This opinion will be unpublished and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

A06-436

A06-654

 

In the Matter of the

Welfare of the Child of:

J.D.C. and J.L.W., Parents.

 

Filed November 14, 2006

Affirmed

Hudson, Judge

 

Isanti County District Court

File No. JV-05-76

 

Sherri D. Hawley, Walling, Berg & Debele, P.A., 121 South Eighth Street, Suite 1100, Minneapolis, Minnesota 55402 (for appellant J.D.C.)

 

Samantha J. Gemberling, Gemberling Law Office, 842 Raymond Avenue, Suite 200, St. Paul, Minnesota 55114; and

 

Elizabeth Maria Hiljus, 1001 East Highway 95, Suite 150, Cambridge, Minnesota 55008 (for appellant J.L.W.)

 

Jeffrey Edblad, Isanti County Attorney, Amy J. Reed-Hall, Assistant County Attorney, 555 – 18th Avenue Southwest, Cambridge, Minnesota 55008 (for respondent State)

 

Mary Pfeiffer, Guardian Ad Litem, P.O. Box 305, Anoka, Minnesota 55303

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

In this consolidated appeal from the district court’s termination of parental rights, appellant-mother argues that (1) the district court’s finding that she is palpably unfit to parent is clearly erroneous; (2) the district court’s finding that Isanti County made reasonable efforts at reunification is clearly erroneous; (3) the district court erred by concluding that Isanti County’s failure to actively pursue relative placement was not fatal to the petition to terminate parental rights; and (4) the district court’s conclusion that termination was in the best interests of the child is erroneous.  Appellant-father argues that (1) the district court’s finding that Isanti County provided reasonable efforts at reunification is erroneous; (2) the district court failed to make sufficient findings of fact regarding the best interests of the child; (3) Isanti County failed to pursue a relative placement for the child; and (4) Isanti County did not satisfy the requirements of the Indian Family Preservation Act and the Indian Child Welfare Act.  We affirm.

FACTS

            A child was born to J.D.C. (father) and J.L.W. (mother) on March 5, 2005.  Isanti County Family Services was contacted shortly after birth because mother tested positive for methamphetamine and the baby showed signs of drug withdrawal.  The Isanti County Sheriff’s Department put a 72-hour hold on the child and after an emergency protective-care hearing on March 9, 2005, the district court granted Isanti County temporary custody of the child.  Both parents eventually admitted the CHIPS petition, acknowledging that their child was in need of protection or services pursuant to Minn. Stat. § 260C.007, subd. 6(3) (2004).[1]  The county developed a case plan for each parent, and review hearings were held regularly to determine the parents’ progress.  Isanti County filed a termination-of-parental-rights (TPR) petition on August 30, 2005. 

On October 4, 2005, each parent entered a denial to the TPR petition.  Mother subsequently failed to attend the hearings on the petition that were scheduled for November 21 and 22, 2005.  At the November 22 hearing, the matter was bifurcated and the hearing proceeded with respect to the parental rights of father.

On January 18, 2006, after a court trial, the district court issued an order terminating father’s parental rights pursuant to Minn. Stat. § 260C.301, subd. 1(b)(4) (2004).  The district court found, among other things, that father had not complied with his case plan, addressed his chemical-dependency issues, regularly visited his child, or complied with drug screening.  The district court also found that father had failed to rebut the presumption of palpable unfitness to parent based on the involuntary termination of parental rights with respect to two of his other children in 2002 and 2003.  On February 1, 2006, father brought a motion for a new trial on the grounds that (1) the evidence was insufficient to establish that termination was in the child’s best interests; (2) Isanti County did not provide sufficient evidence on the child’s potential for contact with his half-siblings; and (3) Isanti County did not establish that termination was the least “onerous” option and in the child’s best interests and that the county should have sought a relative placement.  The district court denied father’s motion on March 1, 2006.

