1985). 

Given that appellant had not addressed his chemical dependency or criminal tendencies, completed the rudimentary elements of his case plan, or provided any support to the twins or his other five children, the district court concluded that appellant had refused to comply with the duties imposed by the parent-child relationship and that appellant’s refusal to comply would continue in the foreseeable future.  The district court’s findings addressed the statutory criteria and are supported by substantial evidence.  See In re Child of Simon, 662 N.W.2d 155, 163 (Minn. App. 2003) (holding that substantial record evidence demonstrated an incarcerated parent’s lack of compliance with the duties of the parent-child relationship when the parent failed to satisfy key elements of the case plan, failed to provide any meaningful parenting to the child, and offered no evidence that he possessed the skills and knowledge to parent his child effectively).

Minn. Stat. § 260C.301, subd. 1(b)(2) also requires a finding that reasonable efforts by the social-services agency have failed to correct the conditions that formed the basis of the petition.  “‘Reasonable efforts’ means the exercise of due diligence by the responsible social services agency,” upon removal of the child from the child’s family, “to use appropriate and available services to meet the needs of the child and the child’s family in order to . . . reunite the family.”  Minn. Stat. § 260.012(b) (2004); see also In re Welfare of Children of R.W., 678 N.W.2d 49, 56 (Minn. 2004) (rejecting the conclusion that counties must provide a case plan to parents who have shown minimal interest or involvement with their children).  Whether services constitute “reasonable efforts” depends on the nature of the problem presented, the duration of the county’s involvement, and the quality of the county’s effort.  In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990).  The services “must go beyond mere matters of form so as to include real, genuine assistance.”  Id. 

We conclude that substantial evidence supports the district court’s finding that the department acted reasonably under the circumstances in trying to rehabilitate appellant.  The record reflects that shortly after the children were born the department provided appellant with a case plan that included a parenting assessment, supervised visitation, and UAs to assess whether appellant remained chemically dependent.  Hyland testified that the case plan, although rudimentary, was reasonable because the department could not assess what specific parenting education appellant required without the parenting assessment.  After appellant’s incarceration, Hyland contacted corrections administrators to discuss implementing appellant’s case plan in prison but was told that the facilities lacked necessary services. 

Appellant argues that the department’s efforts were not reasonable because the department made no effort to adjust appellant’s case plan to accommodate his incarceration.  Although the record reflects that the department made no efforts to contact other social-service agencies in order to facilitate a parenting assessment, we cannot say that this failure renders the department’s services unreasonable.  Appellant made no attempt to complete the requisite parenting assessment prior to committing the felony-level offense that resulted in his incarceration.  Thus, the department’s inability to tailor appellant’s case plan to implement services available through corrections was the product of appellant’s choice to commit additional offenses after his children were adjudicated in need of protective services.  

Appellant also argues that, given the rehabilitative programming appellant has undergone at the Stillwater facility, appellant has alleviated the conditions that caused the children’s out-of-home placement.  Appellant’s argument lacks merit.  Hyland testified that appellant has not completed any elements of his case plan and, therefore, would need at least four months of intensive parenting instruction before the department would consider reunification.  Furthermore, appellant’s courses in critical thinking and anger management, as well as appellant’s attempts to develop a support network upon his release, do not address the conditions that formed the basis for the placement, namely appellant’s demonstrated inability to parent, chemical dependency, and criminal activity.  See In re Welfare of J.S., 470 N.W.2d 697, 703 (Minn. App. 1991) (“Failure to cooperate with the rehabilitation plan supports the conclusion that the present conditions will continue for a prolonged, indeterminate period.”), review denied (Minn. July 24, 1991). 

Thus, it appears that the district court’s findings under the statutory criteria are supported by substantial evidence and are not clearly erroneous. 

            B.         Reasonable efforts

Under Minn. Stat. § 260C.301, subd. 1(b)(5), a juvenile court may terminate all rights of a parent to a child if the court 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.”  As noted above, the department put forth reasonable efforts to reunify appellant with his children, and there is substantial evidence in the record supporting the district court’s conclusion that the conditions leading to placement were not remedied and will not be remedied in the foreseeable future. 

Appellant argues that that district court erred in terminating under this section because appellant was not subject to the court’s jurisdiction at the time the case plan was written and prescribed for him.  The record reflects that the department listed appellant, the noncustodial parent, as a participant in the CHIPS adjudication and did not include appellant as a party to the proceedings until the termination petition.  In doing so, the department acted in accordance with Minn. R. Juv. Prot. P. 22.01, which states that an adjudicated, noncustodial parent, not already a party, shall be a participant to a juvenile-protection matter.  Under Minn. R. Juv. Prot. P. 21.01, the department was not obligated to make appellant a party until the petition for termination of parental rights.  Appellant has not demonstrated how the department’s adherence to the rules of juvenile protection renders the department’s efforts unreasonable. 

            C.        Neglected and in foster care

Under Minn. Stat. § 260C.301, subd. 1(b)(8), “[t]he 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.”  To determine 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, or have willfully failed to meet reasonable expectations with regard to visiting the child or providing financial support for the child.”  Minn. Stat. § 260C.007, subd. 24 (2004). 

It is undisputed that the children were in foster care and that appellant’s incarceration makes it impossible for appellant to provide a home for the children.  Furthermore, were appellant not incarcerated, the record reflects that he would need at least four months of extensive parenting instruction before the department could consider reunification.  Appellant argues that the third criterion is not satisfied here, when appellant is anticipating a release date in October 2005, the department failed to make reasonable efforts toward reunification, and a short transition period upon appellant’s release would ensure the children’s return in an ascertainable time. 

