In the Matter of the Welfare of the Child of: L. J. R., Parent. A06-143, Court of Appeals Unpublished, August 1, 2006.

This opinion will be unpublished and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

A06-143

In the Matter of the Welfare of the Child of: L. J. R., Parent.

Filed August 1, 2006

Affirmed

Kalitowski, Judge

Blue Earth County District Court

File No. 07-JX-03-050057

Kenneth R. White, Law Office of Kenneth R. White, P.C., 325 South Broad Street, Suite 203, Mankato, MN 56001 (for appellant L.J.R.)

Ross E. Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Blue Earth County)

John C. Peterson, Maschka, Riedy & Ries, Union Square Business Center, 201 North Broad Street, Suite 200, P.O. Box 7, Mankato, MN 56002 (for respondent J.R.M.)

Jane Schostag, Fifth Judicial District Guardian Ad Litem Program, Nicollet County Government Center, 501 South Minnesota Avenue, St. Peter, MN 56001 (guardian ad litem)

Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant L.J.R. challenges the district court’s termination of her parental rights to her son, J.R., arguing that the record does not support the district court’s determination that (1) the county made reasonable effort at reunification and rehabilitation; (2) appellant has substantially, continually, and repeatedly refused to comply with her parental duties; (3) appellant is palpably unfit to parent; (4) the child is neglected and in foster care; and (5) termination of appellant’s parental rights is in the child’s best interests. We affirm.

D E C I S I O N

When reviewing a district court’s decision to terminate 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) (citation omitted). “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.” In re Welfare of L.A.F., 554 N.W.2d 393, 396 (Minn. 1996). But while appellate courts defer to the district court’s findings, appellate courts exercise great caution in proceedings to terminate parental rights. In re Welfare of W.L.P., 678 N.W.2d 703, 709 (Minn. App. 2004). This court closely 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).

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). Proof of one criterion is sufficient, but the primary consideration in any termination proceeding is the best interests of the child. Minn. Stat. § 260C.301, subd. 7 (2004).

Here, the district court concluded that termination of appellant’s parental rights to J.R. was necessary because (1) reasonable efforts have failed to correct the conditions leading to J.R.’s out-of-home placement, Minn. Stat. § 260C.301, subd. 1(b)(5); (2) appellant has substantially, continuously, or repeatedly refused or neglected to comply with the duties imposed on her by the parent and child relationship, Minn. Stat. § 260C.301, subd. 1(b)(2); (3) appellant is palpably unfit to parent, Minn. Stat. § 260C.301, subd. 1(b)(4); (4) J.R. is neglected and in foster care, Minn. Stat. § 260C.301, subd. 1(b)(8); and (5) termination of appellant’s parental rights is in J.R.’s best interests, Minn. Stat. § 260C.301, subd. 7. Appellant argues that the record does not support these determinations by clear and convincing evidence. We disagree.

1. Reasonable efforts have failed

A district court may terminate parental rights if it determines 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). Reasonable efforts have presumptively failed upon a showing that: (1) the child resided out of the parental home under court order for 12 months within the preceding 22 months; (2) the court approved the out-of-home placement plan; (3) conditions leading to out-of-home placement have not been corrected; and (4) the social services agency has made reasonable efforts to rehabilitate the parent and reunite the family. Id.

Whether a county’s 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 S.Z., 547 N.W.2d 886, 892 (Minn. 1996); In re Welfare of H.K., 455 N.W.2d 529, 532 (Minn. App. 1990), review denied (Minn. July 6, 1990). “The county’s efforts must assist in alleviating the conditions that gave rise to the dependency adjudication.” H.K., 455 N.W.2d at 532.

Here, appellant argues that the record does not contain clear and convincing evidence to establish that reasonable efforts have failed to correct the conditions leading to J.R.’s placement. We disagree.

J.R. has been in continuous foster care since September 30, 2004. Thus, he has lived out of appellant’s home for at least 12 of the preceding 22 months. Minn. Stat. § 260C.301, subd. 1(b)(5)(i). In addition, the district court approved the out-of-home placement plan for J.R. and ordered appellant to follow the case plan. Minn. Stat. § 260C.301, subd. 1(b)(5)(ii). And the conditions leading to out-of-home placement have not been corrected. Minn. Stat. § 260C.301, subd. 1(b)(5)(iii).

The out-of-home placement plan provides that appellant complete a chemical dependency assessment, follow all assessment recommendations, and participate in random drug urinalysis testing. But appellant has continued to test positive for illegal drugs, submit diluted urine samples, and miss urinalysis appointments. In addition, appellant’s psychiatrist recommended that appellant participate in inpatient chemical treatment. But the record does not show that appellant has followed her psychiatrist’s recommendation. Moreover, the record provides ample evidence that appellant has not cooperated with Blue Earth County (the county) in its treatment of J.R. Although appellant has maintained contact with J.R. during his various out-of-home placements, appellant was often oppositional and belligerent toward J.R.’s caretakers.

