This opinion will be unpublished and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

A05-1847

 

 

In the Matter of the Welfare of the Children of:  G. M. M., Parent

 

 

Filed April 18, 2006

Affirmed

Toussaint, Chief Judge

 

Scott County District Court

File No. F05-08557

 

 

Anne Heimkes Tuttle, Tuttle & Bergeson, 1275 Ramsey Street, Suite 600, Shakopee, MN 55379 (for appellant G.M.M.)

 

Pat Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, JC340 Justice Center, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent Scott County Human Services)

 

Marymartha S. Bettner, Post Office Box 674, Prior Lake, MN 55372 (respondent guardian ad litem)

 

 

            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from the termination of her parental rights, appellant G.M.M. argues that the record lacks clear and convincing evidence supporting findings that (1) she failed to abide by her parental duties; (2) she was a palpably unfit parent; (3) reasonable efforts failed to correct the conditions leading to the children’s placement; and (4) the children are neglected and in foster care.  Appellant also argues that the district court did not adequately address the children’s best interests and that the best-interests findings are not supported by the record.  Because there is clear and convincing evidence in the record to support the district court’s findings, we affirm.

D E C I S I O N

            Appellant is the mother of two children, C.C.R., born August 2, 2000, and C.D.R. born June 6, 2003.  In March 2004, the district court adjudicated the children in need of protection or services after appellant was arrested for a probation violation for failing to keep her probation officer informed of her current address.  Appellant was subsequently released from jail and began to comply with the case plan, which included treatment at Eden House for her methamphetamine addiction.  But shortly after her children were returned to her in July 2004, appellant disappeared from Eden House with the children.  Although the children were returned to foster care four months later, appellant waited until January 2005 to turn herself over to authorities. 

            In April 2005, respondent Scott County Human Services filed a petition to terminate appellant’s parental rights under Minn. Stat. § 260C.301, subd. 1(b) (2004).  The district court granted the petition. 

            This court reviews the district court’s order terminating parental rights to determine whether (1) the district court has identified at least one of the statutory bases for termination, now found at Minn. Stat. § 260C.301, subd. 1(b) (2004); (2) the district court’s findings are supported by substantial evidence; and (3) the district court’s conclusions are not clearly 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. 3(1) (2004).

            The district court here identified five considerations for termination:  (1) neglect of parental duties, Minn. Stat. § 260C.301, subd. 1(b)(2); (2) palpable unfitness to be a party to the parent and child relationship, Minn. Stat. § 260C.301, subd. 1(b)(4); (3) failure of reasonable efforts to correct conditions that led to an out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); (4) the children are neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8); and (5) the best interests of the children, Minn. Stat. § 260C.301, subd. 7 (2004).  The district court need find that only 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 finding that she 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). 

            Appellant argues that the county failed to prove by clear and convincing evidence that she substantially, continuously, or repeatedly refused or neglected to comply with her parental duties under section 260C.301, subd. 1(b)(2).  We disagree.  The district court found, and the record reflects, that appellant neglected to provide the children with necessary medical and dental care.  The record reflects that C.C.R.’s teeth were decaying so badly that she required dental surgery, that C.D.R. was not up to date with his immunizations, and that C.D.R. required treatment for some hearing loss.  Moreover, when appellant was questioned about the children’s lack of medical attention, she revealed that she had not applied for medical assistance for them because she was afraid that the application process would alert her probation agent as to her whereabouts and lead to her arrest on active warrants. 

            The record also reflects that appellant failed to provide the children with a safe environment.  After disappearing from Eden House, appellant and the children moved into the home of her former husband, who had been abusive to appellant in the past.  After Scott County took custody of the children in November 2004, when appellant left them with their paternal grandparents for the weekend, appellant waited two months before finally turning herself over to authorities.  Although appellant later admitted that she regretted her decision to leave Eden House, the record reflects that she used methamphetamine regularly after leaving and that she had failed to abstain from controlled substances for more than a few months at a time.  Clear and convincing evidence shows that appellant substantially, continuously, or repeatedly refused or neglected to comply with her parental duties.

            B.         Palpably unfit

            Appellant also contends that the county failed to prove by clear and convincing evidence that she was palpably unfit to be a party to the parent and child relationship under Minn. Stat. § 260C.301, subd. 1(b)(4).  The statute provides that parental rights may be terminated upon a showing

that a parent is palpably unfit to be a party to the parent and child relationship because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental, or emotional needs of the child.

 

Id.

            Here, the district court found and the record reflects that appellant will be unable to care for the children’s needs in the reasonably foreseeable future.  She has not been employed for more than 12 years, had no job or job prospects at the time of the hearing, and had no adequate plans for housing or transportation.  The record also reflects that appellant has displayed a pattern of substance abuse, poor decision-making, and placing her own needs above the needs of her children.  Moreover, appellant consistently avoids the consequences of her actions, as she demonstrated by her evasion of her probation officer.  Appellant’s constant moving deprived the children of any stability.  Although appellant has made an effort to pursue sobriety, the record reflects that she has not stayed sober for more than a few months.  Consequently, clear and convincing evidence shows that appellant is palpably unfit to be a party to the parent and child relationship.

