This opinion will be unpublished and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

A06-628

 

 

 

In the Matter of the Welfare of the Children of:

J.M.M. and P.F.

 

Filed September 26, 2006

Affirmed

Shumaker, Judge

 

Blue Earth County District Court

File No. JV-04-1642

 

 

 

 

Philip J. Elbert, Skillings & Associates, 237 Belgrade Avenue, P.O. Box 2064, North Mankato, MN 56002 (for appellant J.M.M.)

 

Ross E. Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent Blue Earth County)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant J.M.M. challenges the district court’s award of physical custody of S.F. to S.F.’s father, P.F.  Because the district court addressed all statutory criteria and its findings are supported by evidence and are not clearly erroneous, we affirm.

FACTS

 

            J.M.M. has two children fathered by P.F.: a son, J.F., and a daughter, S.F.  Custody of J.F. is not at issue in this appeal.  S.F.’s date of birth is October 20, 1998.  J.M.M. and P.F. never married and separated in 2000.  Their relationship ended due to arguments between them and physical abuse.  In 2000, LeSueur County filed a petition asserting that S.F. and J.F. were children in need of protection or services (CHIPS).  As a result of the petition, J.M.M. retained custody of S.F. and P.F. retained custody of J.F.  S.F. was placed in foster care from November 2001 until August 2002, when she was reunited with her mother.  J.M.M. and P.F. shared and continue to share legal custody of S.F.

            After this, J.M.M. met and moved in with M.G., and S.F. lived with them as well.  The relationship between J.M.M. and M.G. was abusive, dysfunctional, and turbulent, although there is no evidence that any abuse was directed toward S.F.  In January 2004, J.M.M. was admitted to a mental-health ward where she was assigned mental-health caseworker Kari Blom.  She also moved to the Theresa House women’s shelter in January 2004.  J.M.M. received mental-health services from Blue Earth County until August 1, 2004.  In May 2004, while J.M.M. was living in another shelter, Blue Earth County filed a CHIPS petition asserting that S.F. was again in need of protection or services.  The petition requested an out-of-home placement for S.F. because she was then living in an injurious condition or environment in which she was without necessary and proper parental care.  The county had received reports about many verbal and physical altercations between J.M.M. and M.G. and had subsequently visited the home and found it to be uninhabitable because of exposed wiring, open floorboards, and piles of garbage, clothing, and dishes.  S.F. was adjudicated CHIPS and was temporarily placed with P.F. in May 2004, where she has remained since.  In June 2004, a case plan was developed that required J.M.M., among other things, to maintain stable housing and not be involved in any more domestic altercations.

J.M.M. moved from the shelter in June 2004 to her own apartment in Nicollet County.  Her application for a Section 8 subsidy to help with rent expenses was denied.  She remained in that apartment until November 2004, when the rent was raised and she could no longer afford it.  During the time that J.M.M. lived in her own apartment, she continued contact with M.G., who obtained an Order for Protection against her because of an escalating conflict between them.  J.M.M. violated this order shortly after it was served, and she was arrested and spent a day in jail.  In October 2004, J.M.M. gave birth to R.G., her first child with M.G.  Because of the rent raise in November 2004, J.M.M. moved in with friends for the month of December 2004. 

In January 2005, J.M.M. moved back with M.G. and stayed there for approximately six weeks.  During this time, she became pregnant with M.G.’s second child.  J.M.M. and M.G. had another domestic-assault-related incident, and she moved in with another friend for “several months.”  The district court ordered that S.F. have no contact with M.G. in February 2005 but then granted J.M.M.’s motion to allow them to have contact in May 2005.  The county helped J.M.M. appeal her Section 8 application denial.  She won the appeal and was able to obtain an apartment in July 2005.  She did not, however, remain at this apartment for more than a few months, as the apartment had lead-based paint, and Section 8 subsidies cannot be used for apartments with lead-based paint.  J.M.M. left that apartment in August 2005 and returned to live with M.G.  J.M.M. was afraid that if she went to another women’s shelter, her daughter R.G. would be taken away.  J.M.M. remained at M.G.’s home for approximately four weeks.  On September 23, 2005, the county filed a permanent-placement petition for S.F.  On September 28, 2005, J.M.M. moved into the Downtowner’s Apartments in Mankato (Blue Earth County).  She remained in this apartment through the date of the trial, November 28, 2005.  The district court granted the petition and transferred sole physical custody of S.F. to her father, P.F., with whom S.F. had been living since May 2004.

