A07-666

In the Matter of the Welfare of the Children of:

T.R., T.M., P.P. and B.H., Parents.

Filed September 4, 2007

Affirmed

Worke, Judge

Dissenting, Ross, Judge

Anoka County District Court

File No. J4-06-51708

Samantha J. Gemberling, 826 Como Avenue, St. Paul, MN 55103 (for appellant T.M.)

Robert M.A. Johnson, Anoka County Attorney, Kristin Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent Anoka County Social Services)

Joseph Kaminsky, 6300 Shingle Creek Parkway, Suite 260, Brooklyn Center, MN 55430 (for respondent T.R.)

Considered and decided by Kalitowski, Presiding Judge; Worke, Judge; and Ross, Judge.

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

WORKE, Judge

In this termination-of-parental-rights matter, appellant-father argues that (1) the record does not support the finding that he is a palpably unfit parent; (2) the county failed to provide reasonable services to him and to reunify the family; and (3) the record does not support the determination that termination of his parental rights is in the best interests of the child. Because we conclude that there is clear and convincing evidence in the record supporting the finding that appellant is palpably unfit to properly care for his child for the reasonably foreseeable future, that appellant was provided with reasonable rehabilitative services and further reunification efforts would be futile, and that the termination of appellant’s parental rights is in the child’s best interests, we affirm.

D E C I S I O N

In reviewing a decision to terminate parental rights, we “must determine whether the [district] court’s findings address the statutory criteria, whether those findings are supported by substantial evidence, and whether those findings are clearly erroneous.” In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990). This court must “closely inquire[] into the sufficiency of the evidence to determine whether the evidence is clear and convincing.” In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996). When making these determinations, this court exercises great caution, but “need find only one of the statutory grounds exists to terminate parental rights.” Id.at 890. The district court’s findings must be clear and specific to the statutory requirements, “and the evidence must address conditions that exist at the time of the hearing.” Id. at 893. But “[c]onsiderable 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).

Appellant T.M. and respondent T.R. are the parents of 11-year old J.M. T.R. has three other children from different relationships. Appellant has never had custody of J.M. or cared for her for any significant period of time. Respondent Anoka County Social Services became involved with appellant and T.R. in September 2005 when appellant contacted the police to report that T.R. was withholding visitation with J.M. from him. Upon investigating, officers reported that appellant was ranting and nearly incoherent. The following day, officers responded to a 911 call from J.M. regarding a domestic altercation between T.R. and her then-boyfriend. Officers noted that the home smelled of feces, cat feces were all over the floor, dirty dishes and rotten food were in the sink, and the refrigerator and children’s bedrooms were filthy. J.M. reported that she could no longer sleep in her bedroom because it was infested with fleas and flea bites were observed on all of the children.

A CHIPS petition was filed on behalf of T.R.’s children, including J.M. T.R. waived her right to a trial, and the district court concluded that the children were in need of protection or services. Appellant later entered an admission to the CHIPS petition involving J.M. Social services established case plans for appellant and T.R. aimed at reunification. The case plans required appellant and T.R. to submit to psychological evaluations, chemical-dependency assessments, and parenting assessments, as well as submit to random urinanalysis tests (UAs).

In June 2006, the social worker assigned to the case recommended that T.R.’s parental rights to all of her children be terminated. In July, the social worker recommended that appellant’s parental rights also be terminated. Following a trial, the district court found: “[Appellant] has never been in compliance with his court ordered case plan. He has never demonstrated sobriety and based on his refusal to submit to random UAs and refusal to provide UAs on demand, this Court can only conclude that [appellant] is using illicit drugs.” The district court also found that “[s]ocial [s]ervices provided appropriate services to [appellant].” The district court terminated T.R.’s parental rights to all of her children and appellant’s parental rights to J.M. On February 28, 2007, the district court denied the motions for a new trial and amended several findings pertaining to appellant and added a new finding. The amendments provide more detail regarding appellant’s UA results as well as his failure to provide random UAs. The amendments also include information regarding appellant’s psychological evaluation, which documented appellant’s difficulty in orally expressing himself, as well as a finding that termination of appellant’s parental rights is in J.M.’s best interests.

Palpably Unfit

The district court may terminate parental rights if the 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) (2006). A parent’s inability to address a child’s physical, mental, and emotional needs now and in the reasonably foreseeable future justifies termination. In re P.T., 657 N.W.2d 577, 591 (Minn. App. 2003), review denied (Minn. Apr. 15, 2003). In order to terminate parental rights for palpable unfitness, the district court must find that reasonable efforts have been made to prevent placement and to reunify the parent and the child. Minn. Stat. § 260C.301, subd. 8 (2006).