Appellant contends that appellant’s drug use and failure to comply with therapy requirements do not support the court’s decision to terminate appellant’s parental rights. But the record shows ample evidence that appellant’s behaviors directly affected J.R. One of J.R.’s therapists observed that J.R.’s progress and stability was directly related to appellant’s progress and stability. When “[appellant] was using chemicals and emotionally unstable, then [J.R’s] behavior was out of control.” In addition, J.R.’s guardian ad litem and county social worker both notified the court that they were concerned with appellant’s ability to parent J.R. in the long term given appellant’s unwillingness to remain chemically free and follow recommendations from professionals. And at trial, several witnesses testified that their main concern with returning J.R. to appellant was whether she would provide J.R. with consistent care.

Finally, the record shows with clear and convincing evidence that the county has made reasonable efforts to rehabilitate appellant and reunite the family. Minn. Stat. § 260C.301, subd. 1(b)(5)(iv). The county has directed both J.R. and appellant to participate in medical treatment and counseling for their mental and physical needs. The county has also encouraged appellant to visit J.R. and participate in J.R.’s educational meetings, residential treatment staff meetings, and family therapy. And in 2004, the county and district court attempted to permanently place J.R. with appellant. But appellant continued to use drugs, and J.R.’s behaviors escalated.

Appellant argues that the county did not make reasonable efforts to reunify J.R. and his family because the out-of-home placement plan did not address that the family’s circumstances have substantially changed over the past two years. Appellant suggests that J.R.’s problems began with poor attendance at school and have escalated to mental health issues. The record, however, shows that the county has addressed J.R.’s and appellant’s mental health issues. Thus, we conclude that the record clearly and convincingly establishes that reasonable efforts have failed to correct the conditions leading to J.R.’s placement.

2. Refused or neglect parental duties

A district court may terminate parental rights if it determines

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, including but not limited to 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, 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.

Minn. Stat. § 260C.301, subd. 1(b)(2). The district court should not base its decision solely on a parent’s mental illness, but it may consider the effect of such illness on the parent’s ability to care for and nurture the child. In re Welfare of M.M.D., 410 N.W.2d 72, 75 (Minn. App. 1987); see also In re Welfare of K.M.T., 390 N.W.2d 371, 373-74 (Minn. App. 1986) (noting that “clear and convincing proof that a mental handicap is directly related to deficient parenting and permanently detrimental to the physical or mental health of the child” is sufficient to support the termination of parental rights (quotation omitted)). This court has found a failure to comply with parental duties when a parent’s circumstances “repeatedly have proved detrimental to the physical, mental, and emotional welfare of the children.” In re Welfare of A.J.C., 556 N.W.2d 616, 622 (Minn. App. 1996), review denied (Minn. Mar. 18, 1997).

Here, appellant argues that the record lacks convincing evidence that appellant currently refuses or neglects her parental duties. We disagree. The record shows that appellant has refused or neglected her duties since 2002 and continued to do so at the time of trial.

In the fall of 2002, appellant would not allow school officials to evaluate J.R for an individual education plan so that J.R. could begin a special education program. And in 2003, appellant disrupted the care that J.R. was receiving from his foster parents. Appellant would not let J.R. use the attention deficit hyperactivity disorder medicine that his doctor prescribed him. In addition, the record indicates that appellant told J.R. that she did not like him to be in foster care, causing J.R. to become more disrespectful and oppositional toward his foster parents after appellant’s visits.

In the fall of 2003, J.R. stayed in the McLeod Treatment Center Shelter, and a volunteer transportation service (VINE) provided appellant with transportation to visit J.R. But VINE refused to transport appellant once appellant became belligerent toward the driver.

Finally, appellant’s behavior toward the professionals involved in J.R.’s treatment has disrupted J.R.’s care in his current residence. On October 25, 2004, J.R. moved to Northwood’s Children Services (Northwood). While J.R. has been there, appellant has been “[g]enerally oppositional” toward the Northwood staff and has not consistently participated in the staff meetings or other discussions regarding J.R.’s care. In addition, the Northwood staff has monitored appellant’s phone calls to J.R. because they have been concerned with the propriety of the conversations. Thus, appellant continues to neglect her duties to provide the care necessary for J.R.’s physical, mental, and emotional health and development. Therefore, we conclude that clear and convincing evidence supports the district court’s determination that appellant substantially neglected her parental duties.