On February 21, 2006, after a court trial, the district court issued an order terminating mother’s parental rights pursuant to Minn. Stat. § 260C.301, subds. 1(b)(2), (4), (5) (2004).  The court found, among other things, that mother did not consistently follow the visitation schedule, did not follow the recommendations of her chemical-dependency assessment and did not comply with the random-urinalysis calendar.  On March 3, 2006, mother made a motion for a new trial alleging that (1) there was insufficient evidence to support the conclusion that termination was in the child’s best interests because Isanti County did not comply with the relative-placement requirements of Minn. Stat. § 260C.212, subd. 5 (2004); (2) Isanti County did not provide sufficient evidence on the child’s potential for contact with his half-siblings; and (3) the county failed to establish that termination was in the best interests of the child as opposed to the “less onerous” option of a relative placement.  The district court denied mother’s motion for a new trial on March 13, 2006.

Both parents appealed the district court’s decision to terminate their parental rights, and on April 19, 2006, the parents’ appeals were consolidated.

D E C I S I O N

I

 

Mother first asserts that the district court’s conclusion that she is, and for the reasonably foreseeable future will continue to be a palpably unfit parent is erroneous because it is not supported by clear and convincing evidence.  On appeal from an order terminating 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).  “Termination of parental rights will be affirmed 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.”  Id.  A district court’s decision to terminate parental rights is given considerable deference 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).  The district court may, upon petition, terminate an individual’s parental rights if it determines that one or more of nine statutory grounds is satisfied.  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).  Therefore, if a single statutory basis for terminating parental rights is affirmable, this court need not address any other statutory basis the court may have found to exist.  Id. at 708 n.3.

Here, the district court concluded that termination of mother’s parental rights was appropriate under section 260C.301, subdivisions 1(b)(2), (b)(4), and (b)(5).  Section 260C.301, subdivision 1(b), provides, in relevant part, that:

The juvenile court may upon petition, terminate all rights of a parent to a child . . . if it finds that one or more of the following conditions exist:

 

. . . .

 

(2) 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;

 

 . . . .

 

(4) that a parent is palpably unfit to be a party to the parent 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. . . . ; 

 

(5) 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). 

A careful examination of the record shows that the district court’s finding that mother is palpably unfit to parent is supported by clear and convincing evidence.  At mother’s TPR trial, several witnesses testified about mother’s failure to comply with her case plan.  The child-protection specialist testified that, despite being told numerous times that complying with her case plan was important, mother did not follow through with all of its requirements.  Mother did not remain law-abiding during the child-protection proceedings and was charged with possession of stolen property and a probation violation; she spent several weeks in jail on a probation violation just prior to the TPR trial.  In addition, the social worker testified that mother did not complete her parenting-skills classes and did not attend individual therapy.  Mother also did not maintain regular contact with her child.  Because the case worker did not know mother’s whereabouts in the weeks leading up to trial, mother’s mental-health status and chemical-dependency status were unknown at the time of trial.  A psychologist testified that mother is cognitively low-functioning and that, although her cognitive ability would not necessarily impair her ability to parent, her prognosis would be “guarded” if she failed to follow through with recommendations.  Further, the county skills worker stated that she had concerns regarding mother’s ability to parent her child, based on a positive drug test, a lack of financial resources, a lack of motivation to find a job, and the fact that the parents were being evicted from their home.  The skills worker also testified that she was concerned that mother would not attend to her child’s medical needs and that mother and child were not bonding appropriately.  Finally, the guardian ad litem expressed concerns about mother’s inability to put the needs of her child above her own.

Based on our review of the record, we conclude that the district court’s finding that mother is palpably unfit to parent is supported by clear and convincing evidence and is not erroneous.