D E C I S I O N

 

            Allegations in a permanent-placement petition must be proven by “clear and convincing evidence.”  In re Welfare of A.R.G.-B., 551 N.W.2d 256, 261 (Minn. App. 1996).  The reviewing court determines if the district court’s findings address the statutory criteria and are supported by substantial evidence or are clearly erroneous.  Id. 

            When a court grants custody of a child to a relative, the court must address the suitability of the prospective custodian.  Minn. Stat. § 260C.201, subd. 11(d)(1)(i) (2004).  The statutory criteria to consider are: (1) how the child’s best interests are served by the order; (2) the nature and extent of the responsible social-service agency’s reasonable efforts to reunify the child with parent or parents; (3) the parents’ efforts and abilities to use services to correct the conditions which led to the out-of-home placement; and (4) whether the conditions that led to the out-of home placement have been corrected.  Id., subd. 11(h)(1)-(4) (2004). 

            The court must make findings of fact and address the following statutory requirements in its custody order: (1) the best interests and safety of the child; (2) the appropriateness of alternative dispositions; (3) the appropriateness of the potential new placement; and (4) whether reasonable efforts were made to reunify the family.  Id., subd. 2(a)(1)-(4) (2004).

            The district court addressed all of these criteria and determined that J.M.M. had not met two of the objectives of her case plan: maintaining safe and appropriate housing for herself and S.F. and refraining from incidents of domestic violence.  J.M.M. argues that she did correct the conditions that led to S.F.’s removal from her home as of the time of the trial and that she had satisfied both objectives.

            J.M.M. cites In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996), in support of the contention that the district court must focus on the conditions that exist at the time of the hearing, as opposed to conditions before the trial, and further argues that she complied fully with the case plan from July 2005 through the day of the trial, November 28, 2005.  However, even if the district court were restricted to only considering the conditions at the time of the trial, it did not clearly err in determining that J.M.M. had failed to correct the conditions that led to S.F.’s removal.  The district court recognized that J.M.M. had experienced two to three months of housing stability, but found that this brief period could not overcome her “recorded history of tumult over the past 2-3 years.”  The district court found that two to three months of living in the same apartment did not constitute stable housing.  The district court’s finding is not clearly erroneous.

            J.M.M. also argues that Blue Earth County did not use reasonable efforts to reunite her and S.F.  To determine whether reasonable efforts have been made, a court considers whether the services offered were: (1) relevant to the safety and protection of the child; (2) adequate to meet the needs of the child and the family; (3) culturally appropriate; (4) available and accessible; (5) consistent and timely; and (6) realistic under the circumstances.  Minn. Stat. § 260.012(c) (2004).  J.M.M. argues that the services provided were not adequate and that the only portion of the case plan she struggled with was obtaining long-term housing.  She further states that the county knew she was unable to afford to pay rent on her own and its focus should have been to use all reasonable efforts to acquire a Section 8 subsidy to help her pay rent.  J.M.M. also argues that there is no evidence in the record that the county attempted to help her obtain a Section 8 subsidy prior to July 2005, more than a year after S.F. was removed from her care. 

            This argument, however, ignores the fact that the court was as much concerned with J.M.M.’s continuing relationship with M.G, “her partner in episodes of domestic violence,” with whom she has two children, as it was with J.M.M.’s inability to maintain appropriate housing.  The court noted that “[o]f more recent concern is the fact that, in spite of her case plan requirement to refrain from incidents of domestic violence, [J.M.M.] has persisted in her unpredictable, notably violent, and stressful relationship with [M.G.].”  The court heard testimony that the county had provided extensive services to J.M.M. that could have given her the ability to provide stable housing and that J.M.M.’s relationship with M.G. was a serious concern.  The court concluded that it “highly doubts her capacity to maintain a stable, non-violent environment for [S.F] while [she is] involved in any type of relationship with [M.G.].”

            Thus, even if the county had provided Section 8 assistance earlier, the district court had grave doubts as to whether the assistance would have been adequate or sufficient to avoid placing S.F. with her father.  Therefore, on this record, and given our deference to the district court’s ability to judge the credibility of the witnesses, we cannot say that J.M.M. showed the county’s reunification efforts, and particularly the reunification efforts involving Section 8 housing, were inadequate.  The district court’s finding that Blue Earth County made reasonable efforts to reunite S.F. and J.M.M. is not clearly erroneous.

            The district court addressed the statutory criteria and determined that it is in S.F.’s best interests to remain in the physical custody of her father, P.F.  “[C]urrent law leaves scant if any room for an appellate court to question the [district] court’s balancing of best-interest considerations.”  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  Thus, because the district court did not make any clear errors while balancing the best-interest considerations, its decision is granted deference and is affirmed.

            Affirmed.