            C.        Reasonable efforts

            Appellant argues that the county failed to prove by clear and convincing evidence that reasonable efforts failed to correct the conditions leading to the children’s placement under Minn. Stat. § 260C.301, subd. 1(b)(5), providing that, when a child has been placed out of the home, failure to correct the conditions leading to the placement, after reasonable, court-directed efforts, is a basis for termination.  Minn. Stat. § 260C.301, subd. 1(b)(5).  There is a presumption that reasonable efforts to correct the conditions have failed if (1) when the CHIPS petition was filed, a child under the age of eight has resided outside of the home for six months, unless the parent has maintained regular contact with the child and is complying with the out-of-home placement plan; (2) there is a court-approved plan; (3) conditions leading to placement have not been corrected and the parent has not substantially complied with the case plan; and (4) the social-services agency has made a reasonable effort to rehabilitate the parent and reunite the family.  Id.

            When the CHIPS petition was filed in March 2004, both C.C.R. and C.D.R. were under the age of eight and both children have now resided outside of appellant’s home for more than six months.  Although appellant maintained or attempted to maintain regular contact with the children when they were in foster care, the evidence indicates that she failed to comply with the out-of-home placement plan.  While appellant expressed a desire to comply with the case plan when the CHIPS petition was filed, she ultimately failed to complete the case-plan requirements.

            The district court’s conclusion that Scott County made reasonable efforts to rehabilitate appellant and reunite the family is supported by ample evidence.  Scott County provided funding for appellant’s drug treatment and acquiesced to her request for alternative treatment.  The record reflects that the Scott County case manager assigned to the case made reasonable efforts to assist appellant in succeeding with the case plan.  Despite these efforts, appellant disappeared from Eden House with the children and contacted the case manager only once by e-mail to say that the children were fine.  After the children were returned to foster care in November 2004, appellant waited two months to turn herself in, despite repeated contact with the case manager.  Although appellant was unable to receive treatment while she was incarcerated, the lack of treatment cannot be attributed to the failure of Scott County’s efforts to rehabilitate appellant because the system mandated that appellant serve her time before receiving treatment.  We find clear and convincing evidence that reasonable efforts failed to correct the conditions leading to the children’s placement.

            D.        Neglected and in foster care

            Appellant argues further that the county failed to prove by clear and convincing evidence that the children were “neglected and in foster care.”  Minn. Stat. § 260.C301, subd. 1(b)(8).  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 such that the child cannot be returned to them; 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).  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).

            Here, the children have been in foster care since March 2004.  Despite Scott County’s attempts to reunite the family and to enroll appellant in treatment, appellant has failed to abstain from illegal drugs.  The record reflects that appellant has consistently placed her needs above the children’s needs; this is demonstrated by the children’s health concerns.  The record provides clear and convincing evidence that the children were neglected and in foster care. 

            E.         Best interests

            Finally, appellant argues that the best interests of the children should not have been considered by the district court before grounds for termination were proved.  In the alternative, appellant argues that Scott County failed to prove by clear and convincing evidence that it is in the best interests of the children for appellant’s parental rights to be terminated. 

            The Minnesota Supreme Court has long recognized the fundamental rights of parents to enjoy the custody and companionship of their children, maintaining that a parent should not be deprived of these rights “except for grave and weighty reasons.”  In re Welfare of Rosenbloom, 266 N.W.2d 888, 889 (Minn. 1978) (quotation omitted).  But parental rights are not absolute and should not be enforced to the detriment of a child’s welfare and happiness.  In re Welfare of P.T. & A.T., 657 N.W.2d 577, 583 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).  In any proceeding to terminate parental rights “the best interests of the child must be the paramount consideration.”  Minn. Stat. § 260C .301, subd. 7.  Because a child’s best interests are the paramount consideration, the district court may not terminate parental rights unless it is in the child’s best interests, even if other statutory criteria for termination exist.  In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by In re Welfare of J.M., 574 N.W.2d 717, 723 (Minn. 1998).

            Three factors guide this court’s review of the district court’s determination that termination is in the best interests of the children:  “(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 R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992).  Competing interests include emotional and psychological stability, In re Welfare of J.J.B., 390 N.W.2d 274, 279 (Minn. 1986), and the child’s health needs and interest in a stable, safe environment.  In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987). 

            Appellant argues that the district court erroneously considered the best interests of the children before grounds for termination were proved.  We disagree.  In the order terminating appellant’s parental rights, the district court concluded that termination was appropriate under four separate statutory bases.  The district court then concluded that termination was in the children’s best interests.  The children have been in foster care for more than a year.  Although the record indicates that C.C.R. loves her mother and appellant loves her children, the children need a safe, stable, and permanent home.  Foster care has provided the children with such a home.  Evidence shows that the children were relieved to return to their foster home after appellant had disappeared with them from Eden House.  We conclude that the district court properly determined that termination of appellant’s parental rights is in the best interests of her children. 

            Affirmed.