II

Reasonable Efforts at Reunification

A.         Mother

            Mother argues that the district court clearly erred when it found that Isanti County had made reasonable efforts at reunification.  Under Minnesota law, a district court may terminate an individual’s parental rights if it finds that reasonable efforts to correct the conditions which led to the petition to terminate parental rights were made by the social-services agency and that the parent has failed to comply with the duties of the parent-child relationship.  Minn. Stat. § 260C.301, subd. 1(b)(2).  In a termination-of-parental-rights proceeding, a district court must determine whether reasonable efforts were provided regardless of the statutory basis for termination.  In re Welfare of S.Z., 547 N.W.2d 886, 892 (Minn. 1996).  A court must base its determination of reasonableness on

whether services to the child and family were:

 

            (1) relevant to the safety and protection of the child;

            (2) adequate to meet the needs of the child and family;

            (3) culturally appropriate;

            (4) available and accessible;

            (5) consistent and timely; and

            (6) realistic under the circumstances.

 

Minn. Stat. § 260.012(h) (Supp. 2005).  Here, the district court concluded that reasonable efforts had been made but that those efforts had failed to correct the conditions that led to the child’s placement out of the home.  The court found that from May 2005 through the end of August 2005, the county had provided the following services to mother: (1) a referral for a psychological examination; (2) a referral for a chemical-dependency assessment; (3) a referral for a parenting-skills worker; (4) assistance in developing independent living skills; (5) drug-screening calendars; (6) coordination for outpatient treatment at Dellwood Recovery Center; (7) provision of a visitation schedule; (8) random urinalysis testing; (9) transportation for mother and the child to and from visits, including bus tokens; (10) meetings with mother to complete the case plan; and (11) announced and unannounced visits to mother’s home.

Mother’s issues with chemical use and dependency are part of the conditions which led to the termination petition, and the case plan developed for mother clearly addresses those issues.  The district court’s conclusion that Isanti County made reasonable efforts at reunification is supported by clear and convincing evidence, as is its finding that the efforts made were unsuccessful.  We acknowledge that mother faced many difficulties, particularly with regard to transportation and communication, but it is imperative that a parent make some effort to comply with the case plan in order to make any effort at reunification successful.  Here, the record shows that mother failed to comply with her case plan and did not visit her child regularly.  A parent’s failure to make the most of the resources offered by an agency does not render those efforts “unreasonable.”   

            We conclude that the district court did not clearly err by finding that the county made reasonable efforts as required under Minn. Stat. § 260C.301, subd. 1(b)(2), and that those efforts were unsuccessful.

B.         Father

Father argues that the district court’s finding that Isanti County provided reasonable efforts at reunification is clearly erroneous because it is not supported by facts or the law.  However, Minnesota law does not require reasonable efforts at reunification when an individual’s parental rights have been previously terminated.  Minn. Stat. § 260.012(a)(1)(ii) (2004).  The relevant portion of section 260.012 reads:

(a) Once a child alleged to be in need of protection or services is under the court’s jurisdiction, the court shall ensure that reasonable efforts . . . by the social services agency are made to prevent placement or to eliminate the need for removal and to reunite the child with the child’s family at the earliest possible time. . . .  Reasonable efforts for rehabilitation and reunification are not required upon a determination by the court that:

 

(1) A . . . petition has been filed stating a prima facie case that:

 

. . . .

 

(ii) the parental rights of the parent to another child have been terminated involuntarily.

 

Id.  In this case, the district court found that father’s parental rights had been involuntarily terminated on two occasions—the first time on April 30, 2002, and again on November 19, 2003.  Therefore, reasonable efforts at reunification were not required with respect to father.  In re Child of P.T. & A.T., Parents, 657 N.W.2d 577, 584 (Minn. App. 2003).  “Upon a district court’s determination that a person’s parental rights to another child previously have been terminated involuntarily, reasonable efforts for rehabilitation and reunification are not required.”  Id. (citing Minn. Stat. § 260C.001, subd. 3(1) (2002) and Minn. Stat. § 260.012(a)(1)(ii) (2002)). 