3. Palpably unfit

A district court may terminate parental rights if it determines

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.

Minn. Stat. § 260C.301, subd. 1(b)(4). Thus, a parent’s current and future inability to provide for her child’s physical, mental, and emotional needs supports a finding that she is palpably unfit to parent her child. In re P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003).

Here, appellant argues that the record does not show by clear and convincing evidence that appellant is palpably unfit to parent J.R. Appellant contends that the district court erred by failing to address the family’s current conditions and appellant’s potential to deal with her mental health issues. But the record shows that the court relied on appellant’s actions from 2002 until the time of trial when it assessed appellant’s ability to parent in the reasonably foreseeable future.

As discussed above, appellant has been consistently hostile and negative toward J.R.’s treatment providers. During J.R.’s latest placement at Northwood, appellant has been oppositional toward the staff. In addition, she has had inconsistent contact with J.R., has not participated in staff meetings regarding J.R., and has not consistently communicated with the staff regarding J.R.’s progress and treatment. Appellant also has a chemical dependency problem that she refuses to acknowledge and treat. Several of J.R.’s treatment providers have expressed concern with appellant’s ability to parent in the long term while using drugs. And J.R.’s therapist at Prism House observed that J.R.’s behavior was out of control whenever appellant was using chemicals and was emotionally unstable. Appellant argues that her mental condition has recently improved, but she fails to show that she has begun to address her chemical dependency problems. Given appellant’s chemical dependency issues and her inconsistent involvement in J.R.’s treatment, we conclude that clear and convincing evidence supports the district court’s determination that appellant is palpably unfit to parent J.R.

4. Neglected and in foster care

A district court may terminate parental rights if clear and convincing evidence shows that the child is neglected and in foster care. Minn. Stat. § 260C.301, subd. 1(b)(8). “Neglected and in foster care” refers to a child

(a) Who has been placed in foster care by court order; and

(b) Whose parents’ circumstances, condition, or conduct are such that the child cannot be returned to them; and

(c) Whose parents, despite the availability of needed rehabilitative services, 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).

Appellant argues that the record does not support the district court’s determination that J.R. is neglected and in foster care. Appellant contends that “the length of time [J.R.] has been in foster care is related not [to appellant’s] conduct, but instead to the extensive treatment needs of her son.” We disagree.

J.R. has been in continuous foster care since September 2004 and was also in foster care from February 2003 to August 2004. At trial, one of J.R.’s therapists testified that appellant could provide for her son if she were clean, sober, stable, going to therapy, and making use of community resources. But the record shows that appellant has not addressed her chemical dependency issues. Furthermore, appellant has not regularly participated in J.R.’s treatment in his current placement. Thus, the record clearly and convincingly establishes that appellant’s circumstances are such that J.R. cannot be returned to appellant and that appellant has not made reasonable efforts to adjust her own circumstances to parent J.R. We therefore conclude that the district court did not err in determining that J.R. is neglected and in foster care.

5. Best interests of child

In any proceeding to terminate parental rights, “the best interests of the child must be the paramount consideration.” Minn. Stat. § 260C.301, subd. 7. Thus, the district court may not terminate parental rights unless it is in the child’s best interests, even if other statutory criteria are present. In re Welfare of M.P., 542 N.W.2d 71, 74-75 (Minn. App. 1996), overruled in part on other grounds by J.M., 574 N.W.2d at 723. “In analyzing the best interests of the child, the court 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 R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992). Competing interests may include stability and the child’s express wishes. In re Welfare of M.G., 407 N.W.2d 118, 121 (Minn. App. 1987).

Here, appellant argues that termination of parental rights is not in J.R.’s best interests because J.R.’s condition “was only recently discovered” and he needs more time at Northwood. But a longer stay at Northwood only addresses J.R.’s mental health issues; it does not resolve appellant’s inability to address her own health issues and how they affect J.R. Appellant has not yet dealt with her chemical dependency issues and she continues to be oppositional toward her son’s caretakers. Furthermore, one of the Northwood counselors has expressed concerns that appellant will be unable to consistently set expectations and rules and follow through with them. Finally, J.R. has expressed a willingness to be discharged to his aunts and uncles, but has not suggested returning to his mother. On this record, we conclude that clear and convincing evidence supports the district court’s determination that termination of appellant’s parental rights is in J.R.’s best interests.

Because clear and convincing evidence supports the termination of appellant’s rights to J.R. under Minn. Stat. § 260C.301, subd. 1(b)(2), (4), (5), and (8), and because termination of parental rights is in J.R.’s best interests, we conclude that the district court did not err in terminating appellant’s parental rights.

Affirmed.