Appellant argues that the district court did not find a consistent pattern of conduct showing his palpable unfitness to parent for the indefinite future. A review of the record, however, shows that the district court made sufficient findings regarding appellant’s unfitness as a parent and the duration of the unfitness need only extend into the reasonably foreseeable future. Id., subd. 1(b)(4).

The district court’s finding that appellant failed to comply with his case plan is supported by clear and convincing evidence. In November 2005, appellant submitted his first random UA, which was positive for THC. Appellant’s supervised visits with J.M. were suspended at that time until he was compliant. No further random UAs were submitted. In March 2006, appellant was ordered by the court to submit to a random UA immediately following a hearing, but he failed to do so. Social services then scheduled appellant’s random UAs at a facility near his home to alleviate appellant’s alleged transportation and convenience complaints. On April 10, 2006, appellant stopped by the new testing facility but did not leave a sample after being informed that it would cost $32. The next day, social services informed the facility that they would pay for the testing. On April 21, 2006, appellant submitted to a Breathalyzer test, which showed an alcohol-concentration level of .031. Appellant failed to submit to random UAs on April 25 and May 5. Appellant informed social services that he was not going to provide any further UAs at the testing facility because there was no privacy when giving the sample. On May 17, the Hennepin County Medical Center provided social services with a UA result for appellant indicating a positive ethanol result, but with a low creatinine level, which suggested that appellant possibly diluted his urine to mask his alcohol-concentration level. On May 25, appellant advised social services that he was now willing to submit to random UAs; however, with the exception of a UA following court on June 1, appellant did not provide any further UAs. The UA appellant provided on June 1, while negative, still showed elevated levels of THC, indicating recent marijuana use. Appellant’s failure to cooperate with the court-ordered random UAs and his denial of any recent use despite several positive UAs and a UA with a slightly elevated level of THC support the district court’s finding that appellant failed to demonstrate his sobriety as set forth in his court-ordered case plan for reunification.

Appellant also argues that his chemical-dependency assessment did not indicate that he was chemically dependent. But appellant fails to address the fact that the results of two chemical-dependency assessments—in January 2006 and November 2006—were deemed invalid due to his dishonesty regarding his chemical use and his failure to offer collateral sources to verify his self-reported chemical use. As a result of appellant’s failure to demonstrate his sobriety, his parenting assessment was never completed. Further, while appellant’s psychological evaluation shows that he has low verbal skills, it also states that appellant’s parenting skills needed to be evaluated and his substance use monitored on an ongoing basis. The district court also found that despite being present and hearing the “disturbing testimony regarding [J.M.’s] exposure to pornography, sex, violence, and deplorable living conditions while in her mother’s case,” appellant continued to believe that J.M. should be returned to her mother. There is substantial evidence regarding appellant’s failure to comply with his case plan and the significant possibility of his continuing use of illicit drugs to support the finding that appellant is palpably unfit to properly care for J.M. for the reasonably foreseeable future.

Reasonable Efforts

Appellant also argues that the district court failed to address the fact that the services provided to him were patently insufficient under the definition of “reasonable efforts.”

In any proceeding under this section, the court shall make specific findings:

(1) that reasonable efforts to prevent the placement and to reunify the child and the parent were made including individualized and explicit findings regarding the nature and extent of efforts made by the social services agency to rehabilitate the parent and reunite the family; or

(2) that reasonable efforts at reunification are not required as provided under section 260.012.

Minn. Stat. § 260C.301, subd. 8. Under Minn. Stat. § 260.012, subd. (a)(5) (2006), reasonable efforts are unnecessary if “the provision of services or further services for the purpose of reunification is futile and therefore unreasonable under the circumstances.”

The district court found that “[s]ocial [s]ervices provided appropriate services to [appellant].” This finding is supported by the testimony of the social worker regarding her extensive contact with appellant and assistance in his court-ordered UAs. While appellant claims that the services were inadequate, a review of the record shows that despite extensive assistance from social services, appellant chose not to comply with the court-ordered UAs. Appellant continually came up with excuses as to why he could not provide random UAs. First, it was transportation issues and he wanted to provide samples at a location closer to his home. After social services arranged for appellant to provide samples at a facility near his home, he complained about the cost of the testing. After social services informed appellant that they would cover the testing costs, he complained that he was not given any privacy at the new facility. While the district court did not make a specific finding regarding futility, the record supports the conclusion that reasonable services were provided to appellant and the provision of any further services would have been futile.