Although he cites no caselaw for the proposition, father also argues that because Isanti County did not “introduce any evidence that it filed a petition, prior to the termination of parental rights petition, that stated a prima facie case that [father’s] parental rights had previously been involuntarily terminated,” the county was never actually relieved of its duty to make reasonable efforts.  We find this argument unpersuasive.  In Child of P.T. & A.T., this court acknowledged that when the Minnesota legislature rewrote section 260.001 in 1999, it “eliminate[ed] the ‘reasonable efforts’ requirement under certain circumstances.”  Child of P.T. & A.T., 657 N.W.2d at 584.  “Upon a district court’s determination that a person’s parental rights to another child previously have been terminated involuntarily, reasonable efforts for rehabilitation and reunification are not required.”  Id.  We conclude that reasonable efforts are required except when an individual’s parental rights have previously been involuntarily terminated, not until the district court makes the determination that rights have previously been involuntarily terminated.  

III

Best Interests of the Child

            A.         Mother

            Mother contends that the district court failed to make specific findings to support its conclusion that termination is in the best interests of the child and argues that its conclusion that termination is in the best interests of the child is erroneous.  We disagree.

            When determining the best interests of a child, a district court is required to “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 include . . . a stable environment, health considerations and the child’s preferences.”  Id.  On appeal from an order terminating 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).  In a termination proceeding, “the district court . . . must consider a child’s best interests and explain its rationale in its findings and conclusions.”  In re Termination of the Parental Rights of Amy Tanghe, 672 N.W.2d 623, 626 (Minn. App. 2003). 

            Contrary to mother’s assertion, the district court made several findings regarding the best interests of the child.  While not explicitly labeling them as such, the district court’s findings clearly addressed each of the R.T.B. factors.  With respect to mother’s interest in preserving the parent-child relationship, the district court found that “[t]he parent-child relationship or bonding between [mother] and the minor child is tenuous and minimal.  [Mother] has not been invested in any of services offered to give her the skills to raise the child.”  The district court also found that mother “only had two visits with the minor child during the month of August.”  These findings also address the child’s interests in preserving the parent-child relationship.

The court also made findings regarding the competing interests of the child.  The district court found that mother’s “current chemical use or abstinence is unknown” and that the child has only known one home—the foster home he was placed in immediately after being discharged from the hospital after his birth.  The district court also found that mother’s home

did not have electrical power, nor did it contain any of the items necessary to care for the minor child.  More specifically, the home did not contain baby furniture, baby clothing, diapers or food.  It was also reported that [mother] was evicted from her home and the home was in foreclosure. 

 

These findings address the health and safety of the child as well as the stability of the child’s environment.  While the findings of the district court do not explicitly address the best-interests analysis articulated in R.T.B., it is clear that the court carefully considered those factors before making its decision.  We conclude that the district court’s findings were sufficient to address the best interests of the child.  Because the findings made by the district court are also supported by substantial evidence in the record, they are not clearly erroneous. 

B.         Father

Father likewise argues that the district court failed to make the requisite findings of fact and conclusions of law with respect to the best interests of the child.  In its January 18, 2006 order terminating father’s parental rights, the district court did not specifically address the R.T.B. factors in its findings of fact or conclusions of law.  The district court did make findings, however, relating to the fact that father frequently missed or was late to visitations with the child and failed to comply with the random-urinalysis calendar.  The court also noted that the child has known only one home since birth—that of his foster family.  These findings suggest that the district court considered the stability of the child’s environment and father’s interest in preserving the parent-child relationship, which are “competing interests” in an R.T.B. analysis.  We recognize that the district court’s findings of fact and conclusions of law on this point are scant, but, viewing the record as a whole, the findings are sufficient for us to conclude that the district court properly considered the R.T.B. factors.     

IV

Relative Placement

            A.         Mother

Mother argues that the district court erred when it concluded that Isanti County’s failure to pursue relative placement was irrelevant to whether her parental rights should be terminated.  We disagree.