The district court’s finding that there is substantial evidence supporting the statutory criterion is not clearly erroneous.  The record reflects that appellant made no efforts toward progressing on his case plan when not incarcerated and made no efforts to visit the children after the initial hold hearing.  Appellant has never successfully completed a chemical-dependency program and refused to submit to UAs.  In addition, appellant committed two felony-level offenses after his children were adjudicated in need of protective services.  Thus, the record reflects that, outside of his programming at Stillwater prison, appellant has failed to adjust his circumstances or conduct in any way that would support reunification with the children.  While appellant suggests that his incarceration has made meaningful change impossible, appellant’s incarceration was the product of his own choice to commit two felony-level offenses after receiving his case plan and is indicative of appellant’s failure to meet reasonable expectations.

Accordingly, the district court’s findings that termination was warranted under the three statutory criteria are supported by substantial evidence.

III

Appellant next challenges the district court’s finding that termination is in the children’s best interests.  In a termination of parental rights proceeding, “the best interests of the child must be the paramount consideration.”  Minn. Stat. § 260C.301, subd. 7 (2004).  The district court, when considering the best interests of the child in a termination case, must balance three factors: “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; and (3) any competing interest of the child.”  In re Welfare of Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (quotation omitted).  “Competing interests include such things as a stable environment, health considerations and the child’s preferences.”  In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).

Appellant argues that termination of parental rights does not serve the best interests of the children on this record.  Specifically, appellant notes that L.S.’s parental rights were terminated by default, and, if the order is affirmed, appellant’s children are likely to grow up feeling abandoned.  Furthermore, appellant argues that his participation in programming at Stillwater demonstrates a change of character.  Finally, appellant suggests that termination is inappropriate here because the district court was driven by the artificial goal of achieving permanency by a specified age, regardless of the damage done in attaining that goal.

The district court made extensive findings in support of its conclusion that termination was in the children’s best interests.  Specifically, the district court found that (a) the children’s welfare would be immediately placed at risk if reunified with appellant upon appellant’s release; (b) appellant would be incarcerated for at least another six months; (c) appellant’s extensive history of felony offenses and repeated probation violations place appellant at a significant risk to reoffend; (d) providing a court-ordered case plan to appellant would not result in reunification in the foreseeable future and would be futile; (e) the children deserve a permanent disposition as well as a predictable and stable life; (f) the children are currently doing well in foster-care placement; and (g) if appellant’s parental rights were terminated, the children would be free to be adopted. 

The district court did not abuse its discretion in concluding that termination was in the children’s best interests.  The district court’s findings reflect that it considered the children’s need for stability, permanency, and an environment free from the negative influence of chemical dependency and criminal activity to outweigh the competing interests in preserving the parent-child relationship.  The record reflects that appellant sincerely desires to parent his children.  But the record supports the district court’s determination that permanency is in the best interests of children who have been in nonrelative foster care for more than a year and need to attach to a permanent caregiver.  See Child of W.L.P., 678 N.W.2d at 711 (affirming district court’s finding that termination is in the child’s best interests when the parent had demonstrated progress on her case plan, but the parent had not maintained sobriety, and the children needed permanency). 

IV

 

            Lastly, appellant argues that the district court abused its discretion in failing to employ its inherent authority as a court of equity to accept a CHIPS admission and order a case plan in lieu of termination.  A district court’s exercise, or failure to exercise, its equitable powers will not be reversed absent an abuse of discretion.  Kronick v. Kronick, 482 N.W.2d 533, 535 (Minn. App. 1992).  Citing In re Child of E.V., 634 N.W.2d 443 (Minn. App. 2001), appellant contends that this court has inherent authority “to order a statutorily prohibited remedy in the best interests of the child.”  Child of E.V., 634 N.W.2d at 449; see also Kimmel v. Kimmel, 392 N.W.2d 904, 908 (Minn. App. 1986) (holding that a district court did not abuse its discretion in an emergency situation by applying its broad equitable powers to modify a child’s custody situation without strictly adhering to the statutory procedure), review denied (Minn. Oct. 29, 1986).

Appellant’s argument fails because the district court need not resort to its inherent equitable authority to order appellant’s proposed disposition.  The disposition appellant requests is authorized by statute.  Minn. Stat. 260C.312(a) (2004) states:

If, after a hearing, the court does not terminate parental rights but determines that the child is in need of protection or services, or that the child is neglected and in foster care, the court may find the child is in need of protection or services or neglected and in foster care and may enter an order in accordance with the provisions of section 260C.201.

 

Under Minn. Stat. § 260C.201, subd. 1 (2004), the district court may either place a child in need of protection in the parent’s home under the supervision of the responsible social-service agency, or transfer legal custody of that child to the responsible social-service agency.  Because appellant’s proposed disposition is not statutorily prohibited, the district court did not abuse its discretion by failing to exercise its equitable power.

            In the alternative, appellant argues that the district court abused its discretion by failing to order a CHIPS adjudication in lieu of termination at the conclusion of the trial, under section 260C.312.  The district court addressed appellant’s request in its termination order but concluded that a CHIPS adjudication was not in the children’s best interests: “Given [appellant’s] history of instability, chemical use, criminal behavior, and the lack of insight or sense of responsibility exhibited at trial, returning the children to his care immediately on release would . . . place them in imminent harm and danger.”  Because there is substantial evidence in the record supporting the district court’s finding that the statutory criteria are met for termination of appellant’s parental rights, the district court’s refusal to order a CHIPS adjudication does not constitute an abuse of discretion.

            Affirmed.