Best Interests of the Child

Appellant also argues that the record lacks clear and convincing evidence to support the finding that termination of his parental rights is in the child’s best interests. A child’s best interests alone are not a sufficient basis to terminate parental rights. In re Welfare of the Children of R.W., 678 N.W.2d 49, 54-55 (Minn. 2004). When evaluating whether it is in a child’s best interests to terminate parental rights, the district court is to balance “(1) the child’s interest in preserving the parent-child relationship; (2) the parent’s interest in preserving the parent-child relationship; (3) and any competing interest of the child[,]” including “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). A natural parent is presumptively fit to care for his child, and courts presume that it is in a child’s best interests to remain in a parent’s care. In re Welfare of Clausen, 289 N.W.2d 153, 156 (Minn. 1980). The record, as discussed above, shows that appellant is unable to provide for J.M.’s needs for the reasonably foreseeable future, despite the county’s reasonable efforts. Therefore, the requisite permanency of appellant’s inability to adequately care for J.M. was established. See In re Welfare of S.Z., 547 N.W.2d at 893 (“the best interests of a child are not served by delay that precludes the establishment of parental bonds with the child . . . within the foreseeable future”). Furthermore, under the circumstances of this record, it is clear that J.M.’s interest in living with appellant or her mother and siblings does not outweigh her interest in living in a home that can adequately provide for her needs.

Affirmed.

ROSS, Judge (dissent)

I respectfully dissent from the majority’s essential holding that testing positive for the use of marijuana and alcohol renders a person palpably unfit to parent even when the use has not been found to have any effect on the parent-child relationship. This conduct falls well below the statutory authority to terminate parental rights. And even assuming that chemical use can be the sole basis for termination, the state’s duty to make reasonable efforts to rehabilitate the offending parent cannot possibly be satisfied merely by requiring chemical-use testing.

The trial evidence indicates that T.M. was a non-custodial parent who did not have legal or physical custody of his child while the child lived with her mother in the unsanitary conditions that led the state to determine the child to be in need of protection or services. T.M. was therefore not responsible for the child’s deplorable living conditions or for the domestic turmoil between the child’s mother and her boyfriends. But T.M. admitted that the child was in need of protection or services, and he was placed on a case plan. At the time, T.M. had no full-time employment and he lived with a friend.

It can hardly be suggested that T.M. was dismissive toward his case plan. T.M.’s case plan required him to secure a full-time job. He did, as a welder, and he also secured an additional job, part time, in food service. His case plan required him to obtain housing suitable for himself and the child. He did, moving from his friend’s home and leasing a five-bedroom, three-bathroom house. His case plan required him to undergo a psychological assessment. He did. His case plan required him to undergo a chemical-dependency assessment. He did. His case plan required him to abstain from alcohol and drugs. He did not. His case plan required him to undergo a parenting assessment. The record indicates that T.M. was willing to undergo this assessment, but the social worker decided not to follow through since, in the county’s view, T.M.’s failure to abstain from alcohol and drugs somehow disqualified him. In fact, neither the testifying social worker nor the guardian ad litem ever visited T.M.’s new home. Despite the state’s apparent concern that T.M. uses marijuana and drinks alcohol, it neither modified his case plan to require dependency treatment nor offered him this treatment.

The state focuses on the fact that T.M. uses marijuana and drinks alcohol. It is clear that he is no model parent. But “[t]here is perhaps no more grave matter that comes before the court than the termination of a parent’s relationship with a child.” In re Welfare of A.D., 535 N.W.2d 643, 647 (Minn. 1995). And “few children would be reared by natural parents if model parents were the standard.” In re Welfare of M.D.O., 462 N.W.2d 370, 379 (Minn. 1990). What is necessary for the state to prevail in its effort to terminate T.M.’s parental rights is something much more than a demonstration that he occasionally smokes marijuana or drinks alcohol or that he has not met one of the conditions of a case plan. What is necessary is clear and convincing evidence that T.M.’s acts or omissions satisfy the statutory standard for a finding of palpable unfitness to parent. The state does not make that case on this record.