The district court concluded that the county did not “actively” pursue relative placement.  However, it also made findings that the county conducted a relative search and located relatives of the child who were willing to be a permanent-placement option, but that the county recommended that the child not be placed with those relatives.  Moreover, the parents did not supply the agency with many names of relatives as possible placement options.  The social worker testified that mother gave her names of only two relatives nearly two months into the relative-search process and that she did not provide the social worker with the names of any close family friends as placement options.  It was only through a thorough investigation that the county was able to locate any relatives willing to be a permanent-placement option.  The relatives that were eventually located lived in Ohio and placement with them would not facilitate visitation or reunification efforts. 

Mother does not cite any caselaw that establishes that an agency’s failure to actively pursue relative placement precludes the termination of parental rights.  Also, mother does not challenge the actual placement of the child, only the sufficiency of the relative search.  The relevant statutory language provides that:

In implementing the requirement that the responsible social services agency must consider placement with a relative under subdivision 2 without delay after identifying the need for placement of the child in foster care, the responsible social services agency shall identify relatives of the child and notify them of the need for a foster care home for the child and of the possibility of the need for a permanent out-of-home placement of the child.  The relative search required by this section shall be reasonable and comprehensive in scope and may last up to six months or until a fit and willing relative is identified.

 

Minn. Stat. § 260C.212, subd. 5(a) (2004).  There is a strong preference for placement of a child with a relative if the parents are unable to or unwilling to care for the child.  In re Welfare of M.M., 452 N.W.2d 236, 238 (Minn. 1990).  But the statute only directs consideration of placement with relatives before other placements and does not provide a basis for placement with a relative when such a placement is not otherwise in the best interests of the child.  See Minn. Stat. § 260C.212, subd. 2(a).  Relative placement is part of the termination process, but it does not determine its outcome.  For these reasons, we conclude that the district court did not err by concluding that the county’s failure to “actively” pursue relative placement did not preclude the termination of mother’s parental rights.

            B.         Father

Without suggesting that the district court erred, father also argues that Isanti County failed to pursue a relative placement for the child.  The district court acknowledged this shortcoming in its findings of fact when it stated: “While Isanti County did not actively pursue relative placement, it is not fatal to the Termination of Parental Rights Petition.  There is no connection between relative placement and [father’s] ability to parent.”  We agree.  As previously stated, relative placement is part of the termination process; it does not determine its outcome.

V

Minnesota Indian Family Preservation and Indian Child Welfare Act

            Finally, father argues that Isanti County failed to comply with the Minnesota Indian Family Preservation Act (MIFPA) and the Indian Child Welfare Act (ICWA).  Specifically, he argues that the county failed to properly notify the appropriate tribe and the Bureau of Indian Affairs of the pending termination proceeding and that the county did not make active efforts to provide remedial and rehabilitative services. 

This argument was only obliquely addressed through testimony at trial and the district court did not make any factual findings on this issue, nor did it address this issue in its conclusions of law.  Moreover, father did not address this issue in either his written closing arguments or his motion for a new trial.  Because the district court did not make findings of fact or conclusions of law on this issue, and because father did not bring this issue to the attention of the district court in his motion for a new trial, we decline to address it on the merits.  Frank v. Ill. Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983). 

            However, even if we chose to address this issue on its merits, father did not provide the county with enough information to enable them to determine whether the child is covered under MIFPA or ICWA; and indeed the information the county managed to gather strongly suggests that the child is not, in fact, an Indian child.  Father did not even provide the county with the name of a tribe.  The county’s investigation revealed only that, according to father’s mother, “there is some Native American heritage on a great great great great grandmother who was only partial.”  Father’s mother similarly did not know what tribe her relative might have belonged to and did not know anyone who might know.  Additionally, the Isanti County social worker testified that father’s Native American heritage was examined in his two previous termination cases, and it was determined that neither he nor his children were eligible for enrollment in a tribe. 

            Affirmed.