The district court made no finding of a relationship between T.M.’s chemical use and his parenting, and the record lacks any evidence that would support the finding. Specifically, there is no evidence that T.M. engaged in “a consistent pattern of specific conduct before the child” or that he created detrimental “specific conditions directly relating to the parent and child relationship,” let alone evidence that this pattern or condition clearly shows that he is unable to meet his 11-year-old child’s needs. Minn. Stat. § 260C.301, subd. 1(b)(4) (2004) (emphasis added). Putting T.M.’s offending conduct in perspective, a Minnesota employer may not rely on an employee’s off-duty alcohol consumption as a basis to discipline the employee. Minn. Stat. § 181.938, subd. 2 (2006). And possessing a small amount of marijuana is a petty misdemeanor, Minn. Stat. § 152.027, subd. 4 (2006), which, though illegal, is not a crime. Minn. Stat. § 609.02, subd. 4 (2006). Much more important to this case, the record contains no evidence that T.M. engaged in any misconduct influenced by alcohol or drugs, including any criminal behavior or conduct harmful to the child. The offending conduct did not occur “before the child” and it does not “directly relate to the parent and child relationship.” It therefore cannot, under the express language of the statute, lead to a finding of palpable unfitness. This case offers facts materially distinct from those we faced in In re Welfare of E.L.H., 356 N.W.2d 795, 797 (Minn. App. 1984), where we relied on the operative nexus between conduct and parenting, stating that “[a]lcoholism which interferes with a parent’s long-term ability to provide a stable home or to care for a child may justify termination.” In that case termination was justified because the father’s drinking was directly related to his failure to provide housing for his child. Id. at 796. Not so here.

Like our reasoning in E.L.H., our reasoning in a case in favor of a father in a custody dispute with his child’s grandparents also remains sound despite the intervening change in the statutory child-protection scheme:

There was no finding or evidence to support a finding that [father’s] drinking, whether diagnosed as alcoholism or not, affects his ability to care for the children. The undisputed evidence was that [father] assumed an active role in caring for the children during the marriage and consistently exercised visitation after the divorce. Both the home study and psychological evaluation noted a good parent-child relationship. Appellant owns his own home and has stable employment.

In re Welfare of P.L.C., 384 N.W.2d 222, 226 (Minn. App. 1986). Here, T.M. paid child support, visited the child, sought more frequent visitation, and visited with officials at the child’s school. One of those officials, the principal, testified that T.M. appeared to be concerned about the child’s needs and willing to act on her behalf. The child indicated that she loves T.M. and the district court noted that she wants to live with him. And, despite his use of marijuana and alcohol, T.M. obtained both a full-time job and a part-time job and leased a house. I would hold that T.M.’s noncriminal chemical use, which was not found to have any direct relationship to his parenting, cannot alone justify terminating his parental rights.

Assuming, as the social worker must have, that T.M.’s test refusals or failed urinalyses established that he is a palpably unfit parent, termination is still inappropriate because merely testing for use cannot constitute “reasonable efforts” to “rehabilitate the parent and reunite the family.” See Minn. Stat. § 260C.301, subd. 8 (2006) (conditioning district court’s order to terminate parental rights on finding that social-services agency made reasonable efforts to rehabilitate the parent and reunite parent and child). At a minimum, the state’s concern that chemical use constitutes parental unfitness triggers its duty to require or at least offer services, such as a treatment program, designed to end the use. All that testing does, of course, is to indicate use, not end it. The majority suggests that offering any services in addition to testing would have been futile. Although the majority might be correct that the record would support such a finding, the district court made no finding of futility and this record certainly would not compel the finding as a matter of law.

T.M.’s chemical use was clearly illegal, at least as it regards marijuana, and I do not suggest otherwise or that any parent should offend the law. But as it regards the issues in this case, nothing in the district court’s findings or in the record indicates that T.M.’s chemical use had any impact on his conduct as a parent or on his relationship with his daughter. It has not prevented him from obtaining full-time employment or suitable housing for her. It seems to me that, based on the language of the termination statute, drinking alcohol, which would not cost T.M. even his job, or smoking marijuana, which would not cost T.M. even a day in jail, cannot alone cost T.M. his legal and physical relationship with his daughter. I think the state has overreached. “Parental rights are terminated only for grave and weighty reasons.” M.D.O., 462 N.W.2d at 375. The reasons given for termination here are neither grave nor weighty, and they do not satisfy the nexus requirement in the statute. But if the state may insist on T.M.’s chemical abstinence as a reunification condition, merely testing for the failure of that condition cannot satisfy the state’s duty to provide reasonable efforts to help T.M. to meet it. I would reverse.